oEPA
Unittd State*
Environmental Protection
Agency
Off ice of
Solid Waste and
Emergency Response
emergency nesponse
DIRECTIVE NUMBER: 9891.1
TITLE: Expanded Civil Judicial Referral Procedures
APPROVAL DATE: 8-28-86
EFFECTIVE DATE: 8-28-86
ORIGINATING OFFICE: OECM/OSW
Q FINAL
DDRAFT
LEVEL OF DRAFT
DA — Signed by AA or DAA _
D 8*— Signed by Office Director
D C ~ Review & Comment,
REPER ENCE (other documents)
OS WER OS WER OS WER
VE DIRECTIVE DIRECTIVE
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3EPA
Unittd State*
Environmental Protection
Agency
Off ice of
Solid Waste and
Emergency Response
emergency nespnusB
DIRECTIVE NUMBER: 9891.1
TITLE: Expanded Civil Judicial Referral Procedures
APPROVAL DATE: 8-28-86
EFFECTIVE DATE: 8-28-86
ORIGINATING OFFICE: OECM/OSW
Q FINAL
DDRAFT
LEVEL OF DRAFT
DA- Sigped by AA or DAA ; _
DJ " f _J* T "^" ^ ^J/*V '
B*— Signed by Off ica Director
DC — Review & Comment,
REFERENCE (other documents)
OS WER OS WER OS WER
VE DIRECTIVE DIRECTIVE Dl
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yEPA
United States Envirc — ?--•
OSWER Directive Initiation Request
2. Originator Information
1 . Directive Number
9891-'
Name of Contact Person
-Sh^rrv Pieldinr
Mail Code
ww-Sfi^A
Office
Telephone Number
3. Title
Expanded Civil Judicial Referral Procedures
4. Summary of Directive /Include brief statement of purpose) Memo from Thomas L. Adams , AA-OECM, to ,
provide guidance on procedures for civil judicial referrals to DOJ. It
expands the current direct referral program, indicates that HQ should not
establish mandatory requirements for pre-referral negotiations, mandates
use of "hold action" cases only for strategic or tactical reasons and
offers guidance on the preparation of bankruptcv cases.
5. Keywords
DOJ, Enforcement, Clean Water Act, Bankruptcy
6a. Does this Directive Supersede Previous Directives)? [_] Yes
No What directive (number, title)
b. Does It Supplement Previous Directives)?
Yes
No What Directive (number, title)
7. Draft Level
1 — 1 A — Signed by AA/DAA LJ B — Signed by Office Director 1 _ 1C — For Review & Comment LJ In Development
ThiBequest Meets OSWER Directives System Format
S.^pature of Lead Office Directives Coordinator
9. Name and Titl/of Approving Official O
Thomas L. Adams - AA-OECM
Data . /
Date
8-2S-Sfi
WER OS WER OS \NER
DIRECTIVE DIRECTIVE D
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'
i
3 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
WJG28I986
OFFICE Of
ENFORCEMENT ANOk
COMPLIANCt MONlTOrtING
MEMORANDUM
SUBJECT: Expanded Civil Judicial Referral Procedures
TV.
FROM: Thomas L. Adams, Jr. ^
Assistant Administrator for Enforcement
and Compliance Monitoring
TO: Regional Administrators
Program Office Enforcement Division Directors
Purpose
The purpose of this memorandum is to provide guidance
on several issues regarding the procedures by which the Agency
refers civil judicial referrals to the Department of Justice
(DOJ). They are as follows: 1) expansion of the current
direct referral program, 2) pre-referral negotiations, 3) hold
action requests to DOJ for referred cases, and 4) filing proofs
of claim in bankruptcy by regional attorneys.
Expansion of Direct Referral Program
Last summer the Direct Referral ProgramV was expanded to
include, in the second year of operation, all TSCA and FIFRA
I/ As used here the term "direct referral" denotes case
referrals sent directly from the Regional Administrators to
the Assistant Attorney General for Land and Natural Resources
of the Department of Justice, with simultaneous review by OECM
and DOJ. The current DOJ address for direct referrals is:
U.S. Department of Justice, Environmental Enforcement Section,
Box 7415, Ben Franklin Station, Washington, D.C. 20044, or, if
express delivery is used, U.S. Department of Justice, Land
and Natural Resources Division, Environmental Enforcement
Section, Room 1521, 9th. St. and Pennsylvania Ave, N.W.,
Washington, D.C. 20530.
