,*>'
,<«o $%,
I UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
f WASHINGTON. O.C 20460
"EC I 6 '99
of
MEMORANDUM
SUBJECT: Update of General Enforcement Policy Compendium
Transmittal Memorandum
FROM: Cheryl Wasserman, Acting Directo
Office of Enforcement Policy
TO: Associate Enforcement Counsels
Associate General Counsels
HQ Program Enforcement Offices
Regional Counsels
NEIC
The attached documents are an update of the General
Enforcement Policy Compendium. This update consists of policies
which have been added, revised or deleted since the issuance of
the June 11, 1987, update. The policies are:
DOCUMENT NAMES DATES
Issuance of Enforcement Considerations for 8/15/85
Drafting and Reviewing Regulations and
Guidelines for Developing New or Revised
compliance and Enforcement strategies
The Regulatory Development Process: Change in 2/06/87
Steering Committee Emphasis and OECM Implementa-
tion
Procedures.and Responsibilities for Updating •': 3/10/87
and Maintaining the Enforcement Docket
Enforcement Docket Maintenance
Final Guidance on Use of Alternative Dispute
Resolution Techniques in Enforcement Actions
Policy on Invoking Section 9 of the EPA/DOJ 8/20/87
Memorandum of Understanding
GM NUMBERS
GM - 58
GM - 59
GM - 60
4/08/88 GM - 61
8/14/87 GM - 62
GM - 63
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DOCUMENT MMES . Q&1ES.
Processing of Consent Decrees ' 9/14/87
Processing of Indirect Referrals 9/29/87
Assertion of the Deliberative Process Privilege
(2 documents):
A. Guidance for Assertion of Delibera-
tive Process Privilege
E. Change in Review Process for Concurrent.,.
in Litigation
Procedures for Assessing" Stipulated Penalties
Procedures for Modifying Judicial Decrees
Expansion of Direct Referral of Cases to the
Department of Justice
Delegation of Concurrence and Signature of ' 1/14/88
Authority .
Case lyfenagement Plans 3/11/88
Assuring Tijmely FilL:^ and Prosecution of 4/38/88
Civil Judicial Actions :
Process for conducting Pre-Referral Settlawant 4/13/88
Negotiations on Civil Judicial EnforcansTt, Cases
Guidaixe on Certification of Ccnpli-Jice with 6/25/88
Enforcanent Agreements
(31-64
01-65
GM - 66
10/3/84
9/30/87
1/11/8&-
1/11/83
1/14/88
GM - 67
GM - 68
GM - 69
GM - 70
GM - 71
GM - 72
GM - 73
GM - 74
There are modifications to existing policies. "'.'These
policies are:
GM -• 11 This policy is obsolete and should be discarded. The
index notes that it was deleted ar>6 revised. We are
attaching a permanent cover page te> be put in manual
in its place. „ 3
GM - 25 This policy has been revised. A new Federal Facility
Compliance Strategy was signed on 11/8/88. we have
excerpted the enforcement sections of the Strategy
and included them here. We are also including a
cover page explaining that the previous version is
obsolete. The 1984 Strategy should be removed, and
the cover page and new document put in the manual,
its place.
-------
GM - 41 This policy has been revised. The old one should be
discarded and the new one put in its place along with
the permanent cover page explaining the changes. The
revised index notes that it was replaced.
GM - 46 There was an addendum to this policy issued 8/4/87.
The attached cover page should go in the. front of the
current #46 stating that there is an addendum
contained there. The addendum should be added after
the current f46.
'. 3 •• •
GM - 57 This policy was revised. The old one should be
discarded and the new one, put in its place along with
\SN '" the ^^manent cover page explaining the change. The
revised index notes that the old one was replaced.
Also attached is ;a revised chronological table of contents
and a topical index of the currently effective general
enforcement, policies and guidance documents. The revised table
of contents and index replace all previously issued versions.
it-.- "* t "
The complete Compendium now consists of 74 documents numbered
sequentially GM-l through GM-74. Additional copies of the
Compendium updates or any of the Compendium documents are
available through OECM's Program Development and Training Branch
until the supply is exhausted. "*'
It has come to our attention that o\$g mailing list needs
substantial updating. -Please fill out the attached form
confirming your address and interest in receiving compendium
updates. Then fold it over so that the OEP return address shows,
and mail- it, back to us within four weeks of the date of this
memorandum. If we do not receive this form, we will remove your
name from the mailing list.
^ •
,.!
If you have any questions concerning the compendium text
and/or would like a copy, please contact
Attachments
. if
cc: ;A3$0fiate Administrator for Regional Operations
-rEFZV library
Datfid Buente, Department of Justice
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TABLE OF CONTENTS - GENERAL ENFORCEMENT POLICY COMPENDIUM
TITLE Or DATE OF
DOCUMENT DOCUMENT'
Visitor's Releases and Hold 11/08/72
Harmless Agreements as a Condition
to Entry to EPA Employees.on
Industrial. Facilities
Professional Obligations of 4/19/76
Government Attorneys
Memorandum of Understanding Between 6/15/77
the Department of Justice and the
Environmental Protection Agency
"Ex Parte" Contacts in EPA 8/04/77
Rulemaking
Conduct of Inspections After the 4/11/79
Barlow's Decision
Contacts with Defendants and 10/07/81
Potential Defendants in
Enforcement Litigation
"Ex Parte" Rules Covering Communica- 12/10/81
tions Which are the Subject of Formal
Adjudicatory Hearings
Quantico Guidelines for Participation 4/08/82
in Grand Jury Investigations
Agency Guidelines for Participation 4/30/82
in Grand Jury Investigations
Reorganization of tne Office of 5/07/82
Regional counsel (includes
Administrator's Memorandum of
September 15, 1981)
Coordination of Policy Development Deleted
and Review 11/88
TAB
GM - I
GM - 2
GM - 3
GM - 4
GM - 5
GM - 6
GM - 7
GM - 8
GM - 9
GM - 10
GM - 11
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TABLE OF CONTENTS
PAGE 2
TITLE OF
DATE OF
General Operating Precede .or
EPA's Civil Enforcement Pr~-;ram
Case Referrals for Civil Litigation
Criminal Enforcement Priorities
for the Environmental Protection
Agency
Functions and General Operating
Procedures for the criminal
Enforcement Program
Regional Counsel Reporting
Relationship
Guidance for Drafting Judicial
Consent Decrees
Implementation of Direct Referrals
for Civil Cases
Consent Decree Tracking Guidance
Guidance on Evidence Audit of
Case Files
Policy on Civil Penalties
A Framework for Statute-Specific
Approaches to Penalty Assessments
Guidance Concerning Compliance with
the JencJcs Act
working Principles Underlying EPA's
National Compliance/Enforcement
Programs
Federal Facilities Compliance
(Previous version dated 1/4/84)
7/06/82
9/07/82
10/12/82
1/07/85
TAB
GM -
GM -
GM -
12
13
14
GM - 15
8/03/83
10/19/83
11/28/83
12/16/83
12/30/83
2/16/84
2/16/84
11/21/83
11/22/83
GM -
GM -
GM -
GM -
GM -
GM -
GM -
GM -
GM -
16
17
18
19
20
21
22
23
24
11/08/88
GM - 2!
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TABLE OF CONTENTS
PAGE 3
TITLE OF
PQCUMEN/F
Headquarters Review and Tracking
of civil Referrals
~\
Guidelines for Enforcing Federal
District Court Orders
Liability of Corporate Shareholders
and Successor Corporations for
Abandoned Sites Under CERCLA
Guidance on Counting and Crediting
Civil Judicial Referrals
Policy and Procedures on Parallel
Proceedings at the Environmental
Protection Agency
Guidance for Implementing EPA^s
Contractor Listing Authority
Implementation of Mandatory
Contractor Listing
Guidance for Calculating the
Economic Benefit of Noncompliance
for a Civil Penalty Assessment
Policy Against "No Action"
Assurances
Implementing Nationally Managed or
Coordinated Enforcement Actions:
Addendum to Policy FrameworJc for
State/EPA Enforcement Agreements
The Use of Administrative Discovery
Devices in the Development of Cases
Assigned to the Office of Criminal
Investigations
The Role of EPA Supervisors
During Parallel Proceedings
DATE OF
DQCUMKNf
3/08/84
4/18/84
6/13/84
6/15/84
1/23/84
7/18/84
8/08/84
11/05/84
11/16/84
1/04/85
2/16/84
TAB
GM - 26
GM - 27
GM - 28
GM - 29
GM - 30
GM - 31
GM - 32
GM - 33
GM - 34
GM - 35
GM - 36
3/12/85
3M - 37
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TABLE OF CONTENTS
PAGE 4
TITLE Of
Remittance of Fines and Civil
Penalties
Enforcement Settlement
Negotiations
Revised Regional Referral
Package Cover Letter and
Data Sheet
- ;,?
Implementing the state/
Federal Partnership in
Enforcement: State/Federal
Enforcement "Agreements"
(Previous version dated 6/26/84)
Form of Settlement of Civil
Judicial Cases
Enforcement Document Release
Guidelines
Settlement of Enforcement
Actions Using Alternative
Dispute Resolution Techniques
Division of Penalties with
State and Local Governments
Policy on Publicizing Enforce-
ment Activities
Addendum
A Summary of OECM's Role in the
Agency's Regulatory Review
Process
Model Litigation Report Outline
and Guidance
Implementation of Guidance on
Parallel Proceedings
DATE OF
DOCUMENT
4/15/85
5/22/85
5/30/85
8/25/86
7/24/84
9/16/85
10/02/85
11/21/85
11/21/85
8/04/87
1/27/86
1/30/86
2/03/86
TAB
GM - 38
GM - 39
GM - 40
GM - 41
GM - 42
GM - 43
GM - 44
GM - 45
GM - 46
GM - 47
GM - 48
GM - 49
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TABLE OF CONTENTS
PAGE 5
TITLE OF
DOCUMENT
Expanded civil Judicial Referral
Procedures
Guidance on Calculating After Tax
Net Present Value of Alternative
Payments
EPA Policy on the Inclusion of
Environmental Auditing Provisions
in Enforcement Settlements
Guidance on Implementing the
Discretionary Contractor Listing
Program
Referral Letters for Forwarding
Judicial Referrals and Consent
Decrees to the Department of Justice
Media Relations on Matters Pertaining
to EPA's Criminal Enforcement Program
Guidance on Determining a Violation's
Ability to Pay a Civil Penalty
Guidance for the FY 1989 State/EPA
Enforcement Agreements Process
(Previous version dated 4/31/87)
Issuance of Enforcement Considerations
for Drafting and Reviewing Regulations
and Guidelines for Developing New or
Revised Compliance and Enforcement
Strategies
The Regulatory Development Process:
Change in Steering Committee Emphasis
and OECM Implementation
Procedures and Responsibilities for
Updating and Maintaining the Enforce-
ment Docket
DATE OF
DOCUMENT
8/28/86
10/28/86
11/14/86
11/26/86
11/12/86
12/12/86
12/16/86
6/20/88
8/15/85
2/06/87
3/10/87
TAB
GM - 50
GM - 51
GM - 52
GM - 53
GM - 54
GM - 55
GM - 56
GM - 57
GM - 58
GM - 59
GM - 60
Enforcement Docket Maintenance
4/08/88
GM'- 61
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TABLE OF CONTENTS
PAGE 6
T:CTLE or DATE OF
DOCUMENT DOCUMENT
Final Guidance on Use of Alternative 8/14/87
Dispute Resolution Techniques in
Enforcement Actions
Policy on Invoking Section 9 of the 8/20/87
EPA/DOJ Memorandum of Understanding
Processing of Consent Decrees 9/14/87
Processing of Indirect Referrals 9/29/87
Assertion of the Deliberative Process
Privilege (2 documents):
A. Guidance for the Assertion of 10/30/84
Deliverative Process Privilege
B. Change in Review Process for 9/30/87
concurrence in Litigation
Procedures for Assessing Stipulated 1/11/88
Penalties
Procedures for Modifying Judicial 1/11/88
Decrees
Expansion of Direct Referral of Cases 1/14/88
to the Department of Justice
Del€)gation of Concurrence and Signa- 1/14/88
ture of Authority
Case Management Plans 3/11/88
Assuring Tinely riling and Prosecu- 4/08/88
tion of Civil Judicial Actions
Process for Conducting Pre-Referral 4/13/88
Settlement Negotiations on Civil
Judicial Enforcement Cases
Guidance on Certification of 6/25/88
Compliance with Enforcement
Agreements
TAB
GM - 62
GM - 63
GM - 64
GM - 65
GM - 66
GM - 67
GM
GM
- 68
- 69
GM - 70
GM
GM
71
72
GM - 73
GM - 74
-------
Memorandum of Understanding Between the Department
of Justice and the Environmental Protection Agency GM - 3
Quantico Guidelines for Enforcement Litigation GM-8
Reorganization of the Office of Regional Counsel GM - 10
Coordination of Policy Developnent and Review GM - 11
(Deleted 11/88)
General Operating Procedures for EPA's Civil
Enforcement Program GM - 12
Case Referrals for Civil Litigation GM - 13
Regional counsel Reporting Relationship GM - 16
Policy on Civil Penalties GM - 21
A Framework for Statute-Specific
Approaches to Penalty Assessments GM - 22
Working Principles Underlying EPA's
National Compliance/Enforcement Programs GM - 24
Federal Facilities Compliance Strategy GM - 25
Liability of Corporate Shareholders
and Successor Corporations for Abandoned
Sites Under CEROA GM - 28
Implementation of Mandatory Contractor
Listing GM - 31
Guidance for Calculating the Econcmic
Benefit of ttnpliance for a Civil
Penalty AsMMHnt GM - 33
Implementing Nationally Managed or coordinated
Enforcement Actions: Addendum to Policy Framework
for State/EPA Enforcement Agreements GM - 35
Remittance of Fines and Civil Penalties GM - 38
Implementing the State/Federal Partnership in
Enforcement: State/Federal Enforcement "Agreements" ... GM - 41
-------
TOPICAL INDEX
PAGE 2
Enforcement Document Release Guidelines GM - 43
Policy on Publicizing Enforcement
Activities GM - 46
A Summary of OECM's Role in the Agency's
Regulatory Review Process GM - 47
Guidance on Calculating After Tax Net
Present Value of Alternative Payments GM - 51
Guidance on Implementing the Discretionary
Contractor Listing Program GM - 53
Media Relations on Matters Pertaining to EPA's
Cr Lminal Enforcement Program GM - 55
Guidance on Determining a Violator's Ability
to Pay a Civil Penalty GM - 56
Guidance for the FY 1988 state/EPA Enforcement
Agreements Process GM - 57
Issuance of Enforcement Consideration for
Drafting and Reviewing Regulations and
Guidelines for Developing New or Revised
Compliance and Enforcement Strategies GM - 58
The Regulatory Development Process: Change in
steering committee Emphasis and OECM Implementa-
tion GM - 59
Procedures and Responsibilities for Updating
and Maintaining the Enforcement Docket GM - 60
Enforcement Docket Maintenance ; GM - 61
Procedures for Assessing Stipulated Penalties GM - 67
Delegation of concurrence and Signature of
Authority GM - TO
Attorney Conduct
Professional Obligations of Government Attorneys — GM - :
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TOPICAL INDEX
PAGE 3
Memorandum of Understanding Between the Department
of Justice and the Environmental Protection Agency GM - 3
Quantico Guidelines for Enforcement Litigation GM - 8
Case Referrals for Civil Litigation GM - 14
Guidance for Drafting Judicial Consent Decrees GM - 17
Implementation of Direct Referrals for civil Cases GM - 18
Guidance on Evidence Audit of Case Files GM - 20
Guidelines for Enforcing Federal District
Court Orders GM - 27
Guidance on Counting and Crediting
Civil Judicial Referrals GM - 29
Policy Against "No" Action" Assurances GM - 34
Revised Regional Referral Package Cover
Letter and Data Sheet GM - 40
Form of Settlement of-Civil Judicial Cases GM - 42
Division of Penalties with State and
Local Governments GM - 45
Model Litigation Report Outline Guidance GM - 48
Expanded Civil Judicial Referral
Procedures GM - 54
civil Judicial Referral
Procedure* GM - 50
Referral Letters for Forwarding Judicial
Referrals and Consent Decrees to the Department
of Justice GM - 54
Final Guidance on Use of Alternative Dispute
Resolution Techniques in Enforcement Actions GM - 62
Policy on Invoking Section 9 of the EPA/DOJ
Memorandum of Understanding GM - 63
-------
TOPICAL INDEX
PACE 4
Processing of Consent Decrees GM - 64
Processing of Indirect Referrals GM - 65
Assertion of the Deliberative Process Privilege
(2 document:)
A. Guidance for the Assertion of Deli-
berative Process Privilege GM - 66
B. Change in Review Process for Concur-
rence in Litigation
Procedures for Modifying Judicial Decrees GM - 68
Expansion of Direct Referral of Cases to
the Department of Justice GM - 69
Case Management Plans GM - 71
Assuring Timely Filing and Prosecution of
Civil Judicial Actions GM - 72
Process for Conducting Pre-Referral Settlement
Negotiations on Civil Judicial Enforcement Cases GM - 73
Guidance on certification of compliance with
Enforcement Agreements GM - 74
Inspections
Visitor's Releases and Hold Harmless Agreements as a
Condition to Entry to EPA Employees on Industrial
Facilities GM - 1
Conduct of Inspections After the Barlow's Decision GM - 5
Rules RflffMrfllH
-------
TOPICAL INDEX
PAGE 5
Consent Decree Tracking Guidance ....................... GM - 19
Headquarters Review and Tracking of
Civil Referrals ........................................ GM - 26
Negotiation and Sett
Guidance for Drafting Judicial Consent Decrees ......... GM - 17
Enforcement Settlement Negotiations .................... GM - 39
Settlement of Enforcement Actions Using
Alternative Dispute Resolution Techniques .............. GM - 44
GENERAL ENTQP^FMian' POLICY - CRIMINAL
Criminal Enforcement Priorities for the Environmental
Protection Agency ...................................... GM - 14
Functions and General Operating Procedures for the
Criminal Enforcement Program ...................... ..... GM - 15
Guidance Concerning Compliance with the
Jencks Act ............................................. GM - 23
Policy and Procedures on Parallel Proceedings
at the Environmental Protection Agency ................. GM - 30
The Role of EPA Supervisors During Parallel
Proceedings ............................................ GM - 37
Implementation of Guidance on Parallel
Proceedings ............................................ GM - 49
Tnvnat" i a At i Ann
Agency guidelines for Participation in Grand Jury
investigations GM - 9
The Use of Administrative Discovery Devices in the
Development of Cases Assigned to the Office of
Criminal Investigations GM - 36
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-1
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' -v>jl; UNITED STA S EnVlrtONf.-ILN'TAL PROTEC1 \AGC.\CY
' WASHINOTO'.'. D.C. 20-:C-'J
OFFICli OF Tiiii CKNciVvI. COUNSEL
iDj; IIALL
NOV 61372
Memorandum
To: All Regional Counsels
From: Assistant Administrator for F.nlorcci.icnt and
•General Counsel
Subject: Visitors' Releases and Hold Iinrr.ilcps Af,rei:ncnts
as a Condition to 1'ntry of Ei'A Emp]oycciS on
Industrial Facilities
As a condition to entry on Industrie! faciJitirs, ccrtnin
firms have rc'jiiired ]i?A rnploycrr. to si^ri np.rcer.rnts
purport to release tin cor.pany from tort liability. Tr.c
"Visitors Release" required by the Owens-Corning Fibcrglns
Corporation is an cxanple:
VISITORS RELEASE
In consideration o: permission to enter the
premises of Owens-Corning Fibcrclss Corporation
and beiny aware of the risk of injury from •
equipment, ncslif.cncc of enployees or of other
visitors, and froir other causes, the undersigned
'' assumes nil riuh, rclcnsc-.s said corporation,
« and agrees to hold it harmless front liability
^ for any injury to him or his; property while upon
its premises. . .
READ CA1UTUUY BEFORE
In addition to such "Visitors Releases" onploypcs or
their supervisors have; been a»l;ecl to sign entry permits which
include an npree:nent that KPA will pay for any injury or donate
resulting froni our activities at the facility.
-------
2
.onr.STin.-.-s
1. Docs sif.ninj :-uch a "Visitor.1? HeJ.iMyt:" off re Lively
waive the employee's rijjht to obtain dai'iapes. for tortious injury?
2. May EPA employees contractually obligate tiic Agency
to pay for any injury or dan-.agc caused by our activities?
3. May firms condition EPA's entry upon siciunj such
agreements?
t • !
1. Generally, yes; onploye.cr? waive their right to
damages and the [jovornrcent is prevented fro;:i e::ercisiiif, its
right of subrogation under the Federal Employees' Compensation
Act.
2. i.'o; federal tort liability is established and linitcd
hy the Feticrnl Tort Clr.ir.-.s Act, and cucli n^rcer.cnts arc also
invalid as violctivc of tlic Anti-Deficiency Act.
3. No; EFA employees possess a riyht of entry under
both the Clcnn Air Act and the Federal l-.'atcr TolluLion Control
Act /unindncnts of 1972.
DISCUSSTo:;
Althou;;h tlie precise effect of an advance* release of
liability for negligence cannot be dcterr.incJ vithout reference
to the lav of the state in which the tort occurs, v/c must
assume that such n^rter.-.c-nts arc nenerally valid. By signing
such ajrccr.ents EPA employees r.ay effectively waive their right
to sue for damages and the covcrr.ment 's ri^ht of subrogation
under tlie Federal Er,;ploy«ses' Coir.pcnsation Act, 5 USC 8101 ct
The P.esfatnnent of Contracts. Ch. 18, § 575 states:
A barfiain for exemption fron liability for the
consequences of a willful breach of duty is illegal,
and a barnain for exemption iron liability for
tlie consequences of negligence is illegal if
(a) the parties arc employer and employee and
tljc barc.'in rcla:c^ to ncylii'.cnt injury of
tlic employee in the course of the or.ploynent,
or,
(b) one of the parties is char/jrd t.'ith a duty of
public service, and tiilTTjar^r.in rcuJtca to
ncplif.LMce in the pcrfori."..incc of any part
of itu duty to the public, for u-hich it lias
received or been proir.isod co.npcnsation . . ..
-------
With the exceptions mentioned in the J\.CM af.T.m
M'lyr.i, no gcnoral j'u!:lic poiJcy sccir.s to e.xiyt .i;;.-ii:-.3T~c~:~prcss
agreements for .•u'.'unnption of risk, nnil they need not i>o
Supported by consideration. 10 Prom??- on TPV;S 5 55 and
liPStnivMtint of Torrs 2d, Ch. J7A, 5/.96M. Uowpjtc tliia i;fciiernl
rule, c;iacs nr.isJi:,'; under the Federal Tort Cl.-.icis /\c!:' involving
releases signed l-y civilian pjssen«crs prior to boarJing ill-fated
Rovcrnwant aircraft: indicate that the courts do not fr.vor Sucii
agreement:;. (Tr i.c(!"':in v. I.nc'ji^c-fl Airrr.i_f f .Corn. . 13S i:. Supp.
530 (liT)6) — n rclc.-.se is no defense -against nrL'3';i willful, or
wanton nci;li;;cncc in I»'cw York; not-.r'-' v. U.S. . 173 F. Supp. 5/i7
(1959) — a tc'lcnse is ineffective unless the flight is
Monccn UT v. 1?. S. . 315 F2d lf.0 (1963)--;i release cio
destroy a cnuse of action for vron2ful death in I-Jiiss.icliusctts.)
Sucli apparent judicijl disfavor of ndvnnco rclonses is, of course,
insufficient justification for assu:ninjj the risk of. s:';;nin- ciu-.Ti,
and ordJn.iry prudence requircr. us to asr-umc their validity. Although
signing a release docs not affect the. employee's ri;:iit to bcnciits
under 3'nCA, such co;"p-oes ' Coi-peanation Act, .1 USC S131
and 5132, provides r.hnc an Ci;!)loyec r.r.y be require;! to assign
Jiis rij;ht to sue third parties- to the United States anc! that
the employee must, v:ithin lir.ii tr. tions, ji:iy over any rt:covcry
from third parties as rci::ibur!:c-n:cnt of J'iX'A benefits, tiia
employee's release prejudices the government's rij;ht^ as veil
as. his own. Kirrloypc's should therefore PC. insiructrt! not to )/
sign such rclcasc-a unucr any circurr.stancp.s . •
Although an Jil'A cnplnyce's express asi;unption of tlie riclc
of injury to himself may be valid, an ,-igreesent which purports
to oblinate EPA to pay all daira^es caused by our activities is
not. The Federal Tort Claims Act, 28 USC 2G74 provides:
•
Thte United State.1; shall be liable, respecting
/ the provisions o:: this title1, relating to tort
claims, in the s.ine r.;anncr and to thu s.-i:;:c
extent ns 'n private individu.-il under li!:e
circumstances, but shall not be liable for
interest prior to judgment or for punitive damages . . .
Congress has granted only a .".initcd waiver of the government's
sovereign immunity, and 28 USC 2650 lists exceptions to the
-------
jl waiver .stated in. 2C U.1C 267/1, £ji;irvi. Kxerptions t.v.ich
nifjir be relevant in cares ,-irir.inj; cut of the aci.io«.s til Hi' A
employees include 28 USC 2uiiO(a);
Any claim hasc'd upon an net or omission of nn
employee of the Government, cxrrciPJn;-. due care,
in the execution of a statute or regulation,
whether or not such statute or regulation be
valid, or bayed upon tin.1 exercise or performance
or the failure co exercise or perform a discretionary
function or duty on die pr.rt of -a fcdor.il agency
cr an "employee of the CovciT.went, whether or not
. ,thc discretion involved be abused;
' ;' • • '
and 20 USC 26SO(b): ....
• f
Any claim arising out of assault, battery,
false inprisonnsnt, false arrest, malicious
prosecution, abur.o of process, lije.1, .sJander,
mirrcprccentatior., deceit, or interference
with contract rights ...
Since tlif! fjovcrn.-rrjnc "s tort liability is li;;iitcc! l>y statute,
an ;ul;::iuiy trativc undcrta!:.in^ to expand /:uc!i li.i'ni.l.iiy by
contracr is prol>r.I;Jy invalid. In any event, KlYi ^'lo-jld not
create tlie occasion lor judicial resolution of tiiu tjucstion.
An additional basis for considering sue!) indemnification
ac;:f>e;nc'!us invalid is the Anti-Deficiency Act, which provides
at 31 USC
No officer or cu.-'loyce. of the United States shall
nake or authorize nn expenditure from or create
or authorize an obligation under any appropriation
or ftmd in execs.1; of tho amount available therein. . ,
S:.nce the extent of the £ovcrn;:ient's obligation is uncertain,
the Comptroller General has stated that a contractual assumption
of tort '-liability is not a lawful oblifoicion of t)ie United States,
and ^aynrnt may noc ba made1 pursuant to such ;jj;re(:::u:iits. (7 CG 507,
16 CG £03, and 35 Co 86.) In fiirncss co corrpcmiL-s viiich nay
rely upo:i the validity of such indemnity provisions, employees '
should he instructed not to sign then.
.Inasmuch as the Clean Air Act and the Federal Wat or
J'ollu'.ion Control Act Amendments of 1772~t;rant EPA employees
a rifiht of entry to corporate facilities, a company /ray not
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lawfully condition the c::crciso of this rii'.ht upon ti.o signing
of a release or indemnity nyrceiiicnt. The Clean Air Act
provides, at 42 USC !Si7c—9(a) (2) :
. . .the. Administrator or his authorized
rrprcscntative, upon presentation of h.is
credentials—(A) shall have a rifcht of entry
to, upon, or through any provisos in which
an emission source is located or in vhich any
records required to be maintained'under paragraph
(1) of this section are located . . .
Tiie procedure for enforcement of this riyht is provided in
42 USC lS57c—8:
(a) (3) Whenever, on the basis of any information
available to him, the Administrator finds; that any
person i;; in violation of., . . any requirement
of sc-clj'on l£57c—9 of this title, he nay issue an
order requiring such person fo comply v.-ith such Section
. or requirement, or lie r.iay briny a civil action in
accordance with subjection (h) of this section.
(b) The Administrator i;:cv .co.r.T.nncc .;i civil actJo:i for
appropriate relief, including A pcrnan-rnt or tcrparary
injunction, whenever any person—(«'«) fails or refuses
to co-ply v.'ith any requirement of section lS57c—9
of r.his title.
V.'hen n firm refuses entry to an KPA employee psrforminj; his
functions under the Clean Air Act, the employee may appropriately
cite the statute and rcuind the cor.ipnny of D'A's rij;ht to seek
judicial enforcement. If the company persists in its refusal,
EPA .should go to court in preference to signing a "Visitors
Release."
In addition to procedure for judicial enforcement
similar\to that of the Clean Air Act> the federal Water
Pollution Control Act Amendment.s of 1972 reinforce EPA's
rifcht of entry with crininal and civil penalties. Section 309
states:
(c) (1) Any porson who willfully or negligently violates
section . . .303 of this Act (Note—Section 308 establishes
the rii;ht of entry). . . shall be punished by a fine of not
less than $2,500 nor noru than $25,000 per day of violation,
or by imprisonment for not more than one: year, or by both.
-------
If the: co-.iviction is for a violation coiimi.tcJ after
a first conviction of such person untlcr this p:ira::r.•:;)'.;,
ptiriir-i;-?iv.' rlKill liz by .. fine of iui. i:iorc than JJU.UUu
per d;iy of violation, or by imprisonment for not more
than tv.-o years, or by both.
(3) For the purposes of thir. subsection, tho term 'person'
shall mc;in, in addition to tiie definition conc.i.tn«d ir.
section 302(5) of this Act, any responsible corporate
officer.
(d) Any person uho violates suction . . .303 of this Act. . .
and any person who violates any order issued by the
Administrator under subsection (a) of this section
(Koto—subsection (a) provides for administrative orders
to enf&rce the righc of entry), shall be subject to a
. civil penalty not to exceed $10,000 per day of such
• violation.
0
In St»e v. Sc.itr3c. 337 U.S. 3'ii(.1.967) the Supreme Cour:
reversed the conviction of nts required a
warrant for such iircpuctions, even v.-Ji'jrc the search was
reasonably related to protecting the public health and safety
and even i.-hcre a corporation, rather than an. individual, was
the subject. Under Sro evidence ob t a I :-.jd by inapvctor^ of
the 3:ood and limy Actiniacrcition hns been held i:t.r.".•'.(•a Cnrcrin-: Corn, v. 1.1. S._. 397 U.K. 72
(1970) and U.S. v. niy-.;»il. 92 S. Ct. 1393 (1972), may create
coubt t".s to wli«tlier £!cc: retains its original vi^.or (i;ec
Memorandum of tiie Assistant to the Deputy General Counsel.
-ficptcrjber 29, 1972), tlie possibility that evidence; obtained
under the F'./'PCA Amendments of 1972 will be ruled inadmissible
is a risk EPA need not assune.
S*nce the Amendncnts provide for judicial nnforcer.ent of
(:hc rishc of entry, EPA cirploycas should be instructed not
f.o mention the civil or criminal penalties of Section 309
u-hen faced with a refusal to pcrr.it entry. Klicn such refusals
cccur, this office* should be informed inwcdlately so that a
dcciiion can be r.uide as to whether to issue nn order of the
Administrator under 309(a) or seek an appropriate judicial
re.-nody under 309 (b).
ohn K. Qnarlcs, Jr.
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ifft
UN'TED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460 J^
19 APR 1976
orrict OF
6KMKHAL COUNSEL
MEMORANDUM
TO: All Attorneys - Office of General Counsel and
Office of enforcement
Regional Counsel
FROM: Robert V. Zener
General Counsel
Stanley I!. Legro
Assistant Administrator for^nforcemejit
SUBJECT: Professional Obligations of Government Attorneys
We believe it might be useful to discuss some of the obligations
that we have as attorneys for the Agency, both under the Canons of
Professional Ethics'and under various provisions of law. The following
is not intended to be a complete statement of a government attorney's
professional obligations; rather, it is intended to highlight some
matters which may deserve attention.
1. Confidential commercial or financial information. The
Agency frequently is the recipient of confidential commercial or
financial information. Under 18 U.S.C. 1905, disclosure of such
information without consent of the firm involved is against the
law, and the Agency's regulations carry out this prohibition.
40 C.F.R. 2.119. Of course, this prohibition is binding on all
employees of the Agency. Out we think it especially appropriate
to remind Agency attorneys of this obligation of confidentiality,
since Agency attorneys are so freqacntly entrusted with this type
of information.
2. Civil or criminal investigations. Agency attorneys are
frequently involved in investigations which could lead to referral
of cases to the Department of Justice for civil or criminal prose-
cution. Extreme care should be taken in making any public statement
-------
concerning such investigation, particularly where a possible criminal
violation is involved. Neither the fact that an investigation 1s in
progress nor the fact that a case has been referred to the Department
of Justice should be disclosed except where authorized by current
policy or specifically authorized. And in any event, a public
statement should not go beyond the comment that an investigation is
in progress; no conclusions should be stated. Any statement that
the Agency believes a violation has occurred may be unfair to the
company or individuals involved, and could prejudice the Agency's
position in the enforcement action.
3. Attorney-client communications. The professional
obligations of an attorney to his client attach to a government
attorney's relationship to his agency. This includes the confi-
dentiality of attorney-client communications. This also includes
the obligation to represent the client's interest within the
bounds of the law and professional ethics. The following points
deal with specific problem areas:
i) Communications with the Department of Justice. These
should be held in confidence unless tne consent of the attorney
involved at the Department of Justice is obtained.
ii) Legal advice. In the case of written opinions, some
judgment has to be exercised with respect to public release. Some
written opinions may constitute "statements of * * * interpretations
which have been adopted by the agency", in which case they must be
disclosed under the Freedom of Information Act, 5 U.S.C. 552(a)(2)(B).
In some cases, a written opinion is supplied on the understanding
that it will be widely distributed and made available to the public.
On the other hand, written opinions may be supplied on a confidential
basis, in which case the confidence should be respected. In any case,
oral opinions are to be held 1n confidence unless the program people
involved agree to disclosure.
iii) Support of Agency positions. An attorney's duty is to
represent his client's position; and tnis duty applies to government
attorneys. Of course, while a question is the subject of internal
debate, an attorney is free to take eny position he feels 1s
reasonable and lawful on an issue; and this could include disagreement
with the position taken by any particular program office. However,
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once the Agency has taken a position, the attorney should support 1t •
in dealings with the outside world. If he feels he cannot support
it, he should request to be reassigned from that natter or resign.
iv) Dealing with outside parties represented by an attorney.
When you are dealing witti outside parties whom you know to be
represented by an attorney in connection with the natter in question,
the Canons of Ethics require you to communicate with the attorney,
unless the attorney consents to direct communication with his client.
This can be especially significant in enforcement actions, where 1t
would be highly unethical to attempt to obtain leads and evidence
through direct communication with a party you know to be represented
by an attorney on that particular matter, unless the party's attorney
has agreed to this method of proceeding. Enforcement attorneys can,
of course, participate in general or routine plant inspections and
investigations. However, once the company becomes aware of any
potential enforcement action and their counsel assumes responsibility
•for the matter, consent from opposing counsel would be necessary before
any interviewing of company employees occurs during subsequent inspections.
See Disciplinary Rule 7-10
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Important that these prohibitions against ex parte communications
be observed. To insure continued public confidence 1n the integrity
of our proceedings, it is imperative that there be no actual or
apparent improper influence by the staff presenting the Agency's
case to the presiding officer.
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GM-3
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. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. SC-oD ^
.-.;, ..'.., ....... . •• ...... #3
AUG211981 %
THE AOMINICTHATOM
Honorable William French Smith 9
The Attorney General
Washington, D.C. 20530
RE: Memorandum of Understanding Between the Department
of Justice And the Environmental Protection Agency
Dear Mr. Attorney General:
Under Paragraph 10 of the Memorandum of Understanding
between the Department of Justice and the Environmental
Protection Agency dated June 15, 1977 (copy enclosed),
CPA's General Counsel and Assistant Administrator for
Enforcement, EPA, were given authority to request civil
litigation from the Department of Justice.
On July 1, 1981, the Environmental Protection Agency
underwent an internal reorganization which resulted, in
part, in the abolishment of the Office of Enforcement as
well as the position of Assistant Administrator for
Enforcement. Zn addition, the Office of General Counsel was
placed under an Associate Administrator for Legal Counsel and
and Enforcement.
The principal enforcement authorities previously
delegated to the Assistant Administrator for Enforcement
•vere redelegated to the Associate Administrator for 'Legal
Counsel and Enforcement on July 14, 1981. Therefore, the
authority previously vested in -the Assistant Administrator
for Enforcement under the above referenced memorandum now
resides in the Associate Administrator for Legal Counsel and
Enforcement.
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-2-
Accordingly, requests to the Department of Justice for
routine civil litigation under the terms of the Memorandum
of Understanding will now come from the Associate Administrator
for Legal Counsel and Enforcement. The present Associate
Administrator for Legal Counsel and Enforcement is Mr. Frank
A. Shepherd.
• * * i'
This reorganization and redelegation does not, of
course, affect the authority of Regional Administrators who
may continue to request litigation under Paragraph 10 of the
Memorandum of Understanding in matters requiring an immediate
temporary restraining order.
Sincerely yours,
Anne M. Gorsuch
cc: Assistant Attorney General
Land and Natural Resources Division
Assistant Attorney General
Civil Division
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MEMORANDUM OF UNDERSTANDING
BETWEEN
THE DEPARTMENT OF JUSTICE
AND
THE ENVIRONMENTAL PROTECTION AGENCY
WHEREAS, the Department of Justice conducts the civil
litigation of the Environmental Protection Agency;
WHEREAS, the conduct of that litigation requires a
close and cooperative relationship between the attorneys
• 4
of the Department of Justice ar.d of the Environmental
Protection Agency;
WHEREAS, the achievement of a close and cooperative
relationship requires a clarification of the respective
roles of the attorneys of the Department of Justice etna of
the Environmental Protection Agency;
WHEREAS, the Attorney General may decline to represent
the Agency in particular civil actions, in which case the
t
Agency nay be represented by its own attorneys; and
WHEREAS, most challenges to and enforcement of regulatory
t
standards and procedures adopted by the Environmental Pro-
tection Agency involve; scientific, -technical, and policy
issues and determinations developed in lengthy rulemaking
proceedings in which the Agency's attorneys have-been involved
and can provide the necessary expertise.
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- 2 -
j;0.v, therefore, the following memorandum of under-
standing is entered into between the Attorney General of
the United States and the Administrator of the Environmental
• '
Protection Agency for the purpose of promoting the efficient
and effective handling of civil litigation involving the
Environmental Protection Agency;
1. The Attorney General of the United States (herein-
after referred to as the "Attorney General") shall have
control over all cases to which the Environmental Protection
Agency (hereinafter referred to as the "Agency") or the
Administrator of the Environmental Protection Agency (herein-
after referred to as the "Administrator") is a party.
2. Khen requested by the Administrator, the Attorney
General shall permit attorneys employed by the Agency
(hereinafter referred to as -"Agency participating attorneys")
to participate in cases involving direct review in th'e Courts
of Appeal, and shall also permit such attorneys to participate
in other civil cases to which either the Agency or the
Admin'Is'trator are a party, provided, however, that:
(a) the Administrator or his delegate shall
designate a specific Agency participating attorney for
each cncc and shall communicate the name of such attorney
•in writing to the Attorney General;
(b) such Agency partic.ipatir.rj attorney shall be
subject to the supervision and control of the Attorney
General; and
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- 3 -
(c) if required by the Attorney General, an
Agency participating attorney shall be appointed as a
Special Attorney or Special Assistant United States
Attorney and take the required oath prior to conducting
or participating in any kind of Court proceedings.
3. Agency attorneys shall not file any pleadings
• •
or other documents in a court proceeding without the prior
v.
approval of the. Attorney General.
4. . It is understood that participation by Agency
attorneys under -this memorandum includes appeatan.ces in
Court, participation in trials and oral arguments, partici-
pation in the preparation of briefs, memoranda and pleadings,
participation in discussions with opposing counsel, -including
*
settlement negotiations, and"all other aspects of case
preparation normally associated with the responsibilities
of an attorney in the conduct of litigation; provided,
however, that the Attorney-General shall retain control ovtr
the conduct of all litigation. Such control shall include
•
the rignt to allocate tasks between attorneys employed by
. ' . •
the Department of Justice and Agency participating attorneys.
•In allocating tasks between the Department's and the Agency's
•
attorneys, the Attorney General shall give due consideration
«-.o the substantive knowledge of the respective attorneys
of the matter at issue so that the Government's resources
are utilized to the best advantage.
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- 4 -
5. In the event of any disagreement between attorneys
of the Department of Justice and of the Agency concerning
the conduct of any case/ the Administrator may obtain a
review of the matter in question by the Attorney General.
The Attorney General shall give full consideration to the views
and requests- of the Agency and shall make every effort to
eliminate disagreements on a mutually satisfactory basis. In
carrying out such reviews, the Attorney General shall consult
with the Administrator. In implementing this provision, it
is understood t"hat-the Attorney General will not be expected
by the Administrator to interfere with the direction of any
trial in progress.
6. The settlement of any case in vhich the Department
of Justice represents the Agency or the Administrator shall
require consultation with and concurrence of both the Adminis-
trator and the Attorney General.
7. The Administrator and the Attorney General shall
make an annual review of both .the Department's and the
Agency's personnel requirements for Acjcncy litigation. The
Attorney General and the Administrator will cooperate in
making such appropriation r«quests as are required to ir.ain-
•ain their respective staffs at a level adequate to the needs
,«
of the Agency's litigation.
. _ •
8.' The. Attorney General shall establish specific
deadlines, not longer than 60 days, within vhich the Depart-
ment's Attorneys must either file complaints in Agency cases
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- 5 -
or report to the Attorney General why any such co.T.plaint
has not bean filed. In the event any Department Attorney
does not file a complaint, he shall thereafter submit further
periodic reports to the Attorney General until the complaint"
is filed or a decision is reached that it shall not be filed.
" •
Copies of the reports required by this section shall be pro-
vided to the Agency.if requested.
