UniMd State* Environmental Protection Agency Office of Solid Waste and Emergency Response &EPA DIRECTIVE NUMBER: 9891.5A TITLE:* Expansion of Direct Referral of Cases to the Department of Justice APPROVAL DATE: January 14, 1988 EFFECTIVE DATE: January 14, 1988 ORIGINATING OFFICE: OECM D FINAL E DRAFT LEVEL OF DRAFT IS A — Signed by AA or OAA • D 8 — Signed by Office Director Q C — Review & Comment REFERENCE (other documents); OS WER OS \NER OS WER VE DIRECTIVE DIRECTIVE Dl ------- UniMd Stain Environmental Protection Office of Solid Waste and Emergency Response &EPA DIRECTIVE NUMBER: 9891.5A TITLE:; Expansion of Direct Referral of Cases to the Department of Justice APPROVAL DATE: January 14, 1988 EFFECTIVE DATE: January 14, 1988 ORIGINATING OFFICE: OECM D FINAL El DRAFT LEVEL OF DRAFT HA — Signed by AA or DAA • D 8 — Signed by Office Director DC — Review & Comment REFERENCE (other documents): S WER OS WER OS WER DIRECTIVE DIRECTIVE Dl ------- bMWUWfl mgvicy Washington. DC 20460 OSWER Directive Initiation Request 1. Directive Number 9891.5A 2. Originator Information Name of Contact Parson Jonathan Cannon Mail Coda LE 133 Office OECM 3. Tula Expansion of Direct Referral of Cases to the Department of Justice h^mel^ra^^ EPA Headquarters and Regional personnel re procedures to follow in implementing the expanded direct rererraj. agreement, rj. rriN§I?^?rR^4ril!i'fS?mS^USa^rbegi SSfiSS if i2!ii«'^e§SJtl»iItilolSReK?ftf effect. 3. Keywords Direct Referrals, Non-CERCLA cases, CERCLA cases 3s. Does This Directive Supersede Previous Directive(s)? b. Does It Supplement Previous Directive(3)? No X No X Yes What directive (number, title) Yes What directive (number, title) 7. Draft Level A-SignedbyAA/OAA | [ B - Signed by Office Director | | C - For Review A Comment | [ D - In Devetep 8. Document to bo distributed to Statee by Headquarters? I IYM |x|No This Request Meets OSWEfl Dlrectlvea System Format Standards. 9. Signature of Lead Office Directives Coordinator Date 10: Name and Trae/of Approving Official EPA Form 1315-17 (Rev. 5-«7) Previous editie is are obsolete OSWER te OSWER OSWER 0 VE DIRECTIVE DIRECTIVE DIRECTIVE ------- UNITED STATt-S ENVIRONMENTAL PROTECTION AGENCY 989 1.5 ft WASHINGTON, D.C. 20460 JAN I 4 OMlCE OF ENFORCEMENT • I ., lQ!-i AND COMPLIANCE MEMORANDUM SUBJECT: Expansion of Direct Referral of cases to the. Department of Justice FROM: Thomas L. Adams, Jr. Assistant Administrator TO: Regional Administrators, Regions I - X Deputy Regional Administrators, Regions I - Regional Counsels, Regions I - X Assistant Administrators Associate Enforcement Counsels OECM Office Directors I. BACKGROUND During the past year, my office has worked closely with the Regions, the Headquarters program offices, and the Land and Natural Resources Division of the U.-S. Department of Justice (DOJ) to expand the use of direct referral of cases. On January 5, 1988, EPA and DOJ entered into an agreement which expanded the categories of civil judicial cases to be referred directly to DOJ Headquarters from the EPA Regional offices without my prior concurrence. In entering into this agreement, EPA has taken a major step towards streamlining the enforcement process and more fully utilizing our Regional enforcement capabilities. On January 13, 1988, the Administrator signed an interim delegations package which will allow the Agency to immediately implement expanded direct referrals to DOJ. A final delega- tions package is now being prepared for Green Border review. ------- 989 ISA Thi» memorandum provides guidance to EPA Headquarters and Regional personnel regarding procedures to follow in implementing the expanded direct referral agreement. Prior guidance on direct referrals appears in a November 28, 1983, memorandum from Courtney Price entitled "Implementation of Direct Referrals for Civil Cases Beginning December 1, 1983. That guidance is superseded to the extent that the current guidance replaces or changes procedures set forth therein; otherwise the' 1983 document remains in effect. II. SUMMARY Effective immediately for non-CERCLA cases, and effec- tive April 1, 1988, for CERCLA cases, the Regions will directly refer to the Department of Justice all civil cases other than those listed in the attachment to this memorandum entitled "Cases Which will Continue to be Referred Through Headquarters." This attachment lists cases in new and emerging programs and a few, highly-selected additional categories of cases where continued referral through EPA Headquarters has been determined to be appropriate. EPA Headquarters will have 35 days to review the case simul- taneously with DOJ. EPA