"" ^ Jt *-
r r 1 '•
L. I J. i.
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collection actions and all non-governmental mobile source tam-
pering and fuels cases. That expansion has been successful in
helping to expedite the judicial referral process. Effective
for cases referred on or after September 2, 1986, OECM with
DOJ encouragement is further expanding the categories of direct
referrals by adding the following 8 classes of cases (see
attached copy of my letter of August 28, 1986, to F. Henry
Habicht, Assistant Attorney General for Land and Natural
Resources):
1. All collection actions in which the relief
requested is solely for unpaid administratively or
judicially assessed penalties under any statute,
except for actions to assess penalties under CERCLA
and cases where there is little prior experience in
civil judicial enforcement (i.e., the Ocean Dumping
Act, underground injection control regulation under
RCRA/SDWA, Clean Air Act NESHAPs other than vinyl
chloride and asbestos).
2. All actions in which the only relief sought is
contempt for violation of any consent decree or
other enforceable order, and/or to enforce the
terms of any consent decree or other enforceable
order.£/ The preceding types of actions against
governmental entities shall continue to be
referred to OECM.
3. Clean Air Act cases involving asbestos and vinyl
chloride National Emissions Standards for
Hazardous Air Pollutants.
4. All Clean Air Act post-1982 date cases except
those involving steel producers, smelters and
lead sources.£/
5. All Clean Water Act cases involving NPDES permit
violations by industrial dischargers, except those
involving violations relating to or determined by
biological methods or techniques measuring effluent
toxicity.
6. All judicial actions alleging interim status vio-
lations under RCRA $3008(a) except cases involving
2J7 All modifications of consent decrees which result from any
action (direct referral) in this paragraph shall continue to
require OECM approval and program office approval, where
appropriate, prior to submission to DOJ for entry by the court.
3/ OECM approval will also be required when major changes are
made to SIPs due to a future change in the related NAAQS.
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loss of interim status or closure. This authority
will take effect in each Region upon the successful
referral by the Region of two cases in order to
demonstrate the requisite experience. This author-
ity does not include corrective action cases under
3008(h) .
7. All RCRA judicial actions seeking penalties only,
except for underground injection control regulation •
cases.
8. All actions to enforce final federal orders issued
under RCRA §3008(a). This authority will take effect
in each Region upon the successful referral by the
Region of two cases in order to demonstrate the
requisite experience.
We will add these expansion cases to the 5 classes of cases
currently included in the direct referral program listed below:
1. Cases under Section 1414(b) of the Safe Drinking Water
Act which involve violations of the National Interim
Primary Drinking Water Regulations, such as reporting
or monitoring violations or maximum contaminant
violations. (Note: This category does not include
any causes of action under Section 1414(b) established
by the SDWA Amendments of 1986.)
2. The following cases under the Clean Water Act:
a. cases involving discharges without a permit by
industrial dischargers;
b. all cases againat minor industrial dischargers;
c. cases involving failure to monitor or report by
industrial dischargers;
d. referrals to collect stipulated penalties from
industrials under consent decrees;
e. referrals to collect administrative spill
penalties under Section 311{j) of the CWA.
3. All stationary source cases under the Clean Air Act
except the following:
a. cases involving the steel industry;
b. cases involving non-ferrous smelters;
c. cases involving NESHAPs;
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d. post - 1982 date cases.
4. All TSCA & FIFRA collection actions for unpaid
administratively assessed penalties.^/
5. All mobile source tampering and fuels cases (except
governmental entity cases) arising under the Clean
Air Act, sections 203 and 211 respectively.
Attached for your convenience in Appendix A is a list of all
cases now covered under the direct referral program.
OECM will continue to play a substantive role in these
cases, especially in view of the increased size of the Agency's
case load and the need to ensure that our cas.es reflect the
Agency's priorities. The Regions should continue to send
copies of the case referral reports directly to OECM, and
where appropriate, to the program office for review. OECM and
DOJ will concurrently review these referrals. Within 35 days
of receipt of a copy of the direct referral package, the appro-
priate AEC will comment on the merits of the referral to DOJ
and to the originating regional office. He may ask the
Assistant Administrator of OECM to recommend to DOJ that the
case be further developed before filing or returned to the
regional office. OECM will also continue to oversee the
progress and development of these direct referral cases. It
should be noted that in all direct referral cases, as with
all other enforcement cases, the Regions still must coordinate
settlement terms with Headquarters and submit consent decrees
to OECM for review and approval. (See memorandum of November 28,
1983, entitled, "Implementation of Direct Referrals for Civil
Cases Beginning December 1, 1983" at page 5 (GM-18).) All other
existing policies and procedures regarding direct referrals and
case management will remain in effect.