9. If the Attorney General fails to file a complaint
within 120 days, of the referral of a request for litigation
w
and a litigatioTi report by the Agency to the Attorney General,
then the Administrator may request the Attorney General to
N
file a complaint within 30 days. Failure of the Attorney '.
General to thereafter file a complaint within the said 3C
days may be considered by th~e Administrator or his delegate
to be & failure of the Attorney General to notify the Adminis-
trator within a reasonable time that he will appear in litiga-
tion for purposes of Section 305 of the Clean Air Act, 42
U.S.C. 1857h-3, Section 506 of the Federal Water Pollution
*
Control Act, 33 U.S.C. 13GG,-or Section 1450 of the Safe
Drinking Water Act, 42 U.S.C. 300j-9; provided, however, that
the failure of the Attorney General to file a coir.plair.t
within the time period requested by the Administrator in a
case in which the Administrator-requested inaacdiato action
under Sections 311 (e) and 504 of the Federal Water Pollution
Control Act, 33 U.S.C. 1321, 136*; Sortion 303 of the Clean
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- 6 -
Air Act, 42 U.S.C. 1857H-1; or Section 1431 of the Safe
Drinking Water Act, 42 U.S.C. 300i; to protect public
health may *lso be considered by the Administrator to be
a failure of the Attorney General to so notify the
Administrator under Section 303 of the Clean Air Act, 506
of the Federal Water Pollution Control Act or Section 1450
of the Safe Drinking Water Act.
v
10. All requests of the Agency for litigation shall
be submitted by the Agency through its General Counsel or
its Assistant Administrator for Enforcement to the 7\ssistent
Attorney General for the Land and Natural Resources Division
• •*
or for the 'Civil Division', except matters requiring an
immediate temporary restraining order may be submitted by
regional Administrators of the Agency simultaneously to a
United States Attorney and the appropriate Assistant
Attorney General. All requests for litigation shall be
accompanied by a standard litigation report which shall
contain such information as shall be determined from tir.e-
to-time by the Attorney General to bo necessary in order to
procecute Agency litigation. Similar reports shall also' he
provided for suits in which the Agency or the Administrator
is a defendant, as requested by the Attorney General.
11. The Agency shall make the relevant file of any
mo'ctcr that ic uha subject of litigation available to
attorneys for the Department of Justice at a convenient
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- 7 - . .
• location when a request for litigation is submitted or
when the Department is required to defend the Agency or
the Administrator.
12. The Administrator shall undertake to review the
9
Agency's procedures for the preparation of the record in
cases involving direct review in the Courts of Appeal,
including analyses of such natters as assembly, indexing,
pagination, timing of preparation, and the allocation of
tasks between the Agency and the Department.- The Adnir.is-
•
trator shall consult with the Attorney General on the
re-examination of these procedures.
13. The negotiation of any agreement to be filed in
court shall require the authorization end concurrence of
the Attorney General.
14. In conducting litigation for the Administrator,, the
Attorney General shall defer to the Administrator's inter-
pretation of scientific and technical matters.
15. Nothing in'this agreement shall-affect any authority
•of the Solicitor General to authorize or decline to authorize'
appeals by the Government from any district court to any
•• •
appellate court or petitions to such courts for the issuance
of extraordinary writs, such as the authority conferred by
28 CFR 0.20, or to carry out his traditional functions with
regard to appeals to or petitions for review by the Suorpma
Court.
16. In order to.effectively implement the terns of this
Memorandum, the Attorney General and the Administrator will
-------
transmit copies of this Memorandum to all personnel affected
by its provisions. This Memorandum shell r.ot preclude the
Department and the Agency from entering into mutually satis--
factory arrangements concerning the handling of a particular
case.
""" 17. This Agreement shall apply to all cases filed on or
after the ditc.;bf approval of this Agreement by the Attorney
General and the Administrator.
18. The Attorney General and the Administrator r.ay
delegate their respective functions and responsibilities
under, thir Agreement.
• « *
19. The Department and the Agency shall adjust tl-.e
conduct of cases arising before the effective date of this
Agreement in a manner consistent with the spirit of this
Agreement.
GRIFFIN B. BELL
Attorney General
jfc-^.t_- /*: /f 77
Date: ^x"? / 0_ /•"". ,,^^x
DOUGLAS/.'J. (j..;iJTLi:
Adr.unii.'trr.r-5r
Unvironmc'-.tinj. Trotccticn Arency
Date:
7):::;
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GM-4
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
• ' |p ' WASHJMGTON.-D.C.
' . ' . • AUG -4 B77
,,
.. .
SUBJECT: "£x Parted Contacts in EPA Rulesaking
• • \ *
• •••••••••.... . .
FROM: . The Administrator '.•• . '. • '..••' .
• ' • •• ' •-.* . '.:• •'• :.'•'.: . "•...•• ." "• - - ./
TO: . Addressees . ' •. '. »-•••: :- -"".
••••••• . - -.- • ' • ' ' * \ • ' . .••.'•
• . • ••*. ^ • • j
•In this nsnioranduni I set forth the guidelines all EPA '•• - - . :
employees should follow in. discussing the merits of proposed • • :'. .'
rules vrith interested persons outside the Agency during the " . . .- ' "*•
period between proposal and promulgation.- The Deputy AoVainistre tor "• "^
and I and our immediate staffs will also observe these' guidelines.
. ' • . • ..•-•*•
. * ' The General Counsel has recently informed -you that such " - • s\
conversations might result in « rule being held -illegal if they " "*••"
took place without notice and opportunity for other interested * .
persons' to participate. .That advice was based on a recent decision . .'."•
of the United States Court of Appeals for the District of Columbia '* - .,.
Circuit. Home Box Office Inc. v. FCC, D. C. Cir. Ko. 75-1230 - .: ".;-..
(decided March 25, 197?;. A subsequent opinion by the sane court :
has moderated that legal danger substantially. 'Action for Childr.ens* . ."
Television v. FCC, D. C.. Cir. Mo. 74-2005 (decided July ], 1S77). •
. ...... '•' • • • . •
• However, the legal danger has not disappeared. .More fundamentally, ••
I do not believe -that EPA. should base or appear to bsse its regulatory •*. " -
decisions on- information or arguments presented informally that do not
appear on the public record. .Accordingly.'! an estaolishing the following
guidelines. '.'......•• . • • . ' ' c*
. . " . •
• . •
Behavior during crucial period between Proposal and Promulgation - "
«MM^nMPIMMaK^B|||Bl^B^^M^^M^MHW^rtM^BMMM^BB^^HM^M^BM^MIM^HMHMBM^^^««^HI^«BMII^H^^^BMnB^^B^B^ta^a^HMIBMII^*^^^^^a^H«MaBaMMBMlM^h^BM^M^^^^^» •
. . ' . • • . . •• ' • . .
; '• During the period between proposal .and promulgation of a -rule all •
employees may arid should be encouraged to respond to -inquiries about . .
the rule; explain' how it would work* and attend public meetings of
interested groups (such as trade association conventions). . • :
..•'•"'•'•''. " ' •' "
During this period agency employees nay (and often should) hold
meetings vrith interested persons for. the purpose of batter understanding
any technical scientific and engineering issues involved or discussing
-------
the broader questions involved. In all cases, however, a-written
sunns ry of the significant points made at ths meetings must be placed
in the cccnent file. • t • ' .'...-.-
This requirement applies to every form of discussion with outside-
interested persons whether'at.a trade association meeting, at EPA,*or
over the telephone as long as the discussion is significant. The .
memorandum should be prepared and forwarded within"two or three days'
of tha meeting at the latest. All new data or significant afgunents
presented at ths meeting .should be reflected in the Bsnorenduis.' • - •
Discussions of generalities or. simple explanations of ho« the rule
would work need not be included.-.' ^. /
* , * • * * *
I will continue to explore with the General Counsel's office and -
others whether further 'actions to ensure that vie provide full notice -"
and opportunity for comment in all our procedures are necessary. ••
* . •
ADDRESSEES ' .. . ' " ''
* *
• '
Deputy,Administrator
Assistant Administrators
Deputy Assistant Administrators .
Office Directors
•Regionc',1 Administrators .
Associcte General Counsels
Reoi-onal Counsels '
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GM-5
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' UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. O.C. 20460
I 1 M.'fx ../J
r ENFORCEMENT
TO: Regional Administrators
Surveillance and Analysis Division Directors
Enforcement Division Directors
FROM: Assistant Administrator
for Enforcement —
SUBJECT: Conduct of Inspections After the Barlow's Decision
I. Surrrary
This document is intended to provide guidance to the Regions in
the conduct of inspections in light of the recent Supreme Court decision
in Marshall v. Barlow's, Inc., U.S. , 98 S. Ct. 1816 (1978).
The decision bears upon the need to obtain warrants or other1 process for
inspections pursuant to EPA-administered Acts.
In Barlow's, the Supreme Court held that an OSHA inspector was not
entitled to enter the non-public portions of a work site without either
(1) the owner's consent, or (2) a warrant. Hie decision protects the
owner against any penalty or other punishment for insisting upon a warrant.
In summary, Barlow's should only have a limited effect on EPA
enforcement inspections:
o Inspections will generally continue as usual;
o there an inspector is refused entry, EPA will seek a warrant through
the U.S. Attorney;
o Sanctions will not be imposed upon owners of establishments vfco insist
on a warrant before allowing inspections of the non-public portions
of an establishment.
The scope of the Barlow's decision is broad. It affects all current
inspection programs of EPA, including inspections conducted by state
personnel and by contractors. Die Agency's procedures for inspections,
particularly there entry is denied, were largely in accord with
the provisions of Barlow's before the Supreme Court issued its ruling.
Nevertheless, a number of changes in Agency procedure are warranted.
Ihus, it is important that all personnel involved in the inspection
process be familiar with the procedural guidelines contained in this docu-
ment.
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- 2 -
This docunent focuses on the preparation for and conduct of inspec-
tions, including (1) how to proceed when entry is denied, (2) under what
circumstances a warrant is necessary, and (3) what showing is neces-
sary to obtain a warrant.
II. Conduct of Inspections
The following material examines the procedural aspects of conducting
inspections under EPA-administered Acts. Inspections are considered in
three stages: (1) preparation for inspection of premises, (2) entry onto
premises, and (3) procedures to be followed where entry is refused.
A. Preparation
Adequate preparation should include consideration of the following
factors concerning the general nature of warrants and the role of personnel
conducting inspections.
(1) Seeking a Warrant Before Inspection
The Barlow's decision recognized that, on occasion, the Agency may
wish to obtain a warrant to conduct an inspection even before there has
l«en any refusal to allow entry. Such a warrant may be necessary when
surprise is particularly crucial to the inspection, or when a company's
prior bad conduct and prior refusals make it likely that warrantless
entry will be refused. Pre-inspection warrants may also be obtained where
the distance to a U.S. Attorney or a magistrate is considerable so that
excessive travel time would not be wasted if entry were denied.
At present, the seeking of such a warrant prior to an initial inspection
.should be an exceptional circumstance, and should be cleared through
Headquarters, if refusals to allow entry without a warrant increase, such
warrants may be sought more frequently. (For specific instructions on
how to obtain a warrant, see Part 0.)
(2) Administrative Inspections v. Criminal Investigations
It is particularly important for both inspectors and attorneys to
be aware of the extent to which evidence sought in a civil inspection can
l« ustd in a criminal matter, and to know when it is necessary to secure a
criminal rather than a civil search warrant. There are three basic rules
to renumber in this recard: (1) if the purpose of the inspection is to
discover and correct, through civil procedures, noncompliance with regulatory
requirements, an administrative inspection (civil) warrant may be used;
(2) if the inspection is in fact intended, in whole or in part, to gather
evidence for a possible criminal prosecution, a criminal search warrant
must be obtained under Rule 41 of the Federal Roles of Criminal Procedure;
eind (3) evidence obtained during a valid civil inspection is generally
admissible in criminal proceedings. These principles arise from the recent
Supreme Court cases of Marshall v. Barlow's, Inc., supra; Michigan v. Tyler,
U.S. , 98 S.Ct. 1942 (1978); and U.S. v. LaSalle National Bank,
~ U.S. f, 57 L. Ed. 2d 221 (1978). It is not completely clear whether
a combined investigation for civil and criminal violations may be properly
conducted under a civil or "administrative" warrant, but we believe that
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- 3 -
a civil warrant can properly be used unless the intention is clearly to
conduct a criminal investigation.
(3) The Use of Contractors to Conduct Inspections
Several programs utilize private contractors to aid in the conduct
of inspections. Since, for the purpose of inspections, these contractors
are agents of the Federal government, the restrictions of the Barlow's
decision also apply to them. If contractors are to be conducting
inspections without the presence of actual EPA inspectors, these con-
tractors should be given training in how to conduct themselves when
entry is refused. With respect to obtaining or executing a warrant,
an EPA inspector should always participate in the process, even if
he was not at the inspection where entry was refused.
(4) Inspections Conducted by State Personnel
The Barlow's holding applies to inspections conducted by State
personnel and to ;joint Federal/State inspections. Because some EPA
programs are largely implemented through the States, it is essential
that the Regions assure that State conducted inspections are conducted
in compliance with the Barlow's decision, and encourage the State inspec-
tors to consult with their legal advisors when there is a refusal to
allow entry for inspection purposes. State personnel should be encouraged
to contact the EPA Regional Enforcement Office when any questions con-
cerning caroliance with Barlow's arise.
With regard to specific procedures for States to follow, the
important points to remember are: (1) The State should not seek for-
cible entry without a warrant or penalize an owner for insisting upon
a warrant, and (2) the State legal system should provide a mechanism for
issuance of civil administrative inspection warrants. If a State is
enforcing an EPA program through a State statute, the warrant process
should be conducted through the State judicial system. Where a State
inspector is acting as a contractor to the Aqency, any refusal to allow
entry should be handled as would a refusal to an Agency inspector as
described in section II.B.3. Where a State inspector is acting as a
State employee with both Federal and State credentials, he should utilize
State procredures unless the Federal warrant procedures are more advantageous,
in which case, the warrant should be sought under the general procedures
described below. The Regions should also assure that all States which
enforce EPA programs report any denials of entry to the appropriate
Headquarters Enforcement Attorney for the reasons discussed in section
II.B.4.
B. Entry
(1) Consensual Entry
One of the assumptions underlying the Court's decision is that
most inspections will be consensual and that the administrative inspec-
tion framework will thus not be severely disrupted. Consequently, inspec-
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- 4 -
tions will normally continue as before the Barlow's decision was issued.
This means that the inspector will not normally secure a warrant before
undertaking an inspection but, in an atterpt to gain admittance, will
present his credentials and issue a notice of inspection where required.
The establishment owner nay complain about allowing an inspector to enter
or otherwise express his displeasure with EPA or the Federal government.
However, as long as he allows the inspector to enter, the entry is voluntary
and consensual unless the inspector is expressly told to leave the premises.
On the other hand, if the Inspector has gained entry in a coercive manner
(either in a verbal or physical sense), the entry would not be consensual.
Consent must be given by the owner of the premises or the person in
charqe of the premises at the time of the inspection. In the absence
of the owner, the inspector should make a good faith effort to determine
who is in charge of the establishment and present his credentials to
that person. Consent is generally needed only to inspect the non-public
portions of an establishment - i.e., any evidence that an inspector obtains
while in an area open to the public is admissible in an enforcement
proceeding.
(2) Withdrawal of Consent
The owner may withdraw his consent to the inspection at any time.
The inspection is valid to the extent to which it has progressed before
consent was withdrawn. Thus, observations by the inspector, including
samples and photographs obtained before consent was withdrawn, would be
admissible in any subsequent enforcement action. Withdrawal of consent
is tantamount to a refusal to allow entry and should be treated as
discussed in section II.B.3. below, unless the inspection had progressed
far enough to accomplish its purposes.
(3) When Entry is Refused
Barlow's clearly establishes that the owner does have the right
to ask for a warrant under normal circumstances. Therefore, refusal
to allow entry for inspectional purposes will not lead to civil or criminal
penalties if the refusal is based on the inspector's lack of a warrant
and one of the exemptions discussed in Part C does not apply. If the
owner were to allow the inspector to enter his establishment only in
response to a threat of enforcement liability, it is quite possible that
any evidence obtained in such an inspection would be inadmissible. An
inspector may, however, inform the owner who refuses entry that he intends
to seek a warrant to compel the inspection. In any event, when entry is
1
FIFRA inspections are arguably not subject to this aspect of Barlow's
See discussion, p. 5 and 6.
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- 5 -
refused, the inspector should lea\« the premises immediately and telephone
the designated Regional Enforcement Attorney as soon as possible for
further instructions. The Regional Enforcement Attorney should contact
the U.S. Attorney's Office for the district in which the establishment
desired to be inspected is located and explain to the appropriate Assistant
United States Attorney the need for a warrant to conduct the particular
inspection, The Regional Attorney should arrange for the United States
Attorney to meet with the inspector as soon as possible. The inspector
should bring a copy of the appropriate draft warrant and affidavits.
Samples are provided in the appendix to this document.
(4) Headquarters Notification
It is essential that the Regions keep Headquarters informed of
all refusals to allow entry. The Regional Attorney should inform the
appropriate Headquarters Enforcement Attorney of any refusals to enter
and should send a copy of all papers filed to Headquarters. It is
necessary for Headquarters to monitor refusals and Regional success in
obtaining warrants to evaluate the need for improved procedures and to
assess the impact of Barlow's on our compliance monitoring programs.
C. Areas Where a Right of Warrantless Entry StillExists
1. Emergency Situations.
In an emergency, where there is no time to get a warrant, a warrant-
less inspection is permissible. In Camara v. Municipal Court, 387 U.S. 523
(1967), the Supreme Court states that "nothing we say today is intended
to foreclose prompt inspections, even without a warrant, that the law has
traditionally upheld in emergency situations". Nothing stated in Barlow's
indicates any intention by the court to retreat from this position. The
Regions will always have to exercise considerable judgment concerning
whether to secure a warrant when dealing with an emergency situation.
However, if entry is refused during an emergency, the Agency would need
the assistance of the U.S. Marshal to gain entry, and a warrant could
probably be obtained during the time necessary to secure that Marshal's
assistance.
An emergency situation would include potential imminent hazard
situations, as well as, situations where there is potential for destruction
of evidence or where evidence of a-suspected violation may disappear during
the tine that a warrant is being obtained.
(2) FIFRA Inspections.
There are some grounds for interpreting Barlow's as not being
applicable to FIFRA inspections. The Barlow's restrictions do not apply
to areas that have been subject to a long standing and pervasive history
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- 6 -
of govenrr.sr.t regulation. An Agency administrative law judge held recently
that even after the Barlow*s decision, refusal to allow a warrantless
inspection of a FIFSA regulated establishment properly subjected the
owr.sr to civil penalty. K. Jonas & Co., Inc., I.F. & R Docket No. III-121C
(July 21, 1978). For the present, however, FIFRA inspections should be
conducted under the sane requirements applicable to other enforcement
programs.
(3) "Open Fields" and "in Plain View* situations.
Observation by-inspectors of things that are in plain view, U.e.,
of things that a meniSer of the public could be in a position to observe) does
not require a warrant. Thus, an inspector's observations from the public
area of a plant or even from certain private property not closed to
the public are ad-nissible. Observations made even before presentation of
credentials while on private property which is not normally closed to the
public are admissible.
D. Securing a Warrant
There are several general rules for securing warrants. Three
documents have to be drafted: (a) an application for a warrant, (b) an
accompanying affidavit, and (c) the warrant itself. Each document should bd
captioned with the District Court of jurisdiction, the title of the action,
and the title of the particular document.
The application for a warrant should generally identify the statutes
and regulations under which the Agency is seeking the warrant, and should
clearly identify the site or establishment desired to be inspected
[including, if possible, the owner and/or operator of the site).
'[he application can be a one or two page document if all of the factual
background for seeking the warrant is stated in the affidavit, and the
application so states. The application should be signed by the U.S.
Attorney or by his Assistant U.S. Attorney.
The affidavits in support of the warrant application are crucial
(Jccuraents. Each affidavit should consist of consecutively numbered para-
graphs, which describe all of the facts that support warrant issuance. If
the warrant is sought in the absence of probable cause, it should recite
or incorporate the neutral administrative scheme which is the basis for
inspecting the particular establishment. Each affidavit should be signed
Ijy someone with personal knowlege of all the facts stated. In cases where
entry has been denied, this person would most likely be the inspector
who was denied entry. Note that an affidavit is a sworn statement that
nust either by notarized or personally sworn to before the magistrate.
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- 7 -
The warrant is a direction to an appropriate official (an EPA
inspector, U.S. Marshal or other Federal officer) to enter a
specifically described location and perform specifically described
inspection functions. Since the inspection is limited by the terms of
the warrant, it is important'to specify to the broadest extent possible
the areas that are intended to be inspected, any records to be inspec-
ted, any samples to be taken, any articles to be seized, etc. While
a broad warrant may be permissible in civil administrative inspections,
a vague or overly broad warrant will probably not be signed by the
magistrate and may prove susceptible to constitutional challenge
The draft warrant should be ready for the magistrate's signature at the
time of submission via a motion to quash and suppress evidence in
Federal District court. Once the magistrate signs the draft warrant, it
is an enforceable document. Either following the magistrate's signature
or on a separate page, the draft warrant should contain a "return of
service" or "certificate of service". This portion of the warrant should
indicate upon whom the warrant was personally served and should be signed
and dated by the inspector. As they are developed, more specific warrant-
issuance documents will be drafted and submitted to the Regions.
E. Standards or Bases for the Issuance of Administrative Warrants.
The Barlow's decision establishes three standards or bases for the
issuance of administrative warrants. Accordingly, warrants may be obtained
upon a showing: 1) of traditional criminal probable cause, 2} of civil
probable cause, or 3) that the establishment was selected for inspection
pursuant to a neutral administrative inspection scheme.
1. Civil specific probable cause warrant.
Where there is sane specific probable cause for issuance of a warrant,
such as an employee complaint or competitor's tip, the inspector should be
prepared to describe to the U.S. Attorney in detail the basis for this
probable cause.
The basis for probable cause will be stated in the affidavit in
support of the warrant. This warrant should be used when the suspected
violation is one that would result in a civil penalty or other civil
action.
2. Civil probable cause based on a neutral administrative
inspection scheme I
Where there is no specific reason to think that a violation has been
committed, a warrant may still be issued if the Agency can show that the
establishment is being inspected pursuant to a neutral administrative
scheme. As the Supreme Court stated in Barlow's:
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- 8 -
"Probable cause in the criminal law sense is not required. '
For purposes of an administrative search, such as this, probable
cause justifying the issuance of a warrant may be based not only
on specific evidence of an existing violation, but also on a
showing that "reasonable legislative or administrative standards
for conducting an ... inspection are satisfied with respect
to a particular [establishment]". A warrant showing that a speci-
fic business has been chosen for an OSHA search on the basis of a
general administrative plan for the enforcement of the act derived
frOT neutral sources such as, for example, dispersion of employees
in various type of industries across a given area, and the desired
frequency of searches in any of the lesser divisions of the area,
would protect an employers Fourth Amendment rights."
Every program enforced by the Agency has such a scheme by which it prioritizes
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-9-
distinction bet-^een administrative inspections and criminal warrant
situations is discussed in Section II.A.2.
F. Inspecting with a Warrant
Once the warrant has been issued by the magistrate or judge, the
inspector may proceed to the establishment to commence or continue the
inspection. Where there is a high probability that entry will be refused
even with a warrant or where there are threats of violence, the inspector
should be accompanied by a U.S. Marshal when he goes to serve the warrant
on the recalcitrant owner. The inspector should never himself attempt
to make any forceful entry of the establishment. If the owner refuses
entry to an inspector holding a warrant but not accompanied by a U.S.
Marshal, the inspector should leave the establishment and inform the
Assistant U.S. Attorney and the designated Regional Attorney. They will
take appropriate action such as seeking a citation for contempt. Where
the inspector is accompanied by a U.S. Marshal, the Marshal is principally
charged with executing the warrant. Thus, if a refusal or threat to
refuse occurs, the inspector should abide by the U.S. Marshal's decision
whether it is to leave, to seek forcible entry, or otherwise.
The inspector should conduct the inspection strictly in accordance
with the warrant. If sar.pling is authorized, the inspector must be sure
to carefully follow all procedures, including the presentation of receipts
for all samples taken. If records or other property are authorized to be
taken, the inspector must receipt the property taken and maintain an
inventory of anything taken from the premises. This inventory will be
examined by the magistrate to assure that the warrant's authority has
not been exceeded.
2 continued fron page 8.
to Federal court enforcement when entry is refused". There is thus
some question as to vhether the existence of a non-warrant Federal
court enforcement mechanism in a statute requires the use of that
mechanism rather than warrant issuance. We believe that the Barlow's
decision gives the agency the choice of whether to proceed through warrant
issuance or through an application for an injunction, since the decision
is largely based on the fact that a warrant procedure imposes virtually
no burden on the 'inspecting agency. In addition, an agency could attempt
to secure a warrant prior to inspection on an ex parte basis, something
not available under normal injunction proceedings. Several of the acts
enforced by EPA have provisions allowing the Administrator to seek
injunctive relief to assure compliance with the various parts of a
particular statute. There may be instances where it would be more appro-
priate to seek injunctive relief to gain entry to a facility than to
attempt to secure a warrant for inspection, although at this point we
cannot think of any. However, since the warrant process will be far
more expeditious than the seeking of an injunction, any decision to
seek such an injunction for inspection purposes should be cleared through
appropriate Headquarters staff.
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- 10 -
G. Returning the Warrant.
After the inspection has been conpleted, the warrant must be returned
tc the magistrate. Whoever executes the warrant, (i.e., whoever performs
the inspection), must sign the return of service form indicating to whom
the warrant was served and the date of service. He should then return
the executed warrant to the U.S. Attorney who will formally return it to
the issuing magistrate or judge. If anything has been physically taken
from the premises, such as records or samples, an inventory of such itens
sntst be submitted to the court, and the inspector must be present to certify
that the inventory is accurate and complete.
• \t*
III. Conclusion
Except for requiring the Agency to formalize its neutral inspection
spheres, and for generally ending the Agency's authority for initiating
civil and/or criminal actions for refusal to allow warrantless inspections,
Barlow's should not interfere with EPA enforcement inspections.
Where there is doubt as to how to proceed in any entry case,
do not hesitate to call the respective Headquarters program contact for
assistance.
Marvin B. Durning
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APPENDIX
The Appendix contains three attachments.
Attachment I is a warrant application, affidavit and warrant to
conduct an inspection, vftere the Agency has specific probable cause to
believe that a civil violation of an EPA regulation or Act has cccured.
In particular, care should be taJcen in spelling out the specific facts
that give rise to probable cause. Note also, that the scope of the
warrant is carefully articulated.
Attachment II is a warrant application, affidavit and warrant to
conduct an inspection in which the establishment to be inspected has
been selected under a neutral administrative inspection scheme. Note
the extraordinary detail of the administrative scheme describe in
paragraphs 8-20 of the affidavit. Such detail should not be necessary
for most EPA neutral administrative inspection schemes. Note also
the executed inventory and return of service forms attached to
Attachment II. ' ' '
Attachment III contains a neutral administrative scheme for
CFC inspections. In implementing such a scheme, the Regions must still
utilize neutral criteria in selecting the individual establishment to
be inspected.
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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
IN BIS MATTER OF :
CLEAN LAND AIR AND WATER, : no-. "7/-vi *i
CORPORATION. D/B/A CLAW:
ROLLINS ENVX.KON::K::TAL SKRvxcss: APPLICATION FOR WARRANT TO
OF LOUISIANA INCORPORATED; : ENTER, INSPECT. PHOTOGRAPH.
E::VIKC::::-::;TAL PURIFICATION : SAMPLE, COLLECT I::FO?:^T:OS.
ADVANCE;srr INCORPORATM; : INSPECT AND COPY RECORDS
E?A, INC.; IN I3ERVILLE :
PARISH, LOUISIANA j
TO THE UNITED STATES MAGISTRATE, by Che United
States of America, Environmental Protection Agency, through
James Stanley Lemelle, Assistant Uaic«d Scaccs Actomey. for
the Kiddie District of Louixiaxu, hereby applies for a
varraat pursuans eo teecion 308 of the Federal Vacer Pollution
Control Act, 33 U.S.C. 1318, and the Rejouree Conservation
and Recovery Act of 1976, 42 U.S.C. 6927. for the purpose of
conducting aa inspection as follows:
•
To eater to, upon, or through the preaises of a
vaste disposal operation known by various names including
the CLAW facility, which consists of three sites, to wit:
*
aa injection veil sice, a field office and storage tanks.
and waste pits and landfill site located in Iberville Parish.
Louisiana in or near the Bayou Sorrells coosunity. The
facility can be reached for disposal purposes by truck or
barge. The ownership and operation of the CLAW facility
veste disposal operation has been known, by several different
names, to wit: Clean Land Air Water Corporation (CLAW);
EPA, Incorporated; Environaental Purification Advancement;
Environmental Purification Abatement (EPA, Inc.) and Rollins
Environmental Services of Louisiana. .A company letterhead
vsiag the names of CLAW and EPA, Inc. lists an address of
Route 2, Box 380B, Plaquemine, Louisiana 70764.' It is
reported in the newspapers and elsewhere, that on July 28,
1978 - three days after the death of the truck driver on the
•
CLAW facility - that the injection well on the CLAW facility
was sold to the Rollins Environmental Services of Louisiana.
Unsubstantiated reports say that CLAW no longer has any
-------
_. .- .. —..*.. k.
-------
Local unraic and fear of the facility was reported co Che
Enforcement Division of Region VI, Dallas, Texas en Tuesday,
August 1. 1979 and EPA was requested to inspect the facility
which is a disposal site for chemical wastes and numerous
ell wastes of a hazardous and toxic nature.
Much local unrest, and agitation and cosplaints
have been reported on television aad in newspapers concerning
Che operation of the CLAW facility as well as the untimely
death of a 19 year old truck driver at said facility while
he was discharging waste into an open pit at Che facility.
The death was possibly caused by his inhalation of toxic
fumes caused by a reaction of mixing incocpatible toxic
wastes is the open pit. Allegedly two eye witnesses to the
•
death of the driver reported the presence of choking fumes
in the area when they opened Che doors to their truck to
Assist the driver who died. They also reported that his
truck was parked at the edge of the open pit truck rasp,
with doors open at the time of his dea'th. Subsequent
laboratory tests of waste taken from the pits have shown
waste materials present in the pit, which, when mixed with
the speat caustic being discharged from the driver's truck
could have caused the death. Final autopsy reports are
•till pending. It is reported and alleged that CLAW facility
officials directed the driver to take and discharge his
wastes at the truck ram? in the open pit, rather than in the
injection well. Discharging toxic waste into as open pit,
«t Che edge of a pit. is not a safe, desirable, or acceptable
•practice since toxic chemical reactions are very probable
aad can result in the death of anyone nearby.
Edward.KcKaa made a preliminary inspection
in which he obtained two pit samples and observed evidence
of oil, hazardous wastes, waste spillage and a "sloppy"
operation which appears to be dangerous to the environment
.3-
-------
as veil as hazardous to cht health and welfare ef citizens.
He further observed high water markings en Che adjacent
trees as the pi: sice and a lack ef levees betveea che sices
• ^
asd the Grand River and other waterways. la addition, there
Bay be hazardous wastes and conditions which cay pose a
substantial present, or potential hazard te human health
or the environsenc whea improperly treated, stored, trans-
ported, or disposed of, or otherwise managed.
•The inspection will be eemaeaced in daytime
within regular business hours and will begin as soon as
•
practicable after issuance of this warrant And will be
completed with reasonable promptness.
The inspection will be conducted by the
Baited States Environmental Protection Agency (E?A) inspec-
tors, who will be aecospaaied by the United States Marshal
to ensure entry so that the EPA inspectors Bay perfora an
inspection of the premises, inspect aad copy records, take
photographs, gather information and evidence aad collect
eair?lea in accord with 33 DSC 1318 and 42 CSC 6927.
. A return will be nade to the .Court upon completion
ef the inspection.
HEE3ETORE, it Is respectfully requested that a
warrant to enter and inspect the CLAW facility be issued.
. Respectfully submitted,
DONALD L. BECOER
UNITED STATES ATTORNEY
'Assistant U.S. Attorney
-------
AT7I3AVI?
STATE OF LOUISIANA
PARISH OF EAST BATCH ROUGE
•
I, Edward MeHan, being duly sworn, hereby depose
and say:
1. I am a duly authorized employee of the United
States Environmental Protection Agency, and By title is
Chemical Engineer, Surveillance and Analysis Division,
Region VI. which includes the Scate of Louisiana. In ay
capacity. Z am responsible for inspecting facilities subject
to various federal environmental statutes as directed by ay
supervisors.
2. On Tuesday. August 1, 1978 from about 7:45
. p.m. to 8:45 p.m., I made a preliminary inspection of the
CLAW facility and took two saaples at Che open pits. On
Wednesday. August 2. 1978 I took a few photographs of Che
facilities from around 3:30 p.m. until 5:30 p.m. On Thursday,
August 3. 1978 accompanied by another EPA employee,.! visited
•
the facility and area from about 11:30 a.m. to 2:00 p.m. and
also took a few additional photographs. These brief visits
to the site have only involved facility employees a few
minutes each tise in order to obtain passes from the field
office and to open gates at various guard houses.
3. On Friday, August 4, 1978, a local deputy
sheriff, state and local officials and I were refused admit-
•
taace to the CLAW facility. Also, CLAW officials were no
•
longer at the field house or available elsewhere to issue
passes to enter. My previous sampling and inspection was
sot sufficient for laboratory purposes' and needs to be
resumed.
4. Information I have gathered in the local
community, in newspapers, on television, from laboratory
-------
tests of the sasples, frox the Xbcrvilla Sheriffs Offict,
and at the CLAW facility strongly suggest and support the
need to enter and inspect the facilities for possible Section
301. 311 and other violations of Che Federal Water Pollution
Control Act. Further, it is possible that there are hazardous
vastes and conditions on the premises as defined in Section
1004(2) of the Resource Conservation and Recovery Act of 1976,
(42 USC 6903)(5).which constitute an imminent hazard under
section 7003 of the Resource Conservation and Recovery Act
Of 1976 (42 USC 6973). These observations are:
•
:-;•' a. Obvious spillage of waste material on
Che (rounds of the CLAW facility subject to entering waterway's.
b. Contaminated landfills with obviously
exposed and damaged barrels with their contents eoptied or
nearly empty.
•
c. Drainage from landfills into a "fishing"
lake and other adjacent areas leading to various waterways.
d. Open pits containing oil wastes and
hazardous, toxic cheaical wastes with the appearance of
overflow wastes on the adjacent grounds as well as high
•
vater marks on trees next to the open pits equal to or
higher than the pits.
e. The lack of levees beween the facility
grounds and drainage areas to the Grand River, "fishing
lake", bayous and barrow ditches.
f. Copies of a few facility log records and
ether documents which were previously copied by the local
Sheriff's office. These records indicate the receipt and con-
•
tent of oil and hazardous cheaical wastes accepted at the
facility.
g. —Poor maintenance and sloppy "housekeeping"
practices at the facility which leads a reasonable person to
recognize the likelihood of these prohibited pollutants
-2-
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CNirrs STATES DISTRICT COURT
KIDDl£ DISTRICT OF LOUISIANA
THX KATTE3 OF
LA.VD AIR AND WATER,
CORPORATION, d/b/a CiAW;
rrc., rr Ai.
HARRANT OF ENTRY, INSPECTION
AND MONITORING PURSUANT TO
33 U.S.C.51318 and 42 U.S.C.J6927
TO: THE UNITED STATES OF X'CHICA, UNITED STATES
PROTECTION AGENCY, THROUGH ITS DUT.Y DESIGNATED REPRESENTATIVE
OR RSJRESrrTATIVES, THE UNITED STATES MARSHAL OR ANY OTHER
• . FEDERAL OFFICER
An application having b«en made by tht United States of
Aaerica, Unittd States Environmental Protection Agency, for a
warrant of entry, inspection and monitoring pursuant to 33 U.S.C.51318
•
«ad 42 0.S.C.5^927, as part of an inspection prograa designed to
assure compliance with the Federal Hater 'Pollution Control Act
(coa&only referred to as the Clean Hater Act), 33 O.S.C.S12S1, et
seq., and the Resource and Recovery Act of 1976 (42 O.S.C.S6901, et
•eq.),.and an Affidavit having been made before ae by Edward McSaa,
« duly authorized employee of the Onited States Environmental
Protection Agency, that he'has reason to believe that on the premises
•hereinafter described there exist a danger to the public's health,
welfare and safety and to the property, rivers and environment of
the United States, and that in order to determine whether the
federal Hater Pollution Control Act (commonly referred to as the
dean Hater Act), 33 O.S.C.J12S1, et seq., and the Resource and
Useovery Act of 1976 (42 0.S.C.S6901, et seq.), and the rules,
regulations and orders issued pursuant to the Acts have been or
are being violated, an entry on, and inspection and monitoring
t «
of tho said described property is required and necessary;
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And, the Court being satisfied that thera his beta a
sufficient shewing that reasonable legislative or adainistrative
•
standaria for conducting an inspection and Investigation have been
satisfied with respect to the said described property aad -that
prebabie cause exist tc issue a warrant for the entry, inspection,
investigation and aonitoriag of the said described presises:
Z? IS HTRT3Y CR3E3SO AN3 COWMANDEO that the Onitod States
of Anerica, Onited States Environmental Protection Agency, through
•
its duly designated representative or representatives, the Onited
States Marshal, or any other federal officer are heresy entitled tc
«ad shall be authorized and peraitted to have entry upon the
following described property which is located in the Kiddle District
ef .Louisiana:
Those preaises known as the Claw Corporation
waste disposal facility in Iberviiie Parish,
Louisiana, also known as E?A, Inc., Clear Land
Air Water Corporation, Environmental Purification '
Advancement, Environmental Purification Abateaent
and possibly as the ftcllins Cnvironaental Services
ef Louisiana, or which are owned or operated by
any other person or company/ corporation or part-
• aership, which premises and property are more
particularly ar.d further described as follows:
•from the intersection ef La. Highway 75 and
•La. Highway 3066, proceed South for approximately
7 miles; turn right and travel across the Sayor-
Sorrel-Pontoon Bridge, a distance of approxinataly
0.2 miles; turn right, proceed northwest on Route
2, the Lower levee Road, for approximately 1.6
miles at which point the pavenent ends; at this
point turn right, travel approximately 0.1 miles
to the entrance of the injection well, which is
believed to be owned by Rollins Environmental
Services of Louisiana, Incorporated, all as is
shown on the attached photas identified as
Coverasent Exhibits 1 aad 2.*
•Prom the Rollins Environmental Services of
Louisiana, Incorporated office, proceed South on
the shell/gravel road for approximately 1.4 miles
until the road deadends. This is the location of
the field office of Clean Land Air and Water
(CLAW), and storage tanks which are believed to be
owned by Rollins Environmental Services of Louisiana
Incorporated, all as is shewn on the attached photos
identified as Government Exhibits 3, 4, aad 5.
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•From th« field office of CJW. return to the
• ite of the intersection At the paved lower levee
road and the road leading to the dee? veil injecticn
•ite (Rollins Enviror..T2r.sal). Proceed northwest
en the unsaved shell/gravel low«r levee road
•eeroxinately 6.1 miles to the entrance road and
bridge leading to the gate guard house and gate
of the EPA, Inc. waste disposal pits. This sase
•ntranee road is 7.7 miles northwest along the
lower levee road from the intersection of the lover
levee road and Bayou Scrrel Pontoon Bridge Jtoad.
XT IS rUKTHTS OICUTO that the entry, inspection,
investigation and monitoring authorized herein shall be conducted
•
during regular working hours or at ether reasonable tises, within
reasonable linits and in a reasonable Banner fsca 6:00 a.m. to
10:00 p.a.
IT IS FUJCEZa ORDEAE3 that the warrant issued herein shall
be for the purpose of conducting an entry, inspection, investigation
and monitoring pursuant to 33 0.S.C.51318 and 42 O.S,C.$6327
consisting of the following:
(1) entry to, open or through the above described
precises, including all buildings, structures,
equipment, machines, devices, materials and
sites to inspect, sample, photograph, monitor
. • er investigate the said premises,•
(2)- access to, seizure of and copying of all records
•• pertaining to or related to the operation of
the facility, equipment, waste materials
which are accepted and stored en the premises
mnd records which are required to be maintained
tinder 33 O.S.C.51318(a) (A) , and 42 O.S.C. S6901,
•t seq., including any rules and regulations
and orders promulgated thereto;
(3) inspection, including photographing, of an/
monitoring equipment or methods required by
33 O.S.C.S1318U) (A), and 42 U.S.C.S6927;
(4) inspection, including photographing,of any
equipment, processes or methods used in stapling,
monitoring or in waste characterization;
(5) inspection, including photographing, of any
equipment or methods used to dispose of er store
waste substances;
«) sample and seize any pollutants, effluents,
runoff, soil, or other materials or substances
which may reasonably be expected to pollute
the waters of the United States under various
conditions or threaten the public health, safety
or welfare of the people of the United States;
•3-
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(7) seize, Inspect, sample, and pnetcraph any
•vidcnea which constitutes or relates to or
is part of a violation of the federal watar
Pollution Control Act (cwssr.c.-.iy referred to
as the Clean Water Act, 33 U.S.C.S12S1, et
(eg., and the Resource and Recovery Act of 1576
.(42 U.S.C.S6901, «t seq.J;
(8} taJce such photographs et the tbovo authorized
procedures as may be required or necessary.
X? IS FUR7H5X ORDERED that « copy of this warrant shall
he left at the premises at the time of the inspection.
XT IS FURTHER OP.SERED that if any property is seized,
o
the officer conducting the search and seizure shall leave a receipt
for the property tsJcen and prepare a written inventory of the property
seized and return' this warrant with the written inventory before
tee within 10 days froa the date of this warrant.
IS IS FURTHER CR3SRT3 that the warrant authorized herein
#
shall be valid for a period of 10 days frca the date of this warrant.
