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
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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
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(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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