Pre-referral Negotiations
OECM has concluded that Headquarters should not establish
mandatory requirements for pre-referral negotiations. Never-
theless, use by the Regions of pre-referral negotiations, when
and where appropriate, is to be encouraged by the Regional
Counsels. Also note that the Regions should continue to follow
current applicable guidance set forth in Frederick F. Stiehl's
July 30, 1985, memorandum entitled "Preparation of Hazardous
Waste Referrals" wherein pre-referral negotiations for hazard-
ous waste cases are discussed. In addition, refer to the
4/ This class is now included in actions for unpaid administra-
tively or judicially assessed penalties arising under any
statute. See expansion category number 1 above.
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memoranduin entitled "Enforcement Settlement Negotiations,"
GM-39, dated May 22, 1985, which requires AEC review of draft
consent decrees before they are sent to the defendant. Draft
consent decrees must be reviewed by an Assistant Chief or
senior lawyer in the DOJ Environmental Enforcement Section
before they are sent to the defendant.
"Hold Action" Requests
With a more decentralized management of the Agency's
enforcement program, greater responsibility is placed on
the regional offices to develop and manage cases, particularly
in the pre-referral stage. The Regions are called upon to
sufficiently investigate, prepare and develop civil cases so
that DOJ can file them without delay. When EPA refers a case,
the referral results in the expenditure of time and resources
by OECM and DOJ. A request from the Region to hold action on
the filing of a case that results from inadequate case prepara-
tion or from the desire to conduct negotiations that could
have been conducted prior to referral severely undercuts our
enforcement efforts and results in inefficient use of valuable
time and resources in the Regions, in OECM and at DOJ.
Therefore, it is OECM policy that hold action requests
should be used only for strategic or tactical reasons, such as
where the defendant has made a significant settlement offer
after referral, or where settlement prior to filing will be
advantageous to the government. A hold action request should
be in the form of a memorandum from the Regional Counsel to
the Assistant Administrator for OECM requesting and explaining
its use and the length of delay requested. The Assistant
Administrator, OECM, will determine whether the request is
justified, and if so, will ask DOJ to delay the filing of the
suit for a specified period of time.
OECM will grant hold action requests only where there is
a clear benefit to the Agency resulting from the delay. In
those cases where there is no reasonable justification for
the requested delay, OECM will ask DOJ to proceed with filing
or consider recommending that the case be withdrawn from DOJ
and possibly will disallow credit for the referral.
Filing Proofs of Claim in Bankruptcy
EPA's judicial bankruptcy docket has grown enormously in
the last two years. OECM and DOJ are very concerned about the
handling of these cases and future bankruptcy matters. The
law in this vital area is not well developed; little favorable
precedent exists on the issues of concern to us. Moreover, we
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must be very careful to avoid risking large resource expendi-
tures in bankruptcy cases where there may be little realistic
chance of obtaining material recoveries, even if we prevail on
legal issues. These concerns make it imperative that bankruptcy
cases be especially well prepared and that management review
time be adequate at both OECM and DOJ prior to filing. See,
e.g., OECM (Draft) Revised Hazardous Waste Bankruptcy Guidance,
May 23, 1986, at 1-4. In the past, numerous cases have been
referred with very little or no lead time for review and with-
out litigation reports. Although we appreciate the difficulties
of obtaining notice that bankruptcy proceedings have been
initiated by a regulated entity, it is still important that
EPA claims be forwarded for OECM review and referral to DOJ
at the earliest possible time. These claims will be referred
by the Assistant Administrator, OECM and approved in writing
by the Assistant Attorney General, Land and Natural Resources,
prior to filing.
If you have any questions regarding these procedures,
please contact Jonathan Libber who can be reached at
FTS 475-8777.