XT JS ru*T££R ORDERED that the Doited States Marshal Is
hextby authorized and directed to assist the representatives of the
United States Environmental Protection Agency in such Banner as
may be reasonably necessary and required to execute this warrant
and the provisions contained herein, including but net liaited to
.Saining entry upon the premises, the inspection and sonitoring
thereof, the seizure and sampling of materials, docuaents or equipment,
*ndthe photographing of the premises, and the materials or equipment
thereon.
BATED this /& day of 0"*~1nJ~ _, 1578.
7—?
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APPLICATION FOR
ADMINISTRATIVE
IN TEE UNITES STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
IN THE MATTER OF:
GENERAL MOTORS CORPORATION
GENERAL MOTORS A£SE.W.3LY DIVISION
WILLOW RUN AIRPORT
TPSILANTI, MICHIGAN 48197
AND
VEHICLE EMISSION LABORATORY
GENERAL MOTORS PROVING GROUND
HILFORD, MICHIGAN 48042
ROW COMES the Administrator for the Environmental
Protection Agency (EPA), by and through the United States
Attorney, and applies for administrative warrants to
enter, to observe a Selective Enforcement Audit (SEA) test
on a configuration of motor vehicles manufactured by the
General Motors Corporation (CM) as specified in a SEA test
order issued on July 28, 1978, by the Assistant Administrator
for Enforcement of EPA, and to inspect GM's records, files,
papers, processes, controls, and facilities which are
.involved in and associated with the manufacture and testing
of said configuration pursuant to said test order at the'
premises of the CM Willow Run vehicle assembly plant, Tpsilanti,',
Michigan, and the CM vehicle emission laboratory at Milford,
Michigan, in accordance with Sections 206(b) and (c), 208(a)
and 301(a)*of the Clean Air Act, 42 U.S.C. $7525(b) and (c),
7S42(a) and 7601(a), and regulations promulgated thereunder.
In support of this application, the Administrator respectfully
submits an affidavit and proposed warrants.
James K. Robinson
United States Attorney
Assistant United States Attorney
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r.j T::E UNITED STATES DISTINCT COVRT
FOR THE £AST£r.:J DISTRICT or
r.:: SIVISICN
IM THE .'rATTER O?:
}
G.rrK.v.L MOTcr.s CORPORATION ) AOM:S'IST?.\TIVE K/JIRWJ?
cr.:;z.v^ KOTSSS AISEKELY civ:sio;j 'j ENTR* AN.C i*:.-?EC7*o« c-xsss
v.iiLc:; SUN Aistpoat ) THS CICAS AI.I AC?
48197 )
TO: XA?tSDT A. LW, Acting Chief, Manufacturtrs Projrans
Branch, Mobile Source Enforccsant Division, Office of
Enforcsaer.t, United States Envircncsntal Protection Agency
(E?A), and any other duly designated enforcement officers or
employees of the EPA:
.Application having been oede, and Matthew Low having shown
probable csuse for the issuance of an adainistrative warrant
for entry; observation of a Selective Enforcement Audit
(S£A) test on the configuration of notor vehicles aanufactured
by General Motors Corporation (CM) of engine f&nily 840B2
and engine code 2, with 4000-pound inertia weight, A-3
transmission and 2.56 rear axle' ratio, as specified in a SSA
test order issued on July 28, 1978, by the Assistant Administrator
for Enforcement of EPA; and inspection of GM's records,
•
files, papers, processes, controls and facilities which are
involved in and associated with the manufacture and testing
of said configuration pursuant to said test order at the
premises of the CM Willow Run vehicle assembly plant, Ypsil&nti,
Michigan;
WHE?J5ro^£, pursuant to the Clean Air Act as amended, 42 U.S.C.
57401 £t scg., and the regulations thereunder, you and any duly
designated enforcement officers and employees of the Environnnnbal
Protection Agency are hereby authorized to enter the above-described
premises at reasonable times during normal operating hours for the
-------
purpose of csnductir.g an administrative inspection pursuant
to Sections 206(b) and (c), 206(4) and 301(a) of the Clean
Air Act, 42 C.S.C. 557325(5} *nd {c), 7S42(e) zr.d 7601, and
40 C.F.R. £§5.601 et sec. You and any duly designated
enforcement officers and employees of E?A a?e authorised to
observe activities conducted by CM pursuant to the SSA test
order issued on July 28, 1978, concerning the vehicle
configuration specified in said test order to determine
whether CM it coaplying with 40 C.F.R Ptrt 86 and with the
test order. The activities that you and the designated
persons ar.e authorized to observe include the following:
• • ,*
vehicle and engine manufacture, assesbiy, and storage
procedures; sanple test vehicle selection procedures;
and related activities. You and any designated enforcement
officers and employees are authorized to inspect at reasonable
tines during normal operating hours the records, files,
papers, processes, controls and facilities which are
involved in and associated with the above activities and
are maintained, used and generated by CM at that location.
You and any duly designated enforcement officers and ecployees
•
are authorized to copy documents and photograph components,
£es€ vehicles and facilities.
The Duration of this inspection shall be of such reasonable
length as to enable you and the authorized enforcement officers
end employees of EPA satisfactorily to complete such inspection
according to 40 C.F.R. $86.601 et seq.
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-3-
A prorrpt return oi this warrant .hall be Bade to
thi. court s^ing that the arrant has been .,.cutt{! tnd
inspection has been «*pl.t.d within .uch r.3,on*bl. tlmt
PA75D: f\*^ 31 1978
.
TiU STATES KAGIilflAn
•. »• •. / :.- »\ • .• • •
. •:»
-' //-
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i»rrt;n:r c:- scr.vrcs
I hereby certify that a copy of the within warrant was
by presenting a copy of came to rlp!'d'a \ i'ivc<.r r..( 7*-
an acvjrst of General Motors Corpsrztion (C::) on A' Je '-'-''' i.
J
1973, at the CM Willow Hun vthicle asstebly plant, Vpsilanti, Michi;
' (Nace of parson making service)
i-iciiL'l Title within
Scatis Envircnnental Protection Agency)
Inspection of the establishment described in this
warrant was completed on r^^i^f V , 1978.
v*
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Inventor/ of Property Received Pursue to Adeinistrtiive
'''arrant'
(ytllewi
These ere the it CBS thtt E?A has received under
Bruce Lunefy
Enforcement Officer
11:30 ta 8/4/78
i..
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IN TEE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
AFFIDAVIT IN SUPPORT OF
APPLICATION FOR WARRANTS
TO ENTER AI.'D INSPECT
PURSUANT TO THE CLEAN AIR
ACT (42 C.S.C. S"?-101 «t ser.)
IN TBE MATTER OF i
GENERAL MOTOR CORPORATION
CENEF.AL MOTORS ASSEMBLY DIVISION
WILLOW RUN, AIRPORT
YPSILANTI, MICHIGAN 48197
AKD . •
VEHICLE EMISSION LABORATORY
GENERAL MOTORS PROVING GROCJNO
MILFORD, MICHIGAN 48042
Matthew Low being duly iworn upon his oath, according to
law, deposes and says:
1. Z an Acting Chief, Manufacturers Programs Branch,
Mobile Source Enforcement Division, Office of Enforcement,
United States Environmental Protection Agency (EPA),
Washington, D.C. Z am in charge of a program known as the
Selective Enforcement Audit (SEA) program, which will be
described below. Z report to the Director of the Mobile
Source Enforcement Division, who is under the Deputy Assistant
Administrator for Mobile Source and Noise Enforcement; in
turn, he is under the Assistant Administrator for Enforcement,
vbo reports to the Administrator of the Environmental
Protection Agency.
i
2. This affidavit is made in support of an application
for Administrative warrants to eater; observe a Selective
Enforcement Audit (SEA) test on the configuration of motor
vehicles manufactured by the General Motors Corporation (CM)
of engine family 840B2 and engine code 2, with 4000-pound
inertia weight. A-3 transmission and 2.56 rear axle ratio as
specified in a SEA test order issued on July 28, 1978, by
»
the Assistant Administrator for Enforcement of EPA; and
inspect GM's records, files, papers, processes, controls,
and facilities which are involved in and associated with
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-2-
the manufacture and testing of said configuration pursuant
to said test order at the precises of the
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-3-
•re subjected to a 4000-mile test. The emission levels of
the emission-data vehicles during their useful life are determined
by applying the 'deterioration factor* calculated froa the
50,000-oile test results for that engine family to the emission
data obtained after 4000 miles of operation. Xf it is demonstrated
that the prototype vehicles of the various configurations within
an engine family comply with the emission standards over their
useful life and with other regulations, the Administrator issues
to the manufacturer a certificate of conformity for the particular
engine faaily described in the application. ' •
4. To determine whether new motor vehicles actually being
manufactured, as distinguished froa pre-production prototypes*
meet the regulations, including emission levels, with respect to
which the certificate of conformity was issued, Section 206(b),
42 O.S.C. $7525(b), authorizes the Xdainistrator to test and to
require the testing of new production vehicles. In addition, to
enforce Section 206, Section 206(c) provides that officers or
employees designated by the Administrator may enter a manufacturer's
plant to -conduct tests of vehicles and to inspect records, files,
papers, processes, controls, and facilities. Section 208(a), 42
O.S.C. $7542(a), further requires manufactuers to establish and
maintain such records, make such reports, and provide such
information as the Administrator may reasonably require to enable-
him to determine whether the manufacturer has acted or is acting .
in compliance with Title XX of the Act and the regulations
»
promulgated thereunder and to permit duly-designated EPA officers
or employees to have access to and copy such records. Section
301{a), 42 O.S.C. $7601(a), authorises the Administrator to
prescribe such regulations as are necessary to carry out his
functions under the Act and to delegate to any EPA officer or
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-4-
enployee such e£ his powers and duties under the Act, except t
s t~y
aaking of regulations, as he Bay deem necessary, er impcaiin^,
Based upon the authority of Section 206, 208 and 301, 42 O.5.C.
$57525, 7542 and 7601, EPA has established a program for spot
assembly-line testing known as the Selective Enforcement Audit
(SEA) program. Regulations concerning the SEA program are set
forth at 40 C.F.R. $86.601 rt «o., 41 Fed. Beg. 31472 (July 28,
1976).
5. Under the SEA program, the manufacturer can be required
to test a representative sample of production vehicles from a
designated motor vehicle configuration to determine whether the
configuration is being manufactured to conform to the applicable
emission requirements. The SEA regulations prescribe specific
procedures by which SEA testing is to be conducted, including
procedures for vehicle selection, preparation and pre-conditioning,
for dynamometer operation to simulate driving conditions and fol
collection of vehicle exhaust gas samples for analysis. A SEA
is initiated by the issuance of a test order to a manufacturer
requiring that manufacturer to conduct emissions testing and
specifying, among other items, the motor vehicle configuration
to be tested, the plant or storage facility from which vehicles
must be selected and the procedures to be employed in selecting
sample vehicles for SEA testing. Section 206(b) of the Act,
*
42 O.5.C. $7525(b), authorizes the Administrator to issue a
test order. Pursuant to Section 301(a) of the Clean Air Act,
42 O.S.C. 57601(a), the Administrator has delegated the authority
to conduct testing through the issuance of test orders to EPA's
Assistant Administrator for Enforcement along with the further
authority to redelegate this power to the Deputy Assistant
Administrator for Mobile Source and Noise Enforcement, and in
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-5-
tum to redelegate to the Director, Mobile Source Enforcement
Division. EPA Delegation 7-30, November 10, 1977. Such re-
delegation to the Deputy Assistant Administrator was aade en
Hovember 14, 1S77.
*
6. Under Sections 206(b) and (e). 208(a) and 301(a) of
the Clean Air Act, 42 O.S.C. f$7525(b) and (e), 7S42(a) and
7601(*}, and 40 C.P.R. $86.601 £t «o., duly designated EPA
•nforceaent officers and employees are authorized under the
SEA program to enter the manufacturers' facilities at reasonable
times during noraal working hours for the purpose of observing
activity relating to the SEA testing and inspecting records,
files, papers, processes, controls and facilities to deterain* if
the manufacturer is acting in compliance with regulations and the
test order. Ordinarily, the EPA monitoring includes observation
of vehicle and engine manufacture, assembly and storage procedures
•ample test vehicle selection procedures; sample test vehicle
preparation, pre-conditioning, mileage accumulation, emission, test
maintenance and soaking procedures, as well as the calibration of i
i
equipment; and related activities. Commonly, EPA inspects
*
records, files, papers, processes, controls, and facilities which
are involved in and associated with the above activities and are
maintained, used or generated by the manufacturer at the locations
where test vehicle assembly, SEA test vehicle selection and
testing take place. Also, EPA is authorized to copy documents,
photograph components, test vehicles and facilities and obtain
reasonable assistance from facility personnel in executing its
functions under the SEA program. EPA attempts to enter and
conduct these inspection-related activities in conjunction with
each SEA test order for the purpose of monitoring* the activity of
the manufacturer undertaken pursuant to the test order to ensure
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-fi-
that such activity conforms to the requirements of the test
order and the SCA regulations.
7. The manufacturer is notified by the test order of
the configuration (or alternate) to be tested, the location
from which test vehicles will be selected, when the testing
is to begin and when E?A officers and employees will be
present. The date of completion of the test, and therefore
the duration of the E7A inspection, is not specified at the
outset because it is not possible to do so. SCA selection
• :,*
and testing normally take up to two weeks. If the manufacturer
elects to retest vehicles in an attempt to avoid failing an
audit, or if upon failing an audit a re-audit is necessary,
audit activity under the test order may continue for a
month. The Clean Air Act Selective Enforcement Audit
regulations, 40 C.F.R. $86.601 •£ see., <1 Fed. Reg. 31472
(July 28, 1976), and the test order define the scope and
purpose of.the audit. The test order identifies the EPA
• •
enforcement officers and employees who have been designated
to enter, observe activities, and inspect records, files,
papers, processes, controls and facilities used in or
associated with the audit.
8. Under the regulations and the Clean Air Act, a SLA
test order may be issued to any manufacturer at any time for
any motor vehicle configuration being manufactured. When a
SCA test order provides less than 24 hours notice to the
manufacturer, the SEA test order must be authorized in
writing by the EPA Assistant Administrator for Enforcement.
9. The frequency with which SEA test orders are issued
to any given manufacturer is generally based on that manufacturer's
proportionate share of total vehicle production. A manufacturer's
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-7-
projected sales volume is used as the basis for establishing
the preliminary number cf SEA test orders to which that
manufacturer Bay be subject annually. A higher production
voluae requires more audits for sufficient review of the
manufacturer's production. The maximum number of SEA test
orders that may issue to a given manufacturer during • given
model year is preliminarily set at the number obtained by
dividing that manufacturer's total projected sales for that
model year by 300,000 and rounding to the nearest whole
number. 40 C.F.X. $86.603(f). Any manufacturer with
projected sales of less than 150,000 may be subject to an
initial annual liait of one SEA test order. One additional
SEA test order may issue to a manufacturer for each configuration
failing an audit and, when the annual limit figure, inceased
by these additional test orders, has been met, for each
configuration for which-evidence exists indicating noncompliance.
Because the agency's resources are limited, EPA may undertake
fewer SEA's than are authorized by its regulations.
10. ( Within these annual limits on the number of ttst
orders EPA may issue to each manufacturer, EPA employs a
systematic process, as discussed below, for choosing which
configuration of which manufacturer to subject to an audit.
Initially, EPA seeks to issue test orders proportionately among
manufacturers according to their respective annual projected
sales and to distribute those test orders evenly over the course
of • model year. This.process then employs three primary sources of
information, assembly-line test data, projected sales volume, and
certification data, as bases for assigning points to rank
configurations for the purpose of determining which configuratin
would be most appropriate for an audit at a given time. Once
-------
configurations are ranked, the process also considers other,
non-quantifiable factors in reaching an ultimate decision about
which configuration to audit.
II. Where data being evaluated by EPA from any of these
three sources pertains to individual configurations, points are
assigned to the respective individual configurations according to
the guidelines of the ranking system. If the data evaluated
pertains to engine families, points based on a engine family's
data will be assigned for ranking purposes to an individual
configuration within the engine faaily. The 'configuration
receiving the engine faaily's points will be identified according
to two factors. To begin with, its production rate must be high
•nough to enable sample test vehicles to be selected for testing
in an expeditious manner. Once that determination has been made,
its actual physical characteristics (such as engine code, inertia
weight, type of transmission, or rear-axle ratio) which distinguish
it from other configurations within the engine faaily must make
it the configuration most likely to produce the highest level of
emissions of the configurations in that family.
t
12* Before ranking configurations/ SEA's systematic
configuration selection process applies the general objective
that each manufacturer should receive at least one half of
its annual limit of audits as computed froa its projected
•ales during the model year, with those audits distributed
over the model year, to ensure proper review of the total
production of each manufacturer, thus under the plan
described below, a configuration of a particular manufacturer
may replace another configuration of any manufacturer which
otherwise would have been chosen for an audit. This result
• *
occurs whenever issuing the test order to the manufacturer
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-9-
of the replaced configuration would havt subjected that
manufacturer to a disproportionate nuaber of audits as of
that time in the nodel year.
13. The nost important factor considered quantitatively
by EPA is a configuration's Missions data which havt been
generated by a manufacturer's own quarterly assembly-line
testing and submitted to EPA. The data Allows CPA to
evaluate both the rate at which production vehicles coming
off the assembly line fail to Beet an emission standard
for a given pollutant and the mean eaission value aeasured
*
froa assembly-line vehicles as compared to a pollutant's
eaission standard. Points due to failure rates are assigned
to a vehicle configuration as follows:
Failure Kate
Range Points
0-10% 0
11-201 5
21-30% 15
31-40% 20
40% and above • SO
Points according to the configuration's mean emission value
compared ,to the emission standard (ltd) are assigned as follows:
Range
Mean value is between 0.9
of the std and the std
Mean value is greater than 15
the std but less than or
•qual to 1.1 of the std
Mean value is greater than 30
1.1 of the std
Application of the point total derived from these calculations
vill take into account tne reliability that can be attributed
to the data submitted by a manufacturer, for exanple, EPA
vill assess the nuaber of vehicles tested in order to
determine the failure rate or mean emission value. Data
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-10-
reliability also depends upon the extent to which a discrepancy1
is found in a comparison between past SEA data pertaining to
the configuration in question and the manufacturer's most
recently submitted internal assembly-line data, furthermore;
•valuation of this point total also will consider both
whether a manufacturer has failed to provide test data for
one or more configurations in production at the time the
assembly-line data was generated and whether any 'running
changes" incorporated into the manufacturer of a configuration
since that time may be expected to cause the emissions level
of the configuration to exceed standards for a pollutant.
14. The next most important factor in this point
ranking system is the configuration's (or engine family's)
projected annual sales figure as provided by the manufacturer
in its application for certification. Points based upon
projected sales are assigned as follows:
Annual Projected Sales Points
0-20,000 0 '
20,000-50,000 10
50,000-100,000 20
100,000 and above 30
This factor focuses on higher-production models and tends to
assure through SEA review that a high percentage of vehicles
produced complies with the emission standards.
15. Finally, certification data generated from prototype
testing and regarding configurations currently in production
are examined; that ia, EPA reviews the pertinent certification
data en configurations .being manufactured either according to
the manufacturer's original application for certification or
according to its latest running change application for an amended
certificate of conformity. Zf the configuration'.s emission
performance level based on that data is within 10% of the emission
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-11-
standard for a given pollutant, IS points are assigned to that
configuration. Application of this factor may be adjusted where
analysis by EPA't certification group indicates that certification
test data nay not be indicative of whether production vehicles of
that configuration are likely to Beet emission requirements. The
focus of this factor is en vehicles that have demonstrated only
marginal compliance during the certification or running change
approval process.
16. Aside from these quantitative factors and the
objective of distributing audits aaong manufacturers
throughout the model year, in choosing which configuration
of which manufacturer to audit EPA taJces into account the
location of the manufacturer's assembly plant and test
facilities. This factor generally is given significant
consideration if these establishments are located overseas
or are otherwise geographically removed from the Midwestern
•United States. Most manufacturing and testing establishments
•re located in the area, and therefore most audit activity
can be expected to taJce place there. EPA also considers
i
whether a configuration is being manufactured at a sufficiently
high rate to allow staple vehicles to be selected expeditiously
for testing. Information on current production rates of
configurations might not be requested from a manufacturer
•o as to avoid suggesting to manufacturers which configur-
ations may be subject to an imminent test order. Thus, a
test order can designate an alternate configuration of that
manufacturer for testing, chosen according .to the normal
systematic process described above subject to the constraints
regarding location and production rate, in the event that the
•
primary configuration is unavailable for testing.
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-12-
17. Automobile manufacturers for the aost part have
centralized their testing facilities in eastern Michigan.
Consequently, they generally have expressed a preference
that vehicle selection for any audit of any configuration
produced in that area and ethers baJce place at a plant in
that area. Pursuant to 40 C.F.R. $86.«03(d), EPA complies
with these indicated preferences when specifying locations
for vehicle selection pursuant to a test order unless the
Administrator determines that information exists indicating
' •'•**>
nencompliance at other plants. If a manufacturer does not
indicate a preferred plant for a configuration being
audited, the test order will specify that test vehicle
•election be conducted at the location closest to the
manufacturer's testing facility at which a sufficient number
of vehicles are available from which a sample representative
of the configuration can be chosen expeditiously, unless it
is determined that evidence exists indicating non-
compliance at another plant. Siaee the goals of the EPA
program can be accomplished with a relatively high percentage
of audits testing vehicles selected from locations in eastern
Michigan, a relatively high percentage of vehicle selection
for SCA's takes place in that area. Once a test order has
been issued covering a specific manufacturer, configuration
and facility for sample test vehicle selection, EPA sends a
team of enforcement officers to the manufacturer's facilities
where selection and testing take place for the purpose Of
monitoring the manufacturer's activity performed in response
to the test order.
18. Experience with the administration of the SEA program
• *
has produced indications that providing a manfacturer with advance
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-13-
eotice of an intent to require SEA testing before EPA enforcement
officers can gain access to the manufacturer'• facilities pursuant
to that test order can give the manufacturer an opportunity to
alter its production processes. The manufacturer thereby can
bias production of a vehicle configuration so that «aaple vehicles
•elected for, SEA testing will not provide representative data
which would enable EPA to review accurately the manufacturer'*
production of that configuration on the whole. Such
notice would occur if EPA enforcement officers requested
permission to enter a facility to monitor activity related
•
to the SEA, and permission to enter were refused, before
a warrant authorizing that entry were obtained.
19. On 'the basis of 1978 model year projected sales
alone General Motors may be subject to 20 test orders during
the model year and has been subject to 10 orders thus far.
Ford may receive 11 test orders on the basis of projected
•ales and has been issued 8. Chrysler may receive S test.
orders biased on projected sales and has received 6, since
one of its configurations failed an audit. See 40 C.F.ft.
S86.603(f). American Motors may be issued 1 test order
based on projected sales and has not yet received any. four
European and three Japanese auto manufacturers have been
audited during the current model year.
20. CM is a manufacturer of automobiles and operates
facilities devoted to that purpose at its Willow Run vehicle asses
plant in Xpsilanti, Michigan. CM also operates emission
testing facilities at its vehicle emissions testing laboratory
in Milford, Michigan, where GM usually ships ears for
SEA testing after such cars have been selected at a vehicle
assembly plant as SEA sample test vehicles. GM produces
hundreds of different configurations during the model year.
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-14-
21. CM is still eligible to receive 10 SEA test orders
for model year 1978 configurations. The configuration specified
in the SEA test order issued on July 28, 1978, has been chosen
•s the subject for SEA testing because of the configurations
currently under production and available for selection it has
accumulated the greatest number of points under EPA's systematic
process for choosing configurations to audit and because no
non-quantitative factors indicate that another configuration is
more appropriate for auditing. Assembly-line test data submitted
by CM which, according to our analysis, pertains to its engine
code 2 configuration of its 840B2 engine family with 4000-pound
inertia weight, A-3 transmission and 2*56 rear axle ratio shows a
56% failure rate of vehicles tested with respect to the emission
standard for nitrous oxides (HOx), giving that configuration
50 points for ranking purposes. The mean emission value for NOx
derived from this assembly-line testing (1.99 grans/mile) falla
within 0.9 of the NOx emission standard (2.00 grans/mile),
contributing another 5 points. The projected annual sales
for this configuration is 63,741, giving the configuration
an additional 20 points. Certification testing conducted for
this configuration produced data which showed the prototype
CO emissions level (15 gram/mile) to be within 10% of the CO
emission standard (also 15.0 grams/mile), thereby assigning the .
configuration IS more points. The configuration's point total
of 90 is the highest for any configuration remaining in production
long enough and at a-rate high enough to allow for expeditious
sample test vehicle selection pursuant to the SEA regulations.
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-15-
22. The document, which_ is attached and incorporated
by reference, and sets forth the SEA test order for this
configuration will be delivered to CM by an EPA enforcement
officer at the same tiae the designated officers and employees
appear at CM's vehicle asseably facilities in Tpsilanti,
Michigan, to begin monitoring CM's activities performed
pursuant to the SEA test order. The entry, observation and
inspection there and at CM's vehicle emission testing
laboratory in Milford, Michigan will be consistent in
purpose, scope, location and timing with the Clean Air Act,
this Court's administrative warrants, EPA regulations, the
test order and the program described in this affidavit.
MATTHEW LOW
Sworn and subscribed before ae
this • day of , 1978
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iv^T III
NEUT3AL INSPECTION SCHEME FDR AEFDSOL FILLERS
1. Tne rule published by EPA on March 17, 1978 (43 FR 11318) bans
processing of fully halogenated chlorofluoralkanes, or CFC's,
for aerosol propellant uses after December 15, 1978, except for
certain essential uses. Such processing would be done by busi-
nesses known as aerosol fillers.
2. Only aerosol fillers who have bought CFC's since October 15,
1978 or who are otherwise known to be in the position to fill
aerosols with CFC's after December 15, 1978 will be candidates
for inspection. Such fillers may be identified by inspections
of the records of CFC manufacturers, by infonnation frcra the
Consumer Product Safety Commission (CPSC)/ or by other Beans.
3. Such candidates for inspection will be ranked according to the
relative quantity of CFC's estimated to have been received after
December 15, 1978. Fillers estimated to have received nore CFC's
will be assigned higher priorities for inspection. Such esti-
mates shall be based on the records of quantities distributed
by CFC manufacturers. If the anoint of CFC's received by a
candidate for inspection is unknown, then that filler will be
assigned a ranking in the middle of the ranked list.
4. A ranked list of candidates for inspection will be sent to each
Regional Office. Such lists may be amended later by information
from the CPSC or other sources.
5. The total number of aerosol fillers to be inspected in FY 79
by each Regional Office will be determined first. Then the
ranked list will be used to identify the particular fillers to
be inspected. The total number to be inspected in each Region
will be inspected, and so that an approximately equal proportion
of the fillers in each Region will be inspected.
6. The sequence of inspection shall be determined by the rank order
of the list, except that this sequence may be adjusted to conserve
Agency resources (such as by combining several inspections in one
trip.)
7. This- neutral inspection scheme will be modified after the annual
reports required by the CFC rule to be submitted by March 31/
1980 have been analyzed.
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entering into nearby waterways including waters of the
United States and its tributaries, as well as posing a
threat to the environaent and the public health and welfare
of Che United States.
h. The reported death o! a 19 year eld
truck driver ae the CLAW (IPA, lac.) open pies on July 25,
1978 while he was discharging waste into an open pit at chc
facility. The death was possibly caused by his inhalation
of toxic fuoes caused by a reaction of mixing incompatible
toxic wastes in the open pit. Two eye witnesses to the
•
. death of the .driver reported the presence of choking fuses
".,*
.'la the area when they opened the doors to their truck to
assist the driver who died. .They also reported that his
truck was parked at the edge of the open pit with the doors
open at the tiae of death. Subsequent laboratory.tests of
waste taken from the pits have shown waste materials were
present is the pic, which,when mixed with the spent caustic
being discharged fron the driver's truck could have caused
the death, final autopsy reports are still pending. It is
'allegedly reported that CLAW facility officials directed the
•
driver to take and discharge his wastes to the truck rasp on
the edge of aa open pit. Discharging toxic waste into an
open pit at the edge of a pit is not a safe, desirable, or
acceptable practice since toxic ehamieal. reactions are very
probable and can result in the death of anyone nearby.
5. Section 308 of the. Federal Water Pollution
Control Act, 33 USC 1318, and section 3007 of the Resource
•
Conservation and Recovery Act of 1976. (42 USC 6927), pro-
•
aiding for entry, inspection, record inspection and copying
and saspling are reasonable, in the public interest and
necessary in order "to" carry out the provisions of these
Acts, which Acts are designed to protect the environment, as
-------
veil AS ehi public health And welfare. Za the tnstanc
tutter ic is reasonable te Assuae tho need for inspection
based en the infomation And observation* >ec cue in perAgraph
4 Above And in the public interest.
C. NC nX.-i
CKLMZCAL ENGINES*
Ui:iTED STATES ENV
P&OTEC7IOK AGENCY
Subscribed And rworn co before me
AC BAton Rouge, Scace of Louisiana,
this /o of ^.^-r-,,3*- - 1978.
•4-
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GM-6
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1 •/ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
•j WASHINGTON. O.C 204«0
OCT T 68I~ . e,P«,o,
ia0AL eOUNMl. AND INFOMCtMIMT
MEMORANDUM
SUBJECT: Contact! with Defendants and "Potential
Defendants in Enforceaent Litigation
TO: Addressees
•
FROM: William A. Sullivan, J
Enforcement Counsel
Most of the Agency's staff is aware of the need to
consult with the Departaent of Justice (DOJ) before contacting
defendants in enforcement litigation or potential defendants
in esses referred to Justice for filing. Z want to stress the
iaportance of giving DOJ an opportunity to participate in any
meetings with such persons or firms to review their compliance
status. Failure to observe proper practice in this regard can
seriously undermine the Department's ability to effectively
represent EPA and ultimately diminish the prospects for satis-
factory enforceaent of environmental laws.
Headquarters and regional enforcement personnel saould
already be aware of the iaportance of including Justice in
such discussions when they : -* initiated by EPA, and of giving
the Departaent notice of anu opportunity to attend meetings
requested by potential defendants or their counsel. Justice's
caseload may not always permit them to send a representative,
in which ease EPA staff should thoroughly coordinate the
ground rules of the contact with DOJ in advance. Follow-up
information should be provided to the Department's attorneys
promptly after the conclusion of any meetings. This is the
procedure Z shall expect to be followed at all times.
Z also want to urge anforceaent staff to caution their
•client* program offices and others within the Agency about
the sensitivity of contacts with persons or firms that have
been named in cases referred to Justice for filing. There
are many matters unrelated to an enforcement action — proces-
sing of grants, development of rules, etc.— in which a party
may be interested and which may be discussed without counsel
present. Care should be taXen, however, to determine the
purpose(s) for which meetings are aought by defendants and
potential defendants so that appropriate arrangements can be
-ade. Zf matters relsted to a pending case are raised by such
•ersons during the course of a meeting arranged for other
purposes, the discussion should be interrupted and continued
only after consulation with in-house enforcement counsel and
DOJ.
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- 2 -
Tour cooptration will assure that litigation strategy
is not compromised by inappropriate discussions, and can avoid
embarrassment from last minute cancellation or rescheduling
of meetings. If you have questions about whether a particular
person, firm, or state or local government it a defendant in
tnforceaent litigation or is a potential defendant in a ease
which has been referred to the Department of Justice, please
•contact Jonathan Libber of my staff at 426-7503.
Addresseesi John Daniel, Chief of Staff
Assistant Administrators
Enforcement Office Directors
Regional Administrators
Regional Enforcement Division Directors
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GM-7
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^!
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
DEC I C 1331
MEMORANDUM
orrici or
•KNKNAk COWNSIL.
SUBJECT
FROM:
TO:
Ex Parte Rules Covering Communications
on Issues Which are the Subject of Formal
Adjudicatory Bearings
Robert M. Perry
General Counsel (A-130)
**•
John E. Daniel
Chief of Staff
Office of the Administrator (A-100)
The Office of General Counsel has been asked to advise your
office on the handling of ex parte communications on issues
Arising in formal Agency adjudications. This question is impor-
ant because ejc parte communications may occur when, for example,
a party to pending or ongoing litigation seeks a speedier, more
direct resolution of the litigation than is offered by the formal
adjudication. In some cases, telephone calls, letters or even
casual remarks relating to a substantive issue in litigation can
constitute an improper ex parte communication. In general, such
communications concerning the merits of a proceeding create the
risk that an adjudicatory decision may be set aside by a reviewing
court. However, the ex parte rules do not preclude the Administrator
from engaging in discussions with persons regulated by EPA
merely because those persons happen to be involved in a formal
adjudication.
Accordingly, we have prepared this memorandum to guide your
staff (1) in recognizing and avoiding .improper ex parte communi-
cations and (2) in taking remedial steps if an Improper ex parte
communication occurs. Sections I-III of this memorandum define ex
parte contacts and describe the rules governing them. Section
IV describes measures for minimizing the adverse legal impact of
such communications when they occur.
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- 2 -
1 *• Why do we have rules about ex parte coi.tacts, and to what
do they apply? ~~~ ~"
The Agency conducts formal adjudicatory hearings in a number
of areas/ including:
0 Hearings to decide whether pesticide registrations
should be denied/ cancelled, suspended/ or modified,
under Section 6 of the Federal Insecticide/ Fungicide/
and Rodenticide Act/ as amended (7 U.S.C. S136d).
* Hearings to decide whether to assess any civil penalty
under Section 14(a) of the Federal Insecticide/ Fungicide,
and Rodenticide Act/ as amended (7 U.S.C. Sl361(a)).
0 Hearings to decide whether to assess any civil penalty
under Section 211 of the Clean Air Act/ as amended (42
U.S.C. §7545).
* Hearings to decide whether to assess any civil penalty
or to revoke or suspend any permit issued under Section
105 (a) and (f) of the Marine Protection, Research,
and Sanctuaries Act, as amended (33 U.S.Co §1418(c))
0 Hearings on the issuance of a compliance order or the
assessment of any civil penalty conducted under Section
3008 of the Solid Waste Disposal Act, as emended (42
U.S.C. $6928).
6 Hearings to decide whether to assess any civil penalty
under Section 16(a) of the Toxic Substances Control Act
(15 U.S.C. 52615(a)).
9 Hearings conducted in connection with the termination
of a hazardous waste permit under the Resource Conser-
vation Recovery Act. (42 U.S.C. $6928(b)).
0 Hearings to challenge the issuance of any individual
National Pollutant Discharge Elimination System permit
for a point source discharge under Section 402 of the
Clean Water Act. (33 U.S.C. $1342).
• Hearinos to determine data compensation amount.* under
the Federal Insecticide, Fungicide, and Rodenticide Act,
as amended. (7 U.S.C. $136(d)).
Under the Administrative Procedure Act (APA), (5 U.S.C. §551 et
seg.), the decisions which result from these adjudicatory hearings
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-3-
*
must be based solely on the formal record compiled during the
proceeding, i.e., the pleadings, transcripts, exhibits, and
briefs. In order to safeguard the integrity of the adjudicatory
process, the Administrative Procedure Act prohibits all extra-
record communications relevant to the merits of an adjudicatory
proceeding between Agency decision-makers and interested persons
inside or outside the Agency. 5 D.S.C. 554(d), 557(d)(l). A
decision made in a formal adjudication may also be subject to legal
challenge if there is reason to think that it was based on any
material fact which is not a part of the formal record. 5 D.S.C.
554(d)(l), 556(e). In recognition of these statutory provisions,
the various Agency regulations concerning hearing procedures
(see 40 CFR SS22.01, 124.78 and 164.7) and pertinent judicial
precedent establish rules dealing with "ex parte* communications
made to or by persons responsible for malting decisions in adjudi-
catory hearings. The remainder of this memorandum will discuss
what "ex parte" communications are, and the rules that apply to
them.
II. What is an ex parte communication?
One definition appears in the APA, 5 U.S.C. $551(14):
"Ex parte communications means an oral
or written communication not on the public
record with respect to which reasonably prior
notice to all. parties is not given, but it
shall not include requests for status
reports. ..."
This definition is somewhat cryptic and incomplete, however. A
more useful working definition is:
"Ex parte communication" means any
communication (written or oral) concerning the
merits of an ongoing formal adjudicatory pro-
ceeding, between any decision-maker and either
(A) any interested person outside the Agency,
or (B) any member of the Agency trial staff,
If any of the parties to the hearing did not
receive prior written notice that the communi-
cation would be made or were not invited to be
present and participate in the communication.!/
An e_x parte comrcur.ication could take the form of a lette., telephone
conversation, meeting, or other informal discussion. (Of course,
ITThis definition is in large part a paraphrase of the definition
In 40 CFR 5124.78.
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-4-
pleading;;, testimony, and the like presented or filed according to {
the hearing rules are not covered.)
III. What: are the rules governing ex parte communications?
In brief, the APA and related EPA regulations state that jex /
parte communications concerning the merits of a proceeding are
improper but also recognize that they nay nonetheless occur and •
provide mechanisms designed to counteract their possible influence
on decision-making.
A. What kinds of communications concern
"the merits" of a hearing?
As indicated above, ''the prohibition against ex parte contacts
covers communications regarding the merits of an ongoing adjudi-
catory proceeding. This restriction is to be construed brcadly
and covers not just communications regarding facts in issue, but
any statement whic!" could affect the Agency's decision on *-.he
merits. Inquiries aoout scheduling and other procedural .r.af.ters
(such as requests for status reports) may properly be made ex
parte. (The Administrator has traditionally referred such Inquiries
to the appropriate trial staff for a response.) In doubtful cases,
the prudent course is for the Agency decision-maker to treat the
communication as one which may concern the case's merits.
B. What communications within the Agency are prohibited?
In almost every formal adjudication conducted by EPA,2/
one of the parties is the Agency trial staff. Typically, the
order by which the Administrator (or his delegate) initiates the
hearing contains a designation of the Agency personnel who will
make up the Agency trial staff. That order often also designates
those persons who '/ill serve as adjudicators in the proceeding
(typically the Administrator or the Regional Administrator, the
Judicial Officer, an Administrative Law Judge, and sometimes
others.)
Members of the Agency trial staff are forbidden from
communicating with the Administrator tor other designated adjudi-
cators) on an ex parte basis concerning the merits of the proceeding.
Although the A3ministrator theoretically can consult with other
77There is one exception:hearings under FIFRA $3(c)(l)(D) to
determine data compensation payment amounts are disputes between
private parties which are decided by EPA. The Agency is not a
party in these cases.
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-5-
*»
Agency personnel who are not (and have not been) involved in
trial staff functions (and who do not represent other interested
persons), no substantive consultation which may concern facts at
issue should occur unless all parties are notified and given an
opportunity to participate. Otherwise, there exists a substantial
risk that the Administrator's decision might be based on evidence
that has not properly been made a part of the record of the
proceeding.
C. What communications with persons outside the Agency
are prohibited?
The APA also prohibits e_x parte communications between the
Agency adjudicators and "interested persons" outside the Agency.
The legislative history says that the tern
"is intended to be a wide, inclusive term. . . .
The interest need not be monetary, nor need a
person be a party to, or intervenor in, the
agency proceeding to come under this section.
The tcr.. includes, but is not limited to,
parties, competitors, public officials, and
non-profit or public interest organizations
and associations with a special interest in
the matter regulated.*
Government in the Sunshine Act, Committee on Goverment Operations,
H.R. REP No. 94-880, 94th Cong., 2d Sess. (1976), at 19-20,
Source Book: Legislative History, Texts, and other Documents,
Committees on Government Operations, U.S. Senate and Bouse of
Representatives, 530-531. With certain exceptions,3/ it seems
logical to treat the very fact of a communication concerning the
merits of an adjudicatory proceeding as evidence that the person
making it is "interested." Certainly anyone whose communication
seems designed to influence the outcome of the case (or the
timing of rulings) should be treated as an interested person.
Again, where there is doubt about a communication's status, it
should be treated as one by an interested person.
As noted earlier, the ex parte rules prohibit not only
communications by interestecFpersons to Agency adjudicators, but
also communications by Agency adjudicators to interested persons.
This could present problems in situations wKere the adjudicator
does not know whether the persons to whom he or she is speaking
2/ Routine inquiries from the news media, or from persons whose
Interest in the case is purely academic, normally would fall
outside the rule's coverage.
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-6-
are "interested." Moreover, as in the case of communications
with non-interested Agency personnel, the adjudicator should
avoid substantive communications with any person outside the
Agency (whether interested or not) concerning facts at issue
in the proceeding, unless all parties are notified and given an
opportunity to participate. Finally, discussion by the adjudi-
cator of the merits of an ongoing proceeding may lead people to
assume the matter has been pre-judged even if technically there
is no violation of the ex parte rules.
IV. How can ex parte communications be minimized, and what
should be done if they occur?
It is probably impossible to prevent entirely the occurrence
of improper ex parte communications. In a discussion of general
matters between industry representatives and the Administrator,
for instance, the conversation may inadvertently move to a matter
which is involved in an adjudication. The Administrator must deal
with a wide variety of topics, most of which are not covered by
the ex. parte rules, and should not feel constrained to avoid
discussions with persons who are regulated by EPA merely because
those persons also may be involved in some formal adjudication.
But the ex parte doctrines must be kept in mind if such discussions
are to be held.
There are two kinds of measures ~ preventive and curative —
that should be taken by your office to lessen the likelihood of
problems. Preventive measures should include:
(1) An awareness on the part of the Administrator and her
immediate staff of the importance of the principles
discussed in this memorandum;
(2) A system designed to keep the staff aware of the
adjudicatory proceedings that are in process, and the
parties to and issues in those proceedings;
(3) Attention to potential ex parte problems when scheduling
meetings, drafting speeches, and screening telephone
calls, and reminders by the staff of topics that should
be avoided; and
(4) Similar attention to the problem by those who handle
incoming and outgoing written correspondence; and
(5) For "ex parte" purposes, members of the Administrator's
personal staff should consider themselves to be part
of the decision-making team headed by the Administrator.
Otherwise, serious practical and legal problems could
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-7-
arise in insulating decision-makers from staff members
who have received or initiated ex parte communications.
