3 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
/ WASHINGTON. D.C. 20460 QQOQ O
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JUN - 5 1987
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MEMORANDUM
SUBJECT: Entry and Continued Access Under CERCLA
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FROM: Thomas L. Adams, Jr.
Assistant Administrator
TO: Regional Administrators l-K
Regional Counsels I-X
I. INTRODUCTION
'-- This memorandum sets forth EPA's policy on entry and
continued access to facilities by EPA officers, employees, and
representatives for the purposes of response and civil enforce-
ment activities under CERCLA. _!_/ In short, the policy recommends
that EPA should, in the first instance, seek to obtain access
through consent. Entry on consent is preferable across the full
range of onsite activities. If consent is denied, EPA should
use judicial process or an administrative order to gain access.
The appropriate type of judicial process varies depending on
the nature of the onsite activity. When entry is needed for
short-term and non-intrusive activities, an ex parte, judicial
warrant should be sought. In situations invoTving long-term or
intrusive access, EPA should generally file suit to obtain a
court order.
The memorandum's first section addresses the recently amended
access provision in CERCLA. The memorandum then sets forth EPA
policy on obtaining entry and the procedures which should be
used to implement this policy, including separate discussions on
consent, warrants, court orders, and administrative orders.
I/ This policy does not address information requests under
Section 104(e)(2).
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II. STATUTORY AUTHORITY
EPA needs access Co private property Co conduce investiga-
cions, studies, and cleanups. The Superfund Amendments and
Reauchorizacion Ace of 1986 (SARA) explicicLy grants EPA 2/ the
authority to enter property for each of these purposes. Section
104(e)(1) provides that entry is permitted for "determining the
need for response, or choosing or taking any response action
under chis title, or otherwise enforcing the provisions of this
title."
SARA also establishes a standard for when access may be
sought and defines what property may be entered. EPA may exercise
its entry authority "if there is a reasonable basis to believe
there may be a release or threat of a release of a hazardous
substance or pollutant or contaminant." § 104(e)(1). SARA,
however, does not require chat there be a release or threatened
release on the property co be entered. ^/ Places and properties
subject to entry under Section 104(e) include any place any
hazardous substance may be or has been generated, stored, treated,
disposed of, or transported from; any place a hazardous substance
has or may have been released; any place which is or may be
threacened by Che release of a hazardous substance; or any place
where entry is needed to determine Che need for response or the
appropriate response, or to effectuate a response action under
CERCLA. § 104(e)(3). EPA is also authorized to enter any place
or property adjacent to the places and properties described in
Che previous sentence. § 104(e)(1).
EPA is granted explicit power to enforce its entry authority
in Section 104(e)(5). Under that provision EPA may either issue
an administrative order directing compliance with an entry request
or proceed immediately to federal district court for injunctive
relief. Orders may be issued where consent to entry is denied.
Prior to the effective date of the order, EPA must provide such
notice and opportunity for consultation as is reasonably appro-
priate under the circumstances. If EPA issues an order, the
order can be enforced in court. Where there is a "reasonable
basis to believe there may be a release or threat of a release of
a hazardous substance or pollutant or contaminant," courts are
instructed to enforce an EPA request or order unless the EPA
2_/ Although CERCLA and SARA confer authority upon the President
that authority has been delegated to the EPA Administrator.
Exec. Order No. 12580, § 2(g) and (i), 52 Fed. Reg. 1923 (1987).
3_/ The House Energy and Commerce bill at one point contained
this limitation. H.R. Rep. No. 99-253 Part 1, 99th Cong,. 1st
Sess., 158 (1985). This limitation, however, was dropped prior to
introduction of the bill for floor debate. See H.R. 2817, 99th
Cong., 1st Sess., 131 Cong. Rec. H10857 (December 4, 1985).
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"demand for entry or inspection is arbitrary and capricious, an
abuse of discretion, or otherwise not in accordance with law."
§ 104(e)(5). The legislative history makes clear that courts
should enforce an EPA demand or order for entry if EPA's finding
that there is a reasonable basis to believe there may be a release
or threat of release is not arbitrary and capricious. 132 Cong.