Headquarters will focus its review primarily on significant legal or policy issues. If major legal or policy issues are. raised during this review, EPA Headquarters will work with the Region to expedite resolu- tion. Attached is a copy of the agreement between EPA and DOJ, which is incorporated into this guidance. Many of the procedures for direct referral of cases are adequately explained in the agreement. However, there are some points I would like to emphasize. III. PROCEDURES A. CASES SUBJECT TO DIRECT REFERRAL ThsPattached agreement lists those categories of cases which must continue to be referred through the Office of Enforcement and Compliance Monitoring (OECM). All other cases should be referred directly by the Regional Office to DOJ Headquarters, with the following two exceptions: (1) cases which contain counts which could be directly referred and counts which require prior EPA Headquarters review should be referred through EPA Headquarters, and ------- 989U5A (2) any referral which transmits a consent decree should be referred through EPA Headquarters, except where existing delegations- provide otherwise. If you are uncertain whether a particular case may be directly referred, you should contact the appropriate Associate Enforcement Counsel for guidance. F B. PREPARATION AND DISTRIBUTION OF REFERRAL PACKAGES The contents of a referral package (either direct to DOJ or to EPA Headquarters) should contain three primary divi- sions: (1) a cover letter; (2) the litigation report; (3) the documentary file supporting the litigation report. The cover letter should contain a summary of the * following elements: (a) identification of the proposed defendant(s); (b) the statutes and regulations which are the basis for the proposed action against the defendant(s); (c) the essential facts upon which the proposed action is based, including identification of any signi- ficant factual issues; (d) proposed relief to be sought against defendant(s); (e) significant or precedential legal or policy issues; (f) contacts with the defendant(s), including any previous administrative enforcement actions taken; (g) lead Regional legal and technical personnel; (h) any other aspect of the case which is significant and should be highlighted, including any extra- ordinary resource demands which the case may /L require. A direct referral to DOJ is tantamount to a certifi- cation bv the Region that it believes the case is suffi- ciently developed for filing of a complaint, and that the Region is ready, willing and able to provide such legal and technical support as might be reasonably required to pursue the case through litigation. Referral packages should be addressed to the Assistant Attorney General, Land and Natural Resources Division, U.S. Department of Justice, Washington D.C. 20530. Attention: ------- 9891.5 A Chief, Environmental Enforcement Section'. Copies of all referral packages should also be sent to the Assistant Administrator for OECM and the appropriate Headquarters program offioe. DOT has reaffirmed the time frame of the Memorandum of Understanding, dated June 15, 1977, for the filing of cases within 60 days after receipt of the referral package, where possible. DOJ can request additional information from a Region on a case or return a case to a Region for further development. In order to avoid these delays, referral packages should be as complete as possible and the Regions should work closely with DOJ to develop referral packages. C. IDENTIFICATION AND RESOLUTION OF SIGNIFICANT LEGAL AND POLICY ISSUES % A major element in assuring the success of the expanded direct referral program is an efficient process to identify and resolve significant legal and policy issues. This should be done as early as possible to assure that unresolved issues not delay a referral. Early identification and resolution will also help the Agency to avoid devoting significant Regional resources to preparing a litigation report for a case which will ultimately be considered inappropriate for referral. The procedures make clear that the Regional office has the initial responsibility for identification of significant legal and policy issues. Such issues should be identified to OECM and the appropriate Headquarters program office as soon as a decision is made to proceed with litigation. All parties should then work to address the issues as quickly as possible, preferably before the referral package is sent to Headquarters. The agreement with DOJ also outlines procedures for Headquarters review of referral packages to determine whether any significant legal or policy issues exist which would impact