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

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            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

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                                             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

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         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.

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                                                           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

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                                                           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:

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                                                          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

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                                                            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

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                                                            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.

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                                                            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.

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                                -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

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                                                            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

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                                                            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.

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                                                           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

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                                                          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.

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