Rec. S14929 (October 3, 1986) (Statement of Sen. Thurmond); 132
Cong. Rec. H9582 (October 8, 1986) (Statement of Rep. Glickman).
See United States v. Standard Equipment, Inc., No. C83-252M (W.D.
Wash"! November 3, 1986) . In addition, a penalty not to exceed
$25,000/day may be assessed by the court for failure to comply
with an EPA order or the provisions of subsection (e).
Finally, Section 104(e)(6) contains a savings provision
which preserves EPA's power to secure access in "any lawful
manner." This broad savings provision is significant coming
in the wake of the Supreme Court's holding that:
When Congress invests an agency with enforce-
ment and investigatory authority, it is not
necessary to identify explicitly each and every
technique that may be used in the course of
executing the statutory mission.
. . . Regulatory or enforcement authority
generally carries with it all the modes of
inquiry and investigation traditionally employed
or useful to execute the authority granted.
Dow Chemical Co. v. United States, 90 L.Ed. 2d 226, 234 (1986). 4/
One lawful means of gaining access covered by this paragraph is
use of judicially-issued warrants. See S. Rep. No. 99-11, 99th
Cong. 1st Sess. 26 (1985).
In numerous instances prior to the passage of SARA, EPA
obtained court rulings affirming its authority to enter property
to conduct CERCLA activities. 5/ Following enactment of SARA,
4/ See also. Mobil Oil Corp. v. EPA, 716 F.2d 1187, 1189 (7th
CTr. 1983), cert, denied, 466 U.S. 980 (1984) (EPA authority
to sample effluent under Section 308 of the Clean Water Act
broadly construed); CEDs, Inc. v. EPA, 745 F.2d 1092 (7th Cir.
1984), cert, denied. 471 U.S. 1015"TT985).
5_/ United States v. Pepper Steel and Alloy. Inc.. No. 83-1717-
CIV-EPS (S.D. Fla. October 10. 1986); Bunker Limited Partnership
v. United States, No. 85-3133 (D. Idaho October 21, 1985); United
States v. Coiemin Evans Wood Preserving Co., No. 85-211-CIV-J-16
(M.D. Fla. June 10. 1985); United States v. Baird & McGuire
Co. No. 83-3002-Y (U. Mass. May 2, 1985); United States v. United
Nuclear Corp.. 22 ERC 1791, 15 ELR 20443 (D.N.M. April 18, 1985) .
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several courts have ordered siteowners Co permit EPA access.
United States v. Long. No. C-1-37-L67 (S.D. Ohio May 13, 1987);
United States v. Dickerson, No. 34-76-VAL (M.D. Ga. May 4. 1987);
United States v. Standard~Equipment, Inc., No. C83-252M (W.D.
Wash. Nov. 3~7 19867". Further, the one adverse ruling on EPA's
right of access has been vacated by the Supreme Court. Outboard
Marine Corp. v. Thomas, 773 F.2d 883 (7th Cir. 1985), vacated,
93 L. Ed. 2d 695 (1986).
III. EPA ACCESS POLICY
EPA needs access to sites for several types of activities,
including:
0 preliminary site investigations;
0 removal actions;
0 RI/FSs; and
0 remedial actions.
Within each of these categories, the scope of the work and the
time needed to complete that work may .vary substantially. This
memorandum sets Agency policy on what means should be used to
gain access over the range of these various activities.
EPA may seek access through consent, warrant, administrative
order, or court order. Consent is the preferred means of gaining
access for all activities because it is consistent with EPA policy
of seeking voluntary cooperation from responsible parties and
the public. In certain circumstances, however, the Region should
consider obtaining judicial authorization or issuing an admini-
strative order in addition to obtaining consent. For example,
where uncertainty exists whether a siteowner will continue to
permit access over an extended period, reliance on consent alone
may result in a substantial delay if that consent is withdrawn.
When consent is denied, EPA should seek judicial authori-
zation or should issue an administrative order. If the judicial
route is chosen, EPA may seek an ejc parte warrant or a court
order. Warrants are traditionally granted for short-term entries.