The principal curative measure, once an improper ex parte
communication has occurred and has been recognized as such, is to
make the content and circumstances of the communication a part of
the official record of the proceeding and afford the parties a
chance to respond on the record. (If the communication was oral,
a written memorandum of it must be prepared.) The written communi-
cation (or the memorandum summarizing the oral communication)
must be forwarded to the Office of the Hearing Clerk, A-110, with
a request that copies of it be furnished to all parties. This
procedure is designed to nullify the "secret* nature of the
communication and thereby preserve the fairness and integrity
of the decision-making process.
In cases where.an interested party outside the Agency has
knowingly and egregiously violated the ex parte rules, the APA
permits the Administrator or other adjudicator to render a deci-
sion adverse to that person.
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GM-8
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UNITED STATES ENVIRCN'.'.t.v. Al PROTECTION AGSNCY
WASHINGTi •>. SC :i4«0
AND CN'OBCCMCNT COUNtCt.
MEMORANDUM
SUBJECT: Draft DOJ/EPA Litiqation Procedures
PROM: Robert M. Perry
Associate Administrator for Legal %nd Enforcement
Counsel and General Counsel
TO: Associate Administrator
Assistant Administrators
Regional Administrators
Qffice Directors
Regional Counsels
In furtherance of the Administrator's policy to strengthen
and improve this Agency's enforcement capability, particularly
with regard to litigation, a meeting with the Department of
Justice to discuss these matters occurred yesterday at Quantico,
Virginia. I am pleased to report tha'c it was highly productive
and successful. Attached is a sumary of the matters discussed,
the recommendations produced and a process that will strengthen
our enforcement efforts. Each of ycu has a critical role to
insure the success of this vital endeavor, and I lock forward
to discussing it with you ahd receiving any comments you may
have.
Attachment
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ZS70P.CSM2XT GOALS ASD OBJECTIVES
of
mcr C7 113AL A:TD ZS?C?.CSMZ::T cou::s:
0. S. ZKVIRONMZNTAL PROTECTION AGE:;C*
1. The role of enforcement is to support and advance
the regulatory policies of EPA through use of all
available enforcement means; to insure compliance
with applicable laws and regulations; to deter
unlawful conduct and to remove any incentive to
non-compliance.
2. The regulated community is entitled to fair notice
of EPA's policies and the requirements they impose
on the regulated community. All members of the
regulated community should expect that they will be
treated in a consistent, fair manner which •
-- removes any- competitive—*dvantage-gain«d-by-noa-- ±
compliance.
3. EPA is responsible for establishing regulatory policies
and enforcement goals, priorities and procedures to
effectuate its policy initiatives. These policias
and priorities are what guide the Department of Justice
in its role as EPA's litigation counsel. This litiga-
tion will be conducted pursuant to tha Qurr.tico Guide-
lines for Enforcement Litigation developed between
the Environmental Protection Agency and the Department
of Justice.
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r-'AMTICO GVIDE1INES FCP. SNFOP.CEMEN'T LITIGATION
1. GOALS AXD PU5PCSSS
"or S?A
To achieve compliance with applicable law
through effective enforcement.
To inform the regulated communities, Congress
and the public that EPA will enforce the statutues
it administers in a prompt, fair and even-handed manner,
For DOJ
To provide the litigation support necessary to
aid EPA in the accomplishment of these goals.
2. GENERAL OBSERVATIONS
A. ETnphasis will be placed on bringing meaningful
enforcement cases, particularly hazardous waste cases,
criminal cases and enforcement of existing consent
decrees;
B. Especially with regard to recently-enacted
statutes, DOJ needs policy guidance from EPA to
give direction on enforcement activity and to main-
tain consistency;
C. Regional offices of EPA will be the lynch-
pin of the agency fcr identifying and developing
enforcement matters;
trators pJ.ay xey rcies in we enxorcement
which are being clarified;
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- 2 -
E. • States, where possible, should be giv-.«n the
opportunism and incentive to initiate enfovce-
nent cases* Effectiveness of state enforcement
actions will be considered;
F. While national enforcement priorities Are
necessary, flexibility is desirable for region-
by-region determinations;
G. Criminal enforcement priorities and
processes are being developed separately from
civil matters;
U. United States Attorneys play a critical
role and should be involved wherever possible;
I.. Betwejen EPA Headquarters and the regions,
areas of responsibility will be identifier
to allow regional flexibility.
J. Focused use of administrative discovery
powers is necessary for effective investigation
of the factual/technical basis for cases.
3. RESPECTIVE COMMITMENTS
A. On enforcement policy formulation, EPA
will seek, where appropriate, to confer end
coordinate with DOJ concerning potential in-
pacts on litigation;
3. Policy guidance given to R.A.'s ar.d K.C.'s
v< i! *lso be provided to DOJ;
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- 3 -
C. Informal working groups in all media
will continue (or be established) to pro-
vide DOJ/EPA-OGC input to address legal issues;
D. Associate Adainistrator Ferry and Assistant
Attorney General Carol t. Dinkins .ill be available
to discuss sew enforcement guidance with K.A.'s
and K.C.'i in U.C. To be discussed will be R.A.
accountability and commitment to a sustained,
orderly enforcement program that includes litiga-
tion as a desirable component;
£. Associate Administrator Ferry will meet with
Assistant Administrators on enforcement policy,
to clarify roles and secure commitments from
program side for sufficient technical support;
F. Assistant Attorney General Dinkins will
make similar presentations to United States
Attorneys on policies, processes and roles;
G. Violations vill be discovered through
self-reporting, regular inspections, citizen
complaints, administrative discovery and
trained criminal investigators;
a. Administrative powers, to be used for
investigatory purposes, should be delegated
to regions by eliminating need for Head-
quarter's concurrence;
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- 4 -
I. Once a case is referred, Che government
will regain open to negotiation but will con-
tinue to move the case to trial.
k / V* 4« M
A. DOJ Attorneys assigned on a regional basis
to handle all nedia;
B. EPA regional enforcement attorneys are aedia-
•pecific; •"•%'
C. A lead agency attorney (generally an attorney
from the region) will be designated to manage the
case for the agency and coordinate with DOJ;
D. Regular, monthly meetings will be held in
the regions, attended by DOJ and EPA attorneys,
with technical staff present and AUSA's inviced
to discuss:
1. general enforcement actions, in-
cluding EPA administrative processes
and investigations exclusive of criminal
matters;
2. eases targeted by EPA as likely
candidates for litigation, to deterine
a. whether DOJ assistance prior
to referral would be helpful; and
b. adequacy of agency de-
velopment of case;
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- 5 -
3, cases previously discussed as
riitters to be identified for case
development to DCJ;
4. separate meetings will be
held ir. Che regions with prograa
hsads co discuss program enforce-'
Bent priorities and concerns;
£. Following discussions at nonthly aeecings
regarding potential matters for case develop-
ment, when region determines chat matter is a
potential civil enforcement case, R.C. requests
DOJ assistance for case development
1. ce&u is formalized at this point,
in anticipation of litigation;
2. technical support is committed;
3. goal is resolution through nego-
tiated settlement or final Judgment;
F. When a case hasCjgatured. £he regional
administrator requests Che Associate Admin-
is tator Co refer che case co UOJ for litiga-
tion;
G. Some cases will be referred directly Co
DOJ without forcing a case, development teas.
U. Tor true emergencies, telephonic authori-
zaricr to file vill suffiia;
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- 6 -
I. A new refarral packa^s foraat, mor..
streaa-lined and appropriaiu Co the case
development process identified above will
be produced;
J. Tor cases refsrrsd before acnthly
meetings begin, DOJ and EPA will confer
informally prior to referral;
K. Associate Administrator Perry and
Assistant Attorney General Dinkins are
available for dispute resolution if
difficulties or disputes cannot be
handled at intermediate levels;
L. Coordination for all of these efforts
%
will include
1. Perry and Dinkins visits to
regions;
2. Perry and Dinkin? bi-weekly
meetings with staff;
3. Perry and Dinkins monthly
meetings without staff:
4. regular monthly meetings at
»
staff level in regions;
5. working groups in D.C. on
DOJ input into policy foraulation
rs litigation impact;
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6. Basic understanding by both
agency and DCJ lawyers of their
respective roles and the need
fsr a cooperative spirit.
5. SPECIFIC ISSUES DISCUSSED
A. EPA is establishing guidelines for
Superfund national strategy including
especially criteria for which injunctions
are appropriate and whether the regions
or headquarters has the initiative for
Superfund enforcement;
B. Existing Consent Decrees
1. collection and analysis of
compliance status of all existing
consent decrees tc be accelerated;
2. uniform policy to be adopted
en modification of existing decrees
through judicial action;
3. violations of existing consent
decrees are a top priority for
enforcement;
4. collect:." cf s-ipuiatec penalci
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GM-9
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.y*° n'>*
fcfej
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. DC 10««0
30 APR 1982
: or
, ANB INPOHCIMinT COUMMh.
MEMORANDUM
SUBJECT: Agency Guidelines for Participation in
Grand Jury Investigations
FROM: •Robert M. Perry/Associate Administrator
for Legal ana Enforcement Counsel
TO: Associate Adminstrators
Regional Administrators, Regions I-X
Regional Counsels, Regions I-X
Director, National Enforcement Investigations Center
Federal grand juries are almost always used to develop
EPA's criminal cases following referral to the Justice Depart-
ment. Frequently, EPA employees—including investigators,
lawyers and technical personnel—assist in these grand jury
investigations under the supervision of the Justice Department.
The conduct of Agency employees involved in grand jury investi-
gations is frequently subjected to close judicial scrutiny,
since defense counsel routinely challenge aspects the grand jury
presentation during post-indictment motions. Accordingly,
Agency employees who assist the Justice Department during
grand jury investigations must be familiar with, and abide
by, the rules of conduct established for this institution
by case law and the Federal Rules of Criminal Procedure.
The attached "Agency Guidelines for Participation in Grand
Jury Investigations" have been drafted to provide Agency employees
with a general knowledge of the most important rules surrounding
grand jury investigations. Please take immediate steps to insure,
that personnel working within your offices who are assigned to
assist in grand jury investigations are completely familiar with
the details of this guidance document.
Questions on any matter raised in this document should be
directed to Peter Beeson, Acting Director, Office of Criminal
Enforcement (FTS 382-4543).
Attachment
cc: Carol Dinkins
Assistant Attorney General
Land and Natural Resources Division
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AGENCY GUIDELINES
FOR
PARTICIPATION
IN
GRAND JURY INVESTIGATIONS
United States Environmental
Protection Agency
Effective Date:
APR 30B82
-------
TABLE OF CONTENTS
INTRODUCTION 1
I. BACKGROUND: THE ROLE OF THE GRAND JURY 2
II. THE OPERATION OF THE GRAND JURY 3
Authorized Persons Before the Grand Jury 4
The Statutory Recording Requirement 5
The Indictment Process 5
III. GRAND JURY SECRECY 6
The Rule and its Exceptions 6
Disclosure of Grand Jury Materials to
Agency Supervisors 9
Disclosure of Grand Jury Materials in
Parallel or Subsequent Civil/
Regulatory Proceedings .10
Media Inquiries Concerning Grand Jury
Proceedings , 12
IV. CARE AND CUSTODY OF GRAND JURY MATERIALS 12
V. COBCLUSION , 13
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AGENCY GUIDELINES FOR PARTICIPATION' IN GRAND JURY
INVESTIGATIONS
INTRODUCTION
In the past, EPA has relied extensively on the grand
jury to develop its criminal referrals. With the projected
hiring of criminal investigators who will be capable of
more complete, pre-referral case development, this reliance
may decrease somewhat. Given the nature of EPA's criminal
jurisdiction, however, the drand jury will always be a
significant component of the criminal case development
process.
This guidance document is written to provide a
general understanding of the grand jury process, and of
the particular responsibilities born by EPA employees
involved in grand jury investigations. In drafting
this document, the Agency has coordinated closely with
the Department of Justice, since its participation in
grand jury investigations will occur only in partnership
with attorneys of the Justice Department and the offices
of its local United States Attorneys. In addition,
the views of rr; onal offices were solicited on one
issue of particular sensitivity: the need for access
to confidential grand jury materials by EPA managers.
The guidance contained within is not intended to
supplant rules of procedure for the conduct of grand
jury investigations contained in the United States Attorneys'
Manual, or developed by the specific United States Attorneys.
It will, however, provide internal guidelines for EPA
employees where no specific Justice Department rules
exist. This document will replace any previous Agency
guidance on this subject.
Finally, this guidance is strictly advisory in
nature, and is not intended to create or confer any rights,
privileges or benefits on prospective witnesses or defen-
dants. It is not intended to, does not, and may not be
relied upon to create any rights, substantive or proce-
dural, enforceable at law by any party in any matter,
civil or criminal. Any attempt to-litigate any portion
of this guidance should be brought directly to the
attention of the Office of Criminal Enforcement, EPA
Headquarters.
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I. BACKGROUND; THE ROLE OF THE GRAND JURY
The grand jury verves two basic functions! investi-
gative and protective. In cases where traditional field
investigation techniques have failed to produce adequate
evidence to support a criminal prosecution, the grand
jury'» compulsory process, in conjunction with statutory
immunity grants, can be used to compel testimony and the
production of documents. This is particularly important
in white collar crime cases, in which the loyalty of the
investigative targets, together with the private—often
inaceossible—settings of the suspect activity, often
frustrate more traditional field investigative methods.
The grand jury also acts as a check on independent
and overzealous prosecutorial decision-making. The Fifth
Amendment to the United States Constitution guarantees
that Federal felonies^/ will be charged by grand jury
indictment. Misdemeanors can and often will be charged
by indictment. This is not a constitutional requirement,
however, and they are sometimes charged in an "information"
filed independently by the prosecutor without prior
consideration of the underlying evidence by a grand jury.
It is the function of the grand jury to determine whether
there is probable cause to believe that a Federal offense
has been committed by the defendant(s) named in the proposed
indictment.
The Supreme Court has described the dual functions
of the grand jury as "both the determination whether
there is probable cause to believe a crime has been
committed and the protection of citizens against unfounded
criminal prosecutions." United States v. Calandre, 414
U.S. 338, 343 (1974). Stated alternatively, the purpose
of the grand jury is "to provide a fair method for
instituting criminal proceedings" by a body that is
"independent and informed." Costello v. United States,
350 UoS. 359, 362 (1956). "
\/ A felony is defined at 18 U.S.C. ll as "any offense
punishable by death or imprisonment for a term exceeding
one y
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-3-
"in Berger v. United States, 295 U.S. 78, 88 (1935),
the Court described the responsibilities of a prosecutor
appearing before a grand jury:
(A) prosecutor who presents a case to a grand
jury has the obligation of preserving the fairness,
impartiality, and lack of bias of this important
governmental investigative body. He can not
inflame or otherwise improperly influence
grand jurors against any person...; and he
must always remember that he is _ representative
not of an ordinary party to a controversy but
of a sovereignty whose obligation to govern
impartially is as compelling as its obligation
to govern at all....
The obligation placed on the prosecutor is shared by
all government personnel assigned to the investigation.
II. THE OPERATION OF THE GRAND JURY
Background; Regular grand juries can be empanelled for
up to 18 months, see Rule 6(g), Federal Rules of Criminal
Procedure (FRCP). In many districts, terms of regular
grand juries are far shorter. "Special" grand juries—
normally empanelled to hear a particularly complex and.
lengthy investigation—sit for a term of 18 months and
may be extended for an additional 18 months. 18 U.S.C.
§3331.
Federal grand juries consist of not less than sixteen
nor more than twenty-three members. Rule 6(a), FRCP. The
grand juries are empanelled before tv• district court,
who will then appoint one member to be Foreman, and one
to be Deputy Foreman. The Foreman has the power tt. .. ...-.inister
oaths to all witnesses, and signs all indictments. Rule
6(c), FRCP. An indictment may b« found with the concurrence
of twelve or more jurors. Rule 6(f), FRCP. Sixteen
or more jurors must be present for the grand jury to
conduct business. Thus, before beginning any session
the prosecutor will insure that at least sixteen grand
jurors are present.
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Authorized Persons Before the Grand Jury? The only
persons allowed to be present at a cession of the grand
jury are "attorney (s) for the government"; the witness
under examination; an interpreter if necessary; a
stenographer or operator of a recording device; and
the grand jurors. Rule 6(d), FRCP. The presence
of unauthorized persons before the grand jury is a per se
basis for dismissal of an indictment, without a demon-
stration of prejudice. United States v. Phillips Petro-
leum, 435 P. Supp. 610 (D. 0X1. 1977); United States v.
Braniff Airways, Inc., 428 F. Supp. 579 (D. Tex. 1977);
United States v. Echols, 413 F. Supp. 6 (D. La. 1975).
Adherence to the terms of Rule 6(d) is mandatory.
' i f
In the context of Rule 6(d), the phrase "attorney
for the government" does not include EPA or other Federal
agency attorneys. See Rule 54(c), FRCP. 2/ See also.
In rg Grand Jury Proceedings, 359 F. 2d 4
...the Attorney General, an authorized assistant
of the Attorney General, a United States Attorney,
an authorized assistant of the United States Attorney..
2/ In those cases in which the particular expertise and
Experience of an EPA attorney is considered necessary
to the successful investigation and prosecution of a
criminal case, that attorney can be appointed an authorized
assistant of the Attorney General pursuant to 28 U.S.C.
§515 (a), or of the United States Attorney pursuant to
28 U.S.C. 1543. In either case, the EPA attorney would
meet the definition of "attorney for the government"
found «t Rule 54(c), FRCP. Such appoirtrents may only
be mad« at the request of the Justice Department attorney
overseeing the investigation.
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'At least two courts have held that a prosecutor
presenting evidence to a grand jury who also testifies
as a witness before that grand jury is an "unauthorized
person in the grand jury room" in violation of Rule
6(d). United States v. Gold, 470 F. Supp. 1336, 1351
(N.D. 111. 1979); United States v. Treadway. 445 F.
Supp. 959 (N.D. Tex. 1978).In addition, this conduct
has been found to violate the ABA's Code of Professional
Responsibility. United States v. Birdman, 602 F.2d '547,
551-555 (3d. Cir. 1979).Under no circumstances should
an EPA attorney appointed to act as a Special Assistant
United States Attorney testify before a grand jury to which
that attorney is also presenting evidence as a prosecutor.
The Statutory Recording Requirement; As of August 1,
1979,"all proceedings (before a grand jury), except
when the grand jury is deliberating or voting" must
be recorded. Rule 6(e)(l), FRCP.
The precise meaning of this mandate has not been
clarified by case law; nor do we )cnow--es yet—what
sanctions will flow from violations of this requirement.
In the absence of decided case law to the contrary, this
rule should be interpreted strictly. Beyond the
exchange of pleasantries—i.e., personal greetings,
observations on the weather, etc.—-EPA employees should
not engage in conversations with grand jurors unless
that coversation is being recorded as part of a formal
grand jury session. If a grand juror asks a question
prior to or after a formal session, you should politely
advise the grand juror that it is not proper to respond
at that time, and request that the question be raised
again after a recorded session begins.
In the case of an inadvertent breach of this rule,
you should immediately notify the prosecutor supervising
the investigation, who may in turn wish to ask that the
conversation be repeated on the record before the entire
grand jury.
The Indictment Process> At the end -of an investigation,
the prosecutor will ask a grand jury to vote on a re-
commended indictment. The indictment itself will have been
drawn up in advance, and will be presented unsigned to
the grand jury for consideration. Procedures on the
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-6-
manrer of presentation will vary by district and the
nature of the case. The recommended indictment will
normally be marfced and introduced as a grand jury exhibit,
and the grand jury will be informed that all documents,
records and witness transcripts are available for review
if necessary. The deliberations of the grand jury are
not recorded; in addition, no one is present during deliber-
ations except members of the grand jury itself. If the
grand jury votes to indict, the indictment is signed
by the Foreman, as well as the United States Attorney,
and is returned to a judge in open court. 4/
III. GRAND JURY SECRJECY
Confidentiality is often crucial to the success of
a criminal investigation. In addition, the Agency has a
responsibility to protect the targets of criminal investi-
gations from the adverse publicity that can result from the
premature disclosure of a criminal inquiry. UNDER NO
CIRCUMSTANCES SHOULD AGENCY OFFICIALS DISCUSS THE EXISTENCE
OF A CRIMINAL INVESTIGATION, EITHER WITHIN OR OUTSIDE
THE AGENCY, EXCEPT ON A NEED-TO-KNOW BASIS. This rule
applies with ec-;il force during EPA's dealings with
Federal, State and local officials.
Given the provisions of Rule 6, FRCP, confidentiality
is particularly important during grand jury investigations.
The Rule and its Exceptions; Rule 6(e)(2) of the Federal
Rules of Criminal Procedure establishes ah overall bar to
the disclosure of "matters occurring before the grand
jury" except as in compliance with the terms of Rule
6(e). Grand jury secrecy is of crucial importance to
the preservation of the grand jury as an investigative
agency. Grand jury secrecy exists to encourage complete and
willing testimony by witnesses; to minimize the risX of
flight by prospective defendants; to safeguard the grand
jury from extraneous pressures and influences; and to avoid
prejudicial disclosures concerning investigative targets.
See United States v. Proctor and Gamble, 356 U.S. 677
(1958J.A breach of grand jury secrecy is punishable by
contempt of court.
Rule 6(e) of the Federal Rules of Criminal Procedure
establishes strict procedures to ensure the secrecy of
grand jury proceedings. For purposes of this document,
we arci concerned with the following portions of Rule
6(e):
4/ In appropriate circumstances the indictment can be
"""sealed", i.e., kept secret, until some future date. This
procedure is often used when the defendant is not in
custody and may flee.
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(2) General Rule of Secrecy - A grand juror,
an interpreter, a stenographer, an operator
of a recording device, a typist who transcribes
recorded testimony, an attorney for the govern-
ment, or any person to whom disclosure is made
under paragraph (3)(A)(ii) of this subdivision
shall not disclose matters occurring before the
grand jury, except in accordance with this
rule. A knowing violation of Rule 6 may be
punished as a contempt of court.
(3) Exceptions.
(A) Disclosure otherwise prohibited by this
rule of matters occurring before the grand
jury, other than its deliberations and the
vote of any grand juror, may be made to—
(i) an attorney for the government for
use in the performance of such attorney's
duty; and
(ii) such government personnel as are
deemed necessary by an attorney for the
government to assist an attorney for the
government in the performance of such
attorney's duty to enforce Federal criminal
law.
(B) Any person to whom matters are disclosed
under subparagraph (A)(ii) of this paragraph
shall not utilize that grand jury material for
any purpose other than assisting the attorney
for the government in the performance of such
attorney's duty to enforce Federal criminal
law. An attorney for the government shall
promptly provide the district court, before
which was empanelled the grand jury whose
material has been so disclosed, with the names
of the persons to whom such disclosure has been
made.
(Emphasis supplied)
In DOB, the general rule of secrecy established
in Rule 6(«) has two exceptions of particular interest
to EPA personnel involved in grand jury investigations:
(1) disclosure to an "attorney for the government" (which
requires no judicial authorization) and (2) disclosure
to government personnel assisting the attorney for the
government in the enforcement of Federal criminal law
(which requires timely notification to the district
court supervising the grand jury investigation).
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As was indicated earlier, EPA attorneys do not
fall automatically within the category of "attorney(s)
for the government." Rule 54(c), FRCP. Thug, except in
those cases in which the Agency attorney is appointed
an authorized assistant of a Justice Department prosecutor
under 28 U.S.C. §§515(a) or 543, the first exception
is inapplicable to EPA employees.
Of far greater significance within EPA's context
is Rule 6(e)(3)(A)(ii), which authorizes disclosure
to government personnel assisting an attorney for the
government in the enforcement of Federal criminal law.
For example, EPA technical personnel will frequently
be asked to review scientific documents received pursuant
to grand jury subpoena and to analyze them for the grand
jury. Similarly, EPA attorneys familiar with Agency
regulations may be asked to determine whether the facts
developed in a grand jury inquiry constitute violations
of specific regulatory programs. Finally, EPA's criminal
investigators will normally be made agents of the grand
jury to serve subpoenas, receive and review grand jury
materials, and interview subpoenaed witnesses prior
to testimony.
Decisions on the scope of disclosure to government
personnel under this exception are vested, under Rule
6(e), with the prosecutor supervising the grand jury
investigation. The identity of these government personnel
must be disclosed to the court that empanelled the grand
jury. There is no statutory obligrt:.:r, to give the
court prior notice of such disclosure, see In re Or.?—1
Jury Proceedings (Larry Smith), 578 F. 2d 836 (3d. "c-r.
I978); however, prior notification is the preferable
practice where feasible. Finely the purpose of the
disclosure must be to assist in the enforcement of Federal
criminal law. Rule 6(e)(3)(A)(ii).
Rule 6(e)(3)(A)(ii) disclosures will be used with
restraint and will be limited to situations in which
the;- are necessary for the furtherance of the criminal
irv:-:,:gation. Under no circumstances can information
disclosed under this provision be communicated—-in any
fotm--to any Agency employee not specifically authorized
to receive this information under the provisions of Rule
6(e). This would include, for example, even members
of EPA's Office of Criminal Enforcement and criminal
investigators hired in our field offices. It would also
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include, of course, Congressional, State or local
officials interested in the matter under investigation.
The bar imposed by Rule 6(e) is total.
Disclosure of Grand Jury Materials to Agency Supervisors
In the past, the question has arisen whether an
Agency employee assigned to a grand jury investigation
and authorized to review grand jury materials must there-
after cease all discussions of his or her work with
supervisory personnel.
Strict confidentiality is required for "matters
occurring before the grand jury." This phrase should
be read to include, at a minimum, the substance of grand
jury testimony and any transcripts or memoranda reflecting
that testimony; the substance of documents subpoenaed
by the grand jury; the identities of witnesses appearing
before the grand jury; and the identity of investigative
targets, corporate or individual, developed during the
grand jury investigation.
On the other hand, grand jury secrecy does not
preclude.necessary discussion within the Agency of
publicly-filed motions relating to the grand jury investigation
(i.e., motions to quash grand jury subpoenas); or the
discussion of legal issues arising during grand jury investigations,
if they can be discussed in the abstract, without reference
to evidence developed before the grand jury. Of course,
where there is doubt about whether a matter is protected
by grand jury secrecy, the question should always be raised
with the "attorney for the government" overseeing the
investigation prior to disclosure.
On occasion, when unexpected and significant Agency
resource commitments are required during the course of
a grand jury investigation, limited disclosure of grand jury
materials to EPA managers not actively involved in the case
may be appropriate. However, such disclosure will be made
by, and with the prior approval of, the Justice Department
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attorney supervising the investigation? further, it will be
limited to the facts necessary for the supervisor to make an
intelligent decision on the use of his or her resources.
In addition, care must be taken to ensure that the manager
receiving this information is not supervising a simul-
taneous civil, administrative or regulatory proceeding
involving any of the investigative targets. Of course,
appropriate notification to the Court under Rule 6(e) must
occur at the time of the disclosure.
Disclosure of Grand Jury Materials in Parallel or Sub-
sequent* Civil/Regulatory Proceedings;The grand jury's
sole .Legitimate investigative purpose is to determine
whether probable cause exists to believe that Federal
criminal law has been violated. Thus, it has been held
that ;it is an abuse of the grand jury to continue presenting
evidence once a decision has been made not to seek an
indidunent. United States v. Proctor and Gamble Co.,
175 F., Supp. 198, 199 (D.N.J. 1959). In a variation
of the; sane theme, the District Court for the Southern
District of New York has held that, the government may not.
use the grand jury to inquire into civil as well as
criminal liability:
The grand jury's role is properly confined,
and amply respected, when it is held empowered
to conduct investigations that are in their
inception exclusively criminal. To hold other-
wise—to confer court approval upon the kind
of concurrent criminal and civil inquiries
projected by the instant application— would
expand the already awesome powers of the grand
jury beyond tolerable limits.
United States v. Doe. 341 F. Supp. 1350, 1352 (S.N.D.Y.
1972) (emphasis supplied).
Th«s« holdings do not mean that evidence acquired
by th« grand jury in a good faith criminal investigation
can not subsequently be use'd in a civil action. Rule
6(e)(3HC)(i) establishes that disclosure! of matters
before the grand jury may also be autnonzed by court order
when that disclosure is "preliminary to or in connection
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with a judicial proceeding." 5_/
Courts are split on the scope of this exception,
and disclosure will not, by any means, follow automati-
cally on the heels of a motion. The government must
demonstrate three things to be entitled to a disclosure
motion: First, that the grand jury investigation was
conducted to ascertain whether or not violations of
criminal law had occurred, and not as a subterfuge to
obtain grand jury records for a civil investigation
or proceedings, In re Grand Jury Subpoenas, April 197B,
581 F. 2d 1103, 1110 (4th Cir. 1978); second/that dis-
closure of grand jury records would be preliminary to a
judicial proceeding, Rule 6(e)(3)(i), FRCP; and third,
that there is either a "particularized need" for the
records, In re Grand Jury Investigation, Sells Engineering
Inc., 642 F.2d 1184 (6th Cir. 1961) or that the records
are "rationally related" to the civil proceedings, In re
Grand Jury Subpoenas (Baltimore), 581 F.2d. 1103, lllo
(4th Cir. 1978); In re Grand Jury Proceedings (LTV) 583
F.2d 128 (5th Cir. 1978).
Rule 6(e) motions will be made only with the author-
ization and assistance of the prosecutor who supervised
the grand jury investigation.
To avoid both the appearance, as well as the potential,
that a grand jury investigation will be misused to accumulate
evidence for a noncriminal purpose, employees assigned to
work on or review materials accumulated in grand jury
investigations should have no responsibilities, either
staff or supervisory, on other simultaneous or subsequent
civil or regulatory proceedings involving the subject(s)
5/ One court has observed, in this regard>
Nothing said herein is meant to overlook the Supreme
Court's realistic observation that evidence acquired
in a legitimate grand jury inquiry may later be
usable even though it has been .concluded that no
indictment should issue. See United States v. Proctor
and" QMBfale, 356 U.S. 677, 684 (1958). That is wholly
different from the proposition that the inquiry may
start out or continue with the explicit purpose of
discovering evidence for civil claims.
United States v. Doe, 341 F. Supp. 1350, 1352 (S.D.N.Y.
1972).
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Of the' grand jury investigation. Exceptions to this
general prophylactic rule may well be appropriate in
certain ca«es--as, for example, where the subject
matter of the grand jury investigation is unrelated
to the civil/regulatory natter. However, exceptions
should not be made without prior discussions with the
Office of Criminal Enforcement, EPA Headquarters, and
the Justice Department prosecutor supervising the
investigation.
Media Inquiries Concerning Grand Jury Investigations: EPA
personnel should never confirm the existence of an ongoing
grand jury investigation in response to press inquiries.
Zf prcsised, questions should be referred to the Justice
Department or local United States Attorney.
IV. CARE AND CUSTODY OF GRAND JURY MATERIALS
This final section recommends procedures to be
employed by EPA personnel granted access to and custody
of grand jury r..* trials during the course of a criminal
investigation--as, for example, when voluminous technical
documents are subpoenaed and transferred to EPA personnel
for review. As a general rule, procedures for the care
and custody of these materials should first be discussed
with the Justice Department prosecutor. If local rules
or procedures exist, they should be followed. In the
absence of such specific local guidance, however, the
following procedures, if followed, will provide adequate
assurance against breaches of security and subsequent
allegations of grand jury abuse.
1. The identity of all Agency employees who will
have access to grand jury materials should be included
in a notice to the Court pursuant to Rule 6(e)(3)(B).
If additional Agency personnel later prove necessary,
these additional names should be provided to the
Court in a timely fashion.
2. If grand jury materials are to leave the Federal
district in which they are subpoenaed (for example,
to be transported to a Regional office of review)
consideration should be.given--along with the
prosecutor—to seeking the prior approval of the
grand jury. The anticipated transportation of
materials from the district might also be included
in the 6(e)(3)(B) notice to the Court.
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-13-
3. Grand jury materials should be transported
personally where feasible (rather than by mail).
If the postal system is used, the materials should
be sent by certified mail, return receipt requested.
4. Grand jury materials should be totally segregated
from the regular files of the Agency. Where possible,
a separate room should be used, since this allows
both control of access and a private working space
for personnel authorized to review these materials.
Finally, the materials should be clearly labelled
to avoid inadvertant disclosures.
5. Grand jury materials, once segregated, should
be secured, either in locked file cabinets, behind
locked doors, or both. Access to the materials
should thereafter be limited solely to personnel
on the 6(e) list.
6. A system of accountability for grand jury
materials should be established. The system should
allow the government to demonstrate, if challenged,
the materials that were received, and those that
have been returned. Any indexing system that is
workable for the prosecutor is acceptable. One
traditional system uses the number of the grand jury
subpoena, followed by sequential numbers for the
documents or exhibits received in response to that
subpoena.
N.B. This indexing should occur before the
substantive review begins and documents are taken
out of their original order. If this is done, it
will always be possible to identify the order and
date on which documents were received, and the
subpoenas to which they responded. Zt will also
facilitate response to subsequent allegations that
documents have been lost.
V. CONCLUSION
This document will assist Agency personnel to perform
effectively and responsibly in the context of grand jury
investigations. Agency employees assigned to grand jury
investigations should be thoroughly familiar with its
contents before they begin their work. Questions should
be directed to the Office of Criminal Enforcement (FTS 382-
4543).
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GM-10
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Note on Pegional Organization Structure
of -September 15, 1981
Since the Agency issued this memorandum, the Regional
structure has changed such that the Regional Counsels report
to the Regional Administrators. The Office of General Counsel
also retains some authority over the Regional Counsels. (See
memorandum entitled "Regional Counsel Reporting Relationship"
of August 3, 1983, GM-16.)
It should also be noted that although this memorandum
generally discusses the role of the Regional Counsel, the
specific legal authority of the Regional Counsel is often
covered in the Agency's delegations of authority. In those
cases where the Regional Counsels' authority is covered in
a delegation, the delegation is determinative of the Regional
Counsels' authority.
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GM-11
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/ : • *
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, O.C. 20460
of
UQAk COUNStl AND INPOftCSMINT
MEMORANDUM
SUBJECT: Reorganization of the Office* of Regional Counsel
FROM: Robert M. Perry, Associate Administrator for Legal and
Enforcement Counsel and General Counsel
TO: Regional Administrators I-X
Regional Counsels I-X
. INTRODUCTION.
Since September 15, 1981, when the Administrator authorized
the Regional reorganizations, nearly all Regions have transferred
or detailed tl; ir enforcement attorneys and support staffs to
the Offices of Regional Counsel. In most eases, former organi-
zations and positions remain intact.
This memorandum contains guidance on completing the reorganization
process. The guidance allows flexibility so that varying needs
among Regions may be met while at the same time providing for
basic organizational consistency. Regional Counsels may choose
from among the four basic organizational structures shown on
Tabs A, fi, C, and D. I have also attached standard position
descriptions for each of the new positions to be established
in the Offices of Regional Counsel. These position descriptions
are **taehed as Tabs E, F, G, E, I and J.
As soon as the permanent SES Regional Counsel is in place,
the Region should begin the process of fully implementing
this guidance. Until then, other Regional Counsels and
Acting Regional Counsels should take interim steps which are
consistent with this guidance, provided that, in each case, the
•sncurrence of the Regional Administrator and my approval are
~t obtained. Such interim steps should not unduly limit
jptions available to the permanent SES Regional Counsel.
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'.I. THE ADMINISTRATOR'S OBJECTIVES FOR THE REGIONAL
AEORGAKI2ATIONS. """"""
The Administrator's objectives for the Regional reorganizations
are reflected in this guidance. These objectives are stated
in her memorandum of September 15, 1981 (a copy of which is
attached as Tab K). The following excerpts from that memorandum
apply to the reorganization of the Regional legal officesi
Reorganization Objectives. Regional organization
decisions include consideration of the following
objectives:
•
- Clarifying accountability for regional
program!.
•'- Facilitating communication links between
related Headquarters and regional components.
• Improving regional policy and management
decision-mafcing.
- Placing functions in organizations where
they can best be integrated with related
activities.
- Favoring fewer and larger organizations to
avoid cubsequent further consolidation and
reorganization in a tine of declining resources.
. . . Major features of the authorized organization Include
the following:
1. Enforcement functions of permit issuance and
related compliance monitoring are assigned to the appropriate
program divisions. This includes issuance of notices of
violation and administrative orders, after consulting with
the Office of Regional Counsel. (Permit coordination
functions and placement are optional.)
»
2. Legal worfc associated with Enforcement litigation
and current Regional Counsel functions will be performel
in newly structured and expanded Offices of Regional
Counsel reporting to the General Counsel with the following
provisions:
a. Regional Counsels will provide the Regional
Administrator with legal advice and assistance for all
program areas in an attorney client relationship.
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b. The R«oional Administrator will con-
tinue to initiate enforcement action*. These
actions will be based upon guidance from the
Enforcement Counsel. Office of Legal and Enforcement
Counsel* and with legal concurrence of the Regional
Counsel.
c. As in the past the Regional Adminis-
trator will participate in and concur with the
General Counsel in selections, promotions, awards
and disciplinary actions for Regional Counsels.
Regional Administrators will be a party to perfor-
mance agreements for and will participate in the
performance ratings of Regional Counsels by the
General Counsel.
d. The Regional Administrator will also
continue to manage the resources of the Office of
Regional Counsel and will provide certain administrative
support such as space allocations, processing of
personnel actions, and the management of travel
and training accounts.
III. BASIC PRINCIPLES *TR REORGANIZATION OF THE OFFICES
OF REGIONAL COUNSEL.
I have established the following basic principles for the
reorganization of the Offices of Regional Counsel:
A. Ali Attorneys in the Offices of Regional Counsel.
.iere are to be no series 905 attorneys in any other offices in
the Regions without my concurrence. This is to ensure that
the Agency speaks with one legal voice.
B. The Attorney-Client Relationship. All attornev* --e
to serve program clients in the context of an attorney-c.^e.it
relationship. This applies no matter what activities the
attorneys are performing. Although '-: e.-neys are free to
offer program and policy advice when asked to do so, it should
be recognized that program and policy decisions (and the conse-
quences of those decisions) are the responsibility of Regional
program managers. Where there is a mixture of legal and policy
issues, attorneys and program managers are expected to work
collaboratively, with each party recognising the professional
respons.iv1 'ties of the other in seeking a joint resolution
of those issues.
C. Organization Along Media Lines. As shown on the four
organizational structure options attached to this memorandum,
every Office of Regional Counsel should be organized along media
lines, as opposed to functional lines. This means that the attorneys
are to be grouped according to the different media areas which
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they servo (air, water, hazardous waste, etc.) and are to perform
both general legal work and enforcement legal work. The media
iplit» aro to follow roughly the same media lines as in the
Office of General Counsel and in the Regions. With my concurrence,
a Region tiay elect to combine media areas in combinations
which ar« different from those found in the four options provided,
but in such a case the burden would be on the Region to show that
this would be consistent with the objectives of this memorandum.
IV. HOW VHZ ORGANIZATIONAL STRUCTURE WOULD WORK.
A. 'fhe Regional Counsel. The Regional Counsel reports
directly to the Associate Administrator for Legal and Enforcement
Counsel and General Counsel. Be serves as the principal legal
adviser to the Regional Administrator for all legal matters arising
within tho Region. Be has; an attorney-client relationship with the
Regional Administrator and the Regional program managers. The Office
of Legal iind Enforcement Counsel provides nationally uniform guidance
to the Rational Counsel on the legal aspects of enforcement natters.
B. Deputy Reeler.a 1 Counsel and Enforcement Coordinator.
In certairi cases, a Regional Counsel may establish a Deputy
Regional Counsel and Enforcement Coordinator position. Generally,
this would be appropriate only in a Region with a large Office
of Regionul Counsel staff (such as where the Office contains
formal branches). The Deputy would perform enforcement coordination
functions and, therefore, the Region would not have a Senior
Associate Regional Counsel for Enforcement Coordination.
The Deputy would not serve as a team leader. • He would have
tnagenent functions in addition to enforcement coordination.
ne organizational options available to a Region with a
Deputy arc the sane as Options A, 6, C and D, except that
the Senior Associate position would be deleted and a Deputy
position would be substituted. A Regional Counsel considering
the establishment of a Deputy position should furnish justification
for the position in connection with his reorganization plan
to be submitted as provided in Section IX. A position description
for the Deputy will be provided as soon as a request to
establish the position has been approved by me. The grade
level of the Deputy position would be determined after an
analysis ef the position by the Regional position classification
specialist.
C. The Associate Regional Counsels. The Office will be
grouped into teams which are to :handle all enforcement and
general legal matters arising within their assigned media
areas, ae shown on the attached options. Each media team
will have a teaa leader who is to be called an "Associate Regional
Counsel." This person will be the principal coordinator for
that media area and will be responsible for all matters arising
within that area. This will ensure that Regional program managers
and others dealing with the Office of Regional Counsel will
know who is responsible for each legal matter in the Region.
The grade level of each Associate Regional Counsel will be
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deterained'after an analysis of his projected duties and respon-
sibilities, by the Regional position classification specialist.
See the position description attached as Tab H.
!'• Management of the Work of Staff Attorneys. Each
Associate will be responsible for the work of the staff
attorneys working within his media area. Under Options A and
B, each Associate will have a defined group of staff attorneys
assigned to work with hin. Under Options C and 0, the Associate
w.'Jl draw upon a pool of staff attorneys. Individual attorneys
in the pool could at any given tine be dividing their tine
between two different aedia.
2. Rotation of Associates. The Associates will be expected
to rotate among media areas from tine to tine so as to broaden
their exposure and expertise.
3. Administrative Functions. The Regional Counsel may
assign certain administrative functions to the Associate in
charge of grants, etc., as one of this Associate's "other duties,
as assigned." Such functions could include: administrative
management of the Office of Regional Counsel; preparation of
all documents needed for resource management within the Office,
Including the annual progran plans and budget submissions;
preparation and submisuio.i of required reports on Office
activities and accomplishments, including current information
for automated data systems (coordinating reports on enforce-
ment matters with the Deputy or the Senior Associate Regional
Counsel for Enforcement Coordination); oversight of the annual
performance evaluation process for all staff members and preparation
' documentation required for such process; responsibility for
nagement of the physical properties of the Office, including
.pace procurement and recommendations for allocation of space;
management of the process for recruiting ar.i hiring attorneys,
interns and clerical personnel; and mana~.—nt of all timekeeping
systeas. ,
Since this Associate would normally handle aost legal
matters for the administrative offie: .si. the Pegion (personnel,
financial management, etc.), assignment: of these functions
would ensure close coordination between the Office of Regional
Counsel and these offices. This would ensure clear accountability
for these matters in a uniform manner throughout the Office of
Regional Counsel system and close coordination with the Grants,
Contracts and General Administration Division of the Office of
General T_ ..sel.