filing, and the process for resolution of such issues. If an issue surfaces during the 35-day Headquarters review period, OECM will work for quick resolution of the issue, with escalation as necessary to top Agency management. This should serve primarily as a "safety valve" for those few issues not previously identified, rather than as the point at which issues are first raised. Finally, if DOJ raises a significant legal or policy issue during its review, OECM will work with the Region and the Headquarters program office to expedite resolution of the issue. If DOJ makes a tentative determination to return a ------- 98915» referral, OOJ will consult with OECM and the Regional Office in advance of returning the referral. D. CASE QUALITY/STRATEGIC VALUE OECM will evaluate Regional performance as to the quality and strategic value of cases on a generic basis. While OECM will not request withdrawal of an individual referral based on concerns about quality or strategic value, it will consider these factors during the annual audits of the Offices of Regional Counsel and the annual Regional program office reviews. Concerns relative to issues of quality or strategic value will also be raised informally as soon as they are identified. E. WITHDRAWAL OF CASES PRIOR TO FILING * Cases should be fully developed and ready for filing at the time they are referred to OOJ Headquarters. Thus/ case withdrawal should be necessary only under the most unusual circumstances. If, after consultation with OECM, withdrawal is determined to be appropriate, the Regions may request that OOJ withdraw any directly referred case prior to filing. Copies of the Region's request should be sent to the Assis- tant Administrator for OECM and the appropriate program office. F. MAINTENANCE OF AGENCY-WIDE CASE TRACKING SYSTEM In order to assure effective management of the Agency's enforcement program, it is important to maintain an accurate, up-to-date docket and case tracking system. Regional attorneys must continue to report the status of all cases. including directly referred cases, on a regular basis through use of the national Enforcement Docket System* All infor- mation for the case required by the case docket system must appear in the docket and be updated in accordance with current guidance concerning the automated docket system. If you have any questions concerning the procedures set forth infthis memorandum, please contact Jonathan Cannon, Deputy Assistant Administrator for Civil Enforcement, at FTS 382-4137. Attachment cc: Hon. Roger J. Marzulla David Buente Nancy Firestone Assistant Section Chiefs ------- 989 U5A I UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON. D.C. 2046O — 24 • • OFFICE OF ENFORCEMENT AMD COMPLIANCE MONITOSING Honorable Roger J. Marzulla Acting Assistant Attorney General Land and Natural Pesources Division Washington, D.C. 20530 Dear Roger: As you know, the Agency has been considering changes in existing procedures to increase the effectiveness of its enforcement program. One change, which we discussed at our recent*meeting with you, is a major expansion of the direct referral program for civil judicial enforcement actions, whereby such cases are referred directly from the Regional Administrators to your office. We believe the past successes of this program and the increased maturity of Regional staff warrant adopting direct referrals as the basic mode of operation. Thus, with your acceptance, we intend to utilize direct referrals to your office for virtually all civil cases other than those relating to .certain new statutory authorities or emerging programs where judicial enforcement experience is limited. As such programs mature, we will expand the scope of direct referrals to cover them. In addition, as new programs- are implemented under new statutory or regulatory requirements, we contemplate an initial period of referrals through Headquarters 'for these cases prior to their incorporation into the direct referral process. • • Based on discussions within the Agency and with your staff, we would propose that direct referrals cover all civil cases but those listed in Attachment A. This list includes cases in new and emerging programs and a few, highly-selected additional categories of cases where continued referral through Headquarters has been determined to be appropriate. This would allow direct referral of the vast.jnajority of civil cases, including those which would still require significant national coordination to assure a consistent approach (such as auto coating VOC air cases). For this reason, the procedures applicable to this small subset of cases