Generally, warrants should not be used when the EPA access will
involve long-term occupation or highly intrusive activities.
Clearly, warrants are appropriate for preliminary site investiga-
tions. On the other hand, because of the long, involved nature
of remedial actions, access for such projects should be sought
through a request for a court order. Neither removals nor RI/FSs,
however, can be rigidly matched with a given judicial access
procedure. Depending on che activities to be undertaken and the
circumstances at the site, either a warrant or a court order may
be appropriate.
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In deciding whether Co use a warrant or a court order when
access is needed for a removal or to conduct a RI/FS, the follow-
ing general principles should be considered. First, if the
activity will take longer than 60 days a court order normally is
appropriate. Second, even if the activity will take less than 60
days, when the entry involves removal of large quantities of soil
or destruction of permanent fixtures, a court order may again be
appropriate. Finally, warrants should not be used if EPA action
will substantially interfere with the operation of onsite business
activities. These issues must be resolved on a case-by-case basis.
If EPA needs to gain access for a responsible party who has
agreed to undertake cleanup activities under an administrative
order or judicial decree, EPA may, in appropriate circumstances,
designate the responsible party as EPA's authorized representative
solely for the purpose of access, and exercise the authorities
contained in Section 104(e) on behalf of the responsible party.
Such a procedure may only be used where the responsible party
demonstrates to EPA's satisfaction that it has made best efforts
to obtain access. A further condition on the use of this procedure
is that the responsible party agree to indemnify and hold harmless
EPA and the United States for all claims related to injuries and
"damages caused by acts or omissions of the responsible party.
The responsible party should also be advised that the expenses
incurred by the government in gaining access for the responsible
party are response costs for which the responsible party is liable.
Before designating any responsible party as an authorized repre-
sentative, the Region should consult with the Office of Enforcement
and Compliance Monitoring.
IV. ACCESS PROCEDURES
A. Entry on Consent
1. General Procedures
The following procedures should be observed in seeking
consent:
Initial Contact. Prior to visiting a site, EPA personnel £/
should consider contacting the siteowner to determine if
consent will be forthcoming. EPA personnel should use this
opportunity to explain EPA's access authority, the purpose
for which entry is needed, and the activities which will be
conducted.
6/ As used in this guidance, the terra "EPA personnel" includes
contractors acting as EPA's authorized representatives.
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Arrival. EPA personnel should arrive at the site at a
reasonable time of day under the circumstances. In most
instances this will mean during normal working hours. When
there is a demonstrable need to enter a site at other times,
however, arrival need not be limited to this timeframe.
Entry must be reasonable given the exigencies of the situation.
Identification. EPA personnel should show proper identifi-
cation upon arrival.
Request for Entry. In asking for consent, EPA personnel
should statethe purpose for which entry is sought and
describe the activities to be conducted. EPA personnel
should also present a date-stamped written request to the
owner or person-in-charge. A copy of this request should
be retained by EPA. Consent to entry must be sought
from the owner _7/ or the person-in-charge at that time.
If practicable under the circumstances, consent to entry
should be memorialized in writing. A sample consent form is
attached. Although oral consents are routinely approved by the
courts, a signed consent form protects the Agency by serving as
a permanent record of a transaction which may be raised as a
defense or in a claim for damages many years later. If a site-
owner is unwilling to sign-a consent form but nonetheless orally
agrees to allow access, EPA should document this oral consent by
a follow-up letter confirming the consent.
Since EPA contractors often are involved in gaining access
in the first instance, the Regions should ensure that their
contractors are acquainted with these procedures.
2. Denial of Entry
If consent is denied, EPA personnel or contractors, before
leaving, should attempt to determine the grounds for the denial.
EPA personnel, however, should not threaten the siteowner with
penalties or other monetary liability or make any other remarks
which could be construed as threatening. EPA personnel may
explain EPA's statutory access authority, the grounds upon which
this authority may be exercised, and that the authority may be
enforced in court.