Attachments
cc: Administrator
Deputy Administrator
Assistant Administrators
Senior Enforcement Counsel
General Counsel
Associate Enforcement Counsels
Regional Counsels
Regional Enforcement Contacts
Regional Program Division Directors
F. Henry Habicht II, Assistant Attorney General
for Land and Natural Resources, Department of Justice
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Appendix A
Categories of Direct Referral Cases As of September 2, 1986
General
1. All collection actions in which the relief
requested is solely for unpaid administratively or
judicially assessed penalties under any statute,
except for actions to assess penalties under CERCLA
and cases where thore is little prior experience in
civil judicial enforcement (i.e., the Ocean Dumping
Act, underground injection control regulation under
RCRA/SDWA, Clean Air Act NESHAPs other than vinyl
chloride and asbestos).
2. All actions in which the only relief sought is con-
tempt for violation of any consent decree or other
enforceable order, and/or to enforce the terms of any
consent decree or other enforceable order.£/ The pre-
ceding types of actions against governmental entities
shall continue to be referred to OECM.
Clean Air Act
1. All stationary source cases under the Clean Air Act
except the following:
a. cases involving the steel industry;
b. cases involving non-ferrous smelters;
c. NESHAPs cases other than asbestos and vinyl
chloride; and
d. lead sources.
2. All mobile source tampering and fuels cases (except
governmental entity cases) arising under the Clean /
Air Act, sections 203 and 211 respectively.
I/ All modifications of consent decrees which result from any
action (direct referral) in this paragraph shall continue to
require OECM approval and program office approval, where
appropriate, prior to submission to DOJ for entry by the court,
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Clean Water Act
1. All cases involving discharges without a permit by
industrial dischargers.
2. All cases against minor industrial dischargers.
3. All cases involving failure to monitor or report by
industrial dischargers.
4. Referrals to collect stipulated penalties from
industrials under consent decrees.
5. Referrals to collect administrative spill
penalties under Section 311(j) of the CWA.
6. All Clean Water Act cases involving NPDES permit
violations by industrial dischargers, except those
involving violations relating to or determined by
biological methods or techniques measuring effluent
toxicity.
Safe Drinking Water Act
Cases under Section 1414(b) of the Safe Drinking Water
Act which involve violations of the National Interim
Primary Drinking Water Regulations, such as reporting
or monitoring violations or maximum contaminant
violations. (Note: This category does not include
any causes of action under Section 1414(b) established
by the SDWA Amendments of 1986.)
RCRA
1. All judicial actions alleging interim status violations
under RCRA $30O8(a) except cases involving loss of
interim status or closure. This authority will take
effect in each Region upon the successful referral by
the Region of two cases in order to demonstrate the
requisite experience. This authority does not include
corrective action cases under 3008(h).
2. All RCRA judicial actions seeking penalties only,
except for underground injection control regulation
cases.
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Ail actions to enforce final federal orders issued
under RCRA §3008(a) . This authority will take effect
in each Region upon the successful referral by the
Region of two cases in order to demonstrate the
requisite experience.
TSCA & FIFRA
All TSCA & FIFRA collection actions for unpaid
administratively assessed penalties
2/ This class is now included in actions for unpaid administra-
tively or judicially assessed penalties arising under any
statute. See General category number 1 above.
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i
3 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
f WASHINGTON. D.C. 20460
28 MB
OFFICE OF
ENFORCEMENT AND
COMPLIANCE MONITORING
Honorable F. Henry Habicht, II
Assistant Attorney General
Land and Natural Resources Division
U.S. Department of Justice
Washington, D.C. 20530
Re; Direct Referrals
Dear Hank:
During the past year OECM has been holding discussions
with the Headquarters program offices and with the 10 Regional
Counsels on how to improve and expand the direct referral
program, wherein certain cases are referred directly from the
Regional Administrator to your office. Because the program
is working well, the consensus of the Associate Enforcement
Counsels, the program compliance division directors and the
Regional Counsels is to expand the classes of cases subject
to direct referral. We have also consulted with members of
your staff and understand that they acquiesce in this concept
insofar as the classes of cases set forth herein are concerned.
This letter, when signed by you, will serve as an amendment
to our September 29, 1983, agreement which set forth the condi-
tions of the initial direct referral pilot project. It will
also amend the June 15, 1977, Memorandum of Understanding
between our respective Agencies.
The following 8 classes of cases will be added to the
direct referral program:
1. All collection actions in which the relief
requested is solely for unpaid administratively or
judicially assessed penalties under any statute,
except for actions to assess penalties under CERCLA
and cases where there is little prior experience in
civil judicial enforcement (i.e., the Ocean Dumping
Act, underground injection control regulation under
RCRA/SDWA, Clean Air Act NESHAPs other than vinyl
chloride and asbestos) .