D. The"Senior Associate Regional Counsel for Enforcement
Coordination. In those Regions where there is no Deputy, one
of the Associate Regional Counsels (except, under Options
A and C, for the Associate in charge of grants, etc., who has
no enforcement responsibilities) will be designated the "Senior
Associate Regional Counsel for Enforcement Coordination." Re
will be the enforcement coordinator for the Office and he will
also lead one of the media teams. Several Regions suggested that
the Senior Associate should not lead a media team, but should only
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have coopiinatiiig functions. However, coordination function*
•lone will not •u; sort a high grade level and assigning other
. enforcement functi ns simply in order to support the grade
*ould be inconsistent with my objective of holding team leaders
accountable for all enforcement activities in their respective
media arens. Therefore* Z have decided not to authorize the
establishment of a "floating" Senior Associate, that is, a
Senior Associate who is act also a aedia team leader.
The grade level of the Senior Associate Regional Counsel
for Enforcement Coordination will be determined after an analysis
of his projected duties and responsibilities by the Regional
position classification specialist. For this reason, it may
be desirable that the Senior Associate be assigned to lead the
media tecun with the most complex, difficult and nationally
significant workload in order to support a high grade level.
However, it Senior Associate, may instead be assigned to lead a
media te&in with a less heavy workload where it appears that
this wouli! also sustain the grade of the position or where grade
is not a controlling factor. This decision should be based
upon the balancing of all relevant factors including the extent of
the actual workload Involved in coordinating enforcement functions.
See the position d^-'iptions attached as Tabs Z and J.
1. The Reason for the "Senior Associate" Title. Zn those
Regions w:lth a Senior Associate, the title "Senior Associate
Regional Counsel for Enforcement Coordination" is preferable to the
title "Deputy Regional Counsel for Enforcement Coordination." Since
the Senior Associate would be in charge of only one of the media
teams, it would be confusing to persons dealing with the Office
? he vero called a "Deputy," since the commonly-understood
otion of a "deputy" is that he is a supervisor at a level
which is between the senior manager and the operating staff.
Regional Counsels in those Regions would have a closer working
familiarity with the work of their Offices and not be cut off
by a separate organizational layer.
2. Enforcemert Responsibilities of the Senior Associate.
The Senior Associate Regional Counsel for Enforcement Coordination
will be responsible for coordinating all enforcement activity
within tho Office of Regional Counsel. Zn addition to carrying
his own load of enforcement work, he will ensure that all enforce-
ment policy guidance from the Office of Legal and Enforcement Counsel
is receivod and distributed to the other attorneys and the program
offices, t.hat the reporting system is kept current with accurate
data, that; enforcement cases are assigned to the appropriate media
attrrneya (and lead roles assigned where more than one medium
is involvod), that Regional policy determinations are properly
staffed from a legal standpoint, and that the Office is generally
responsive to the enforcement needs of the Office of Legal and
Enforcement Counsel. These enforcement responsibilities are
spelled out in the position descriptions attached as Tabs Z
and J.
3. Acting as Regional Counsel. The Senior Associate will
•*. as tho Regional Counsel in the absence of the Regional Counsel.
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£. Staff Attorney Petitions. Staff attorneys at the
GS-ll Itfvei will be called "General Attorneys.' Staff
attorneys at the GS-12 and GM-13 levels will be called
"Assistant Regional Counsels."
1. Grouping Staff Attorney in a Media Unit Arrangement.
Options A and fi provide thatthe staff attorneys will be grouped
in media units, each to be led by an Associate Regional Counsel
(except that one aedia unit will be led by the Senior Associate
Regional Counsel for Enforcement Coordination). Although a staff
attorney will generally work only in the media area for which hij
unit is responsible, he can, as needed, be assigned as lead
attorney in a natter involving two or more aedia in which he
has expertise. For exaaple. he can take the .lead on a case
which has both hazardous materials and air quality aspects.
Be will also rotate among media units, as discussed below.
2. Grouping Staff Attorneys in a Pool Arrangement.
Options C and D provide that a staff attorney will not be assigned
to a single media area, but will be permitted and encouraged
to divide his tine between two different media at one time.
His work will be coordinated and directed by the Associates
(or Senior Associate) with responsibility for the given
media areas. As a staff attorney develops expertise in one
media area, he can expand the scope of his workload to include
matters from a second media area. Then, over time, he can
rotate into a third media area while dropping out of one of
the original areas. Several Regional Counsels have already
tried this pool concept and have reported that it works well
and is highly favored by both supervisors and staff attorneys.
3. Multi-media Rotation Policy. I want each Regional
Counsel to follow a policy of rotating all staff attorneys
through each of the different media areas. Staff attorneys in
the unit arrangement will be encouraged to move from media
unit to media unit as needs of the Office and preferences of
the attorneys permit. Staff attorneys in the pool arrangement
will obtain multi-media exposure as described above. Associates
will be required to maintain careful records of media assignments
so as to ensure that no one is on the same track for too long.
The form of Attorney Rotation Record to be used for this purpose
is attached as Tab L. I believe that this policy will, over
time, provide all of our Regional attorneys with a broadly
based experience, thereby improving the quality of their legal
advice.
V. THE BENEFITS OF THE MEDIA-ORIENTED LEGAL OFFICE.
The principal benefits which I expect to accrue from organizing
the Offices of Regional Counsel along media lines aret
A. One Source of Legal Advice; One Legal Opinion.
There will no longer be two sets of attorneys involved in
and giving legal and other advice on different aspects of
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-fi-
the same' situation, a practice which has sometimes led to
confusion within the Agency and caused diffiei Ity for regulated
- parties and others in dealing with EPA.
B. Acting as "Counsel to the Situation." Instead of
approaching a problem with an "enforcement" perspective or
a "general legal" perspective/ attorneys will be able to act as
•counsel to the situation.* This will encourage an attorney
to develop and apply a broadened perspective And thus improve
the quality of his overall legal Advice.
C. Setter Coordination of Litigation. Where an enforcement
action spawns a counter-suit, counterclaim, or an appeal to
a Court of Appeals, thereby causing an enforcement case
to involve or become a defensive ease, the sane attorneys will
handle the natter as a "situation," thereby ensuring a proper
coordination of strategy and a balanced assessment of all legal
implications.
D. Better Teamwork With Regional Program Staffs and
Headquarters Attorneys. The Regional program offices having
enforcement functions, the Office of General Counsel and the
Office of Enforcement Cs-insel are each organized along media
lines; it is clear that a media-oriented Office of Regional
Counsel will improve professional ties and working relationships
with all of these groups. Program personnel will always know
who their lawyers are. Attorneys are likely to.develop closer
working relationships with program staffs when the groups are
working together on many issues at the same time as part of a
'earn. The same can be said of professional relationships with
*adquart*rs lawyers, who will get to know the Regional attorneys
Better by sharing more working experiences with them. Regional
attorneys will be available to assist p;-::.am personnel in
developing the factual basis for enforcement actions, inri
actual field work such as sampling, inspections, and otner
• types of compliance activities. This will foster a better
understanding by the attorneys of tv- rcles of their program
counterparts, thereby promoting closer teamwork.
E. Improved Legal Expertise of Attorneys. In a functional
division,' at any given time an attorney must spend his time
trying to keep up with a large number of different statutes
and regulations governing all the media served by that function.
In a m*c*i--sriented Office, the attorneys will be allowed to
concentrate on keeping up with legal developments in one or
at most tvo media areas at a tine. Attorneys become better
experts in an area when they are allowed to specialise in
that area and keep current on legal developments. The need
for Agency attorneys to attain the greatest level of expertise
possible is incontrovertible.
F. letter Accountability for Legal Advice. Under the
proposed system, it will be clear who is responsible
for all of- the legal advice in any given situation.
G. No Distinctions Anonc Groups of Attorneys. I an
.d that' there are some Regional attorneys who have the
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p«rception that, in the past, one group of attorneys may have
seen more highly regarded and/or better treated than another.
I do not know whether there is any basis for this perception,
but any alleged problem will be eliminated by implementing
this guidanee>
H. Maximum Utilization of Attorney Resources. Staff
attorneys can easily b« shifted from one type of work to
another as workload and priorities change. This is particularly
true under the pool arrangement. Further, the new system
eliminates redundancy and duplication of effort which
existed under the past system; no longer will two sets of
attorneys be required to review matters, and the time and
energy previously needed to coordinate among different sets
of attorneys will now be available for additional legal
work. Here are two major examples of how the new arrangement
will improve efficiency and coordination:
1. Superfund Site Issues. One attorney should be given
the legal lead for each Superfund site. This attorney will
be responsible for providing legal advice to the program managers
on all alternative legal strategies for handling that site
so that all of the issues involved in deciding which course
of action (enforcement, cooperative agreement, state action,
etc.} will be given a consistent legal analysis. If enforcement
actions are initiated, the same attorney will handle them.
Conversely, if federal and state funds are to.be used, the
Attorney will advise on the cooperative agreements. The lead
:torney will be supported by the specialists in the various
~iedia teams where additional skills are needed.
2. Eliminating Duplieative Review of SIP Revisions,
Delegation Packages and OtherMatters. Whereas, in the past,
two sets of attorneys would review SIP revisions, program
delegations, etc., each for different reasons, the new role
of the staff attorney will be to review a state statute,
regulation, etc., both from the point of view of its general
compliance with EPA requirements as well as for its "enforce-
ability." This should save a considerable amount of attorney
time otherwise spent on duplicative reviews and coordination
among reviewers.
VI. PROBLEMS WITH SEPARATION OF FUNCTIONS.
In those rare instar.r :i when the Office of Regional Counsel
might be called upon to advise a decision-maker on a p.'-.tlem
when it is-also involved as an advocate for the Agency's official
position, such as in an adjudicator/ hearing on a permit
appeal, it may be necessary for the the Regional Counsel,
after consultation with the Office of General Counsel, to
make arrangements for separate attorney representation of
the different interests.
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vii.
A. Top Priority to Enforcement Work. The Office of
Regional Counsel is expected to givt top priority to enforcement
work, whiile at the same time carrying out its general legal
duties .
B. Establishing Lead Attorney Roles in Enforcement
Matters . Whenever both the Office of Region a: Counsel and
the Officit of Enforcement Counsel Are to become involved in
a particular enforcement litigation matter, a lead attorney
shall be assigned to aanage and coordinate the litigation
activities according to the following principles:
»
1. Lead Attorney Rp.le Defined. Having the lead attorney
role aeans that the lead attorney shall generally manage the
Agency's participation in the conduct of the matter. In
particular* he shall: (a) act as the liaison with the Department
of Jus tie* and/or the U.S. Attorney on the matter? (b) coordinate
the development of the enforcement strategy and the preparation
of all documents; and (c) take the lead in negotiations with
opposing parties.
2. Basis for Assignments. The lead attorney role
shall be assigned on the following basis:
fa). Regional Matters. Normally, the Office of
Regional Counsel shall take the lead on matters arising in
he Regions, except where the Regional Counsel and the
.he appropriate supervisor within the Office of Enforcement
Counsel agree, after conferring at an early point in the develop*
sent of the matter, that the matter is c. overriding national
significance and that the lead role should be assigned tr-
an attorney in the Office Of Enforcement Counsel* In cases
where the Regional Counsel and the supervisor within the
Office of Enforcement Counsel are u.i«tl« to agree as to
which level should be assigned the lead role, the matter
will be resolved by the Associate Administrator for Legal
and Enforcement Counsel and General Counsel.
(b). Enforcement /Defensive Matters: Appeals. In
instances where enforcement litigation and defensive litigation
arise i-.-o.-ving essentially the same parties and the same set
of circumstances, the Associate -.Administrator for Legal and
Enforcement Counsel and General Counsel sh-11 determine the
allocation of roles (including, where deemed necessary, the
establishment of a lead attorney for the entire matter) so
as to ensure that both aspects of the matter are properly
represented and that the positions of the respective Offices
are well-coordinated. Generally, the Office of General
Counsel (or the appropriate Office of Regional Counsel)
shall have the lead on all matters before Courts of Appeals,
even though the lead on the matter vos previously taken by
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the Office of Enforcement Counsel. The Associate Administrator
for Legal and Enforcement Counsel and General Counsel may
make exceptions to- this rule in the case of individual enforcement
programs.
3. Obligations to Other Attorneys. The lead attorney
shall provide other Agency attorneys assigned to the matter with
adequate opportunities to contribute to the litigation effort,
including participation as supporting counsel in the development
of the litigation strategy, the preparation of legal documents,
and the conduct of negotiations with opposing parties.
VIII. GENERAL LEGAL MATTERS? RELATIONSHIPS VITH OCC..
The reorganisation will not change the working relationships
between the Office of General Counsel and the Offices of
Regional Counsel. All existing lines of communication and
all existing procedures should continue to be used until
further notice.
IX. STEPS TO TAKE IS IMPLEMEOTING THIS GUIDANCE. . .
A. Interim Steps. As stated above, a Region should
take interim steps towards the final reorganization of the
Office of Regional Counsel before the new SES Regional Counsel
is in place. Such steps may include such matters as selecting
the organizational option, making tentative media team leader
selections, and moving attorneys into media teams. Specific
•equests should be directed to me in writing by the incumbent
egional Counsel or Acting Regional Counsel, together with a
arief explanation for the proposal.
•
B. Reorganization Plans. When the permanent SES Regional
Counsel is in'place, he should begin at once to prepare a
reorganization plan for the final implementation of this
guidance. The plan must have the written concurrence of
the Regional Administrator. It should include at least the
following:
1. An organization chart showing the structure of the
Office, based upon one of the four options attached to this
memorandum. Larger Regions may establish sub-units within media
groups. If official branches or sections are to be established,
they should be indicated on the chart. *
2. A list of the personnel of the Office*, showing their
current grade levels, titles and areas of responsibility.
3. A list of the new positions to be established,
together with a list of changes, if any, to be made in the
attached standard position descriptions. The position
descriptions may be altered to fit unusual situations, but
no such alteration may be made without my concurrence and
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consultation with the Headquarters Personnel Office. Proposed
changes in the position descriptions should be stated in the
reorganization plan and my approval of the plan will be my
concurrence with t>sse changes.
4. A brief description of the procedures to be
followed la selecting personnel to fill the newly-created
positions.
9
5. A plan for meeting the needs of any personnel whose
existing grade levels and/or skills do not fit into the organi-
zational structure to be established under the reorganization.
Individual cases should be discussed with me during th« preparation
of the reorganization plan.
6. A tinetable for implementing the plan.
. « * *
C. Submission of Reorganization Plans and Proposals for
Interim Steps. Eac'i SES Regional Counsel should submit a final
reorganization plan for my approval within three weeks after
the date of this memorandum or three weeks after the date
that he begins work in his new position, whichever is later.
In Regions where an SES Regional Counsel is not expected to
be in place by June I, 1982, requests for approval of interim
steps should be submitted by that date.
D. Approval of Reorganization Plans and Proposals for
'•nterim Stcjps. I must approve reorganization plans and
proposals tor interim steps before they are implemented. This
means that no new positions may be established or personnel
selections nade prior to approval.
Questions er this guidance may be referred to Robert C. Thompson,
Associate General Counsel for Regional Coordination, at 382-4148.
For information and guidance on the legal issues arising out of
proposed personnel changes, contact Gerald E. Yamada at 755-0768.
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/82
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-------
GENERAL COttEEL
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-------
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-------
GENERAL
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Major Functions;
o Wateri Grants* Contracts
and General Administration:
- General legal setters
- Enforcement (water)
- Litigation
Clerical
» direct reporting? o o o » coordination; - - - » attorney-client relationship
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
OFFICE OF GENERAL COUNSEL
OFFICES OF REGIONAL COUNSEL
BENCHMARK POSITION DESCRIPTION
GS-11 General Attorney
(General Attorney)
NOTE: ' This position description has been reviewed by the
Headquarters Office of Personnel and has been
approved for use in the Offices of Regional
Counsel. In cases where the duties of the
incumbent would not be sufficiently described
in this benchmark position description, the
Regional Classification Specialist is authorized
to make appropriate changes, after conferring
the the Headquarters Office of Personnel and
with the concurrence of the General Counsel.
-------
1 / «• " i
General Attorney
CS-905-11
Z. Introduction,
Serves as a General Attorney in the Office of Regional
Counsel. Provides legal advice and assistance on legal
•attersi including enforcement natters, arising in the Region.
Advicei assistance and recommendations are provided to the
Regional Counsel* senior attorneys and Regional program
managers. Has an attorney-client relationship with all
Regional program nanagers for whom work is performed and
with the Office of Enforcement Counsel in Headquarters.
XI • Major Duties and Responsibilities.
At this level, the General Attorney will be assigned to work
on the least complex and routine matters which can be resolved
with standard research and analysis, and with a moderate
degree of expertise. Examples of this includes the review
of routine revisions on state implementation plans under the
Clean Air Act, participation in preparation of the less complex
notices of violation and administrative orders,- conduct of the
less complex administrative and judicial litigation, and
preparation of advice on routine and less complex legal
issues.
A. Legal Research and Problem Resolution. Researches
the legal questions which arise under regulations,
lawsuits, enforcement actions, executive orders and
ether administrative actions involving major Federal
statutes affecting the Agency's programs, which may
include such statutes as the Clean Water Act, the Clean
Air Act, the Toxic Substances Control Act, the Safe
. Drinking Water Act, the Resource Conservation and
Recovery Act, the National Environmental Policy Act,
the Comprehensive Environmental Response, Compensation
and Liability Act and the Federal Insecticide, Fungicide
and Rodenticide Act (in each case as from time to time
amended).
B. General Legal Advice. Acting through the Regional
Counsel or an Associate Regional Counsel, provides the
Regional Administrator, Deputy Regional Administrator
and the Regional Divisions and Offices with general
legal advice concerning those Regional matters which
have been assigned.
C. Legal Advice on Enforcement Matters. Provides
legal advice on Regional enforcement matters. Assists
in the preparation of legal correspondence, notices
of violation, administrative orders, litigation
-------
General
CS-905-li
referrals and other enforcement documents And reviews
such documents for legal sufficiency and conoistency with
-Agency legal interpretations and policy guidance. Conducts
investigations into criminal natters in conjunction
with Agency criminal investigatory personnel and law
enforcement agencies.
B. Legal Advice to Grant Programs. Provides legal
advice to managers of EPA grant programs, including the
construction grants program administered under Title XX
of the Clean Water Act. Advises en the eligibility for
Agency funding ef cost items under Agency grants* including
cost overruns by contractors en Agency-funded projects.
Works closely with the Agency's Office of Inspector
General in resolving problems arising under audit activities
and investigations. Drafts special grant conditions to
cover unusual or unique situations. Assists state
attorneys in interpreting statutes and regulations
administered by the Agency, advising on the handling ef
claims matters and generally serving the needs ef programs
which have been delegated by the Agency to state agencies.
Prepares final Agency decisions on bid protests arising
under gran-** procurement. Conducts the Region's participa-
tion in grant appeal proceedings.
E. Drafting of Determinations, Regulations, Notices, etc.
Drafts and reviews final Agency determinations, proposed
and final regulations, notices and other documents to
be published in the Federal Register, including Agency
actions on state air pollution laws, designations of
ecle source aquifers under the Safe Drinking Water Act,
approvals and authorizations of state programs under
the Clean Water Act, the Clean Air Act, the Resource
Conservation and Recovery Act, the Federal Insecticide,
Fungicide and Rodenticide Act and ether Federal environ-
mental statutes.
F, Litigation Matters. Coordinates defensive and enforce-
ment litigation in connection with specific Regional
matters arising under the statutes referred to above.
Assists in the conduct of discovery and prepares drafts
oi: motions, briefs, interrogatories, and other documents
;in connection with cases in litigation. Works closely
with attorneys in the Offices of General Counsel and
Enforcement Counsel at Headquarters and the Department
el Justice or U.S. Attorneys. Assists U.S. Attorneys
in seeXi.t, indictments in criminal matters and in prosecuting
aueh matters. Coordinates with state attorneys general.
Represents the Region in administrative proceedings of
21?A and other agencies.
-------
General Attorney
GS-905-il
G. Negotiation and Informal Dispute Resolution. Represent!
•the Region in its dealings with outside partiest including
negotiation of bilateral agreements, consent orders and
judgements, and aeraoranda of understanding. Represents
the Region in negotiating the settlement of disputed matters
In many eases, this avoids protracted and expensive
litigation and facilitates expeditious administration
of Agency programs. •
H. Liaison with Offices of General Counsel and Enforcement
Counsel* Serves as liaison between the Region and the .
Office* of General Counsel and Enforcement Counsel to
provide an effective channel of communication in order
to assure that the Region obtains legal judgments from
the Office of General Counsel and policy advice from
the Office of Enforcement Counsel and also to assure
that .such Offices are able to base such judgments and
such advice upon accurate perceptions of the pertinent
facts and Regional program objectives.
Z. Other Duties. Performs other duties as assigned.
III.' Supervisory Controls.
The General Attorney reports to the Regional Counsel.
The General Attorney has an attorney-client relationship
with Regional program managers and the Office of Enforcement
Counsel in Headquarters. Areas of responsibility are assigned
by the Regional Counsel. Work assignments are Bade by the
Regional Counsel or by senior attorneys who will direct and
coordinate the General Attorney's work in specific subject
Batter areas. Zn some cases, work performed at the request
of Regional program managers. The work of the General Attorney '
is closely supervised by senior attorneys on a ctj. jy-case
basis to assure that a correct approach is made to research,
analysis and formulation of 1^..^. advice. Finished work is
carefully reviewed in almost ail cases to assure consistency
with Agency policy, precedential effect and overall quality.
ZV. Qualifications.
The General Attorney Bust have the equivalent of a JD
or LLB degree from an accredited law school and Bust be a
aember of the bar. Other qualification requirements Bay be
established by the Regional Counsel depending upon the needs
of the Office.
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
OFFICE OF GENERAL COUNSEL
OFFICES OF REGIONAL COUNSEL
BENCHMARK POSITION DESCRIPTION
CS-12 General Attorney
(Assistant Regional Counsel)
NOTE: This position description has been reviewed by the
Headquarters Office of Personnel and has been
approved for use in the Offices of Regional
Counsel. In cases where the duties of the
• incumbent would not be sufficiently described
in this benchmark position description, the
Regional Classification Specialist is authorized
to make appropriate changes, after conferring
the the Headquarters Office of Personnel and
with the concurrence of the General Counsel.
-------
Version of 3/18/82
General Attorney
GS-905-12
I. Introduction.
Serves as an Assistant Regional Counsel in the Office of
Regional Counsel. Provides legal advice and assistance and
policy recommendations on legal matters, including enforcement
natters, arising in the Region. Advice, assistance and
recommendations are provided to the Regional Counsel, senior
attorneys and Regional program managers. Bas an attorney-client
relationship with all Regional program managers for whom
work is performed and with the Office of Enforcement Counsel
in Headquarters.
XZ. Major Duties and Responsibilities.
At this level, the Assistant will be assigned to work on
a broad range of legal problems and issues affecting the Agency's
programs. These matters require a thorough knowledge of appli-
cable laws and regulations, and may require extensive legal
research and analysis, and consideration of complicated
factual and policy issues. Examples of these include: the
review of a broad range of revisions of state implementation
plans under the Clean Air Act, preparation of notices of
violation and administrative orders which affect large amounts
of money, or involve a broad range of issues, and the conduct of
complicated administrative and judicial litigation.
A. Legal Research and Problem Resolution. Researches
the legal questions which arise under regulations,
lawsuits, enforcement actions, executive orders and
other administrative actions involving major Federal
statutes affecting the Agency's programs, which nay
include such statutes as the Clean Water Act, the Clean
Air Act, the Toxic Substances Control Act, the Safe
Drinking Water Act, the Resource Conservation and
Recovery Act, the National Environmental Policy Act,
the Comprehensive Environmental Response, Compensation
and Liability Act and the Federal Insecticide, Fungicide
and Rodenticide Act (in each case as from time to time
amended).
B. General Legal Advice and Policy Recommendations.
Acting through the Regional Counsel or an Associate
Regional Ccj.-.sel, provides the Regional Administ»tor.
Deputy Regional Administrator and the Region 1 Divisions
and Offices with general legal advice and policy recom-
mendations concerning those Regional matters which have
been assigned.
-------
General Attorney
GS-905-12
. P« Legal Advice and Policy Recommendations on Enforcement
Matters*Provides legal advice and policy recommendations
on Regional enforcement matters. Assists in the preparation
of major legal correspondence, notices of violation*
administrative orders, litigation referrals and other '
enforcement documents and reviews such documents for legal
sufficiency and consistency with Agency legal interpretations
and policy guidance. Conducts investigations into criminal
2 Batters in conjunction with Agency criminal investigatory
i personnel and lav enforcement agencies.
D. Legal Advice and Policy Recommendations to Grant
Programs.Provides legal advice and policy recommendations
to managers of EPA grant programs, including the construction
' grants program administered under Title II of the Clean
Water Act. Advises on the eligibility for Agency funding
of cost items unde'r Agency grants, including cost overruns
by contractors on Agency-funded projects. Works closely
with the Agency's Office of Inspector General in resolving
problems arising under audit activities and investigations.
Drafts special grant conditions to cover unusual or
I unique situations. Assists state attorneys in inter-
preting statute and regulations administered by the
Agency, advising on the handling of claims matters and
: generally serving the needs of programs which have been
delegated by the Agency to state agencies. Prepares
final Agency decisions on bid protests arising under
grantee procurement. Conducts the Region's participation
in grant appeal proceedings.
E. Drafting of Determinations, Regulations, Notices, etc.
Drafts and reviews final Agency determinations, proposed
and final regulations, noticer ird other documents to
be published in the Federal Register, including Agency
actions on state air pollution laws, designation* of
sole source aquifers under the Safe Drinking Water Act,
approvals and authorizations cf state programs under
the Clean Water Act, the Clean Air Act, the Resource
Conservation and Recovery Act, the Federal Insecticide,
Fungicide and Rodenticide Act and other Federal environ*
mental statutes.
F, Litigation Matters. Coordinates defensive and enforce-
ment litigation in connection'with specific Regional
matters arising under'the statutes referred to above.
Conducts discovery and prepares »uwt*ons, briefs and
other litigation documents. Appears before Federal
courts from time to time to conduct trials, bearings
and oral arguments. Works closely with attorneys in the
Offices of General Counsel and Enforcement Counsel at
Headquarters and the Department of Justice or U.S.
Attorneys. Assists D.S. Attorneys in seeking indictments
-------
General Attorney
GS-905-12
* •
in criminal matters and in prosecuting such matters.
Coordinates with state attorneys general. Represents
the Region in administrative proceedings of EPA and
other agencies.
G. Negotiation and Informal Dispute Resolution.
Represents the Region in its dealings with outside
parties, including negotiation of bilateral agreements,
consent orders and judgements, and memoranda of understanding.
Represents the Region in negotiating the settlement of
disputed matters. In many cases, this avoids protracted
and expensive litigation and facilitates expeditious
administration of Agency programs.
H. Representation of the Region. Represents the Region
at conferences and meetings held with other Federal
departments and agencies, Congressional committees and
.individual congressmen and senators, the General Accounting
Office, governors of states and staff offices of governors,
state and local officials, representatives of private
industry »<.. farm groups, etc. and in this .capaciv «s
required to give expert legal advice with respect to
many novel legal situations and problems arising from
the administration of Regional programs. Prepares and
delivers testimony to state legislative bodies in connection
with their deliberations on assumption of responsibilities *
for programs to be delegated by the Agency. . - '
!• Liaison with Officesof General Counsel and Enforcement
Counsel.Serves as liaison between the Region and the
Offices of General Counsel and Enforcement Counsel to
provide an effective channel of communication in order
to assure that the Region obtains legal judgments from
the Office of General Counsel and policy advice from
the Office ~f Enforcement Counsel and also to assure
that such Offices are able to base such judgments and
such advice upon accurate perceptions of the pertinent
facts and Regional' program objectives.
J. Lead Region Matters. Serves as a coordinator of
one or more subject matter areas of interest to the
Offices of Regional Counsel. -Maintains specialized
expertise in such area Is] and serves as a consultant to
other attorneys in the Agency. May manage a task force
of Regional attorneys in seeking solutions to common
legal problems or in preparing guidance documents,
model agreements, regulations, pleadings, etc. In this
capacity, serves as the liaison between the Office of
General Counsel and the Offices of Regional Counsel.
Arranges conference calls, meetings and other means of
exchanging information among Regional attorneys.
-------
General Attorney
65-905-12
K. Coordination of Work of Junior Attorneys* Where the
Assistant is responsible for coordinating the work of
junior attorney-advisors, the Assistant reviews all
major efforts to assure that written material is clear,
precise and of high quality, that work is completed on
tia«, and that oral presentations, whether before courts
or other public bodies, are of high quality.
L. Other Duties* Performs ether duties as assigned.
XII. Supervisory Controls.
The Assistant Regional Counsel reports to the Regional
Counsel. The Assistant has an attorney-client relationship
with Regional program managers and the Office of Enforcement
Counsel in Headquarters. Areas^of responsibility are assigned
by the Regional Counsel. Work assignments are made by the
Regional Counsel or by senior attorneys who will direct and
coordinate the Assistant's work in specific subject matter
areas. In some eases, work is performed at the request of
Regional program managers. Work will be discussed generally
with senior attorneys while in process and finished work
will generally be reviewed by senior attorneys to assure
consistency with Agency policy, precedential effect and
overall quality.
IV. Qualifications.
The Assistant must have the equivalent of a JD or
LLB degree from an accredited law school and must be a member
of the bar. Other qualification requirements may be established
by the Regional Counsel depending upon the needs of the Office.
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
OFFICE OF GENERAL COUNSEL
OFFICES OF .REGIONAL COUNSEL
BENCHMARK POSITION DESCRIPTION
GM-13 Central Attorney
(Assistant Regional Counsel)
NOTEi This position description has been reviewed by the
Headquarters Office of Personnel and has been
approved for use in the Offices of Regional
Counsel. In cases where the duties of the
incumbent would not be sufficiently described
in this benchmark position description, the
Regional Classification Specialist is authorized
to make appropriate changes, after conferring
the the Headquarters Office of Personnel and
with the concurrence of the General Counsel.
-------
Version of 3/18/82
General Attorney
GM-905-13
I. Introduction.
Serves as an Assistant Regional Counsel in the Office of
Regional Counsel. Provides legal advice and assistance and
policy recommendations on legal matters, including enforcement
matters, arising in the Region. Advice, assistance and
recommendations are provided to the Regional Counsel, senior
attorneys and Regional program managers. Has an attorney-client
relationship with all Regional program managers for whom
work is performed and with the Office of Enforcement Counsel
in Headquarters.
XI. Major Duties and Responsibilities.
At this level, the Assistant will be assigned to work on
highly complex and unusual matters. These matters require a
very high degree of expertise on the part of the Assistant and
may require extensive legal research, by more than one attorney
and on a number of subjects, and analysis of a wide variety
of issues, together with consideration of highly complicated
factual and policy issues in response to the specialized
needs of program clients. Examples of these includet the
review of highly complex and extremely unusual revisions of
state implementation plans under the Clean Air Act, participation*
in the preparation of highly complex and unusual notices of
violation and administrative orders, and the conduct of
highly complex administrative and judicial litigation.
A. Legal Research and Problem Resolution. Researches
the legal questions which arise under regulations,
lawsuits, enforcement actions, executive orders and
other administrative actions involving major Federal
statutes affecting the Agency's programs, which may .
include such statutes as the Clean Water Act, the Clean
Air Act, the Toxic Substances Control Act, the Safe
Drinking Water Act, the Resource Conservation and
Recovery Act, the National Environmental Policy Act,
the Comprehensive Environmental Response, Compensation
and Liability Act and the Federal Insecticide, Fungicide
and Rodenticide Act (in each case as from time to time
amended).
B. General Legal Advice and Policy Recommendations.
Acting through the Regional Counsel or an.Associate
Regional Counsel, provides the Regional Administrator,
Deputy Regional Administrator and the Regional Divisions
and Offices with general legal advice and policy recom-
mendations concerning those Regional matters which have
been assigned.
-------
General Attorney
01-905-13
C. Legal Advice and Policy Recommendations on Enforcement
Matters*Provides legal advice and policy recommendations
on Regional enforcement natters. Assists in the preparation
of major legal correspondence, notices of violation,
administrative orders, litigation referral! and other
enforcement documents and reviews such documents for
legal sufficiency and consistency with Agency legal
interpretations and policy guidance. Conducts investi-
gations into criminal matters in conjunction with Agency
criminal investigatory personnel and law enforcement
agencies*
•
D. Legal Advice and Policy Recommendations to Grant
Programs. Provides legal advice and policy recommendations to
managers of EPA grant programs, including the construction
grunts program administered under Title XI of the Clean
Water Act. Advises on the eligibility for Agency funding
of cost items under Agency grants, including cost overruns
by contractors on Agency-funded projects. Works closely
with the Agency's Office of Inspector General in resolving
problems arising under audit activities and investigations.
Drafts special grant conditions to cover unusual or
un;lque situations. Assists state attorneys in inter-
preting statutes and regulations administered by the
Agency, advising on the handling of claims matters and
generally serving the needs of programs which have been
delegated by the Agency to state agencies. Prepares
final Agency decisions on bid protests arising under
gruntee procurement. Conducts the Region's participation
in grant appeal proceedings.
E. Drafting of Determinations, Regulations, Notices, etc.
Driifts and reviews final Agency determinations, proposed
and final regulations, notices and other documents to
be published in the Fedei^'. Register, including Agency
actions on state air pollution laws, designations of
sole source aquifers under the Safe Drinking Water Act,
approvals and authorizations of state programs under
the; Clean Water Act, the Clean Air Act, the Resource
Conservation and Recovery Act, the Federal Insecticide,
t urtgicide and Rodenticide Act and other Federal environ-
mental statutes.
Fo Litigation Matters. Coordinates defensive and enforce-
ment litigation in connection with specific Regional
matters arising under the statutes referred to above.
Conducts discovery and prepares motions, briefs and
other litigation documents. Appears before Federal
courts from time to time to conduct trials, hearings
-------
General Attorney
GM-905-13
and oral arguments. Works closely with attorneys in the
Offices of General Counsel and Enforcement Counsel at
Headquarters and the Department of Justice or U.S.
Attorneys. Assists U.S. Attorneys in seeking indictments
'in criminal natters and in prosecuting such matters.
Coordinates with state attorneys general. Represents
the Region in administrative proceedings of EPA and
other agencies.
G. Negotiation and Informal Dispute Resolution.
Represents the Region in its dealings" with outside
parties, including negotiation of bilateral agreements,
consent orders and judgements, and memoranda of understanding.
Represents the Region in negotiating the settlement of
disputed matters. In many cases, this avoids protracted
and expensive litigation and facilitates expeditious
administration of Agency programs.
B. Hearing Officer Duties. Serves as hearing officer
in hearing and deciding matters brought before the
Agency and assists the Regional Administrator in preparing
formal administrative decisions. Some of these decisions
(e.g. bid protest decisions arising under the construction
grants program) are final Agency action subject to
direct review in the Federal courts. At the request of
the Regional Counsel, performs responsibilities which
the Administrator has delegated to the Regional Counsel, *•
such as rendering decisions on confidentiality of business
information under 40 C.F.R. Part 2, which decisions
also become final Agency action.
I. Representation of the Regi?"- Represents the Region
at conferences and meetings held with other Federal
departments and agencies, Congressional comr.it. ejs and
individual congressmen and senators, the General Accounting
Office, governors of stat^u ir.d staff offices of governors,
state and local officials, representatives of private
industry and farm groups, etc. and in this capacity is
required to give expert legal advice with respect to
many novel legal situations and problems arising from
the administration of Regional programs. Prepares and
delivers testimony to state legislative bodies in connection
with their deliberations on assumption of responsibilities
for programs to be delegated by the Agency.
J. Liaison with Offices of General Counsel and Enforcement
Counsel. Serves as liaison between the Region and the Offices
of General Counsel and Enforcement Counsel to provide an
effective channel of communication in order to assure that
the Region obtains legal judgments from the Office of General
-------
General Attorney
CM-905-13
Counsel and policy advice from the Office of Enforcement
'Counsel and also to assure that such Offices are able to
base such judgments and such advice upon accurate perceptions
of the pertinent facts and Regional program objectives.
K. Lead Region Matters. Serves as a coordinator of one
or acre subject matter areas of interest to the Offices of
Regional Counsel. Maintains specialized expertise in
such areafs] and serves as a consultant to other attorneys
in the Agency. May manage a task force of Regional attorneys
in seeking solutions to common legal problems or in preparing
guidance documents, model agreements, regulations, pleadings,
etc. In this capacity, serves as the liaison between the
Office of General Counsel and the Offices of Regional
Counsel. Arranges conference calls, meetings and other
means of exchanging information among Regional attorneys.
' -,'
L. Coordination of Work of Junior Attorneys. Where the
Asuistant is responsible for coordinating the work of
junior attorney-advisors, the Assistant reviews All
ma;jor efforts to assure that written material is clear,
precise and of high quality, that work is completed on
tine, and that oral presentations, whether before courts
or other public bodies, are of high quality.
MO Other Duties. Performs other duties as assigned.
III. Supervisory Controls.
The Assistant Regional Counsel reports to the Regional
Counsel. The Assistant has an attorney-client relationship
with Regional program managers and the Office of Enforcement
Counsel in Headquarters. Areas of responsibility are assigned
by the Regional Counsel. Work assignments are made by the
Regional Counsel or by senior attorneys who will direct and
coordinate the Assistant's work in specific subject matter
areas. In some cases, work is performed at the request of
Regional program managers. Completed work is normally assumed
to be accurate with respect to legal citations, treatment of
facts, and other aspects of technical treatment. However, all
written work is subject to review for soundness of approach and
argument, application of legal principles, and consistency
with governing policies, procedures, and regulations of the
Agency.
IV. Qualifications.
The Assistant must have the equivalent of a JD or LLB
degree from an accredited law school and must be a member of
the bar. Other qualification requirements may be established
by the Regional Counsel depending upon the needs of the Office.
-------
TAB ti
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
OFFICE OF GENERAL COUNSEL
OFFICES OF REGIONAL COUNSEL
BENCHMARK POSITION DESCRIPTION
GM-14 General Attorney*
(Associate Regional Counsel)
ROTE: This position description has been reviewed by the
Headquarters Office of Personnel and has been approved
for use in the Offices of Regional Counsel. In
cases where the duties of the incumbent would not be
sufficiently described in this benchmark position
description, the Regional Classification Specialist
is authorized to make appropriate changes, after
conferring the the Headquarters Office of Personnel
and with the concurrence of the General Counsel.
Attached to this position description are two cover sheets.
The cover sheet indicating that the position will be
filled by a GM-13 is intended for use in those situations
where the incumbent is not yet entitled to assume a
CM-14 position due to inadequate time in grade. When
the time in grade requirements have been fulfilled,
the incumbent will be eligible for promotion to the
GM-14 level. The second cover sheet nay be used at
that point.
•Depending upon the organizational structure of the Office of
Regional Counsel, this position could be classified as that
of a Supervisory General Attorney.
-------
POSITION 0ESCRIPTION
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905
13
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-------
POSITION DESCRIPTION
Ck*l»iriC*TIOM ACTION
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905 14 '>/
Aisoeiate Beqional Couniel
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-------
General Attorney*
GM-905-14
X. Introduction.
Serves as an Associate Regional Counsel in the Office of
Regional Counsel. The Associate has responsibility for
providing legal advice and assistance and policy recommendations
to the Regional Counsel and Regional program managers in
major areas of responsibility. The Associate coordinates
and directs the entire workload of the Office in assigned
areas of responsibility, and is responsible for the work of
ether attorneys in the Office who are assigned to work en
matters within such areas of responsibility.
XI. Major Duties and Responsibilities.
At this level, the Associate will be responsible for all
legal aspects of an entire media area within the Region. These
matters will involve a wide variety of highly complex and
unusual matters requiring extensive knowledge and a very
high degree of expertise as well as extensive legal research
and analysis, together with consideration of highly complicated
factual and policy issues. The Associate will be the principal
attorney in tht .-.sgion for interpreting for the Region*1
Administrator and the Regional program managers a substantial
body of Agency regulations and defending these regulations
and Agency actions before Federal trial and appellate courts.
Matters assigned may have precedential effects, may have the .
effect of substantially broadening or restricting the Agency's.
activities and may have an important impact on major industries
in the Region. These matters often involve substantial sums
of money and often are rigorously contested by some of the
nation's most distinguished, capable and highly paid attorneys.
The Associate will direct and coordinate the activities of junior
attorneys assigned to help carry out the specific elements of
the Associates duties and responsibilities.
A. Legal Research and Problem Resolution. Researches
and resolves the legal questions which arise under all
regulations, lawsuits, enforcement actions, executive
orders and other administrative actions involving major
Federal statutes affecting the Agency's programs, which
may include (depending upon the specific areas assigned
by the Regional Counsel) such statutes as the Clean
Hater Act, the Clean Air Act,- the Toxic Substances
Control Act, the Safe Drinking Water Act, the Resource
Conservation and Recovery Act, the National Environmental
Policy Act, the Comprehensive Environmental Response,
Compensation and Liability Act and the Federal insecticide,
Fungicide and Rodenticide Act (in each case as from
time to time amended). In areas assigned by the Regional
Counsel, is the focal point within the Region for resolution
* May be Supervisory General Attorney if appropriate.
-------
General Attorney
CM-905-14
of legal issues arising under such statutes (except for
Batters of national importance which require consultation
with the Offices of General Counsel or Enforcement
Counsel).
B. General Legal Advice and Policy Recommendations*
Eit.her acting directly or through the Regional Counse 1 /
directly, provides the Regional Administrator, Deputy
Regional Administrator and the Regional Divisions and
Offices with general legal advice and (upon request)
poMcy recommendations concerning those Regional programs,
operations and activities in areas assigned.by the
Regional Counsel so that their major decisions are Bade
with applicable legal considerations in mind.