as outlined in the memorandum entitled "Implementing Nationally Managed or Coordinated Enforcement Actions: Addendum to Policy Framework for State/EPA Enforcement Agreements" dated January 4, 1985 will remain in effect. ------- 989151V -2- For all but CERCLA cases, this expansion would be effective on January 1, 1988. For CERCLA cases, direct referrals would take effect on April 1, 1988. We anticipate joint issuance by our offices of the model CERCLA litigation report prior to that date. Also attached (Attachment B) is the outline of the direct civil referral process as the Agency intends to implement it. This outline refines current direct referral procedures by more clearly focusing authority and accountability within the Agency. Under these modified procedures, the Regional Office has the lead on direct referrals. The Region will be solely responsible for the quality of the referral. In this context, quality encompasses both the completeness and accuracy of the litigation report and the strategic value of the case. Any problems involving case quality should be raised directly with the Region. * OECM will evaluate Regional performance as to the quality and strategic value of cases on a generic basis. While OECM will not request withdrawal of an individual referral on the basis of concerns about quality or strategic value, we are committed to working with the Regional Offices to assure that current standards are maintained or even exceeded in future referrals. We welcome your input on Agency performance to assist us in this regard. As the procedures detail,.OECM (as well as the appropriate Headquarters office) will continue to be actively involved in identification and resolution of significant legal and policy issues. Such issues normally should be raised and resolved prior to the actual referral. If such an issue surfaces during the 35-day Headquarters review period, we will work for quick resolution of the issue, with escalation as necessary to top Agency management. During the period required for resolution, DOJ will treat the referral as "on hold". In the unusual circumstance where,an issue is still unresolved after 60 days from the date of referral, we would contemplate withdrawal of the referral by the Agency pending resolution unless a formal "hold" letter has been submitted in accordance with the procedures contained in the memorandum entitled "Expanded Civil Judicial Referral Procedures" dated August 28, 1986. If *: significant policy or legal issue is raised by DOJ during its review, OECM remains committed to work with the Regional and program offices to assure expedited resolution of the issue. Obviously, these procedures are not intended to inhibit discussions between our offices to facilitate a resolution. In addition, if DOJ makes a tentative determination to return a referral, we understand that you will consult with OECM and the Regional Office in advance of returning the referral. ------- -3- We believe this expansion in use of direct referrals represents a major advance in streamlining the Agency's enforcement process and appreciate your support in its implementation. This letter, upon your acceptance, will supersede the letters of September 29, 1983, October 28, 1985, and August 28, 1986 on this subject and constitute an amendment to the June 15, 1977 Memorandum of Understanding between our respective agencies. I appreciate your continuing cooperation and support in our mutual efforts to make our enforcement process more effective. I hope this letter meets with your approval. If so, please sign in the space provided below and return a copy of the letter to me for distribution throughout the Agency. Sincerely, Thomas L. Adams, Jr. Assistant Administrator Attachments Approved: ,'f:? ).,, '/ ^—' / '' \ !v* V Roger J. Marzulla Date Acting Assistant Attorney General Land and Natural Resources Division U.S. Department of Justice ------- 989151V RESPONSIBILITIES AND PROCEDURES FOR-DIRECT REFERRALS OF CIVIL JUDICIAL ENFORCEMENT ACTIONS TO THE DEPARTMENT OF JUSTICE (1) Regional Offices have the lead on direct referrals to the Assistant Attorney General, Land and Natural Resources Division, Department of Justice (DOJ); Regions will be responsible for the quality of referrals. * (2) Regions will identify any significant legal/policy issues as soon as the decision is made to proceed with litigation. Such issues will be raised in writing for consideration by OECM and the appropriate Headquarters program office. All parties will attempt to resolve such issues as early as possible, preferably before the referral package is sent to Headquarters. Regions