TV If EPA's planned site activities will not have a physical
effect on the property, EPA generally need not seek consent
from the owner of leased property where the lessee is in pos-
session. The proper person in those circumstances is the lessee.
But where EPA entry will have a substantial physical effect on
the property, both the lessee and the property-owner should be
contacted since in this instance interests of both will be
involved.
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3. Condicions Upon Entry
Persons on whose property EPA wishes to enter often attempt
to place conditions upon encry. EPA personnel should not agree
to conditions which restrict or impede the manner or extent of an
inspection or response action, impose indemnity or compensatory
obligations on EPA, or operate as a release of liability. The
imposition of conditions of this nature on entry snould be treated
as denial of consent and a warrant or order should be obtained.
See U.S. EPA, General Counsel Opinions, "Visitors' Release and
Hold Harmless Agreements as a Condition to Entry of EPA Employees
on Industrial Facilities," Gen'l and.Admin, at 125 (11/8/72).
If persons are concerned about confidentiality, they should be
made aware that business secrets are protected by the statute
and Agency regulations. 42 U.S.C. § 9604(e); 40 C.F.R. § 2.203(b).
h!PA personnel should enter into no further agreements regarding
confidentiality.
B. Warrants
1. General Procedures
To secure a warrant, the following procedures should be
observed:
Contact Regional Counsel. EPA personnel should discuss
with Regional Counsel the facts regarding the denial of
consent or other factors justifying a warrant and the
circumstances which give rise to the need for entry.
Contact Department of Justice. If after consultation with
Regional Counsel a decision is made to seek a warrant, the
Regional Counsel must contact directly the Environmental
Enforcement Section in the Land and Natural Resources Division
at the Department of Justice. 8/ The person to call at
the Department is the Assistant Chief in the Environmental
Enforcement Section assigned to the Region. The Assistant
Chief will then arrange, in a timely manner, for the matter
to be handled by either an Environmental Enforcement Section
attorney or a U.S. Attorney. The Region must send to the
Environmental Enforcement Section, by Magnafax or other
8y This procedure is necessary to comply with internal
~ Department of Justice delegations of authority. Referral
to a local U.S. Attorney's office is not sufficient for CERCLA
warrants. The Environmental Enforcement Section of the Department
of Justice must approve all warrant applications. (See Memorandum
from David T. Buente, Jr. to All Environmental Enforcement
Attorneys, "Procedures for Authorizing Applications for Civil
Search Warrants Under CERCLA" (4/3/87) attached).
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expedited means, a. drafc warrant applicacion and a short
memorandum concisely stating why the warrant is needed.
Prepare Warrant Application. The warrant application must
containthe following:
1) a statement of EPA's authority to inspect;
(see § II, supra)
2) a clear identification of the name and location
of the site and, if known, the name(s) of the
owner and operator of the site;
3) a statement explaining the grounds for a finding
of a reasonable basis for entry (i.e., a reasonable
basis to believe that there may be a release or
threatened release of a hazardous substance or
pollutant or contaminant) and the purpose for entry
(i.e., determining the need for response, or choosing
or taking any response action, or otherwise enforcing
CERCLA);
4) affidavits supporting the asserted reasonable basis
for entry and describing any attempts to gain access
on consent, if applicable; and
5) a specific description of the extent, nature, and
timing of the inspection;
Following preparation of the warrant application, the
Justice Department attorney will file the application with
the local U.S. Magistrate.
EPA may ask the Justice Department attorney to seek the
assistance of the United States Marshals Service in executing the
warrant where EPA perceives a danger to the personnel executing
the warrant or where there is the possibility that evidence will
be destroyed.
2. Reasonable Basis for Entry
A warrant for access on a civil matter may be obtained upon
a showing of a reasonable basis for entry. This reasonable
basis may be established either by presenting specific evidence
relating to the facility to be entered or by demonstrating that
the entry is part of a neutral administrative inspection plan.
A specific evidence standard is incorporated in SARA as a
condition on EPA's exercise of its access authority: EPA must
have "a reasonable basis to believe there may be a release or
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chreat of a release of a hazardous substance or pollutant or
contaminant." § 104(e)(1). SARA's express specific evidence
standard is consistent with how courts have formulated the
specific evidence test in the absence of statutory guidance.