C. Legal Advice and Policy Recommendations on Enforcement
Hatters.Provides legal advice and policy recommendations
to the Regional program managers responsible for enforcement
natters. Assists in the preparation of major legal
correspondence, notices of violation, administrative
orders, litigation referrals and other enforcement
documents and reviews such documents for legal sufficiency
ancl consistency with Agency legal interpretations and
policy guidance. Is responsible for assuring that the
Agency's centralized data reporting systems are kept
current with information on Regional enforcement natters.*
Conducts investigations into criminal matters in conjunction
with agency criminal investigatory personnel and law
enforcement agencies.
D. Legal*Advice and Policy Recommendations to Grant
Programs. Provides legal advice and policy recommendations
to managers of Agency grant programs, including the
construction grants program administered under Title II
of the Clean Water Act. Advises on the eligibility for
Agency funding of cost items under Agency grants? including
cesit overruns by contractors on Agency-funded projects.
Works closely with the Agency's Office of Inspector
General in resolving problems arising under audit activities
and investigations. Drafts special grant conditions to
cover unusual or unique situations. Assists state
attorneys in interpreting statutes and regulations
administered by the Agency, advising on the handling of
claims matters and generally serving the needs of programs
which have been delegated by the Agency to state agencies.
Prepares final Agency decisions on bid protests arising
under grantee procurement. Conducts the Region's partici-
pation in grant appeal proceedings.
-------
General Attorney
GM-905-14
E. Drafting of Determinations, Regulations, Notices, etc.
Drafts and reviews final Agency determinations, proposed
and final regulations, notices and such other documents
to be published in the Federal Register, including
Agency actions on state air pollution plans, designations
of sole source aquifers under the Safe Drinking Water
Act, approvals and authorizations of state programs under
the Clean Hater Act, the Clean Air Act, the Resource
Conservation and Recovery Act, the Federal Insecticide, .
Fungicide and Rodenticide Act and other Federal environ-
mental statutes.
F. Litigation Matters. Manages and coordinates defensive
and enforcement litigation resulting from the Region's
activities under the statutes referred to above. Conducts
discovery and prepares motions, briefs and other litigation
documents. Appears before courts from time to time to
conduct trials, hearings and oral arguments. Works
closely with the Offices of Enforcement Counsel and
General Counsel at Headquarters and the Department of
Justice or U.S. Attorneys. Assists U.S. Attorneys in
seeking indictments in criminal matters and in prosecuting
such matters. Coordinates with state attorneys general.
Represents the Region in administrative proceedings of
EPA and other agencies.
G. Negotiation and Informal Dispute Resolution. Represents
the Region in its dealings with outside parties, including
negotiation of bilateral agreements, consent orders and
judgments, and memoranda of understanding. Represents
the Region in negotiating the settlement of disputed
matters so as to avoid protracted and expensive litigation
and facilitate expeditious administration of Agency
programs.
H. Hearing Officer Duties. Serves as hearing officer
in hearing and deciding matters brought before the
Agency and assists the Regional Administrator in preparing
formal administrative decisions. Some of these decisions
(e.g. bid protest decisions arising under the construction
grants program) are final Agency action subject to
direct review in the Federal 'courts. At the request of
the Regional Counsel,- performs responsibilities which
the Administrator has delegated to the Regional Counsel,
such as rendering decisions on confidentiality of business
information under 40 C.F.R. Part 2, which decisions
also become final Agency action.
I. Representation of the Region. Represents the Region
at conferences and meetings held with other Federal
departments and agencies, Congressional committees and
-------
•*-
General Attorney
GW-905-14
Individual congressmen and senators, the General Accounting
Office, governors of states and staff offices of governors,
state and local officials, representatives of private^
industry and farm groups, etc. and in this capacity is
required to give expert legal advice with respect to
many novel legal situations and problems arising from
the administration of Regional programs. Prepares and
i delivers advice and testimony to state legislative bodies
I in connection with their deliberations on assumption of
j responsibilities for programs to be delegated by the
Agency.
J. Liaison with Offices of General Counsel and Enforcement
Counsel.Serves as liaison between the Region and the
Offices of General Counsel and Enforcement Counsel to
provide an effective channel of communication in order
to dssure that the Region obtains legal judgments from
the Office of General Counsel and policy advice from
the Office of Enforcement Counsel and also to assure
that such Offices are able to base such judgments and
such advice upon accurate perceptions of the pertinent
faefts and Regional program objectives.
K. Coordinating and Directing Legal Work. Coordinates
and directs the work of one or more junior attorney-
advisors. Makes day-to-day work assignments and reviews
all major efforts of such attorney-advisors. The review
functions include ensuring that (1) written material is
clezir, precise, and of high quality, (2) work is completed
on time, (3) prompt advice is provided to the Regional
managers of programs within assigned areas, and
(4) oral presentations, whether before courts or ether
public bodies, are of high quality. Participates in
the recruiting and hiring of attorneys, and p-iv.des
attorney-advisors under supervision with opportunities
for professional growth t.*—vgh work experience and
training. Assists the Regional Counsel in conducting
performance evaluations of junior attorney-advisors.
L. Lead Region Matters. Serves as a national legal
expert in one or more subject matter areas of interest
to the Offices of Regional Counsel. Maintains specialized
expertise in such area Is] and-serves as a consultant to
other attorneys in the. Agency. May. manage a task force
of Regional attorneys in seeking solutions to common
legal problems or in preparing guidance documents,
model agreements, regulations, pleadings, etc. In this
capacity, serves as the liaison between the Office of
General Counsel and the Offices of Regional Counsel.
Arranges conference calls, meetings and other means of
exchanging information among Regional attorneys.
-------
General Attorney
GM-905-14
M. Other Duties. Performs other duties as assigned.
III. Supervisory Controls.
The Associate reports to the Regional Counsel and
has an attorney-client relationship with all Regional program
managers for whore work is performed and with the Office of
Enforcement at Eeadguarters. Areas of responsibility are
assigned by the Regional Counsel, and within those areas of
responsibility the Associate has wide latitude in prioritizing
workload, directing and coordinating the efforts of staff
members, conducting research, preparing documents and exercising
judgment and initiative in completing assignments and making
legal judgments and policy recommendations. Legal advice,
policy recommendations and advocacy during adversarial pro-
ceedings are normally considered expert. Within assigned
areas of responsibility, the Associate accepts work requests
directly from Regional program managers. The Associate is
expected to represent the Regional Counsel from time to time
in areas of assigned responsibility, although consultation
and discussion with the Regional Counsel is required when
necessary in connection with major legal judgments or policy
recommendations. Completed work is revievable for consistency
with Agency policy, precedential effect and overall quality.
The Associate is expected to rotate areas of assigned, responsi-
bility with other Associates within the Office of Regional
Counsel from time to time. The Regional Counsel is to be .
consulted generally on matters arising in the course of
coordinating and directing the work of junior attorneys who
work in the assigned areas of responsibility.
IV. Qualifications.
The Associate must have th» equivalent of a JD or LLB
degree from an accredited law school and be a member of the
bar. Other qualifications requirements may be established
by the Regional Counsel, depending upon the needs of the
Office.
-------
TAB I
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
OFFICE OF GENERAL COUNSEL
OFFICES OF REGIONAL COUNSEL
BENCHMARK POSITION DESCRIPTION
•^••^^^•^••••••••••^•^•••^^^^••••^•^^•^••^•^^•^^••••••••••^ /
CM-14 General Attorney*
(Senior Associate Regional Counsel for Enforcement)
NOTE: This position description has been reviewed by the
Headquarters Office of Personnel and has been approved
for use in the Offices of Regional Counsel. In
cases where the duties of the incumbent would not be
sufficiently described in this benchmark position
description, the Regional Classification Specialist
is authorized to naXe appropriate changes, after
conferring the the Headquarters Office of Personnel
and with the concurrence of the General Counsel.
Attached to this position description are two cover sheets,
The cover sheet indicating that the position will be
filled by a GM-13 is intended for use in those situations
where the incumbent is not yet entitled to assume a
GM-14 position due to inadequate tine in grade. When
the tine in grade requirements have been fulfilled,
the incumbent will be eligible for promotion to i-he
GM-14 level. The second cover sheet nay t? vsed at
that point.
•Depending upon the organizational structure of the Office of
Regional Counsel, this position could be classified as that
of a Supervisory General Attorney.
-------
fOilTlOH DEVCtlPTlON
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CM 905 13
Senior Associate Regional Counsel |
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POSITION DESCIIPTION
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-------
version or
General Attorney*
GM-905-14
I. Introduction.
Serves as the Senior Associate Regional Counsel for En-
forcement in the Office of Regional Counsel. The Senior
Associate has responsibility for providing legal advice and «
assistance and policy recommendations to the Regional Counsel
and Regional program managers in major areas of responsibility,
including coordination of all enforcement activities within
the Office. The Senior Associate coordinates and directs
the entire workload of the Office in assigned areas of respon-
sibility and is responsible for the work of other attorneys
in the Office who are assigned to work on matters within
such areas of responsibility. The Senior Associate acts as
the Regional Counsel when the Regional Counsel is out of the
office.
• • •
IX. Major Duties and Responsibilities.
At this level, the Senior Associate will be responsible
for all legal aspects of an entire media area within the
Region, together with coordination of all enforcement activities
of the Office. These matters will involve a wide variety of
highly complex and unusual matters requiring extensive knowledge
and a very high degree of expertise as well as extensive
legal research and analysis, together with consideration of
highly complicated factual and policy issues. The Senior
Associate will be the principal attorney in the Region for
interpreting for the Regional Administrator and the Regional
program managers a substantial body of Agency regulations
and defending these regulations and Agency actions before
Federal trial and appellate courts. Hatters assigned may
have precedential effects, may have the effect of substantially
broadening or restricting the Agency's activities and may
have an important impact on major industries in the Region.
These matters often involve substantial sums of money and
often are rigorously contested by some of the nation's most
distinguished, capable and highly paid attorneys. The Senior
Associate will direct and coordinate the activities of junior
attorneys assigned to help carry out the specific elements of
the Senior Associates duties and responsibilities.
»
A. Coordination of Enforcement Matters.
1. Expertise in Enforcement Matters. Develops and
maintains expertise in all Agency enforcement
policies, including guidance on prioritization of
enforcement actions, development of enforcement
cases, preparation of administrative letters and
orders, preparation of litigation referral packages,
management of litigation matters, negotiation and
* May be Supervisory General Attorney if appropriate.
-------
-2-
Ceneral Attorney
GM-905-14
settlement of case, etc.
2. Liaison with the Office of Enforcement Counsel*
Acts as the Region's principal liaison attorney
with the Office of Enforcement Counsel. Receives
.' guidance from the Office of Enforcement Counsel
1 and transmits it to the other attorneys in the
? Office of Regional Counsel. Keeps the Office of
Enforcement Counsel informed on Regional matters,
as needed. Attends briefings and training sessions
as needed.
3. Liaison with other Legal Offices. Acts as
the liaison with other Offices of Regional Counsel
on the development of enforcement policies and
procedures in connection with lead Region efforts.
Acts as liaison with the Department of Justice,
the affected U.S. Attorneys and the Attorneys
, General of states within the Region on overall
enforcement policy and procedural matters.
i
4. Development of Regional Enforcement Policies
and Procedures. Assists Regional program managers
in developing Regional enforcement policies and
procedures and reviews such policies and procedures
for consistency with national policies and procedures.
This work is done in coordination with the Associate
Regional Counsels for the other major areas of
responsibility within the Office of Regional Counsel.
5. Coordination of Enforcement Matters in Office
of Regional Counsel.Is responsible for informing
the other Associate Regional Counsels of developments
in enforcement policy. Coordinates legal work
on enforcement matters being handled by the Office
of Regional Counsel so as to assure that all
enforcement activities are consistent with national
policies and procedures. Maintains files on
current enforcement policies.
6. Multi-media Enforcement Case Assignments.
Reviews enforcement matters involving more than
one major area of responsibility and makes
nendations to the Regional Counsel as -c
Associate Regional Counsel should be given the
lead responsibility for handling the matter.
Reviews the handling of multi-media enforcement
matters so as to assure adequate coordination
within the Office.
-------
-3-
General Attorney
GM-905-14
7. Review of Resources Available for Enforcement
Legal Services*Periodically reviews the allocation
of resources for enforcement natters within the
Office of Regional Counsel and makes recommendations
to the Regional Counsel for obtaining adequate
resources to neet the requirements of the Region's
enforcement efforts.
8» Coordination of Criminal Investigators. Coordinates
the work of any criminal investigatory personnel who
are assigned to the Office. Ensures that such personnel
attend to the highest priority natters in the Region,
that they are assigned staff attorneys to work with
them to assist in proper case development, and that
they properly coordinate their activities with the
Office of Inspector General.
B. Acting Regional Counsel Duties. Acts as the Regional
Counsel when the Regional Counsel is out of the Office.
C. Legal Research and Problem Resolution. Researches
and resolves the legal questions which arise under all
regulations, lawsuits, enforcement actions, executive
orders and other administrative actions involving major
Federal statutes affecting the Agency's programs, which
may include '(depending upon the specific areas assigned
by the Regional Counsel) such statutes as the Clean
Water Act, the Clean Air Act, the Toxic Substances
Control Act, the Safe Drinking Water Act, the Resource
Conservation and Recovery Act, the National Environmental
Policy Act, the Comprehensive Environmental Pe<:-onse,
Compensation and Liability Act and the Federal Insecticide,
Fungicide and Rodenticide &ct (in each ease as from
time to time amended). In areas assigned by the Regional
Counsel, is the focal point within the Region for resolution
of legal issues arising under such statutes (except for
matters of national importance which require consultation
with the Offices of General Counsel or Enforcement
Counsel).
>
D. General Legal Adyjce and Policy Recommendations.
Either acting directly or through the Regional Counsel,
directly, provides the Regional Administrator, Deputy
Regional Administrator and the Regional Divisions and
Offices with general legal advice and (upon request)
policy recommendations concerning those Regional programs,
operations and activities in areas assigned by the
Regional Counsel so that their major decisions are made
with applicable legal considerations in mind.
-------
-4- ' . ' • " ' -• - -.--..
General Attorney
GM-905-14
E. Legal Advice and Policy Recommendations on Enforcement
Matters*Provides legal advice and policy recommendations
to the Regional program managers responsible for enforcement
matters. Assists in the preparation of major legal
correspondence, notices of violation, administrative
j orders, litigation referrals and other enforcement
: documents and reviews such documents for legal •ufficiency
and consistency with Agency legal interpretations and
policy guidance. Is responsible for assuring that the
Agency's centralized data reporting systems are kept
current with information on Regional enforcement matters.
Conducts investigations Into criminal matters in conjunction
with agency criminal investigatory personnel and law
enforcement agencies.
F. Legal Advice and Policy Recommendations to Grant
Programs^Provides legal advice and policy recommendations
to managers of Agency grant programs, including the
constructor: grants program administered under Titl* II
1 of the Clean Water Act. Advises on the eligibility for
Agency funding of cost items under Agency grants, including
cost overruns by contractors on Agency-funded projects.
Works closely with the Agency's Office of Inspector
General in resolving problems arising under audit activities
and investigations. Drafts special grant conditions to
cover unusual or unique situations. Assists state
attorneys in interpreting statutes and regulations
administered by the Agency, advising on the handling of
claims matters and generally serving the needs of programs
which have been delegated by the Agency to state agencies.
Prepares final Agency decisions on bid protests arising
under grantee procurement. Conducts the Region's partici-
pation in grant appeal proceedings.
G. Drafting of Determinations; Regulations, Notices, etc.
Drafts and reviews final Agency determinations, proposed
and final regulations, notices and such other documents
to be published in the Federal Register, including
Ageincy actions on state air pollution plans, designations
of dole source aquifers under the Safe Drinking Water
Act, approvals and authorizations of state programs under
the Clean Water Act, the Clean Air Act, the Resource
Conservation and Recovery Act, the Federal Insecticide,
Fungicide and Rodenticide Act and other Federal environ-
mental statutes.
H. Litigation Matters. Manages and coordinates defensive
and" enforcement litigation resulting from the Region's
activities under the statutes referred to above. Conducts
discovery and prepares motions, briefs and other litigation
documents. Appears before courts from time to time to
-------
-5-
General Attorney
GM-905-14
conduct trials, hearings and oral arguments. Works
closely with the Offices of Enforcement Counsel and
General Counsel at Headquarters and the Department of
Justice or O.S. Attorneys. Assists U.S. Attorneys in
seeking indictments in criminal natters and in prosecuting
such matters. Coordinates with state attorneys general.
Represents the Region in administrative proceedings of
EPA and other agencies.
I. Negotiation and Informal Dispute Resolution. Represents
the Region in its dealings with outside parties, including
negotiation of bilateral agreements, consent orders and
judgments, and memoranda of understanding. Represents
the Region in negotiating the settlement of disputed
matters so as to avoid protracted and expensive litigation
and facilitate expeditious administration of Agency
programs.
J. Bearing Officer Duties. Serves as hearing officer
in hearing and deciding matters brought before the
Agency and assists the Regional Administrator in preparing
formal administrative decisions. Some of these decisions
(e.g. bid protest decisions arising under the construction
grants program) are final Agency action subject to
direct review in the Federal courts. At the request of
the Regional Counsel, performs responsibilities which •
the Administrator has delegated to the Regional Counsel,
such as rendering decisions on confidentiality of business
information under 40 C.F.R. Part 2, which decisions
also become final Agency action.
K. Representation of the Region. Represents the Region
at conferences and meetings held with other Federal
departments and agencies, Congressional committees and
individual congressmen and senators, the General Accounting
Office, governors of states and staff offices of governors,
state and local officials, representatives of private
industry and farm groups, etc. and in this capacity is
required to give expert legal advice with respect to
many novel legal situations and problems arising from
the administration of Regional programs. Prepares and
delivers advice and testimony to state legislative bodies
in connection with their deliberations on assumption of
responsibilities for programs to ue delegated by the
Agency.
L. Liaison with Offices of General Counsel and Enforcement
Counsel.Serves as liaison between the Region and the
Offices of General Counsel and Enforcement Counsel to
provide an effective channel of communication in order
to assure that the Region obtains legal judgments from
-------
-6-
General Attorney
GM-905-14
the Office of General Counsel and policy advice from
the Office of Enforcement Counsel and also to assure
that such Offices ire able to base such judgments and
such advice upon accurate perceptions of the pertinent
facts and Regional program objectives.
H. Coordinating and Directing Legal »ork. Coordinates
and directs the work of one or more junior attorney-
advisors. Hakes day-to-day work assignments and reviews
all major efforts of such attorney-advisors. The review
functions include ensuring that (1) written aaterial is
clear, precise, and of high quality, (2) work is completed
on time, (3) prompt advice is provided to the Regional
managers of programs within assigned areas, and
(4) oral presentations, whether before courts or other
public bodies, are of high quality. Participates in
the recruiting and hiring of attorneys, and provides
attorney-advisors under supervision with opportunities
for professional growth through work experience and
training. Assists the Regional Counsel in conducting
performance evaluations of junior attorney-advisors.
N. Lead Region Matters* Serves as a national legal
expert in one or more subject matter areas of interest
to the Offices of Regional Counsel. Maintains specialized
expertise in such area Is] and serves as a consultant to
other attorneys in the Agency. May. manage a task force
of Regional attorneys in seeking solutions to common
legal problems or in preparing guidance documents,
model agreements, regulations, pleadings, etc. In this
capacity, serves as the liaison between the Office of
General Counsel and the Offices of Regional Counsel.
Arranges conferenre calls, meetings and other means of
exchanging information among Regional attorneys.
0. Other Duties. Performs other duties as assigned.
III. Supervisory Controls.
The Senior Associate reports to the Regional Counsel and
has an attorney-client relationship with all Regional program
managers for whom work is performed and with the Office of
Enforcement at Headquarters. Areas of responsibility are
assigned by the Regional Counsel, and within those areas of
responsibility the Senior Associate has wide latitude in prior-
itizing workload, directing and coordinating the efforts of
staff members, conducting research, preparing documents and
exercising judgment and initiative in completing assignments
and making legal judgments and policy recommendations.
Legal advice, policy recommendations and advocacy during
adversarial proceedings are nonnally considered expert.
-------
-7-
General Attorney
GM-905-14
Within assigned areas of responsibility, the Senior Associate
accepts work requests directly from Regional program managers.
The Senior Associate is expected to act as the Regional Counsel
when the Regional Counsel is out of the office. The Senior
Associate is also expected to represent the Regional Counsel
from time to time in areas of assigned responsibility, although
consultation and discussion with the Regional Counsel is
required when necessary in connection with major legal judgments
or policy recommendations. Completed work is revicwable for
consistency with Agency policy, precedential effect and
overall quality. The Senior Associate is expected to rotate
areas of assigned responsibility with other Senior Associates
within the Office of Regional Counsel from time to tine.
The Regional Counsel is to be consulted generally on matters
arising in the course of coordinating and directing the work
of junior attorneys who work in the assigned areas of respon-
sibility.
IV. Qualifications.
The Senior Associate must have the equivalent of a JD or LLB
degree from an accredited law school and be a member of the
bar. Other qualifications requirements may be established
by the Regional Counsel, depending upon the needs of the
Office.
-------
TAB J
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
OFFICE OF GENERAL COUNSEL
OFFICES OF REGIONAL COUNSEL
BENCHMARK POSITION DESCRIPTION
CM-15 General Attorney*
(Senior Associate Regional Counsel for Enforcement)
NOTE: This position description has been reviewed by the
Headquarters Office of Personnel and has been approved
for use in the Offices of Regional Counsel. In
cases where the duties of the incumbent would not be
sufficiently described in this benchmark position
description, the Regional Classification Specialist
is authorited to make appropriate changes, after
conferring the the Headquarters Office of Personnel
and with the concurrence of the General Counsel.
Attached to this position description are two cover sheets.
The cover sheet indicating that the position will be
filled by a CM-14 is intended for use in those situations
where the incumbent is not yet entitled to assume a
GM-14 position due to inadequate time in grade. When
the time in grade requirements have been fulfilled,
the incumbent will be eligible for promotion to the
GM-15 level. The second cover sheet nay be used at
that point.
•Depending upon the organizational structure of the Office of
Regional Counsel, this position could be classified as that
of a Supervisory General Attorney.
-------
POSITION DESCRIPTION
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14
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Version of 3/18/82
General Attorney*
CM-905-15
I. Introduction.
Serves as the Senior Associate Regional Counsel for Enforce*
•ent in the Office of Regional Counsel. The Senior Associate
has responsibility for providing legal advice and assistance
and policy recommendations to the Regional Counsel and
Regional program managers in major areas of responsibility*
including one or more major areas of national lead region
responsibility and coordination of all enforcement activities
within the Office. The Senior Associate coordinates and
directs the entire workload of the Office in assigned areas
of responsibility, and is responsible for the work of other
attorneys in the Office who are assigned to work on matters
within such' areas of responsibility. The Senior Associate
acts as the Regional Counsel when the Regional Counsel is
out of the Office.
ZI. Major Duties and Responsibilities.
The Senior Associate will be responsible for all legal
aspects of an entire media area within the Region, together with
one or more major national lead region responsibilities and
coordination of all enforcement activities of the Office.
The Senior Associate's responsibilities include the most
complex, difficult, and important matters to be handled by
the Office, requiring extensive knowledge and a very high
degree of expertise. These matters often require extensive
legal research.and analysis, together "ith consideration of
highly complicated factual and policy issues. The Senior
Associate will be the principal attorney in the Re^i-:/ for
interpreting for the Regional Administrator and the Regional
program managers a substantial t~/£y of Agency regulations
and defending these regulations and Agency actions before
Federal trial and appellate courts. Matters assigned may
have precedential effects, may have the effect of substantially
broadening or restricting the Agency's activities and may
have an important impact on major industries in the Region.
There r..alters often involve substantial sums of money and
often are rigorously contested by some of the nation's most
distinguished, capable and highly paid attorneys. The Senior
Associate will direct and coordinate the activities of junior
attorneys assigned to help carry out the specific elements
of the Senior Associate's duties and responsibilities.
A. Major Lead Region Matters. Serves as a national
legal expert in one or more major subject matter areas.
These areas involve highly complex matters relating to
May be Supervisory General Attorney if appropriate
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General Attorney
GM-905-15
*
significant aspects of the Agency's policies and
programs and require a very high degree of expertise.
Maintains specialized expertise in such area[s] and
serves as a consultant to other attorneys in the
Agency. May manage a task force of Regional attorneys
in seeking solutions to common legal problems or in
I preparing guidance documents, model agreements, regulations,
i pleadingsi etc* In this capacity, serves as the
i liaison between the Office of General Counsel and the
1 Offices of Regional Counsel. Arranges conference
calls, meetings and other Beans of exchanging information
among Regional attorneys.
B. Coordination of Enforcement Matters.
* • f
1. Expertise in Enforcement Matters. Develops and
maintains expertise in all Agency enforcement
policies, including guidance on prioritization of
enforcement actions, development of enforcement
cases, rreparation of administrative letters and
orders, preparation of litigation referral pa_K3yes,
management of litigation matters, negotiation and
settlement of cases, etc.
2. Liaison vith the Office of Enforcement Counsel.
Acts as the Region's principal liaison attorney
vith the Office of Enforcement Counsel. Receives
guidance from the Office of Enforcement Counsel
and transmits it to the other attorneys in the
Office of Regional Counsel. Keeps the Office of
Enforcement Counsel informed on Regional matters,
as needed. Attends briefings and training sessions
as needed.
3. Liaison vith other Legal Offices. Acts as
the liaison vith other Offices of Regional Counsel
on the development of enforcement policies and
procedures in connection vith lead Region efforts.
Acts as liaison vith the Department of Justice,
the affected U.S. Attorneys and the Attorneys
General of states within the Region on overall
enforcement policy and procedural matters.
4. Development of Regional Enforcement Policies
and Procedures. Assists Regional program managers
in developing Regional enforcement policies and
procedures and reviews such policies and procedures
for consistency vith national policies and procedures.
This vorX is done in coordination vith the Associate
Regional Counsels for the other major areas of
responsibility within the Office of Regional Counsel.
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-3-
General Attorney
GM-905-15
5. Coordination of Enforcement Matters in Office
of Regional Counsel.Is responsible for informing
the other Associate Regional Counsels of developments
in enforcement policy. Coordinates legal work
on enforcement matters being bandied by the Office
of Regional Counsel so as to assure that all
enforcement activities are consistent with national
policies and procedures. Maintains files on
current enforcement policies.
6. Multi-media Enforcement Case Assignments.
Reviews enforcement natters involving .more than
one major area of responsibility and makes recom-
mendations to the Regional Counsel as to which
Associate Regional Counsel should be given the
lead responsibility for handling the matter.
Reviews the handling of multi-media enforcement
matters so as to assure adequate coordination
within the Office.
*
7. Review of Resources Available for Enforcement
Legal Services.Periodically reviews the allocation
of resources for enforcement matters within the
Office of Regional Counsel and makes recommendations
to the Regional Counsel for obtaining adequate
resources to meet the requirements of the Region's :
enforcement efforts.
8. Coordination of Criminal Investigators. Coordinates
the work of any criminal investigatory personnel who
are assigned to the Office. Ensures that such personnel
attend to the highest priority matters in the Region,
that they are assigned staff attorneys to work with
them to assist in proper case development, and that
they properly coordinate their activities with the
Office of Inspector General.
«
C. Acting Regional Counsel Duties. Acts as the Regional
Counsel when the Regional Counsel is out of the Office.
D. Legal Research and Problem'Resolution. Researches
and resolves the legal questions which arise under all
regulations, lawsuits, enforcement actions, executive
orders and other administrative actions involving major
Federal statutes affecting the Agency's programs, which
may include (depending upon the specific areas assigned
by the Regional Counsel) such statutes as the Clean
Water Act, the Clean Air Act, the Toxic Substances
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General Attorney
GM-905-15
4
t
'Control Act, the Safe Drinking Hater Act, the Resource
Conservation and Recovery Act, the National Environmental
Policy Act, the Comprehensive Environmental Response, .
Conpensation and Liability Act and the Federal Insecticide,
Fungicide and Rodenticide Act (in each ease as from
time to time amended). Zn areas assigned by the Regional
Counselr is the focal point within the Region for resolution
of legal issues arising under such statutes (except for
natters of unusual national importance which require
consultation with the Offices of General Counsel or
Enforcement Counsel).
E. General Legal Advice and Policy Recommendations*
Either acting through the Regional Counsel, or, at the
direction of the Regional Counsel, directly, provides
the Regional Administrator, Deputy Regional Administrator
and the Regional Divisions and Offices with general
legal advice and (upon request) policy recommendations
concerning those Regional programs, operations and
activities in areas assigned by the Regional Counsel so
that their major decisions are made with applicable
legal considerations in mind.
F. Legal Advice and Policy Recommendations on Enforcement
Matters* Provides legal advice and policy recommendations
to the Regional program managers responsible for enforcement *,
matters. Assists in the preparation of major legal
correspondence, notices of violation, administrative
orders, litigation referrals and other enforcement
documents and reviews such documents for legal sufficiency
and consistency with Agency legal interpretations and
policy guidance. In assigned areas, is responsible for
assuring that the Agency's centralized data reporting
systems are Kept current with information on Regional
enforcement matters. Conducts investigations into .
criminal matters in conjunction with Agency investigatory
personnel and lav enforcement agencies.
m.
G. Legal Advice and Policy Recommendations to Grant Programs."
Provides legal advice and policy recommendations to
managers of Agency grant programs, including the construction
grants program administered under Title II of the Clean
Water Act. Advises on the eligibility for Agency funding
of cost items under Agency grants, including cost overruns
by contractors on Agency-funded projects. Works closely
with the Agency's Office of Inspector General in resolving
problems arising under audit activities and investigations.
Drafts special grant conditions to cover unusual or
unique situations. Assists state attorneys in interpreting
statutes and regulations administered by the Agency,
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General Attorney
GM-905-15
4
advising on the handling of claims matters and generally
serving the needs of programs which have been delegated
by the Agency to state agencies. Prepares final Agency
decisions on bid protests arising under grantee procurement.
Conducts the Region's participation in grant appeal
proceedings.
B. Drafting of Determinations, Regulations, Notices, etc.
Drafts and reviews final Agency determinations, proposed
and final regulations, notices and such other documents
to be published in the Federal Register, including
Agency actions on state air pollution plans, designations
of sole source aquifers under the Safe Drinking Water
Act, approvals and authorizations of state programs under
the Clean Water Act, the Clean Air Act, the Resource
Conservation and Recovery Act, the Federal Insecticide*
Fungicide and Rodenticide Act and other Federal environmental
statutes.
X. Litigation Matters. Manages and coordinates the
Region's participation in defensive and enforcement
litigation resulting from the Region's activities
under the statutes referred to above. Conducts discovery
and prepares motions, briefs and other litigation documents*
Appears before courts from time to time to conduct •
trials, hearings and oral arguments. Works closely '
with the Offices of Enforcement Counsel and General
Counsel at Headquarters and the Department of Justice
or U.S. Attorneys. Assists U.S. Attorneys in seeking
indictments in criminal matters and in prosecuting such
matters. Coordinates with state attorneys general.
Represents the Region in administrative proceedings of
EPA and other agencies.
J. Negotiation and Informal Dispute Resolution. Represents
the Region in its dealings with outside parties, including
negotiation of bilateral agreements, consent orders and
judgments, and memoranda of understanding. Represents t
the Region in negotiating the settlement of disputed
matters so as to avoid protracted and expensive litigation
and facilitate expeditious administration of Agency
programs.
K. Bearing Officer Duties. Serves as hearing officer
in hearing and deciding matters brought before the
Agency and assists the Regional Administrates in preparing
formal administrative decisions. Some such decisions
(e.g. bid protest decisions arising under the construction
grants program) are final Agency action subject to
direct review in the Federal courts. At the request of
the Regional Counsel, performs responsibilities which
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General Attorney
GM-905-15
the Administrator has delegated to the Regional Counsel,
such as rendering decisions on confidentiality of business
information under 40 C.F.R. Part 2, which decisions
also become final Agency action.
L. Representation of the Region* Represents the Region
at conferences and meetings held with other Federal
departments and agencies, Congressional committees and
individual congressmen and senators, the General Accounting
Office, governors of states and staff offices of governors,
state and local officials, representatives of private
industry and farm groups, etc. and in this capacity is
required to give expert legal advice with respect to
many novel legal situations and problems arising from
the administration of Regional programs. Prepares and
delivers advice and testimony to state legislative bodies
in connection with'their deliberations on assumption of
responsibilities for programs to be delegated by the
Agency.
M. Liaison with Offices of General Counsel and Enforcement
Counsel.Serves as liaison between the Region and the
Offices of General Counsel and Enforcement Counsel to
provide an effective channel of communication in order
to assure that the Region obtains legal judgments from
the Office of General Counsel and policy advice from
the Office of Enforcement Counsel and also to assure
that such Offices are able to base such judgments and
such advice upon accurate perceptions of the pertinent
facts and Regional program objectives.
N. Coordinating and Directing Legal Work. Coordinates
and directs the work of one or ,..c.e attorneys. Makes
day-to-day work assignments and reviews all major efforts
of such attorneys. The review functions induce ensuring
that (1) written material is clear, precise, and of
high quality, (2) work is compacted on time, (35 prompt
advice is provided to the Regional managers of programs,
and (4) oral presentations, whether before courts or
other public bodies, are of high quality. Participates
in the recruiting and hiring of attorneys, an<3 provides
attorneys under supervision with opportunities for
professional growth through work experience and training.
Assists the Regional Counsel in conducting performance
evaluations of junior attorneys.
0. Other Duties. Performs other duties as assigned.
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General Attorney
GM-905-15
t
III. Supervisory Controls.
The Senior Associate reports to the Regional Counsel and
has en attorney-client relationship with all Regional program
managers for whom work is performed and with the Office of
Enforcement at Headquarters. Areas of responsibility are
assigned by the Regional Counsel, and within those areas of
responsibility the Senior Associate has wide latitude in
prioritizing workload, directing and coordinating the efforts
of staff members, conducting research, preparing documents
and exercising judgment and initiative in completing assignments
and making legal judgments and policy recommendations. Legal
advice, policy recommendations and advocacy during adversarial
proceedings are normally considered expert. Within assigned
areas of responsibility, the Senior Associate accepts work
requests directly from Regional program managers. The Senior
Associate .is expected to act as the Regional Counsel when
the Regional Counsel is out of the Office. The Senior Associate
is also expected to represent the Regional Counsel from time
to time in areas of assigned responsibility, although consultation
and discussion "-th the Regional Counsel are required when
necessary in connection with major legal judgments or obi icy
recommendations. Completed work is reviewable for consistency
with Agency policy, precedential effect and overall effectiveness.
The Senior Associate is expected to rotate areas of assigned
responsibility with other Associates within the Office of
Regional Counsel from time to time.
IV. Qualifications.
The Senior Associate must have the equivalent of a JD or
LLB degree and be a member of the bar. Other qualifications
requirements may be established by the Regional Counsel,
depending upon the needs of the Office.
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-10-
,'2. Bails for Assignment!. The lead attorneys role
^hall be Assigned on the following basis:
(a). Regional Matters. Normally, the Office of
Regional Counsel shall take the lead on natters arising in
the Regions* except where the Regional Counsel and the
the appropriate supervisor within the Office of Enforcement
Counsel agree, after conferring at an early point in the develop-
ment of the matter, that the Batter is of overriding national
significance and that the lead role should be assigned to
an attorney in the Office of Enforcement Counsel. Zn eases
Where the Regional Counsel and the supervisor within the
Office of Enforcement Counsel are unable to agree as to
which level should be assigned the lead role, the matter
will be resolved by the Associate Administrator for Legal
and Enforcement Counsel.
(b)» Enforcement/Defensive Matters: Appeals. Zn
instances where enforcement litigation and defensive litigation
arise involving essentially the same parties and the same set
of circumstances, the Associate Administrator for Legal and
Enforcement Counsel shall determine the allocation of roles
(including, where deemed necessary, the establishment of a
lead attorney for the entire matter) so as to ensure that
both aspects of the matter are properly represented and that
the positions of the respective Offices are well-coordinated.
The Office of General Counsel (or the appropriate Office of
Regional Counsel) shall have the lead on all matters before
Courts of Appeals, even though the lead on the matter was
previously taken by the Office of Enforcement Counsel.
3. Obligations to Other Attorneys. The lead attorney
shall provide other Agency attorneys assigned to the matter with
adequate opportunities to contribute to the litigation effort,
including participation as supporting counsel in the development
of the litigation strategy, the preparation of legal documents,
and the conduct of negotiations with opposing parties.
VIII. GENERAL LEGAL MATTERS? RELATIONSHIPS VITH OGC.
The reorganization will not change the working relationships
between the Office of General Counsel and the Offices of
Regional Counsel. All existing lines of communication and
all existing procedures should continue to be used until
further notice.
V
IX. STEPS TO TAKE IN IMPLEMENTING THIS GUIDANCE.
A. Completion of Interim Reorganization. A Region which
has not yet made arrangements for its enforcement attorneys
to report to the Regional Counsel should do so without delay,
regardless of the status of its overall reorganization.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON.-D..C- tOU3
+*t AOMINIST*ATO«
15Stf tool
ttTMOKAKPUM
' •
SUBJECTi Regional Organisation Structure
TOi Afsocial* Adminiitraters
Assistant Administrators
Regional Administrators
Staff Office Pirectors
This memorandum provides guidance for regional organisation
And will subatquantly b« incorporated into the Agency Organisation
and Functions Manual.
He&rganisation Objectives* Regional organisation decisions include
consideration of the following objectives:
• Clarifying accountability for regional programs.
• Facilitating communication linXs between related
Headquarters and- regional components* '
• Improving regional policy and management decision-
•aXiog processes*
• Fleeing functions in organisations where they
can best be integrated with related activities.
. - Favoring fewer and larger organisations to avoid
• subsequent further consolidation and reorganisation
in a time of declining resources.
*
Sn organising to carry out these objectives* regions vill aeleet
one of the two organisation patterns described below.
HeeeiTCTenJed Organisation. Regional Administrators are authorised
to establish a regional structure and organisation of functions as
outlined in Attachment 1. Kajor features of the authorised organi-
sation include the followingt
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- 2 -
1. llnforctaent functions ef pentit issuance and related
compliance monitoring trc assigned to the appropriate prograa ..,
diviiioni. This includes issuance of notices of violation *••
and administrative orders, after consulting with the Office ef
Regional Counsel* (Permit coordination functions and placement
are optional.)
..
2. Legal work associated with Enforcement litigation and
current regional Counsel functions will be performed in newly
atructurtfd and expanded offices of Regional Counsel reporting to
the General Counsel with the following provisional
t
a. Regional Counsels will provide the Regional •
Administrator with legal advice and assistance for all prograa
areas in an attorney client relationship*
•
• *
b* The Regional Administrator will continue to initiatt
enforcement actions. These actions will be based upon guidance
from the Enforcement Counsel, Office ef Legal and Enforcement
Counsel, and with legal concurrence ef the Regional Counsel*
c. As in the past the Regional Administrator will
participate in and concur with the General Counsel in selections,
promotions, awards and disciplinary actions for Regional Counsels*
Regional Administrators will be a party to performance agreements
for arid will participate in the performance ratings ef Regional '
Counsels by the General Counsel. ' „„ •
. . •. • .
(fi. The Regional Administrator will also continue to
manage the resources ef the Office ef Regional Counsel and will
provide certain administrative support aueh as apace allocations,
processing ef personnel actions, and the management of travel and
training accounts.
3. Two staff offices are authorised — an Office ef
Congressional and Intergovernmental Liaison and an Office of
Public Affairs.
4* 'The preferred option for policy and management functions
is to establish an Office ef Assistant Regional Administrator for
Policy am! Management. The Assistant Regional Administrator will
function. AS a key member of the regional management team by guiding
the internal decision-making processes, including th« inelysis and
evaluation of issues requiring policy or management cecisions by
the Regional Administrator. The ether option is to structure with
a Management Division as discussed later*
a. The management systems and analysis function will
include the development of program strategies, including State/EPA
Agreements, program evaluations, and analytic studies.
-------
b. Internal tqual employment opportunity function! will
be itrengthened by being inttgratffd as part of the personnel Btnagt*
•ent program with oversight and assistance from an I.B.O. Officer '
in the Office of the Assistant Regional Administrator. ./,
c. As currently operating in tome regions, all frants .
administration functions, including those for'construction grants,
will be consolidated in this office.
• .
d. Environmental* Assessment (EXS) functions will be
carried out ander direction of the Assistant Regional Administrator*
S. Three programmatic divisions are authorised! Water
Management} Air and Waste Management} and Environmental Services.
Vritten requests to establish separate divisions for Air Ktnagtment
and for Watte Management will be considered, primarily for larger
regions. Approval by the Assistant Administrator for Administration
will be based en the overall rationale for the request Measured
against the objective of achieving organisational afficiency and
economy. ..
C. External civil rights compliance and minority business
enterprise functions are assigned to the Water Management Division
to be integrated with the construction grants program.
7. Comprehensive Environmental Response, Compensstion'and
liability Act of 1960 (Superfund) coordination and remedial action
functions are assigned to the Air and Waste Management Division..
Superfund and CWA Section 311 emergency response activities will'.
be performed by the Environmental Services Division.
I. Toxics and Pesticides program activities are assigned to
the Air and Waste Management Division. The Pesticide sampling
function is to be integrated with ether field activities in the
Environmental Services Division.
Optional Organisation. Regional Administrators *.:y elect/ with
approval from the Assistant Administrator for Administration, to •
adopt the alternative regiont! organization reflected in Attach-
sient 2. Selection of this structure should depend on the Regional,*-
Administrator's management style and other management considers-; ' -'"
tions. This option reflects a regional Management Division concept
with less responsibility in the policy and decision-making process
than th'a.t assigned to an Assistant Regional Administrator. Dnder
thlt alternative, placement of the Environmental Assessment and
State/EPA agreement functions is optional. Tho tame flexibility
txists to request separate Air Management and Waste Management
Divisions.