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2. All actions in which the only relief sought is con-
tempt for violation of any consent decree or other
enforceable order, and/or to enforce the terms of any
consent decree or other enforceable order.^/ The pre-
ceding types of actions against governmental entities
shall continue to be referred to OECM.
3. Clean Air Act cases involving asbestos and vinyl
chloride National Emissions Standards for Hazardous'
Air Pollutants.
4. All Clean Air Act post-1982 date cases except those
involving steel producers, smelters, and lead
sources. £/
5. All Clean Water Act cases involving NPDES permit
violations by industrial dischargers, except those
involving violations relating to or determined by
biological methods or techniques measuring effluent
toxicity.
6. All judicial actions alleging interim status vio-
lations under RCRA S3008(a) except cases involving
loss of interim status or closure. This authority
will take effect in each Region upon the successful
referral by the Region of two cases in order to
demonstrate the requisite experience. This author-
ity does not include corrective action cases under
S3008(h).
7. All RCRA judicial actions seeking penalties only,
except for underground injection control regulation
cases.
8. All actions to enforce final federal orders issued
under RCRA S3008(a). This authority will take effect
in each Region upon the successful referral by the
Region of two cases in order to demonstrate the
requisite experience.
We will add these expansion cases to the 5 classes of cases
currently included in the direct referral program listed below:
I/ All modifications of consent decrees which result from any
action (direct referral) in this paragraph shall continue to
require OECM approval and program office approval, where appro-
priate, prior to submission to DOJ for entry by the court.
2/ OECM approval will also be required when major changes are
made to SIPs due to a future change in the related NAAQS.
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1. Cases under Section 1414(b) of the Safe Drinking Water
Act which involve violations of the National Interim
Primary Drinking Water Regulations, such as reporting
or monitoring violations or maximum contaminant
violations. (Note: This category does not include any
causes of action under section 1414(b) established by
the SDWA Amendments of 1986.)
2. The following cases under the Clean Water Act:
a. cases involving discharges without a permit by
industrial dischargers;
b. all cases against minor industrial dischargers;
c. cases involving failure to monitor or report by
industrial dischargers;
d. referrals to collect stipulated penalties from
industrials under consent decrees;
e. referrals to collect administrative spill
penalties under Section 311(j) of the CWA.
3. All stationary source cases under the Clean Air Act
except the following:
a. cases involving the steel industry;
b. cases involving nonferrous smelters;
c. cases involving NESHAPs;
d. post - 1982 date cases.
4. All TSCA & PIFRA collection actions for unpaid
administratively assessed penalties.
- 5. All mobile source tampering and fuels cases (except
governmental entity cases) arising under the Clean
Air Act, Sections 203 and 211 respectively.
OECM will continue to play a substantive role in these
cases, especially in view of the increased size of the Agency's
case load and the need to ensure that our cases reflect the
Agency's priorities. OECM and DOJ will simultaneously review
these referrals.
Within 35 days of receipt of a copy of the direct referral
package, the appropriate AEC will comment on the merits of the
referral to DOJ and to the originating regional office. He may
ask the Assistant Administrator of OECM to recommend to DOJ
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that the case be further developed before filing or returned to
the regional office. OECM will also continue to oversee the
progress and development of these direct referral cases and will
continue to approve all judicial settlements on behalf of EPA.
All other agreed-upon conditions and procedures regarding direct
referrals and case management will remain in effect.
In order to allow sufficient time prior to implementation
of the expansion and to make the U.S. Attorneys, the regional
offices and our staffs aware of its provisions, it is agreed
that this agreement shall become effective for cases referred
from a Region on or after September 2, 1986. I will distribute
a memorandum to the Regions, the Headquarters program offices
and within OECM explaining the expansion and how it will be
implemented.
I appreciate your cooperation in arriving at this amendment
to our agreement. If this direct referral case expansion meets
with your approval, please sign in the space provided below and
return a copy of the letter to me for our files.
Sincerely,
Thomas L. Adams, Jr.
Assistant Administrator
Approved:
Habicht, II
Assistant Attorney General
Land and Natural Resources Division
U.S. Department of Justice
cc: Richard H. Mays
Senior Enforcement Counsel
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