E.g. West Point-Pepperell, Inc. v. Donovan, 689 F. 2d 950, 958
(1fth Cir.1982)(there must be a "showing of specific evidence
sufficient to support a reasonable suspicion of a violation").
In drafting a warrant application, conclusory allegations
regarding the specific evidence standard under subsection 104(e)
will not suffice. Courts generally have refused to approve
warrants where the application contains mere boilerplate asser-
tions of statutory violations. Warrant applications have been
granted, on the other hand, where the application contained
detailed attestations by government officials or third-party
complaints which have some indicia of reliability. Ideally,
EPA warrant applications should contain an affidavit of a person
who has personally observed conditions which indicate that there
may be a release or threat of a release of a hazardous substance.
If they are available, sampling results, although not required,
should also be attached. Warrant applications based on citizen,
employee, or competitor complaints should include details that
establish the complainant's credibility. 9_/
C. Court Orders
The provisions in CERCLA authorizing EPA access may be
enforced by court order. To obtain a court order for entry, the
Region should follow the normal referral process. If only access
is required, the referral package can obviously be much abbrev-
iated. If ciraing is critical, EPA HQ will move expeditiously
and will refer the case orally if necessary. The Regions, how-
ever, should attempt to anticipate the sites at which access may
prove problematic and should allow sufficient lead time for the
referral process and the operation of the courts. The Regions
should also not enter lengthy negotiations with landowners over
access. EPA and DOJ are prepared to litigate aggressively to
establish EPA's right of access.
9_/ If information gathered in a civil investigation suggests
~ that a criminal violation may have occurred, EPA personnel
should consult the guidance on parallel proceedings. (Memorandum
from Courtney Price to Assistant Administrators et al., "Policy
and Procedures on Parallel Proceedings at the Environmental
Protection Agency" (1/23/84)). Use of CERCLA's information-
gathering authority in criminal investigations is addressed in
separate guidance. (Memorandum from Courtney M. Price to Assistant
Administrators et al., "The Use of Administrative Discovery
Devices in the Development of Cases Assigned to the Office of
Criminal Investigations" (2/16/84)).
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Prior to seeking a court order, EPA should request access,
generally in writing, and assemble the record related to access.
The showing necessary to obtain a court order is the same as for
obtaining a warrant: EPA must show a reasonable basis to believe
that there may be a release or a threat of a release of a hazardous
substance or pollutant or contaminant. An EPA finding on whether
there is reason to believe a release has occurred or is about to
occur must be reviewed on the arbitrary and capricious standard.
§ 104(e)(5) (B)(i). If the matter is not already in court, EPA
must file a complaint seeking injunctive and declaratory relief.
Simultaneous to filing the complaint, EPA may, if necessary,
file a motion, supported by affidavits documenting the release
or threatened release, requesting an immediate order in aid of
access. If the matter is already in litigation, EPA may proceed
by motion to seek an order granting access. j_0/
In a memorandum supporting EPA's request for relief it
should be made clear that by invoking judicial process, EPA is
not inviting judicial review of its decision to undertake response
action or of any administrative dete rninations with regard to the
response action. Section 113(h) of SARA bars judicial review
of removal or remedial action except in five enumerated circum-
stances. A judicial action to compel access is not one of the
exceptions. Statements on the floor of the House and the Senate
confirm that EPA enforcement of its access authority does not
provide an opportunity for judicial review of response decisions.
Senator Thurmond, chairman of the Judiciary Committee, remarked
that when EPA requests a court to compel access "there is no
jurisdiction at that time to review any response action . . .
1O/ Parenthetically, it should be noted that the broad equitable
power granted to courts in Section 106 can also be relied
on to obtain a court order. An additional source of authority
for courts in this regard is the All Writs Act, 28 U.S.C. § 1651.
The Act authorizes federal courts to "issue all writs necessary
or appropriate in aid of their respective jurisdictions . . . ."
