oEPA
Unittd State*
Environmental Protection
Agency
Off ice of
Solid Waste and
Emergency Respon**
DIRECTIVE NUMBER: 9891.6
TITLE: Multi-Media Settlements of Enforcement Claims
I
APPROVAL DATE:- February 6, 1990
EFFECTIVE DATE: 'February 6, 1990
ORIGINATING OFFICE: Office of Enforcement
m FINAL
D DRAFT
LEVEL OF DRAFT
_ *
D~A — Signed by AA or DAA
D B — Signed by Office Director
O C — Review & Comment
REFERENCE (other documents):
OSWER OSWER OSWER
VE DIRECTIVE DIRECTIVE Dl
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Unrted states environmental Protection Agency
Washington. DC 20480
OSWER Directive Initiation Request
1. Directive Number
9891.6
2. Originator Information
Hunt of Contact Person
Sandra Connors
Mail Code
•LE 133
Office
Office of Enforcement 382-3050
Telephone Code
3. Title
Multi-Media Settlements of Enforcement Claims
4. Summary of Directive (include bnef statement of purpose)
Explains EPA policy strongly disfavoring Judicial and administrative settlements
of enforcement cases which include releases of potential enforcement claims un^er
statutes which are not named in the complaint and do not serve as the basis for the
Agency bringing the'enforcement action.
5. Keywords
rtulti—media settlements •, v-*
6a. Does This Directive Supersede Previous Directive(s)7 s,,.
b. Does It Supplement Previous Olrectlve(s)?
Yes What directive (number, title)
No
Yes What directive (number, title)
7. Draft Level
A-SJgnedbyAA/DAA
8-SignedbyOfflceDirector [ | C-Fof Review & Comment | } D-tfiDevelopment
8. Document to be distributed to States by Headquarters? fx"1Y<* I |
This Request Meets OSWER Directives System Format Standards.
9. Signature of Lead Office Directives Coordinator
to. Name and Title of Approving Olfictai
Date
o p [ ^c,
Date •£,
EPA Form 1315-17 (Rev. 5-17} Previous editions are obsolete.'
OSWER OSWEfi OSWER O
VE DIRECTIVE DIRECTIVE DIRECTIVE
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\
9 UNITED STATES ENVIRONMENTAL PROTECTION AGENCT
WASHINGTON. D.C. 20460
MEMORANDUM
SUBJECT: Multi-Media Settlements-ef Enforcement Claims
FROM: James M. Strock^. f
Assistant Administrator
TO: Regional Administrators, Regions I - X
Regional Counsel, Regions I - X
Associate Enforcement Counsel
Program Compliance Office Directors
A. PURPOSE
The purpose of this memorandum is to provide guidance which
explains 1) EPA policy strongly disfavoring judicial and
administrative settlements of enforcement cases which include
releases of potential enforcement claims under statutes which are
not named in the complaint and do not serve as the basis for the
Agency bringing the enforcement action, and 2) how approval for
any multi-media settlements of enforcement claims should be
obtained in civil judicial enforcement cases in the Region and at
Headquarters.
t
B. DISCUSSION
As a general rule, a settlement of a hazardous waste
enforcement action, for example, may include a covenant not to
sue providing the settling party with protection from subsequent
civil enforcement action under some or all provisions of CERCLA
and/or RCRA. L Similarly, a Clean Water Act enforcement
settlement may expressly settle EPA claims under some or all
provisions of the Clean Water Act. A settlement which extends to
potential EPA enforcement claims under any statute(s) outside of
the program medium under which the case was brought, e.g. . a CWA
release in a CERCLA case, or a release in a CERCLA case under all
1 The United States generally gives covenants not to sue,
not releases, in the CERCLA context. This guidance, however,
uses the terms "covenant not to sue" and "release"
interchangeably. Use of the word "release" is not intended to
signify any differing effect of the settlement but is merely used
for ease of exposition.
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statutes administered by EPA, should not be given except under
exceptional circumstances, because it is standard EPA policy that
releases, when granted, should be no broader than the causes of
action asserted in the complaint. 2
Although defendants often seek releases broader than the
specific medium at issue in the case, multi-media releases for
single-medium enforcement cases are strongly discouraged and win
be granted only in exceptional cases. A proposal to enter into
such a" settlement will undergo close scrutiny at both the
Regional and Headquarters level. When deciding whether to
entertain a request for a multi-media release, the Region should
consider the following factors:
1) The extent to which EPA is in a position to know whether
it has a cause of action warranting further relief against the
settling party under each of the statutes included in the
release. If, after investigation, it is determined that no cause
of action exists, then it is somewhat more likely that the
release might be considered;
2) Whether the settlement provides adequate consideration
for the broader release. If the relief to be obtained under the
settlement includes appropriate injunctive relief and/or
penalties for any actual or potential violation/cause of action
under the other media statutes, then it is somewhat more likely
that the release might be considered; and
3) Whether the settling party is in bankruptcy. If the
relief obtained through the settlement is all the Agency can
obtain from the settling party, and the settling party will be
ceasing operations, then it is somewhat more likely that the
multi-media release might be considered if the settlement is
otherwise favorable to the Government. This rationale is far
more persuasive in the Chapter 7 or Chapter 11 liquidation
context than in the Chapter 11 reorganization context.
In addition, the only possible statutory releases or
covenants not to sue that EPA will grant are for statutes
administered by EPA. Multi-media settlements should not grant
releases phrased in broad terms such as "all statutes
2 If multi-media causes of action have been asserted
in the United States' complaint, then settlement of and
releases under all statutes involved in the action would not be
unusual, provided that appropriate relief is obtained under each
statute. Such settlements would, however, require the
concurrence of all Regional and Headquarters media offices
involved, as described in Part C below.
