United States
           Environmental Protection
           Agency
             Office of
             Solid Waste and
             Emergency Response
  &EPA
DIRECTIVE NUMBER:   9837.1

TITLE:   Preparation of hazardous Waste Referrals



APPROVAL DATE:   7/30/85

EFFECTIVE DATE:   7/30/85

ORIGINATING OFFICE:  OECM

B FINAL

D DRAFT

  LEVEL OF DRAFT

   DA — Signed by AA or OAA
   Q B — Signed by Office Director
   DC — Review & Comment

REFERENCE (other documents):
S WER      OS \NER       OS WER
  DIRECTIVE    DIRECTIVE    Dl

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           United States
           Environmental Protection
           Agency
             Office of
             Solid Waste and
             Emergency Response
  &EPA
DIRECTIVE NUMBER:   9837.1

TITLE:   Preparation of hazardous Waste Referrals



APPROVAL DATE:   7/30/85

EFFECTIVE DATE:   7/30/85

ORIGINATING OFFICE:  OECM

B FINAL

D DRAFT

  LEVEL OF DRAFT

   DA — Signed by AA or OAA
   Q B — Signed by Office Director
   DC — Review & Comment

REFERENCE (other documents):
S WER      OS \NER       OS WER
  DIRECTIVE    DIRECTIVE    Dl

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          United States Environmental Protection Agency
                 Washington. DC 20460

OSWER Directive initiation Request
                                                                   1. Directive Number

                                                                      9837.1
                                   2. Originator Information
       Name of Contact Person
         Fred Stiehl
                  Mail Code
                   LE 134
Office
  OECM
       3. Title
             Preparation of Hazardous Waste Referrals
       4 Summary of Directive (include brief statement of purpose)                                ,     ,
               I Experience with the implementation of the Case Management  Handbook has in-

         dicated that filing by the DOJ has been delayed in some cases by  the following

         problems with the referral packages:
       5. Keywords                                                              _        .
          Demand letters, Settelment Negotiations,  Endangerment Assessment, Cost Documentati
       Sa. Does This Directive Supersede Previous Directive(s)?
       b. Does It Supplement Previous Directive(s)?
                                             No
                                             No
                                   Yes   What directive (number, title)
                                   Yes   What directive (number, title)
        Draft Level

           A - Signed by AA/DAA
             8 - Signed by Office Director
      C - For Review & Comment
D - In Developrm
8. Document to be distributed to States by Headquarters?


Yes
X

No
This Request Meets OSWER Directives System Format Standards.
9. Signature of Lead Office Directives Coordinator
10. Name and Title of Approving Official
Date
Date
      EPA Form 1315-17 (Rev. 5-87) Previous editions are obsolete.
   OSWER           OSWER               OSWER               (
VE    DIRECTIVE         DIRECTIVE        DIRECTIVE

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       Attachment XVIII

Preparation of Hazardous Waste
          Referrals

           7/30/85

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  1       UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
  /                     WASHINGTON, D.C. 20460
                         JUL 3 0 1985
                                                      OFFICE OF ENFOHCEMENT
                                                        AND COMPLIANCE
                                                         MONITORING
MEMORANDUM

SUBJECT:  Preparation of Hazardous Waste Referral)

FROM:     Frederick F. Stiehl ^
          Associate Enforcement Counsel for Waste

TO:       Regional Counsels, Regions I-X


     On August 8, 1984, the RCRA/CERCLA Case Management Handbook
was provided to the EPA Regional Offices to assist you and your
staff in the preparation of judicial referrals under RCRA and
CERCLA authorities.   The purpose of this guidance was to
describe the process of assembling a case and to clearly identify
the requirements for all hazardous waste referral packages.  EPA
must assure that cases referred to the Department of Justice are
complete and can be filed within 60 days of referral.

     Experience with the implementation of the Case Management
Handbook has indicated that filing by the Department of Justice
has been delayed in some cases by the following problems with
the referral packages:

     *  Demand Letters.  For cost recovery cases, the Region
        should send Demand Letters and allow .the response time
        to run before referral.  Where prospective defendants
        are willing to settle, the settlement can be worked
        out before referring a complaint (and consent decree)
        for filing or possibly obviating the need to file.

     *  Settlement Negotiations.  In most cases, limited
        settlement negotiations with identified responsible
        parties should be completed prior to the referral of a
        case- to Headquarters.  This preference for conducting
        negotiations prior to requesting that the Department
        of Justice commence preparation of judicial pleadings
        is set out in the Case Management Handbook. Chapter II.
        If the negotiations may result in a consent decree

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                             - 2  -


         or present  precedential issues, Headquarters or the
         Department  of  Justice can be brought in informally
         without a' referral.

      0  Financial Viability of Potential Defendants.  It is
         important that all referrals contain complete information
         based on thorough research regarding the financial
         status and  insurance assets of potential defendants.
         Chapter III of the Case Management Handbook describes
         the contents of a hazardous waste referral, including
         the types of information  required regarding potential
         defendants.

      *  Endangerment Assessment.  A complete endangerment
         assessment  must be included in all referral packages
         for CERCLA  S106 and RCRA  S7003 cases.  The endangerment
         assessment  should contain information sufficient to
         establish a prima facie imminent hazard claim.
         Appendices  two and three  of the Case Management Hand-
         book contain a checklist  of facts necessary for imminent
         and substantial endangerment cases.

      *   Cost Documentation.  The  Region must submit accurate
         cost recovery check lists to OWPE at least six weeks
         prior to  submitting the referral package to Headquarters.
         This will ensure that cost recovery cases referred to
         the Department of Justice will have thorough cost
         documentation as required by the Case Management Hand-
         book,  Appendix one.

     The Department of Justice is required to file a complaint
within 60 days of the referral from EPA.  The 60 day period is
intended to allow the Department  of Justice to review the
litigation  report and prepare its final pleadings.  The 60 day
period is not  intended to allow the Agency time to provide
supplemental information for the  referral package or make
initial  contact with the defendants regarding the possibility
of settlement.

     All requests to the Department of Justice to delay the
filing of a case beyond the 60 day period must be made by the
Assistant Administrator for OECM.  To originate such a request,
the Region must write the Assistant Administrator for OECM.
Any request by the Region to OECM to extend the filing date of
an action should be made before the 60 day period at the Depart-
ment of Justice has run.  We have informally stressed to the
Department that the filing of cases should not be delayed in
reliance on the Region's intention to request such a delay.

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                             - 3 -
     Effective prosecution of hazardous waste cases,  once
referred to the Department of Justice,  is a critical  element
of the Agency's enforcement strategy.   Compliance with the
procedures set out above and in the Case Management Handbook
will assure that matters appropriate for judicial enforcement
will be referred and filed in a timely  way.  If you have  any
questions regarding these procedures, please contact  me.

cc:  Gene A. Lucero, Director,  OWPE
     David T. Buente,  Acting Chief,  Environmental Enforcement
       Section, DOJ
     Richard H. Mays,  Senior Enforcement Counsel

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