28 U.S.C. S 1651. This authority "extends under appropriate
circumstances, to persons who, though not parties to the original
action or engaged in wrongdoing are in a position to frustrate
the implementation of a court order . . . ." -United States v. New
York Telephone Co., 434 U.S. 159, 174 (1977).Thus, the All WtTEs
Act may prove useful as a means of compelling persons not a party
to a consent decree to cooperate with EPA and other settling
parties in execution of the decree. The use of the All Writs
Act, however, may be limited in light of the Supreme Court's
interpretation of the Act in Pennsylvania Bureau of Correction v.
United States Marshal Service, 88 L. Ed. 2d 189 (1985).
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[T]he court may only review whether the Agency's conclusion that
there is a release or threatened release of hazardous substances
is arbitrary or capricious." 132 Cong. Rec. S14929 (October 3,
1986) (Statement of Sen. Thurmond); 132 Cong. Rec. 119582
(October 8, 1986) (Statement of Rep. Glickman); see United States
v. Standard Equipment, Inc.. No. C83-252M (W.D. ftalh. Nov. 3, 1986)
D. Administrative Orders
If a siteowner denies an EPA request for access, EPA may
issue an adminstrative order directing compliance with the
request. § 104(e)(5)(A). Each administrative order must include
a finding by the Regional Administrator that there exists a
reasonable belief that there may be a release or threat of release
of a hazardous substance and a description of the purpose for the
entry and of the activities to be conducted and their probable
duration. The order should indicate the nature of the prior
request for access. Further, the order should advise the re-
spondent that the administrative record upon which the order was
issued is available for review and that an EPA officer or employee
will be available to confer with respondent prior to the effective
date of the order. The length of the time period during which
such a conferences may be requested should be reasonable under
the circumstances. In deciding what is a reasonable time period,
consideration should be given to the interference access will cause
with onsite operations, the threat to human health and the environ-
ment posed by the site, and the extent of prior contacts with the
respondent. The order should advise the respondent that penalties
of up to $25,000 per day may be assessed by a court against any
party who unreasonably fails to comply with an order. § 104(e)(5).
Following the time period for the conference and any conference,
the issuing official should send a document to the respondent
summarizing any conference, EPA's resolution of any objections,
and stating the effective date of the order.
If, following issuance of an administrative order, the site-
owner continues to refuse access to EPA, the order may be enforced
in federal court. EPA should not use self-help to execute orders.
Courts are required to enforce administrative orders where there
is a reasonable basis to believe that there may be a release or
threat of a release of a hazardous substance. EPA's determination
in this regard must be upheld unless it is arbitrary and capricious,
§ 1 04(e)(5)(B)(i). EPA will seek penalties from those parties who
unreasonably fail to comply with orders.
All administrative orders for access must be concurred on by
the Office of Enforcement and Compliance Monitoring prior to
issuance.
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DISCLAIMER
The policies and procedures established in this document are
intended solely for the guidance of government personnel. They
are not intended, and cannot be relied upon to create any rights,
substantive or procedural, enforceable by any party in litigation
with the United States. The Agency reserves the right to act at
variance with these policies and procedures and to change them at
any time without public notice.
Attachments
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Memorandum
9829,2
Subjiet
Procedures for Authorizing Application
for Civil Search Warrants Under CERCLA
April 3, 1987
To
All EES Attorneys
From
Er vironmental
ment Section
Under § 104(e) of CERCLA, as amended by SARA, the
United States may seek access by warrant, administrative order,
or court order. If access is obtained by administrative order,
the appropriate documents are issued by relevant client agencies.
If access is to be obtained by court order, then the Assistant
Attorney General of the Land and Natural Resources Division must
approve the complaint, upon referral from the relevant client
agency according to ordinary procedures. For access to be sought
through application on a civil CERCLA warrant,1 the instant
memorandum will confirm the procedures to be used by the
Department of Justice.
Under 15.320-A-2 of the U.S. Attorney's Manual,
application for warrant under CERCLA may not be handled
unilaterally by the U.S. Attorneys. Applications for such
warrants must be coordinated through the Environmental
Enforcement Section.