will also flag such issues in the cover memo transmitting the referral. * (3) At the same time the referral is sent to DOJ, it will be sent to OECM and the appropriate Headquarters program office for a simultaneous and independent review to determine whether any other significant policy/legal issues exist which would impact filing. (4) Headquarters offices will complete their reviews within 35 days of receipt of the referral. Each Headquarters office will notify the Region in writing of any significant issues identified or that no such issues have been identified. A copy of this memorandum will be sent to DOJ. The Headquarters offices will coordinate their reviews and, to the extent possible, provide a consolidated response. (5) If significant issues are identified and not readily resolved, Headquarters (the Assistant Administrator for OECM), after consultation with the program office Assistant Administrator, may request the Regional Administrator to withdraw the case. If the Regional Administrator and the Assistant Administrator for OECM (and, as applicable, the program office Assistant Administrator) are unable to agree on the appropriate resolution of the issue, the issue would be escalated to the Deputy Administrator. (6) If a significant issue is not resolved within 60 days of the date.of referral, the case will normally be withdrawn pending resolution-unless an appropriate "hold" letter is sent to DOJ in accordance with the procedures contained in the memorandum entitled "Expanded Civil Judicial Referral Procedures" dated August 28, 1986 (document GM-50 in the General Enforcement Policy Compendium.) (7) Headquarters will NOT request withdrawal of a referral package for any of the following reasons: — overall quality of referral package — strategic value of case — adequacy of documentation ------- 98915ft -2- (8) If DOJ makes a tentative decision to return a referral to EPA, it will consult with the Regional Office and OECM prior to making a final decision to return the case. (9) Headquarters will evaluate on a generic basis (e.g., trends or repeated concerns) the quality/strategic value of a Region's referrals. Concerns relative to issues of quality or strategic value will be raised informally as soon as they are identified. . (10) Headquarters oversight will be accomplished primarily through annual program and OGC/OECM reviews, or ad hoc reviews as problems are identified in a given Region. Note; Where a referral also transmits a signed consent decree for Headquarters approval, the procedures applicable to processing settlements shall apply in lieu of these procedures. ------- 989 ISA CASES WHICH WILL CONTINUE TO BE_REFERRED THROUGH HEADQUARTERS ALL MEDIA: Parallel Proceedings — Federal civil enforcement matters where a criminal investigation of the same violations is pending RCRA/CERCLA! UST enforcement Enforcement of RCRA technology regulations land ban and minimum Enforcement of administrative orders for access and penalty cases for failure to comply with requests for access (Section 104) Referrals to enforce Title III of. SARA, Community Right-to-Know provisions the TSCA/FIFRAi Referrals to compel compliance with or restrain violations of suspension orders under FIFRA Section 6(c) . FIFRA actions for stop sales, use, removal, and seizure under Section 13 Referrals to enforce Title III of SARA, the Community Right-to-Know provisions Injunctive actions under Section 7 of TSCA (actions for injunctive relief to enforce the regulations promulgated under Section 17 or Section 6 could be directly referred) WATER! Clean Water Act pretreatment violations —failure of a POTW to implement an approved local pretreatment program Clean Water Act permit violations relating to or determined by biological methods or techniques measuring whole effluent toxicity PWSS cases to enforce against violations of administrative orders which were not issued using an adjudicatory hearing process ------- 9891.5A WATER fcontd.l Cases brought under the Marine Protection, Research and Sanctuaries Act (MPRSA) UIC cases1 AIR; • Smelter cases 1 The ten cases referred to date indicate that the regulations raise interpretive issues of continuing national significance. There also appears to be a need for greater experience at gathering the facts necessary to prove violations and support appropriate relief. For this reason, the first 3 UIC cases from each Region shall be referred through Headquarters. Once the Associate Enforcement Counsel for OECM determines that the Region has completed three successful referrals, the Region may proceed to refer these cases directly to DOJ. ------- |