•
State Liaison. The extent and kind of liaison that Regional Offices
develop and maintain with each State is left to the discretion of .
the Regional Administrator. ZPA assignments may be a viable option.
Consideration of en-site State Offices (ranging from one employee
-------
to a full operating contingency), is encouraged vhert such Offices
ciu contribute tffectively to enhancing our relationship with
the 'States and to improving IPX's efforts to delegate its
Boveverf a nunber ef factors Bust be weighed before deciding to'*'
establish a State Office. Criteria for use in aaXing these
decisions are included in Attachment 3* Xf State Offices
with substantial programmatic functions are established their
placement may vary iron the approved organisational alignaents
Achieving Efficiency and Economy, tstablishment ef fubordinate
organization structures and positions within them below the
Division and Office level is at the Regional Administrator's
discretion. However, this ahall be accomplished observing sound
Organizational judgment and position Banagement principles
contained in EPA guidance. documents. Grade levels ef positions
Bust be supportable by appropriate position classification
standards. This guidance is reflective ef the management
philosophy ef this Administration. To achieve and maintain an
acceptable management posture within aach region, Regional
Administrators are expected to tstablish a viable personnel
management function in the region at a level consistent with its
importance to our Banagement objectives and to consult with the
Personnel 0£*.-.r regarding Banagement issues' on a regular basis*
Implementation, Hew Regional Administrators are authorised 'to
implement the recommended organisation structure as early as
possible, consistent with management's responsibilities to
employees and employee unions. Acting Regional Administrators ;
should consult with Clif Killer (PIS 755-0442) or Seth Hunt-(FTS
327-3895), Special Assistants to the Administrator, prior to
implementation of any reorganisation.
The vain purpose ef regional reorganization is to provide
a more effective structure which is closely aligned to the
Headquarters organization. Our experience to date with the
Headquarters organization has been gratifying in that it provides
for stronger and more consistent management and has received
widespread favorable reaction. In this* as in any organisation*
its effectiveness will depend en its people. X am confident
that EPA personnel will help make. EPA an effective, well managed1
entity*
Anne M. Corsuch
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Criteria for Itatt Offices
:/ .
2* Type ef Office to be tstiblishcfl (eoerdination/liaiton,
operations, nini»regions, tingle or gultl-proer.aas, etc.) and tht
pro^raft.* to be represented—Are the proposed Junction* and
activities the best way of. achitving tht Office.1* purpose, vhat
priority art tht pro?rams «ithin tht Regional Office, and art
they the entt with which tht f tttt attds tht »ost assistance?
• *
2. State and Regional Office purpose, goals, and objtetivtt»-
Art they in concert and will the oftict iurthtr the gotlt and
objective! of tht Region and IPX?
9. Statut ef ttate progr«Tcs/«ssumption of delegated authority*^
Art tht St*te prograns at the proper stage el development where a
Ctatt Offlet could sake a aignifieint inpact and will tht Office
further tht foal ef delegating »ort responsibility to tht Statt?
4« >eeeptivity to tPA preienee-»Ii there a genuine inttrtst in
as well as a need for an CPA Statt Offiet?
5* Cost ef tttabliihing and operating the office and aoving
people-^po the financial costs outweigh the anticipated benefit!?
€. Effect on resources within tht Heolonal Offiec»-Will Statt '
Offices, fragment and deplete the critical mass ol txpejtitt within
the Regional Office? (This will vary depending on tht~aizt cf tht
Regional Offiet and tht number and aist of State Offiets.)
7« The quality of employees available for the particular Offiee*»
Art they experienced and highly aotivattd?
I. Aceeisibility by public transportation—la tht location rtaott
and difficult to reach ao that direct communications art Itss
frequent?
f. Past and current relationship between top management and tht-<
atafTTevels within the Regional Office and the State»»ls tnerT"a'
atrong commitnent and bacXing iron top vanagenent along with a
history of trust and a good working relationship between tht ataffa?
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Version cf 3/5/82
OFFICE OF REGIONAL CCWGEL
ATTORNEY ROTATION RECORD
Attorney
X. Major Areas of Responsibility.
Dates Assigned
Fran TO
1. Air. .
2. tfeter.
a. NPCE5. . . . «
b. fon-flPDCS Clean Water Act.
c. Safe Erinfcing tteter Act. .
d. Other
(1)
C!)
3. Ckants, Contracts &no General Administration ...
a. Construction grants. ........
b. Procram grants (including State/EPA
Agreements)
C. IIEPA
d. FDXA ................
e. Personnel
f. Conflict of interest ........
g. Other
U) __
tt) ""
4. Hazardous Substances and Emergency Response. . . .
a. RCRA Delegation Matters ............
b. Other RCRA Matters ..............
c. Superfund and Section 311 of Clean Water Act .
d. TOSCA and FITRA ................
e. Other
(1) . . . . .
5. Lead Region
b.
c.
d.
6. Coordination of Enforcement Matters.
-------
GM - 11, coordination of Policy Development, is obsolete
and was deleted in November 1988.
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GM-12
-------
Note on General Operating Procedures
for the Civil Enforcement Program
There have been many changes in the structure and function
of Agency's enforcement program, since the Agency issued this
memorandum. OECM is currently preparing a summary of the
changes. The summary should be ready the next time the Compen-
dium is updated.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. DC IM«0
ju. ese
•rrict •?
(NrOMCKMKMT C
MEMORANDUM
SUBJECT: General Operating Procedures for the
Civil Enforcement Program
FROM: Robert M. Perry
Associate Administrator for Legal and Enforcement
Counsel and General Counsel
TO: Associate Administrator for
Policy and Resource Management
Assistant Administrators
Regional Administrators
Staff Office Directors
I. Introduction
This memorandum provides general guidance regarding EPA's
enforcement process, consistent with new Regional and Headquarters
structures. The memorandum describes the respective roles and
relationships of the various CPA offices which participate in
enforcement activities.
I greatly appreciate tne contributions which you and yovr
respective staffs have Bade in participating in the * jlopment
of this general guidance. This guidance has reached the point
at which it has received the consensus support of all affected
Agency offices on virtually all matters which it addresses.
More detailed guidance on operating procedures for eac.v media-
specific program will be forthcoming from the responsible
Assistant Administrators and ayself.
The guidance contained in this document on responsibilities
and wcr\:r.j relationships of all offices involved in the enforce-
ment process (which includes both enforcement compliance activities
and enforcement legal activities) has received a strong endorsement
from the Administrator. The prescribed procedures provide explicit
guidance for implementing the Administrator's general policies on
these natters and are consistent with
- The Administrator's June 12, 1981 announcement of a new
Headquarters structure;
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- The Administrator's September 15, 1981 memorandum regarding
a new regional organization structure;
- My May 7, 1982 memorandum regarding the reorganization
of the Offices of Regional Counsel;
- The June, 1977 Memorandum of Understanding between the
Department of Justice and EPA.
The operating procedures specified in this document are
designed to help accomplish the following objectives of the
Regional reorganizations stated in the Administrator's September
15, 1981 memorandum: /
•Reorganization Objectives. Regional organization
decisions include consideration of the following objectives:
'• Clarifying accountability for regional programs.
- Facilitating communication links between related
Headquarters and regional components.
- Improving regional policy and management
decision-making.
- Placing functions in organizations where they can
best be integrated with related activities.
Favoring fewer and larger organizations to avoid
subsequent further consolidation and reorganization
in a time of declining resources.
". . . . Major features of the authorized organization
include the following:
*1. Enforcement functions of permit issuance and related
compliance monitoring are assigned to the appropriate program
divisions. This includes issuance of notices of violation and
adminititrative orders, after consulting with the Office of
Region.il Counsel. (Permit coordination functions and place-
ment are optional.)
•2. Legal work associated with enforcement litigation and
current: Regional Counsel functions will be performed in newly
structured and expanded Offices of Regional Counsel reporting
to the [Associate Administrator for Legal and Enforcement
Counsel and] General Counsel with the following provisions:
•a. Regional Counsels will provide the Regional
AdministratorfsJ with legal advice and assistance for all
program areas in an attorney client relationship.
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•b. The Regional Administrator will continue to
initiate enforcement actions. These1 actions will be based
upon guidance from the [Associate Administrator for Legal
and Enforcement Counsel and General Counsel, through]
the Enforcement Counsel .... and with legal concurrence
of the Regional Counsel. _!/
•c. As in the past the Regional Administrators
will participate in and concur with the [Associate Adminis-
trator for Legal and Enforcement Counsel and) General Counsel
in selections, promotions, awards and disciplinary actions
for Regional Counsels. Regional Administrators will be a
party to performance agreements for and will participate in
the performance ratings of Regional Counsels by the [Associate
Administrator for Legal and Enforcement Counsel and) General
Counsel.
"d. The Regional Administrator will also continue
to manage the resources of the Office of Regional Counsel and
will provide certain administrative support such as space
allocations, processing of personnel actions, and the management
of travel and training accounts."
I/ Note that the Regional Counsel's formal concurrence
responsibility for enforcement actions as referenced in paragraph
2(b) (when read in conjunction with paragraph 1 of this excerpt)
arises at the point at which the Regional Administrator is prepared
to initiate a case referral by forwarding a case to the Office
of Legal and Enforcement Counsel for subsequent referral to the
Department of Justice. For further specifics on these procedures,
please see Section IX below. Note also *hit enforcement actions
(i.e. actions responding to specific instances of detected
violations), and enforcement activities generally, also should
be consistent with relevant guidance from Headquarters program
offices.
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The guidance in this memorandum on the enforcement process
applies to the internal Agency working relationships and
processes involved in identifying and resolving violations
using informal, administrative and judicial enforcement
activities. It does not apply in any respect to the development
arc? referral of criminal cases, which is being addressed in
a separate imemo on general operating procedures for the criminal
enforcement program. Moreover, any existing program-specific
guidance on enforcement operating procedures remains in
effect until it can be expressly superseded by new guidance
fhich is consistent with the policies and procedures articulated
;ln this document. /
.' 'i' ''
3!I. Enforcement Objective's
This guidance prescribes operating procedures which the
the Adminstrator has endorsed as vital to assist EPA in
discharging its responsibility to administer a strong,
aggressive, and fair enforcement program. The procedures
described here also are designed to achieve the following
enforcement objectives along with the general objectives
associated with the Regional reorganizations:
- Establishing an enforcement program which deters unlawful
conduct and advances the regulatory policies of EPA through
use of all available enforcement means.
- Maintaining a credible enforcement program which encourages
prompt, voluntary compliance, bj. Jeals firmly with
significant violations which cannot be resolved cooperatively
and includes the use of litigation where appropriate.
- Direct.ing all enforcement activities towards the achievement
of maximum environmental benefits.
In order to help achieve these objectives, these procedures
emphasize:
- C<">rt
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- Working closely with States as partners in the enforcement
process. £/
III. Roles and Relationships
EPA's enforcement program is intended to induce regulated
parties to meet environmental requirements and to rectify instances
of noncompliance. Zn order to accomplish these goals, EPA's
enforcement effort includes both compliance-oriented activities
and legal-oriented activities. The compliance activities are
primarily the responsibility of EPA's program offices, while the
legal activities are primarily charged to OLEC (including the
Offices of Regional Counsel).
While there are certain enforcement activities in which lead
responsibility is clear, there are other EPA activities which
include both compliance and legal elements. Moreover, different
activities for which a given office has lead responsibility can call
for varying degrees of involvement with other EPA offices. It is
crucial to the success of the Agency's enforcement program that
OLEC and the program offices work closely together in developing
policies, establishing coordination procedures and implementing
actions in areas where both elements are present. Similarly, it
is important that both OLEC and the program offices diligently
coordinate activities in their respective areas of primary responsi-
bility to ensure that EPA appropriately focuses all phases of its
enforcement program on achieving common objectives.
In the area of enforcement policy development, Assistant
Administrators have the lead in developing policies governing
compliance activities, while the Adminstrator has assigned me to
take the lead in developing policies governing legal matters.
OLEC and the Assistant Administrators are responsible for working
together in developing enforcement policy regardless of who has
the lead, and should jointly issue those policies which significantly
involve both of their respective areas of primary responsibility.
The Administrator has decided that I shall be responsible for
ensuring that all enforcement policies which EPA develops are
capable of being applied effectively and are consistent with the
goals of the Administrator under Federal law. The Associate
Administrator for Policy and Resource Management is responsible
for overseeing the fcrmulation of all Agency policy.
£/ For a more specific discussion on coordinating enforcement
activity with States, see Section III(H) below.
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Program offices in Headquarters and the Regions are responsible
for identifying and establishing priorities for handling instances
of noncompliance within their respective areas of authority/
evaluating the technical sufficiency of actions designed to remedy
violations,, identifying for formal action those cases which cannot
be resolved less formally, and providing the technical support
necessary for developing cases and conducting litigation.
OLEC (including the Offices of Regional Counsel) serves
EPA's respective program offices in enforcement matters in an
attorney-client relationship. This means that OLEC is respon-
sible as legal counsel for providing client program offices with
support for informal and formal administrative resolution of
violations, for the conduct of litigation (which includes
identifying evidence needed to support litigation)/ for interpreting
statutes, regulations and other legal precedent covering EPA's
activities, and for advising program managers on the legal
implication;; of alternative courses of action.
Close cooperation among all parties (including DOJ) during
<:he case development process is critical to a successful and
legally supportable enforcement program. Early and frequent
consultation of Regional Counsels by the Regional programs is
vital in case identification and development. Moreover, a close
working relationship with program or technical staff is vital
to the Regional Counsels to ensure that the Regional Counsels
can serve the clients' interests.
Regional Counsels are responsible for consulting with
the Associate Administrator for Legal and Enforcement Counsel and
General Counstel, through the Enforcement Counsel, and with
DOJ, where appropriate, to ensure that unresolved legal issues
do not subsequently become impediments to litigation. Similarly,
Regional Administrators are responsible for consulting early
with Assistant Administrators on program policy matters to resolve
e>:peditiously any issues that may cause problems in developing a
cese for litigation. Representatives of EPA and DOJ offices
with enforcement responsibilities will work as a case development
team on a particular matter to coordinate their efforts and to
minimize or eliminate all problems prior to the Regional Counsel's
concurrence in a civil referral.
Finally, OLEC will develop management procedures to ensure
that Enforcement Counsel and General Counsel attorneys work
closely together to identify and resolve expeditiously any legal
issues pertaining to enforcement matters, and thus enable EPA to
sp
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The following synopsis of -roles and relationships state in
more detail the respective organizational responsibilities regarding
enforcement matters:
A. Regional Administrators, The Administrator's September
15, 1981 memorandum makes clear that Regional Administrators
have responsibility (consistent, as explained in Section IV
below, with applicable delegations of authority and concurrence
requirements) for enforcement compliance functions such as
issuing permits, monitoring compliance, collecting compliance
information according to Headquarters' guidance, and issuing
notices of violation and administrative orders. They are also
responsible for initiating enforcement legal actions arising out
of these functions. In executing these functions, the Regional
Administrator's responsibilities include building relationships
with State compliance programs, identifying violations of Federal
environmental laws, resolving those violations in a timely fashion
and a cooperative Banner whenever possible, handling administrative
enforcement actions and referring cases to Headquarters *!,en
judicial action is necessary. Because the Regional Administrators
are primarily responsible and accountable for the successful
operation of Regional enforcement programs, they are the principal
clients in enforcement matters.
Notices of violation, administrative orders, administrative '
civil penalty complaints, and many intermediate decisions are
actions with legal consequences. Since the Regional Administrators
must bear the responsibility for the legal sufficiency of their
actions, they should consult with their respective Offices of
Regional Counsel prior to taking these actions, as indicated in
the Administrator's September 15, 1981 memorandum. In addition,
because the Regional Administrators also are responsible for the
technical sufficiency of their actions, they are further responsible
for budgeting and supplying the necessary technical resources
and support, or otherwise arranging for that support (e.g., from
a Headquarters program office or the National Enforcement
Investigation Center), to permit the Agency to develop and pursue
enforcement actions, including litigation where appropriate.
The Regional Administrators are also responsible for'obtaining
adequate Regional Counsel participation in preparing a case
(including final formal concurrence of the Regional Counsel)
prior to forwarding the case to Headquarters for formal referral
to DOJ.
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The Regional Administrators will be responsible for
ensuring that they follow all policy directives from an Assistant
Administrator. The Regional Administrators must ensure early in
the case development process that proposed enforcement actions
in response to specific instances of noncompliance are consistent
with national program policy directives established by the respon-
sible Assistant Administrator(s), and that Assistant Administrators
have the opportunity to participate in and review case development
activity. The Regional Administrators also must ensure that
they satisfy any national program review or concurrence require-
ments, consistent with Section IV below. OLEC normally will not
take responsibility for those program concurrences or reviews,
although staff attorneys will be available to assist throughout
the review process. •-..;'
Regional Administrators also are responsible for following
up on enforcement actions (including litigation) to ensure that
violations remain corrected and that regulated parties are complying
with the requirements which those enforcement actions impose.
8. The Assistant Administrators. As the national program
managers, the Assistant Administrators are responsible for
establishing enforcement compliance priorities, providing overall
direction to and developing accountability measures for their
respective Regional enforcement compliance programs, keeping
compliance statistics (based on input as necessary from Regional
offices), providing technical support (including appropriate
Headquarters technical support for litigation activity), providing
resources in Regional program budgets to support enforcement
activities, taking the lead role in preparing guidance and policy
decisions on enforcement compliance issues, and concurring as
necessary on enforcement actions at as early a stage in the case
development process as possible. In addition, Assistant Adminis-
trators may retain responsibility for issuing civil administrative
complaints and other administrative orders in cases of first
impression, overriding national significance, or violations by
any entity in more than one region.
The Assistant Administrators are responsible for developing
am! implementing program policies, and should rely on OLEC to
help them put enforceable, defensible programs in place. The
Assistant Administrikers also are responsible for participating
with OLEC in handling enforcement legal issues and icr preparing
joint guidance for areas in which compliance and legal issues
overlap.
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OLEC acts as attorney to the Assistant Administrator and
the Headquarters program offices on enforcement matters. OLEC
attorneys are available to consult with program staff during the
development of program regulations, policies and guidance in
order to ensure the legal sufficiency of decisions and documents
relating to enforcement natters.
C. OLEC; The Regional Counsel (Enforcement Functions). In
accordance with the Administrator's September 15, 1981 memorandum
and the May 7, 1982 memorandum regarding reorganization of the
Offices of Regional Counsel, the Regional Counsels are to provide
the Regional Administrators and Regional program managers with
legal advice and assistance for all program areas in the attorney-
client relationship.' Thus, for example, in enforcement matters
the Regional Counsels are available to assist the Regional program
managers in drafting or reviewing the terms and conditions of
permits, notices of violation, administrative orders, or adminis-
trative complaints (particularly where new or unique matters
are involved). Because the Regional Administrators .%•>£ Regional
program managers are responsible for ensuring the sr.fo^ceability
and defensibility of documents with legal effects, they should
not hesitate to seek to involve Regional Counsels in developing
these documents.
#
The Regional Counsels also provide assistance throughout the
case development process, participate in litigation activities
under the EPA/DOJ Memorandum of Understanding, and formally
concur on civil referrals prior to signature by the Regional
Administrator. Regional Counsels' formal concurrence ensures
that any legal issues associated with the referral have been
addressed appropriately and that these referrals are consistent
with OLEC guidance. Regional Counsels also are available to
assist in negotiating enforcement matters and should be present
whenever outside parties are represented by counsel in those
negotiations.
Regional Counsel attorneys normally serve as lead Agency
counsel in handling specific enforcement actions, consistent with
the discussion of that concept in Section VZI(B) of the May 7,
1982 memorandum on regional reorganization. As lead Agency attorney,
the Regional attorney is responsible for managing an enforcement
case for EPA and for coordinating case development and litigation
activity with DOJ as discussed in Section VIII below. The Regional
Counsels should establish practices to coordinate the participation
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of DOJ and Headquarters Enforcement Counsel attorneys so as to
resolve any potential legal problems for litigation as early in
the case development process as possible. Regional Counsels
also provide legal representation for the Agency in administrative
hearings originating in the region/ including NPDCS evidentiary
hearings, and administrative appeals from those hearings.
Let am emphasize that in all these matters the Regional
Counsels roust make every effort to ensure that they continue
to maintain the close working relationships with their counterparts
in the Regional program offices, and that they also maintain
clear and open lines of communication.
D. OI.ECt Enforcement Counsel Matters. Consistent with
attorney-client relationships, the Associate Administrator for
Legal and Enforcement Counsel and General Counsel provides,
through the Enforcement Counsel, legal advice regarding enforce-
ment matters to the Assistant Administrators to assist them in
performing their programmatic functions, including advice on
enforcement activities for which Headquarters program offices
are responsible. The Associate Administrator for Legal and En-
forcement Counsel and General Counsel, through the Enforcement
Counsel, also develops legal enforcement policies .and guidance; •
confers, where appropriate, with DOJ on the potential impact of
enforcement policy on litigation; and cooperates with the Assis-
tant Administrators in the development of enforcement policies
which involve both enforcement compliance and enforcement legal
activities.
The Enforcement Counsel checks both cases forwarded from
the Regions for referral to OOJ and consent decrees prior to
submitting (them for approval to the Associate Administrator for
Legal and Enforcement Counsel and General Counsel to ensure that
they are complete and that they identify and properly address
all precedential or nationally significant questions. (See
Section X bo low.) Enforcement Counsel attorneys may be assigned
a more active role in case development or litigation-related
activities iln a limited number of actions involving precedential
or overriding nationally significant .issues as described in
Section VIICB) in the May 7, 1982 OLEC memorandum on regional
reorganization. Otherwise, Regional Counsel attorneys will
assume the Agency lead, and Enforcement Counsel attorneys will
function in a supporting role by keeping apprised of the issues
from the start of the case development process as OLEC's Headquar-
ters representatives and by coordinating legal activity and the
contribution of case information to the case development effort
from Headquarters and the Regions.
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Th e National Enforcement Investigation Center (NEIC), which
reports to the Enforcement Counsel, is a national technical resource
with special expertise in matters asociated with investigations,
case development, litigation support, and evidence. The Regional
Administrators and Assistant Administrators, in support of enforce-
ment compliance and case development activities, nay draw upon
the NEZC's resources as they deem necessary, consistent with
priorities which OLEC establishes regarding NEIC's availability.
Regional and Assistant Administrators should give closest
consideration to involving NEIC in cases which have precedential
implications, national significance, or are multi-Regional in
nature, as opposed to cases which 'involve more routine matters.
E. OLEC; General Counsel Matters. Within the Agency,
tne Associate Administrator for Legal and Enforcement Counsel
and General Counsel, through the Deputy General Counsel, will
continue to be responsible for interpreting statutes and regula-
tions, reviewing proposed policy for consistency with national
law, providing national legal interpretations, and assisting in
resolving legal issues which arise in connection with policies
and regulations, in order to assure that the Agency speaks with
one legal voice. Consistent with present practices and existing
guidance, the Associate Administrator for Legal and Enforcement
Counsel and General Counsel will manage, through the Deputy
General Counsel, all matters resulting from judicial appeals
(with either General Counsel attorneys or Regional attorneys
acting as lead Agency counsel, depending on the nature of the
matter). The Regional Counsels will manage the Agency's legal
role in hearings and administrative appeals of actions origina-
ting in the Regions, including proceedings relating to permits
and administrative civil penalty actions.
F. The Department of Justice and the U.S. Attorneys' Offices.
The Agency's working relationship with the Department of Justice
and the U.S. Attorneys continues to be governed by the June 1977
Memorandum of Understanding. DOJ's and the U.S. Attorneys'
primary roles will normally be that of conducting judicial enforce-
ment matters and participating in case development activities as
described in Section VIII below. OLEC's Headquarters and Regional
components are expected to use their best efforts to ensure that
they maintain constructive working relationships with DOJ in
these areas.
G. Policy Coordination. As indicated above, the Assistant
Administrators and I should work closely together during the
formulation of all policies which affect enforcement to make
sure that the Agency conducts its enforcement activity in a
credible and legally supportable manner. The Administrator has
affirmed my responsibility to take the lead in coordinating
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work on «;5tablishing systematic procedures for developing and
tracking Agency enforcement policy. As part of this effort, I
am planning to propose the joint development with each of the
Assistant Administrators of a comprehensive set of enforcement
operating procedures for each program, in order to provide
consistent: guidance for all stages of the case development
process. Program guidance which is currently in effect remains
operative except to the extent it is inconsistent with the
operating procedures prescribed in this document and Is not
superseded; by future guidance.
As policy or guidance documents affecting Regional enforce-
ment programs are developed, Regional offices should be consulted
or otherwise receive an opportunity to be involved at an early
:t:;c to wake sure that the final guidance documents can be
implemented effectively.
H. Coordination with States. Coordination with States is
normally The responsibility of the Regional Administrator, subject
to national guidance. Because this responsibility encompasses
many areas in addition to enforcement, this memorandum does not
cover general issues associated with the Region-State relationship.
Or, enforcement matters, however, Regional Administrators
should maintain close working relationships with appropriate
State program officials. As part of enforcement planning activities
independent of the case development process. Regional offices (with
participation from Headquarters program offices and consistent
with national guidance) should consult with States to develop
general strategies for handling nonc^rp1 iance, for promoting
local resolution of noncompliance problems, and for facilitating
open lines of communication by
• Consulting on which enforr'Tsr.t actions States should
manage and which Regional Offices should manage.
• Agreeing on appropriate time frames and parameters for case
resolution.
ng on circumstances under which EPA may assume the
load on a case from the' State.
• Coordinating activity on tracking the progress of enforcement
actions.
* Following up on the application of agreed-upon strategies to
ensure their effectiveness.
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On legal matters specifically, the Office of Regional Counsel
should develop a close working relationship with State Attorneys
General and/or other appropriate legal authorities in each State
in order to support the Regional Administrator in coordinating
activity with that State. The Office of Regional Counsel is also
available to consult with the Regional program managers regarding
delegations, the legal sufficiency of State remedies, or other
legal aspects of State actions.
National environmental laws do assign major roles to the
States for administering pollution control programs. Those laws
also place ultimate responsibilities for effective enforcement
on the Federal Government. The States' respective abilities to
enforce environmental' requirements can vary according to the
•Lalutory authorities/ personnel, or other resources available
to them. Zt is the Administrator's policy to uphold the
environmental statutes which EPA administers, and the Regional
Administrators are responsible for complementing State efforts
with Federal action in order to achieve compliance with those
laws in a timely manner.
I. EPA's Accountability System. EPA's accountability system,
overseen by the Associate Administrator for Policy and Resource
Management, monitors the performance of the Agency's entire enforce-
ment program, including both compliance and legal activities.
It is the Administrator's policy that pursuant to national program
direction from the Assistant Administrators, Regional Administrators
will establish specific measures of compliance and enforcement
performance for which they will be held accountable in the
accountability system. As the Agency's "law firm11, OLEC will be
similarly accountable for providiug consistent legal advice,
decisions and policies; for expediting all referrals; and for
reducing backlogs of cases which have already been filed or
referred to the Department of Justice.
IV. Delegations and Concurrence Requirements.
The Administrator has endorsed an initiative to streamline
the enforcement process through a. high-priority review of both
existing delegations of authority and concurrence requirements
i.n^osed through those delegations or through other actions.
Each of the Assistant Administrators and OLEC should expeditiously
review all delegations and concurrence requirements relating to
enforcement activities in their respective areas of responsibility
to identify requirements which are unnecessary or inconsistent
with a streamlined approach to enforcement. Until the Administra-
tor has an opportunity to act on the recommendations resulting from
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this review, existing delegations (with any conditions) remain
in effect and should be followed until appropriate changes are
approved to implement the guidance provided in this document.
The Assistant Administrators and I shall announce any changes
of specific enforcement concurrence requirements in our respec-
tive areas of responsibility.
V. Reporting Requirements and OLEC Oversight
OLEC's Enforcement Counsel will keep to a minimum requests
for case development records and reports from Regional or
program offices. Enforcement Counsel staff will place priority
on direct access to files or tracking and reporting systems for
case information to minimize additional information collection
and reporting burdens. I expect the Regional Counsels to continue
to update the automated enforcement docket for cases which will
be or which already have been referred from the Regional offices,
and to provide periodic updates on all cases as necessary.
Consistent with historical practices, Regional Counsels must
keep complete records of recommendations, decisions and documents
relating to the legal aspects of all cases, including cases which
are in early stages of development. This requirement .is intended
to ensure that an adequate legal record exists for each case that
the Agency ultimately refers for judicial action and to facilitate
evaluation;; of Regional Counsels' performance on enforcement
matters.
The Regional Counsel should work closely with the Regional
Administrator to assist the Regional Administrator in following
similar recordkeeping practices to ensure that maintained files
are legally sufficient.
VI. Reviewing Compliance and Determining Responses.
The process of identifying violations and conducting Federal
compliance activities is the responsibility of the Regional
Administrator, consistent with national guidance and statutory
authorities and with applicable working agreements with States.
This process includes the following activities:
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- Identifying noncomplying sources and potential enforcement
targets.
- Coordinating enforcement actions with States, as appropriate.
- Determining the appropriate Agency response to violations,
including:
• Requests for information (formal or informal).
• Informal discussions with the source.
/
• Warning letters or notices of violation.
• Administrative orders or administrative civil penalty
complaints.
• Referrals to Headquarters for civil judicial action.
- Participating in a client's role in settlement discussions
to resolve administrative or judicial proceedings.
Throughout the process, the Regional Counsel will act as
attorney to the Regional program client. Since the Regional
Administrator must make decisions and take actions with legal
consequences, the Regional Administrator should ensure that the
Regional Counsel is consulted as appropriate throughout the process,
particularly with regard to the legal consequences of selecting
alternative enforcement tools. Attorneys are available to
ensure that all enforcement documents, especially administrative
orders and administrative civil penalty complaints, meet all
Agency legal requirements and are enforceable. Regional program
officers should avail themselves of Regional Counsel attorney
participation in discussions with an outside party who is represented
by counsel.
As the likelihood increases that judicial remedies will
become necessary to resolve a case, the importance of attorney
involvement also increases. This includes meaningful coordination
with DOJ attorneys at early stages of the case development process
consistent with the procedures specified in Section VIII below.
Rigorous standards of evidence and conduct will apply in any
adjudicative proceeding; thus, it is crucial that cases be built from
the outset in a legally supportable wa>. This memorandum discusses
in more detail in subsequent sections the referral process and the
conduct of settlement negotiations.
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VII. Escalation
The Regional Administrator is responsible for the timeliness
of informal solutions to violations of environmental laws and
for initiating the case development process. This concept is
central tc a credible enforcement program. The Regional
Administrator (subject to Headquarters program office guidance)
and OLCC share responsibility for achieving timely resolution of
cases once the case development process begins.
Responses to violations should be meticulously tracked within
each Region to make cure that each violation is responsibly resolved
as expeditiously as practicable. Time deadlines or goals should
be established within each Region as optimum response times; in
?™« areas, these deadlines or goals have already been established
in national guidance.
The Administrator has given strong general support to the
use of reasonable 'deadline* dates in conducting negotiations to
ensure that, negotiations do not become a means for delay. In
any particular case* the Regional Administrator (in consultation
with the Regional Counsel) should always be prepared to escalate
to the next-most-serious response, when necessary, to avoid pro-
tracted, negotiations resulting in unreasonably delayed remedial
action.
It remains the Administrator's policy to take formal enforce-
ment action when negotiations or other efforts fail. I shall
accept--and the Administrator will encourage--well-documented
civil judicial referrals from Regional Administrators whenever,
in their judgement, such action is necessary to ensure continued
progress toward compliance, even though active negotiations
still may b<> underway.
VI11. The Case Development Process
A group from OLEC (including Regional Counsel representatives)
has been conferring with DOJ for the purpose of, among other things,
formulating a process for developing.cases for civil litigation.
This process involves periodic meetings in the Regions, at which
ISPA attorneys and technical staff will meet with DOJ attorneys
[and invite Assistant U.S. Attorneys) to:
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-- discuss approaches to developing cases targeted as likely
candidates for litigation;
— review appropriate ways to handle developments relating to
cases discussed at prior meetings;
— provide information on program enforcement issues and
priorities;
— refine procedures for handling enforcement actions generally}
and
— form litigation teams and assign case preparation and
responsibilities where the Region has identified matters
which require a litigation enforcement response.
Once the Regional Administrator determines that a case has
a strong potential for referral, the Region will form a case
development team consisting of the lead Agency attorney and
representatives from the Regional program staff and DOJ. 3/ The
goal of this team is to reach a resolution of the enforcement
action, based on the technical support of the Regional Administrator,
through negotiated settlement or final judgement in litigation.
For each case, EPA will designate a lead Agency attorney.
As stated in the May 7, 1982 memorandum regarding reorganization
of the Office of Regional Counsel, the lead Agency attorney will
normally be a Regional attorney, but may be a Headquarters attorney
under some circumstances. Section VIX(B) of that memorandum
provides a more detailed discussion of circumstances in which a
Headquarters attorney might be assigned the Agency lead (for
example, in cases of overriding national significance or in some
cases in which the Agency is involved in enforcement and defensive
litigation). The lead Agency attorney will coordinate case
development activities with DOJ.
3/ Headquarters program and Enforcement Counsel staff may participate
more actively in the case development process if precedential or
nationally significant issues are involved, especially under newly
developing programs.
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IX. The Referral Process
Consistent with the Administrator's September 15, 1981
memorandum, the Regional Administrator will initiate referrals
of enforcement cases in which settlement negotiations outside
the context of litigation either have been unsuccessful.or are
otherwise inappropriate due, e.g., to the need to halt the
violation Quickly. The Regional Administrator initiates a
referral by forwarding a ease to me with a recommendation to
refer that case to DOJ for litigation. The Regional Counsel's
formal concurrence shall ensure that the initiated referral is
legally sufficient and consistent 'with national guidance. Early
involvement by appropriate EPA and DOJ staff, through the case
development procedures articulated in Section vill above, is
iin^uitant to the successful development of a judicial referral.
This <>arly involvement will reduce the need for development and
review of documents in a formal referral package late in the
case developrent process. Regional Administrators are responsible
for supporting this practice within their programs.
As the initiator of the referral, the Regional Administrator
is ultimately responsible for the completeness and quality of the
development of the forwarded case. This includes conformance wit|
all applicable-national guidance and policies established by OLEC*
and by the appropriate program office.
Inasmuch as a case developed for referral can require the
drafting of important legal documents (e.g. complaint, consent
decree, memoranda on points of law), it is highly advisable that
the Regional Administrator assign the actual task of preparing
those documents in conjunction with DOJ to the lead Agency attorney
on the litigation team. A case developed for referral will rely
upon technical information and support from the Regional program
office and, where appropriate, from the Headquarters program
office. This method is likely to ensure the legal sufficiency
of the case when the Regional Administrator initiates the referral.
Every request for judicial action must have the formal concurrence
of the Regional Counsel before the Regional Administrator initiates
referral by forwarding the case to Headquarters.
To support a referral', the Regional Administrator must be
in a position to identify all technical assistance needed to
bring the case to successful completion. The act of forwarding
the case to Headquarters for referral constitutes the Regional
Administrator's commitment to ensure that this technical assistance
and technical support which may later be identified is available
when needed.
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X. Headquarters Review of Case Development
Under the June 1977 EPA/DOJ Memorandum of Understanding,
the Associate Administrator for Legal and Enforcement Counsel
is responsible for formally transmitting a civil referral to the
DOJ. 4/ Headquarters attorneys will conduct a limited final
legal~~review on my behalf of cases forwarded for referral from
the Regions primarily to ensure completeness, consistent applica-
tion of law and enforcement policy, and appropriate development
of legal precedent. For some cases involving important precedent
or issues of overriding national significance, Headquarters
attorneys also may be assigned a more active role in the case
development process. /
Again, Regional Counsel lead attorneys must undertake
early consultation with Headquarters and DOJ attorneys through the
case development team format as cases are being prepared. In
this manner, case development teams can identify precedential
or nationally significant issues early and can reduce the likeli-
hood that DOJ or the U.S. Attorney will raise concerns late in
the referral process regarding the advisability of pursuing
civil litigatic.;.
£/ The term "Assistant Administrator for Enforcement" in the
Memorandum was changed to "Associate Administrator for Legal
and Enforcement Counsel" by letter of the Administrator to the
Attorney General, in order to reflect the Agency's new organi-
zational structure.
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-20-
Similarly, close coordination by the lead Agency attorney
with technical personnel in the Regional program office (who
in turn should work closely with the Headquarters program office)
and any NEIC participants is also essential in order to achieve
early agreement on appropriate remedies, schedules, and other
technical aspects of the case prior to referral. Headquarters
program ire view of case development on behalf of Assistant
Administrators also will begin early in the process to identify
and resolve problems quickly and will focus on ensuring technical
completeness and appropriate application of program policy. In
this areo as well. Headquarters program officials may be assigned
a more active role in cases involving important precedent, overrid-
ing national program significance, or activity in more than one
region. Headquarters program officials must ensure that they
perform their review function in a manner that avoids impeding
the expeditious referral of cases to DOJ once the Regional
Administrators have forwarded those cases to Headquarters.
XI. After EPA Refers a Case to DOJ
Following the referral of a case to DOJ, the lead Agency
attorney on the case will be responsible for coordinating responses
to all requests for supplemental information by the Department
or by the U.S. Attorney's Office. Program office staff will be
responsible for providing needed technical support. The lead
Agency attorney is responsible for keeping program officials and
other previously involved Agency attorneys apprised of case
developments after referrals.
XII. Negotiations
The Regional Administrators will normally be responsible for
ensuring a sound technical and scientific basis for resolutions of
identified violations. Prior to EPA referring an enforcement case
to DOJ, the Regional Administrators normally will be responsible
for directing or conducting informal settlement negotiations (subject
to the program-specific guidance which will be forthcoming). The
Regional Counsel should be present at discussions in which outside
parties aro represented by counsel. Once the case has been referred,
DOJ normally is responsible for managing settlement discussions,
with the active participation of Regional personnel, in the context
of an attorney-client relationship. Regional Counsels will make
«»very effort to identify resources needed for negotiations
in close consultation with program managers.
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-21-
The Administrator has affirmed that I urge OLEC staff at
Headquarters and in the Regions to caution their 'client* program
offices and others within the Agency about the sensitivity of
contacts with persons or firms that are involved in cases
referred to DOJ for filing. There are many matters unrelated
to a specific enforcement action—e.g., processing of grants,
development of rules—in which a party may be interested and
which may be discussed without counsel present. Care should be
taken, however, to determine the purpose(s) for which meetings
are sought by defendants and potential defendants so that appro-
priate arrangements can be made. ,If matters related to a pending
case are raised by such persons during the course of a meeting
arranged for other purposes, any discussion of the case should
be interrupted and continued only after consultation with an
Agency attorney assigned to the case.
XIII. Enforcing Consent Decrees and Final Orders
Following the entry of a consent decree or final order,
compliance assessment is the responsibility of the Regional
Administrator, in the same way that the Regional Administrator
assesses compliance with statutory or regulatory requirements.
In the event that a source violates a consent decree or order,
a motion for contempt or modification of the decree may be appro-
priate. The decision to file for contempt or to negotiate a
modification will normally be the Regional Administrator's,
based upon the advice of the Regional Counsel and subject to
national guidance issued by the responsible Assistant Administrator
or OLEC. Since the violation would concern a filed case and a
consent decree modification would involve a court order, DOJ and
the U.S. Attorney's Office should be given the opportunity to
take part in any of those discussions. Negotiations with affected
parties should be conducted in the manner described previously
in this document (with an opportunity for Assistant Administrator
participation). All modifications to consent decrees must be
approved in the same manner as the original consent decrees.
XIV. Appeals
Generals-Counsel attorneys serve as the Agency's principal
defense lawyers and are responsible for any matter before Courts of
Appeals, including appeals of decisions relating to enforcement
actions. In such cases, the lead General Counsel attorney will
continue to be determined in accordance with a memorandum of
December 14, 1979 on the subject from the Deputy General Counsel.
The lead Agency attorney on the appeal will be responsible for
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-22-
working closely with the lead Agency attorney appointed to the
original enforcement case, as well as the appropriate Regional and
Headquarters program office personnel. The lead Agency attorney
originally appointed to an administrative enforcement action
which is subsequently appealed normally will serve as co-counsel
with the General Counsel attorney in the Court of Appeals.
With regard to hearings before an administrative law judge
or appeals of administrative actions to the Administrator, the
Regional Counsel will normally provide legal representation for the
Agency on matters arising in the Regions, including permit conditions
and administrative civil penalty decisions. However, in accordance
with the OLEC memorandum of May 7, 1982, on regional reorganization,
when issue.s of overriding national significance exist, or when
Headouarters initiates the administrative action, the lead may be
assigned to a Headquarters attorney, upon the agreement of the
Regional Counsel and the appropriate supervisor in the Enforcement
Counsel's office.
XV. Communications/Press Relations
Throughout the enforcement process, the Regional Administrator
is responsible for ensuring that the appropriate information
flows openly and smoothly to all parties.with a legitimate interest
in the final outcome. Once a matter is referred to DOJ, however,
all Agency {personnel should exercise care in releasing any infor-
mation or statement, including press releases, in connection with
the matter without previously consulting DOJ. The lead Agency
attorney is responsible for the smooth and complete flow of
information to supporting attorneys w<-hin the Agency and in DOJ.
The Regional Administrator and the Regional program managers
are responsible for commanicat in- with States, except if a State
:is a party to a filed judicial action. In that case, the U.S.
Attorney and DOJ should participate in or be consulted about any
(iuch communications.
Likewise, the Regional Administrator will normally be
responsible for handling any press inquiries or releases concerning
an enTwrjement action. The Regional Counsel is available to provide
legal advice on the handling of those matters. Upon occasion,
such inquiries or press releases may be handled best by the Enforce-
ment Counsel or the appropriate Assistant Administrator, but only
when all parties and the press office agree that this procedure is
the best course of action. For filed actions, DOJ or the U.S.
Attorney's olffice should be consulted before interacting with the .
press.
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In the event of inquiries from Congress, OLEC will work
closely with the Regional Administrators, the appropriate
Assistant Administrator, and the Congressional Liaison Office
prior to releasing any information or making any public
statements.
