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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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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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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