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administered by EPA." Rather, all such releases should
specifically name the EPA statutes included in the release.
Further, releases should not include broad statements reaching
beyond EPA-administered statutes such as "all claims or causes
of action of the United States." A settlement should also not
release any common law claims EPA may have, because it is not
clear what, if any, Federal common law exists in the
environmental area, and thus a release of this kind is of
undefined scope. Similarly, State law claims should not be
released by the Federal government, since it is unclear what, if
any, Federal causes of action derive from State law. Moreover,
as a matter of practice and policy, we should not purport to bind
States when they are not directly involved in our enforcement
cases. 3 As always, releases may be granted only for civil
liability, not for criminal liability. 4
C.' PROCEDURES
All settlements involving multi-media resolution of
enforcement claims require the approval of the appropriate EPA
official(s) consistent with Agency delegations of authority. For
civil judicial enforcement cases specifically, all multi-media
settlements, including all CERCLA settlements resolving claims
under other EPA-administered statutes, require the approval or
concurrence of the AA-OECM. 5 In any case in which the Region
wishes to propose to the AA-OECM that EPA enter into such a
settlement, certain procedures must be followed.
3 Ordinarily, State claims are independent of Federal
enforcement authorities and are not compromised by settlement
under the Federal authorities.
4 Releases should also be drafted in accordance with the
policy and practice of each medium involved. In most enforcement
actions, this means that the release is based upon information
known to EPA at the time of the settlement and does not extend to
undefined future violations or site conditions.
5 For administrative enforcement cases which include multi-
media releases, the Regions similarly should obtain the
concurrence of all EPA officials (at Headquarters or in the
Region, as the case may be) consistent with the relevant EPA
delegations covering administrative settlements under each
statute included within the release. (If all authorities
included within the release are delegated to the Regions, then no
Headquarters concurrence is needed.) Of course, some
administrative settlements with multi-media releases will also
require approval by the Department of Justice when a DOJ role is
established by statute.
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First, cross-media consultation among all affected Regional
program offices and Office of Regional Counsel branches must be
undertaken. This consultation should involve joint investigation
as to whether there are any actual or potential causes of action
under any statute under which a release is contemplated. An
appropriate investigation, for example, is likely to include a
check of all relevant files, a determination of whether a field
inspection is warranted, and, if so, an inspection, and an
inquiry to State program and legal counterparts to ensure that
EPA is not unknowingly settling or waiving any potential claims
it may have based upon relevant and available information. In
the event that an appropriate cross-media investigation cannot be
undertaken, a release for any uninvestigated medium cannot be
given.
Second, when the settlement is referred to Headquarters for
approval or concurrence, the Regional Administrator's cover
memorandum to the AA-OECM should highlight the existence of the
multi-media settlement or release. It should also include a
statement by the Regional Administrator (or any other Regional
official delegated responsibility to approve the settlement on
behalf of the Region) that the Region has evaluated all possible
claims under all EPA-administered statutes included within the
release and, after diligent inquiry, has determined that, to the
best of its knowledge, no claims exist, or, if any claims do
exist, that it is in the best interest of the Agency to settle
the claims in the manner included in the proposed settlement. If
claims do exist, the RA's memorandum should explain why the
settlement is in the best interests of the Agency.
Lastly, the OECM Division for the program area that has the
lead in the settlement must take certain steps to ensure that
the other affected OECM Divisions and their program counterparts
at Headquarters do not object to the multi-media release. The
lead Associate Enforcement Counsel should provide a copy of the
settlement, the RA's cover memorandum, and any other relevant
supporting material from the Region (e.g.. in the case of a
CERCLA settlement, the Ten Point Settlement Analysis) to all
other OECM Associates who are responsible for any statutes
included in the release with a request for written concurrence
within 21 days. Each Associate should in turn consult with, and,
if part of standard procedure, obtain the concurrence of, his/her
Headquarters program counterpart on the settlement. The lead
Associate and his/her staff should coordinate all OECM comments
or requests for additional information from the Region to help
avoid presenting the Region with conflicting comments or
requests.
After all necessary concurrences have been received, the
lead Associate Enforcement Counsel will transmit the settlement
to the AA-OECM for final action, with a copy of all Headquarters
concurrences attached to the package. Although OECM will strive
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to meet its standard 35-day turnaround time for civil judicial
settlement referrals, because multiple Headquarters offices are
involved, the Regions should expect that multi-media release
settlements may take greater time to be reviewed and approved by
Headquarters than single-medium settlements. To assist OECM in
obtaining concurrences as expeditiously as possible, the Region
should actively consult with the lead OECM Division during
negotiations so that OECM will have advance notice of the cross-
media release issue and will be able to consult with other OECM
Divisions before the settlement is referred to the AA-OECM.
D. DISCLAIMER
This memorandum and any internal office procedures adopted
for its implementation is intended solely as guidance for
employees of the U.S. Environmental Protection Agency. It does
not constitute a rulemaking and may not be relied upon to create
a right or a benefit, substantive or procedural, enforceable at
law or in equity, by any person. The Agency may take action at
variance with this memorandum or its internal implementing
procedures.
If your staff has any questions on this matter, please ask
them to contact Sandra Connors of OECM-Waste at 382-3110.
cc: Richard B. Stewart, Assistant Attorney General, Land and
Natural Resources Division, U.S. Department of Justice
David T. Buente, Chief, Environmental Enforcement Section,
Land and Natural Resources Division, U.S. Department of
Justice
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