Clearance through the Environmental Enforcement Section
is important for a variety of reasons. First, the nature of the
governmental activities involved under CERCLA civil warrants may
be much broader and last considerably longer than an inspection
under the other federal environmental regulatory statutes.
Typically the latter require only a few days or weeks to conduct
routine environmental sampling. Under CERCLA, access may be
sought under a warrant for not only sampling, but even simple
1 The memorandum does not cover procedures for seeking a
criminal search warrant where a CERCLA violation may be
involved. All such matters are to be referred to the Director,
Environmental Crimes Unit, EES.
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removal-type activity, e.g., security/fencing, limited drum
removal. The greater relative complexity of,the governmental
activity involved can be expected to provoke more challenges to
CERCLA civil warrants than those under other statutes and the
issues raised by CERCLA warrants may be much more complex.
Second, this is a relatively new and vital area of the law. We
must ensure that maximum efforts are made to develop this
critical area of the law in an excellent manner. EES lawyers
must make all reasonable efforts to ensure that exercises of the
civil warrant authority under CERCLA will be vindicated by the
federal courts, through proper presentation of facts and legal
arguments by Departmental attorneys with experience in this area.
Finally, since our experience has shown that judicial challenges
to civil CERCLA warrants tend to move very rapidly, sometimes on
an emergency motion basis, EES needs to work closely with client
agencies on these matters so that the Division's Appellate
Section is advised and prepared with sufficient lead time to
expeditiously address appellate proceedings.
Coordinating these warrant applications through EES
must be done on an expedited basis so that client agencies'
program objectives are achieved. Moreover, our resources must
not be consumed by duplicative work. Balancing the needs for
careful warrant application preparations with that for
expeditious handling of these matters, we will use the following
procedures:
1. The client agency will telephonically notify the
relevant EES Assistant Chief or Senior Lawyer when the Agency
plans to seek a civil warrant.
2. The client agency will follow-up the request by
expeditiously transmitting a short memorandum concisely
explaining why the warrant is needed with a draft copy of the
warrant application and supporting affidavits.
3. Upon receipt of the telephonic notification or
written request, whichever first occurs, the EES Assistant Chief
or Sr. Lawyer will arrange for either an EES staff attorney or an
AUSA to handle the review and prosecution of the application.
Unless a dispute develops between EES/AUSA personnel and the
client agency, the EES Assistant Chief or Sr. Lawyer may approve
the application. If such a dispute develops, it must be brought
to the attention of the Chief or Deputy Chief, EES for
resolution.
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4. Handling of these matters is to be afforded
priority on our docket. Moreover, the Chief or Assistant Chief
of the Appellate Section shall be advised of each application
request by the EES Assistant Chief or Sr. Lawyer as soon as
possible after notification by the client agency, so that
Appellate can be prepared to handle expeditiously appeal matters.
5. All civil actions to enforce civil CERCLA warrants,
by way of application for civil contempt or other judicial
orders, shall be authorized in writing by the Assistant Attorney
General. Such actions shall be afforded highest priority on the
docket.
For general advice/guidance on handling CERCLA civil
warrant matters, contact John Fleuchaus, ORCM-Waste, 382-3109.
Attachment
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CONSENT FOR ACCESS TO PROPERTY
Name:
Address of Property:
I consent to officers, employees, and authorized
representatives of the United States Environmental Protection
Agency (EPA) entering and having continued access to my
property for the following purposes:
[the taking of such soil, water, and air samples as may
be determined to be necessary;]
[the sampling of any solids or liquids stored or disposed
of on site;]
[the drilling of holes and installation of monitoring wells
for subsurface investigation;]
[other actions related to the investigation of surface or
subsurface contamination;]
[the taking of a response action including . . . .]
I realize that these actions by EPA are undertaken pursuant
to its response and enforcement responsibilities under the
Comprehensive Environmental Response, Compensation and Liability
Act (Superfund), 42 U.S.C. § 9601 et seq.
This written permission is given by me voluntarily with
knowlege of my right to refuse and without threats or promises
of any kind.
Date Signature
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