XVI. Reservation
The policy and procedures set forth herein, and internal
office procedures adopted pursuant hereto, are intended
solely for the guidance of government personnel. They are
not intended to, do not, and may hot be relied upon to create
a right or benefit, substantive or procedural, enforceable
at law by a party to litigation with the United States
Environmental Protection Agency. The Agency reserves the
right to take any action alleged to be at variance with
these policies and procedures or not in compliance with
internal office procedures that may be adopted pursuant to
these materials.
XVII. Delegation of Authority
Through a memorandum issued as a cover to this document,
. t.w.o Administrator is delegating to me the authority to construe,
interpret cr amend the guidance prescribed here. She similarly
has delegated to me the authority for issuing any follow-up
guidance for implementing the general operating procedures
prescribed here, unless the follow-up guidance is limited to
matters for which a single Assistant Administrator or Regional
Administrator is solely responsible. Of course, I shall work
closely with affected Assistant or Regional Administrators
in deciding how to exercise these delgated authorities, and
in appropriate cases shall issue national guidance jointly with
the relevant national program managers.
XVIII. Superseded Policy
These procedures supersede the policies and procedures issued
by the Enforcement Counsel on February 26, 1982, which are revoked
in their entirety.
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GM-13
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY "^
WASHINGTON. DC 204tO
SEP 7682
or net or
LCOAL AND >MrOI*CKMKI*r COWWMCl
MEMORANDUM
SUBJECT: Case Referrals for Civil-Litigation
FROM: Michael A. .Brown
Acting Enforcement'Counsel
Deputy General Counsel
TO: Regional Counsels
A review of our recent enforcement referrals for proposed
civil litigation ^l/ and conferences with the Department of Justice.
have revealed that certain points relating to case development
and litigation activities must again be emphasized and some new
"ground rules" should be set forth. This memorandum is intended
to supplement the General Operating Procedures memorandum governing
EPA's enforcement activity which was issued on July 6, 19B2.
Quality of Referrals
I want to stress that a case should not be forwarded to
Headquarters for referral to DOJ unless you fully intend that the
case should be filed. Sending a case forward merely to get credit
for the case is a waste of your time and ours. We want to
concentrate on properly developed cases that will actually be
filed, not merely paper to be referred to DOJ that results in no
action. In addition, referrals to Headquarters and DOJ for the
purpose of applying pressure on a party to settle should not be
made unless the Regional Office is willing to carry the case
through a suit.
My review of the past numbers of referrals by EPA to DOJ
compared to the actual number of cases that are filed reveals
that past practices resulted in a considerable disparity between
the two numbers. You, and especially the Regional Administrator,
should be prepared to support a case that is referred to
Headquarters all the way through trial.
T7This memorandum applies only to referrals for civil litigation.
Guidance for referral of cases for criminal proceedings will
be addressed in a subsequent memorandum.
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-2-
Case Development Process
We expect that DOJ and Headquarters' involvement in the case
development process will continue to be intensive in hazardous
waste and Superfund cases in the future. This is because these
are ne<* areas of the law, without much precedent. In the more
mature areas (air and water cases) we expect the case development
process to be more informal. For example, in many cases the
coordination between Headquarters, DOJ attorneys and Regional
attorneys may be accomplished by infrequent meetings and telephone
contacts.
The need for Headquarters Enforcement Counsel or DOJ
involvement in a case at an early stage depends upon sound
judgment. If the case, even though in a mature program, presents
national issues, contains novel problems, requires extra support,
or has other areas in which you or your attorneys would like
support from or the views of Headquarters, the Department of
Justice or both, we will provide it. However, we do not want
to make the case development process a burden on the Regions in
air and water cases which do not require it.
It is essential that Regional attorneys apprise Headquarters
and DOJ counsel of new cases which are under development as soon
as sufficient information is acquired about the cases to enable a
determination to be made that they have potential for referral.
This is necessary in order that the Regions, Headquarters and DOJ
can plan resource needs, litigation support and budgetary requests,
we anticipate that increased use of our computer system by the
Regiona;, Offices will aid in the advance notification of emerging
cases.
Referra] Package
As the case development process, including early DOJ
involvement, becomes widespread, we will be able to significantly
reduce the supporting paperwork you send to EPA Headquarters to
accompany a referred case. ' In order to achieve this result, it
is highly desirable for the Regional attorney to acquaint the
appropriate Her.c'^^arters and DOJ attorneys with developing cases
by telephone and at regional meetings at an earj.y stage. In any
event, as described in the following paragraph, certain basic
information in the form of a referral memorandum should accompany
the litigation report at the time the case is formally referred'
to Headquarters, in addition to the more comprehensive litigation
report.
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-3-
When a case is forwarded to Headquarters for referral to
DOJ, the referral memorandum, at a minimum, should include
identification of the potential defendants, a factual summary,
identification of issues, status of past Agency enforcement efforts,
and the names of Agency and DOJ attorneys who are involved in
the case, including the lead attorney. This should be accompanied
by the litigation report, together with a copy of the relevant
papers in the case file and such other accompanying explanatory
memoranda or analyses as have been agreed to between the Regional
attorney, the Headquarters attorney and the DOJ attorney working
on the case.
One particular need in a case referral is to identify the
problems that may exist with the case. In the past many documents
forwarding cases to EPA Headquarters have been pure advocacy
documents. By this I mean they stressed only the positive side
of a case. However, once the case was referred to DOJ and work
began, problems that might complicate the prosecution of the case
would then be revealed. In order to properly focus your resources
and ours, it is necessary that initial forwarding paperwork
include a description of all problems that may accompany the
prosecution of the case. Further, if problems are identified
after the case has been forwarded to Headquarters, the referral
paperwork should be supplemented to include these problems.
Early involvement by Headquarters, and DOJ where appropriate,
should provide for early identification and.resolution of such
problems. Your credibility with Headquarters and EPA's credibility
with DOJ are not aided by selling a'case that must be "unsold"
when reality sets in.
Lead Attorney
The lead attorney responsibility establishes an accountable
party for the progress of the case. It has become apparent that
many times the failure of a case to move forward is a direct
result of the lack of an identifiable lead attorney who bears
the responsibility for the progress of that case. Responsibility
cannot be vaguely shared between two or three attorneys. Someone
has to have the lead designation if for no other reason than to
act as a focal point, prescribe milestones, and make appropriate
reports.
At such time as you begin the case development process there
should be a clear understanding between the Agency attorneys
about who will take the lead in the case development phase.
Ordinarily the lead attorney in the development phase will be a
Regional attorney. However, in cases of national significance
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-4-
or cases without precedent, the lead attorney, even in the develop-
ment phase, may be an attorney from Headquarters or DOJ. After
the case has been referred to DOJ, there should again be a conference
between the appropriate Regional, Headquarters and DOJ attorneys
to determine if the lead in the case should shift. If so, the
new lead attorney should be designated and his/her identity
clearly understood by all parties to the case, including technical
support personnel. When the case is filed, the lead responsibility
should again be agreed to by the attorneys and conveyed to all
other parties involved in prosecuting the case. At all times,
the computer system should be kept current on the identity of
the lead attorney.
Regardless.of who has the lead, the responsibility for the
initial documentation of statutory violations and development of
supporting data that justifies referral of a case to DOJ for
litigation always rests with EPA attorneys. In addition, I expect
that EPA attorneys will be responsible for developing and
maintaining a ".."".orough understanding of the facts of. "h3 case,
the issues i,K.,.ved or which may be raised, Agency policies which
affect or may be affected by the case, and to serve as spokesperson
on the case development and litigation team for EPA's views.
. When a case is referred to the Department•of Justice, the
Department will, in consultation with EPA, and in accordance with
the Memorandum of Understanding between the agencies, designate a
lead case attorney. The DOJ lead attorney will be responsible
for and have authority to require development of case strategy
and tactics; evaluate the quality and quantity of evidence necessary
to prove the government's case; assign and coordinate responsibilities
to litigation team members, including technical personnel; and
insure that all necessary government personnel are fully informed .
of case progress. The lead attorney will also communicate as
the government's spokesperson with defendants; and undertake the
necessary case preparation to move the matter expeditiously to
trial.
Generally, the lead attorney after referral of a case will
be from the Department of Justice-or United States Attorneys
Office. This is consistent with the Attorney General's statutory
responsibility for litigation involving the United States and
its Agencies and the Memorandum of Understanding. On a case by
case basis EPA attorneys may be assigned lead responsibility.
When this occurs, the EPA attorney assigned lead responsibility
will be supervised by the Chief of the Environmental Enforcement
Section of the DOJ with respect to litigation matters.
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-5-
It is essential that all litigation team members understand
their respective responsibilities and cooperate in the litigation
effort. Experience demonstrates that cases which are actively
moved to trial provide a full opportunity for each attorney to
gain meaningful experience in litigation. Without this support
our litigation effort cannot succeed.
The computer system should at all times reflect the identity
of the lead case attorney. In each case, EPA will designate an
EPA attorney who will continue to be responsible for coordinating
agency input.
Further Clarification
I realize that this guidance does not prescribe exact
procedures for every conceivable situation. However, I am looking
to you as Regional Counsels to exercise your best professional
judgment in supervising your Regional attorneys. Please let me
know in those instances where attorneys from Headquarters and the
Regional attorneys are unable to reach agreement on the handling
of cases. Further, the Headquarters Associate Enforcement Counsel
and I stand ready to help you in any dealings with DOJ, if
recessary.
Goal
I want to emphasize that the goal of EPA is for expeditious,
efficient, and successful prosecution of our enforcement cases.
It rtoes not natter who gets the credit or the lead; what does
matter is whether the cases are worth the time of all the parties
involved, are filed and prosecuted in a timely manner, and achieve
protection for the public and the environment.
cc: Robert M. Perry
Steve Ramsey
Associate Enforcement Counsels
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GM-14
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Note on General Operating Procedures
for the Criminal Enforcement Program
This memorandum is no longer current. OECM is in the pro-
cess of thoroughly revising this memorandum, and will issue a
new version of these procedures by the next time the Compendium
is updated.
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i tLi ION AGENCY
WASHINGTON, DC I04«0
OCT 1 1 BB2
MEMORANDUM . «•••••—•«•—"•"-—-
5
SUBJECT: Criminal Enforcement Priorities for the
Environmental Protection Agency
FROM: Robert M. Perry ^-^ *r .
Associate Administrator
TO: Regional Counsels, Regions I-X
Criminal case development and referrals will constitute
an important component of EPA's overall enforcement effort.
The success of the criminal enforcement program will depend
on the Agency's ability to act with professionalism, and with
one mind, in identifying, investigating and referring cases
for criminal prosecution.
To achieve this objective, our Criminal Enforcement
Division is currently recruiting a staff of 25 experienced
criminal investigators. In addition, the Office of Legal
and Enforcement Counsel, working with the assistance and
guidance of EPA's media program offices, has developed the
attached "Criminal Enforcement Priorities" for the Agency.
These guidelines have been drafted so that the objectives
and interests of EPA's program offices are reflected in,
and furthered by, the Agency's criminal enforcement efforts.
In addition, the implementation of these guidelines will
guarantee that the legal and investigative resources of the
Office of Legal and Enforcement Counsel, and the technical
resources of EPA's program offices, are focussed on cases
of the most serious environmental misconduct.
The attached Criminal Enforcement Priorities are effective
immediately, and replace any existing Agency guidance on this
subject. Please ensure that these priorities are circulated
with the appropriate Regional program offices. Any questions
on these priorities can be directed to Peter Bee son, Director,
Criminal Enforcement Division, Office of Legal and Enforcement
Counsel (FTS 382-4543).
Attachment Jr
cc: Assistant Administrators
Regional Administrators, Regions I-X
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CRIMINAL ENFORCEMENT PRIORITIES
United States Environmental
Protection Agency
Effective Date:
-------
TABLE OF CONTENTS
PART I: THE DECISION TO PURSUE CRIMINAL
SANCTIONS 1
A. The Scienter Requirement 1
B. The Nature and Seriousness
of the Offense 2
C. The Need for Deterrence 3
D. Compliance History of the
Subject (s) 3
E* The Need for Simultaneous
Civil or Administrative
Enforcement Action 3
PART II: CRIMINAL ENFORCEMENT
PRIORITIES 5
'.'
A. Investigative Priorities:
Resource Conservation and Recovery Act
(RCRA) 5
1. Knowing Endangerment 5
2. Illegal Transportation and
Disposal of Hazardous Waste 6
3. Falsification of RCRA Records 6
4. Destruction, Concealment or
Alteration of RCRA Records. 6
B. Investigative Priorities:
Comprehensive Environmental Response,
Compensation and Liability Act
(Superfund) .6
1. Failure to Notify of a Release
of a Hazardous Substance 6
2. Destruction or Falsification
of Superfund Records 7
C. Investigative Priorities:
Clean Water Act (CWA) 7
1. Violations of the NPDES
Permit Program 7
2. Falsification of CWA Records *
and Monitor Tampering 7
3. Unpermitted Discharges 8
D. Investigative Priorities:
The Clean Air Act (CAA) 6
1. Violations of State
Implementation Plans 8
2. Violations of Hazardous
Ail- Pollutant Standards 8
3. Falsification of CAA Records
and Monitor Tampering 9
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E. Investigative Priorities:
The Toxic Substances Control
Act (TSCA) 9
1. Falsification of Data Required
under a Testing Pule or the
Premanufacture Notification
Program 9
2. Failure to Report Substantial
Risk Information .9
3. Violation of PCS or Dioxin
Regulations ..9
F. Investigative Priorities:
The Federal Insecticide, Fungicide
and Rodenticide Act (FIFRA) 10
1. Failure to Report Information
on the Unreasonable Adverse
Effects of a Registered
Pesticide 10
2. Falsification of FIFRA
Records .10
3. Violation of Suspension or
Cancellation Orders 10
4. Violation of Stop Sale
Orders 10
5. Unlawful Uses of Pesticides 11
6. Illegal Distribution of
Unregistered Pesticides c .11
G. Investigative Priorities:
The Marine Protection, Research,
and Sanctuaries Act (MPRSA) 11
H. Investigative Priorties:
willful Contempt of Environmental
Consent Decrees •• .11
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PREFACE
A broad range of potential overlap exists among
the.criminal, civil and administrative enforcement options
provided by roost environmental statutes. Theoretically
at least, the Agency is free to pursue criminal sanctions
in every situation presenting evidence supporting the
requisite elements of proof.
As a matter of enforcement policy and resource
allocation, such an unrestrained use of criminal sanctions
is neither warranted nor practical. The commitment of
investigative and technical resources necessary for the
successful prosecution of a criminal case is high. More
importantly, a criminal referral for investigation or
prosecution can entail profound consequences for the subject
of the referral, and should reflect a considered, institutional
judgment that fundamental interests of society require the
application of Federal criminal sanctions to a particular
set of facts. Accordingly, criminal referrals will be
confined to situations that--when measured by the nature of
the conduct, the compliance history of the subject(s)
or the gravity of the environmental consequences--
reflect the most serious cases of environmental misconduct.
This memorandum provides guidelines for the use of
criminal sanctions under all environmental statutes.
It is divided into two parts. Part I sets out several
general factors that Agency personnel should consider
in determining whether a criminal referral is warranted
in a specific situation. These factors will apply with
equal force to referral decisions under each of the Agency's
statutes, thereby ensuring cross-media consistency in
the use of this enforcement option. Part I has also been
drafted so as to reflect guidelines for the exercise
of Federal prosecutorial discreti~>- "ound in the Justice
Department's Principles of Federal Prosecution.
Following this general overview, Part II establishes
investigative priorities in e-s.h of the Agency's program
areas. The purpose of this section is to focus the limited
criminal investigative resources of the Office of Legal and
Enforcement Counsel on the most serious cases of environmen-
tal misconduct. These media-specific priorities will be
fluid, and will be modified to reflect additional regulatory
programs in the Agency as they develop. In addition, the
citation of investigative priorities does not preclude the
possibility of a criminal referral for conduct not falling
within these priorities. Each case will be considered on an
individual basis. Further—to emphasize the obvious--these
guidelines relate only to the use of criminal sanctions, and
do net reflect administrative or civil enforcement priorities.
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"hese guidelines, and internal office procedures
adopted in accordance with these guidelines, are not
intended to, do not, and may not be relied upon to
create a right or benefit—substantive or procedural-
enforceable at law by a party to litigation with the
United States. Any attempt to litigate any aspect of
these guidelines should be brought immediately to the
attention of the Criminal Enforcement Division, Office
of Legal and Enforcement Counsel, EPA Headquarters.
These guidelines are effective immediately, and
replace any existing guidance on criminal enforcement
priortles within the Agency.
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-1-
PART Ii THE DECISION TO PURSUE CRIMINAL SANCTIONS
This Agency'* choice among its varying enforcement
options—civil, administrative and criminal—is, and must
remain, a discretionary judgment that balances essentially
subjective considerations* No litmus paper test exists
that will reliably distinguish cases falling into each
category. This section discusses the varying factors,
or considerations, that should be addressed as EPA reaches
an institutional decision on the appropriate enforcement
option to employ in addressing a specific violation.
In essence, it is a discussion of those factors that
will normally distinguish a criminal case from all the
others.
A. The Scienter Requirement
An individual who engages in conduct prohibited
by statute or regulation can be prosecuted civilly or
administratively without regard to the mental state
that accompanied the conduct. Criminal sanctions, on the
other hand, will ordinarily be limited to cases in which
the prohibited conduct is accompanied by evidence of
"guilty knowledge" or intent on the part of the prospective
defendant(s). Referred to as the scienter requirement, this .
element of proof exists under virtually every environmental
statute enforced by the Agency.!/ For example, falsification
of records under the Resource Conservation and Recovery Act
must be done "knowingly," (42 U.S.C. §6928(d)(3)); violation
of hazardous air pollutant standards under the Clean Air Act
must be done "knowingly," (42 U.S.C. §7413(c)(1)(c)); and
failure to establish or maintain records required under the
Toxic Substances Control Act must occur "knowingly or
willfully," 15 U.S.C. §2615(b).
I/ One exception to this general rule is the Refuse
Act, 33 U.S.C. §407, which has generally been interpreted
as a "strict liability" statute. See, e.g. United States
v. White Fuel Corporation, 498 F.2d 619 (1st Cir. 1974). In
addition, * prosecution for illegal discharges under the
Clean Water Act can be based on negligent or willful conduct,
33 U.S.C. B1319(c)(l). "Negligence" is not, strictly
speaking, a form of scienter.
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-2-
The requirement to prove a culpable mental state/
a's well as a prohibited act, IB certainly the clearest
distinction between criminal and civil enforcement actions.
Special care will be taken both in investigations,
and in drafting criminal referral packages, to assemble
and highlight evidence available to meet the specific
statutory scienter requirement.
6. The Nature and Seriousness of the Offense
Resources currently available to EPA for criminal
case development are limited. In addition, this Agency
is only one of dozens that are making demands on the limited
prosecutorial staffs of the Justice Department. As a
matter of resource allocation, therefore, as well as
enforcement philosophy, EPA will investigate and refer
only the most serious forms of environmental misconduct.
Cf primary importance to this assessment is the extent
of environmental contamination or human health hazard
that resulted from, or was threatened by, the prohibited
conduct. This determination depends in turn on consider-
ations such as the duration of the conduct; the toxicity
of the pollutants involved; the proximity of population
centers; the quality of the receiving land, air or water; the
amount of Federal, State or local cleanup expenditures; and
public sentiment supporting strong enforcement action
in response to a specific situation.
Also of significance in assessing the seriousness
of the illegal conduct is the impacts-real or potential—on
EPA's regulatory functions. This factor is of particular
importance in cases of the falsification or concealment
of records, reports or information. For example, even if a
technical falsification case can be made, criminal sanctions
may not be appropriate if the distortion of information'
could not reasonably have been expected to have a significant
impact on EPA's regulatory process or decision-making.
Where the materiality of the falsification is clear,
however* criminal sanctions should be pursued. For example,
falsification activity wight cause EPA to register a pesticide
with demonstrated carcinogenic potential; to omit effluent
limitations for toxic pollutants in an NPOES permit; or to
postpone necessary regulatory action. In such situations,
the need! for criminal sanctions should be considered.
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C. The Need for Deterrence
* ^^^••^""•••"—••^•^"^^"•"""""•'•""^•"^•""•'•••"^"'™'**1^^
' 4
Deterrence of criminal conduct by a specific individual
(individual deterrence) or by the community at large
(general deterrence) has always been one of the primary
goals of the criminal law. Where the offense is deliberate
and results in serious environmental contamination or
human health hazard, the need to achieve deterrence through
the application of strong punitive sanctions will almost
always exist.
The goal of deterrence may, on occasion, justify a
criminal referral for an offense that appears relatively
minor. This would be true, for example, for offenses
that—while of limited importance by themselves—would
have a substantial cumulative impact if commonly committed.
This might also be true when addressing violations by an
individual with an extended history of recalcitrance and
noncompliance.
D. Compliance History of the Subjeet(s)
The compliance history of the subject(s) of a potential
criminal referral is relevant, and should be considered in
determining the appropriateness of criminal sanctions. As a
general rule throughout Federal criminal enforcement, first
offenders will be treated less severely than recidivists..
Stated alternatively, criminal sanctions become more
appropriate as the incidents of noncompliance increase. The
occurrence of past enforcement actions against a company, or
the failure of civil/administrative enforcement, is certainly
not a prerequisite to a criminal referral. However, a
history of environmental noncompliance will often indicate
the need for criminal sanctions to achieve effective individual
deterrence.
E. The Need for Simultaneous Civilor Administrative
Enforcement Action
Simultaneous civil and criminal enforcement proceedings
are legally permissible, United States v. Kordel, 397
U.S. 1, 11 (1970), and on occasion are clearly warranted.
However, separate staffs will be appointed with the
initiation of a grand jury investigation, if not before.
Further, the pursuit of simultaneous proceedings provides
fertile grounds for legal challenges to one or both
proceedings thj-t, even if unsuccessful, will rei"ume
additional time and resources. Thus, parallel proceedings
should be avoided except where clearly justified.
In this regard, it should be noted that some of
the goals of'a criminal prosecution, including a degree
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of< ,dt»terrence and punishment, can be achieved through
a'civil action that secures substantial civil penalties
in addition to injunctive relief. Moreover, recent exper-
ience indicates that while some cases may result in periods
of incarceration, criminal sentences will often be limited
to monetary fines and a probationary period. In light of
this reality, the use of the additional time and resources
necessary to pursue a criminal investigation—as well as a
civil enforcement action—is often not justified.
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PART Hi CRIMINAL ENFORCEMENT PRIORITIES
The previous section has discussed the general
considerations that will guide this Agency's decisions
on the investigation and referral of criminal cases.
Part II details the substantive investigative priorities
that will be pursued in the Office of Legal and Enforcement
Counsel's developing criminal enforcement program. The
priorities are listed by statute. The order of listing is
random, and is not intended to achieve further ranking
either within each statute or on a cross-media basis.
Unless otherwise stated below, all listed categories of
conduct are considered equally significant and worthy of
investigation within the constraints of our limited criminal
investigative resources.
The criminal investigative staff of the Office of
Legal and Enforcement Counsel, acting in partnership
with the legal and technical staffs of the Agency, will
focus criminal enforcement efforts in the future primarily
on cases falling within the categories listed below. The
issuance of these priorities is not, however, intended to
preclude the possibility of a criminal referral in other
cases.2/ As was indicated previously, each case will be
considered o- its own merits.
A. Investigative Priorities; Resource Conservation
and Recovery Act (RCRA)t
1. Knowing Endangerment
Section 3008(e) of RCRA, 42 U.S.C. §6928(e), establishes
the crime of "knowing endangerment." The provision carries
maximum penalties of up to five years of imprisonment
and a $1,000.,000.00 fine, and reflects a Congressional
mandate to pursue strong criminal sanctions for knowing,
life-threatening conduct that violates RCRA statutory
prohibitions or interim status standards and regulations.
RCRA and its legislative history indicate that the "knowing
endangerment" provision is intended to apply only in
the most serious instances of environmental misconduct.
Where the elements of proof can be met, however, EPA
will give a high priority to the investigation, referral and
prosecution of "knowing endangerment" cases.
2/ For example, because the enforcement provisions of the Safe
Drinking Wate^Act, 42 U.S.C. §§300f et. seq., contain compara-
tively mild monetary penalties--and no potential terns of
incarceration—the statute is not listed as a criminal enforcement
priority. This does not, however, preclude the possibility of
a criminal referral under the Safe Drinking Water Act to address
aggravated cases of non-compliance.
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2. Illegal Transportation and Disposal of Hazardous
Waste
Section 3008(d)(l-2) of RCRA, 42 U.S.C. §6928(d)(1-2),
carries felony penalties of two years of imprisonment and
a $50,000.00 fine for the knowing transportation of
hazardous wastes to an unpermitted facility (Section
3008(d)(l)) and the knowing disposal of hazardous wastes
without obtaining a permit (Section 3008(d)(2)). Both
provisions are potentially applicable to midnight dumping
in its various forms, i.e., in abandoned sites, company
yard«, open fields or waterways, or unpermitted waste
disposal facilities. A high investigative priority
will be placed on illegal transportation or disposal
activities that result in, or threaten, serious environ-
mental contamination or human health hazard.
' '-I '
3; Falsification of RCRA Records
Suction 3008(d)(3) of RCRA, 42 U.S.C. §6928(d}(3),
carries misdemeanor penalties of one year of imprisonment
and a $25,OOC 90 fine for the knowing falsificatior.
of material information in records "maintained or used
for purposes of compliance" with RCRA. Emphasis will be
placed on falsification activity that has—or could reasonably
be expected to have—a significant impact on EPA's regulatory
process or decision-making.
4. Destruction, Concealment or Alteration of RCRA
Records
Section 3008(d)(4) of RCRA, 42 U.S.C. §6928(d)(4),
carries; misdemeanor penalties of one year of imprisonment
and a $25,000.00 fine for incidents of knowing destruction,
concealment or alteration of records maintained under
RCRA regulations. As in falsification cases, emphasis
will be placeu on conduct that has—or could reasonably
be expected to have—a significant impact on EPA's
regulatory process or decision-making.
B. Investigative Priorities; Comprehensive Environmental
Response, Compensation and Liability Act (SuperfundfT"
1. Failure to Notify of the Release of a Hazardous
Substance
Section 10J(b)(3) of Superfund, 42 U.S.C. §9603(b)(3),
carries misdemeanor penalties of one year of imprisonment
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arfd a $10,000.00 fine for failure to notify the appropriate
Federal agency of a release of a hazardous substance
in amounts equal to or greater than those determined
pursuant to Section 102 of Superfund. The Agency will
place a high investigative priority on cases where the
"release" results in, or threatens, significant environmental
contamination or human health hazard.
2. Destruction or Falsification of Superfund Records
Section 103(d)(2) of Superfund, 42 U.S.C. §9603(d)(2),
carries misdemeanor penalties of one year of imprisonment
and a $20,000.00 fine for the knowing destruction or falsi-
fication of specified Superfund records. Investigative
priority should be placed on conduct that has—or could
reasonably be expected to have—a significant impact
on EPA's regulatory process or decision-making.
C. Investigative Priorities; Clean Water Act (CWA)i
1. Violations of the NPDES Permit Program
Section 309(c)(l) of the CWA, 33 U.S.C. §1319(c)(l),
carries misdemeanor penalties of one year of imprisonment
and a $25,000.00 fine for the willful violation of conditions
or limitations in NPDES permits issued by the Administrator
or a State. The NPDES permit program is a mature regulatory
scheme and the primary mechanism for monitoring and controlling
water pollution under the CWA. The Agency will place a high
investigative priority on willful NPDES permit violations
that result in, or threaten, significant environmental
contamination or human health hazard.
2. Falsification of CWA Records and Monitor Tampering
Section 309(c)(2) of the CWA, 33 U.S.C. £l319(c)(2),
establishes misdemeanor penalties of six months of imprison-
ment and a $10,000.00 fine for knowing falsification of
records and for tampering with monitoring devices "required
to be maintained" under the CWA. Investigative priority
should be placed on cases in which the falsification
or tampering has--or could reasonably be expected to
have—a significant impact on EPA's regulatory process
or decision-making.
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3. Unpermitted Discharges
Section 301 and 309(c)(l) of the CWA, 33 U.S.C. §§1311,
1319(c)(l)), establish misdemeanor penalties of one year of
imprisonment and a $25,000.00 fine for willful discharges
into navigable waters without an NPDES or "dredge and fill*
permit.V A high investigative priority will be placed
on willful, unpermitted discharges that cause, or threaten,
significant environmental contamination or human health
hazard.
D. Investigative Priorities; The Clean Air Act (CAA)t
1. Violations of State Implementation Plans
Section 113(c)jU)(A) of the CAA, 42 U.S.C. §7413
(c)(D(A), carries misdemeanor penalties of one year of
imprisonment and a $25,000.00 fine for knowing violations
of State implementation plans. SIPs are the cornerstone
of a well-established and mature regulatory program and
constitute the CAA1s primary mechanism for implementing
and enforcing air quality standards for criteria pollutants.
A high investigative priority will be placed on cases
of knowing violation of SIP limitations that result
in, or threaten, significant environmental contamination
or human health hazard.
2. Violations of Hazardous Air Pollutant Standards
Section 113(c)(l)(C) of the CAA, 42 U.S.C. §7413
(c)(i;i(C), establishes misdemeanor penalties of one year
of imprisonment and a $25,000.00 fine for knowing violations
of standards for hazardous air pollutants. A high invest-
igative priority will be placed on knowing violations
of these standards that result in, or threaten, signi-
ficant environmental contamination or human health hazard.
3/ Aluo applicable are the provisions of the Refuse Act,
73 U.S»C. §407, which establish misdemeanor penalties of
one yeeir of imprisonment' (including a 30-day minimum sentence)
and a $2,500.00 fine.
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Falsification of CAA Records and Monitor Tampering
Section 113(c)(2) of the CAA, 42 U.S.C. §7413(c)(2),
establishes misdemeanor penalties of six months of imprison-
ment and a $10,000.00 fine for knowing falsification
of records and for tampering with monitoring devices
"required to be maintained" under the CAA. A high investi-
gative priority will be placed on cases in which the
falsification or tampering has—or could reasonably
be expected to have—a significant impact on EPA's
regulatory process or decision-making.
E- Investigative Priorities; The Toxic Substances Control
Act (TSCA);—
1. Violations of Section 4 Testing Rules or the
Section 5(b) Premanufacture NotificationProgram
Sections 15(1) and 16(b) of TSCA, 15 U.S.C. §§2614(1)
and 2615(b), establish misdemeanor penalties of one year of
imprisonment and a $25,000.00 fine for knowing or willful
violations of any rule promulgated under Section 4 or any
requirement prescribed by Section 5 of TSCA. A high
investigative priority will be placed on violations
that have a significant impact on the Agency's ability to
act under Section 4(f)(l), 15 U.S.C. §2603(f)(l), and on
situations of falsified test data submitted pursuant to
Section 5(b), 15 U.S.C. §2604(b), and the premanufacture
notification program.
2. Failure to Report Substantial Risk Information
Sections 8(e), 15(3)(B) and 16(b) of TSCA, 15 U.S.C. §§2607(e),
2614 (3 )(B) and 2615 (b), establish -..sdemeanor penalties of one
year of imprisonment and $25,000.00 fine for knowing or willful
failure to submit information to EPA which reasonasly supports
the conclusion that a chemical substance or mixture
manufactured, processed, or distributed in commerce presents
a substantial risk of injury to health or the environment.
A high investigative priority will be placed on all violations
of this reporting requirement.
3. Violation of PCB or Dioxin Regulations
Sections 15(1)(C) and 16(b) of TSCA, 15 U.S.C. §§2614(1)(C)
and 2615(b), establish misdemeanor penalties of one year of
imprisonment ar>d a $25,000.00 fine for knowing or willful
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vioLstions of rules issued under Section € of TSCA.
The Agency has issued regulations governing polychlori-
nated biphenyle and the disposal of dioxin-contaminated
pe-sticide wastes. A high investigative priority will
be placed on knowing or willful violations of these
regulations that result in, or threaten, significant
environmental contamination or human health hazard.
F. Criminal Enforcement Priorities; The Federal
Insecticide, Fungicide and Rodenticide Act (FIFRA?*
1. Failure to Report Information on the Unreasonable
Adverse Effects of a Registered Pesticide
.'Section 14 (b) of FIFRA, 7 U.S.C. fl361(b), establishes
misdemeanor penalties for the knowing violation of any
provision of the Act. Section 12(a)(2)(N) provides that
it is unlawful to fail to submit information required by
Section 6(a)(2). This section requires a registrant to
report -to EPA any information regarding unreasonable
adverse effects on the environment which the registrant
has after the time of registration. A high investigative
priority will be placed on knowing violations of this
reporting requirement.
2. Falsification of FIFRA Records
Suctions 12{a)(2)(M) and 14(b) of FIFRA, 7 U.S.C.
SSl36j(a)(2)(M) and 1361(b), establish misdemeanor penalties
for the knowing falsification of specified records maintained
or filod under FIFRA, including registration data. A high
investigative priority will be placed on falsification
activity that has--or could reasonably be expected to
have—-a significant impact on EPA's regulatory process
or decision-making.
3. Violation of Suspension or Cancellation -rjers
Sections 12(a)(2)(J), 12fi'(?)(K) and 14(b) of FIFRA,
7 U.S.C, iil36j(a)(2)(J), 136:(a)(2)(K) and 1361(b), establish
misdemeanor penalties for knowing violations of the terms
of cancellation and suspension orders issued under Section
6 of FIFRA. A high investigative priority will be placed on knowing
violations that result in, or threaten, significant environmental
contamination or human health hazard.
4. Violation of Stop Sale Orders
Sections UKa)(2)(I) and 14(b) of FIFRA, 7 U.S.C. §§136j
(a)(2)(I) and 1361(b), establish misdemeanor penalties for
knowing violations of the terms of stop sale orders under
Section 13(a). A high investigative priority will be placed
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on;,knowing violations that result in, or threaten,
significant environmental contamination or human
health hazard.
5. Unlawful Uses of Pesticides
Sections 12(a)(2)(G) and 14(b) of FIFRA, 7 U.S.C.
§§136j(a)(2)(G) and 1361(b), establish misdemeanor penalties
for the knowing use of a pesticide in a manner inconsistent
with its labelling. Zf referred by a State with primary
use enforcement responsibilities, a high investigative
priority will be assigned to misuse cases that result
in, or threaten, significant environmental contamination
or human health hazard.
6. Illegal Distribution of Unregistered Pesticides
Sections 12(a)(l)(A) and 14(b) of FIFRA, 7 U.S.C.
§§136j(a)(l)(A) and 1361(b), establish misdemeanor penalties
for the knowing distribution, receipt etc. of an unregistered
pesticide. Vhe pesticide registration process outlined
in Section 3 rf FIFRA, 7 U.S.C. Section 136(a), is tat
cornerstone of EPA's program to monitor and regulate
the safety of pesticides. A high investigative priority
will be placed on illegal transactions involving unregistered
pesticides that result in, or threaten, significant environ-
mental contamination or human health hazard.
G. Investigative Priorities; The Marine Protection,
Research, and Sanctuaries Act (MPRSA)
1. Unauthorized Ocean-Dumping
Section 105(b) of the MPRSA, 33 U.S.C. §1415(b),
establishes misdemeanor penalties of one year of imprisonment
and a $50,000.00 fine for the knowing violation of regula-
tions or permits issued under the ocean-dumping program.
The Agency will place a high investigative priority on
violations that result in, or threaten, significant environ-
mental contamination or human health hazard.
H. Criminal Enforcement Priorities; Willful Contempt
of Environmental Consent Decrees
18 U.S.C. §401(3} establishes criminal sanctions
for contempt o/ court resulting from "disobedience or
resistence to (the court's) lawful writ, process, order,
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-12-
rule, decree, or command." The punishment, which may
be by fine or imprisonment, is left to the discretion of
the court. Historically, most of the EPA'§ civil litiga-
tion referrals have been settled in judicially-enforceable
consent decrees containing requirements for plant modifi-
cation, upgrading or installation of pollution control
equipment, and other forms of injunctive relief. Insuring
compliance with the terms of these consent decrees will
be a significant element of this Agency's enforcement
program. A high investigative priority will, therefore,
be placed on incidents of willful or deliberate noncompliance
with the terms of environmental consent decrees that result
in, o;r threaten, significant environmental contamination
of hunan health hazard.
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Note on General Operating Procedures
for the Criminal Enforcement Program
This memorandum is no longer current. OECM is in the pro-
cess of thoroughly revising this memorandum, and will issue a
new version of these procedures by the next time the Compendium
is updated.
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GM-15
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/ 0 i
I UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
OCT B 7 1982
THE ADMINISTRATOR
MEMORANDUM
SUBJECT: General Operating Procedures for the Criminal
Enforcement Program
TO: Associate Administrators
Assistant Administrators
Regional Administrators
Staff Office Directors
EPA's criminal enforcement program is of central
importance to the Agency's overall enforcement efforts.
Most importantly, it has the capacity to achieve substantial
environmental benefits through the deterrence of the most
serious environmental misconduct. In addition, successful
criminal prosecutions will convey a strong message to the
regulated community that the Agency will not hesitate to
pursue the strongest sanctions in appropriate cases.
The need for clear, uniform, Agency-wide guidance is
particularly strong in the area of criminal enfo-nment.
The criminal investigative process is characterized by
constitutional safeguards and pmcedural constraints not
found in civil and administrative enforcement natters.
The government's burden of proof at trial—"beyond a
reasonable doubt"--is also appropriately demanding.
Coinciding with the recruitment of GS-1811 criminal
investigators to assist in criminal case development in
every Region, I have asked the Associate Administrator for
Legal and Enforcement Counsel to take the lead in preparing
a document to establish operating procedures, roles and
responsibilities for EPA's various offices in administering
the Agency's criminal enforcement program.
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The attached guidance document sets forth the management
structure and operating procedures that will characterize EPA's
criminal enforcement program. Decisions contained in this
document have been reached following extensive coordination by
the Associate Administrator for Legal and Enforcement Counsel
with the Assistant Administrators/ all Regional offices and
the Department of Justice. They will result in the development
of a criminal enforcement program that is a credit to"the
Agency and a credible deterrent within the regulated community.
I strongly endorse the General Operating Procedures that the
Associate Administrator has formulated and I expect all EPA
offices with enforcement responsibilities to follow these
procedures in discharging those duties.
I wish to underscore three points. First/ this document
establishes procedures for ren-ralized management from EPA
Headquarters of many aspects of the criminal enforcement
program. For example, criminal investigators hired under the
program wi*i be Headquarters employees; Area offices will have
inter-Regional investiga-. .x responsibilities; and the role
of Regional Administrators in criminal enforcement is limited.
These management decisions are necessary given the nature of
criminal enforcement generally and the Agency's relative lack
of experience in criminal case development. It is reasonable
to anticipate a more "regionalized" management approach in the
future as the Agency gains increased familiarity with criminal
investigations and prosecutions. During this initial development
stage, however/ I have instructed the Associate Administrator
to provide close, centralized supervision of case development
activities. The management decisions contained in this
document reflect those instructions.
Second, I wish to emphasize the importance of training
Agency staff who will be working with investigators in the
development of criminal cases. The training provided EPA's
technical personnel through the Federal Law Enforcement
Center is excellent and provides a firm foundation in the
basics of criminal investigative work. I strongly encourage
continued participation by the Regions and program offices
in this program.
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Finally, as in civil enforcement, I am looking to the
Associate Administrator for Legal and Enforcement Counsel to
advise me on the development of policy in the criminal
enforcement program and to ensure that EPA's offices fully
and effectively implement my policy in this as in all
other areas of enforcement. Moreover, I am specifically
authorizing the Associate Administrator to perform the
following duties (while working closely with other affected
offices):
- construing, interpreting, or amending
the guidance in this document,( and
- issuing follow-up guidance for implementing
these general operating procedures.
With the implementation of this program, EPA is taking
a significant new enforcement initiative. Implemented in
a professional and responsible manner this program has the
potential for substantial benefits to the environment*
It is important to recognize, however, that the Agency
is entering new and in many ways unfamiliar territory.
Care, attention and the highest degree of professionalism
must characterize our efforts in this specialized field.
I am asking for the full cooperation of all offices in the
implementation of this program pursuant to the attached
guidance.
Anne M. Gorsuch
Attachment
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, DC 204«0
290CT1982
erricc or
ClOAL AND IMreWCIMtNT COWNStC
MEMORANDUM
SUBJECT: General Operating Procedures for the Criminal
Enforcement Program
FROM: Robert M. Perry
Associate Administrator
and General Counsel
TO: Associate Administrator
Assistant Administrators
Regional Administrators
Staff Office Directors
As you are aware/ the Administrator has. asked this
office to take the lead in preparing General Operating
Procedures for EPA's various offices in administering
the Agency's criminal enforcement program. This guidance
is attached.
These procedures have been developed after extensive
coordination with the Assistant Administrators and the
Regional offices. The assistance of these offices has been
highly valuable and has resulted in procedures that reflect
the interests of the various offices of the Agency while
simultaneously creating an effective and responsive
criminal enforcement capability.
I look forward to working with your offices in the
implementation of this crucial enforcement effort. Questions
on this document nay be directed to Peter Beeson, Associate
Enforcement Counsel for Criminal- Enforcement (FTS 382-4543).
Attachment
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GENERAL OPERATING
PROCEDURES
FOR THE CRIMINAL
ENFORCEMENT PROGRAM
United States Environmental
Protection Agency
290CT1982
D.t.,
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I. INTRODUCTION; OBJECTIVES OF THE CRIMINAL ENFORCEMENT PROGRAM
The guidelines, procedures and resource decisions contained
in this document reflect fundamental values and objectives
that must characterize EPA's criminal enforcement program.
A brief overview of these objectives will be helpful as
background to the policies and procedures that follow.
The Agency's criminal enforcement program has been
designed based upon the following objectives:
1. Integrity in the Criminal Enforcement Process;
Criminal case development is one of the roost important—
and certainly the most sensitive—aspect of the Agency's
enforcement program. As such, it is imperative that the
criminal investigative process be insulated from outside
influence or inquiries. The criminal enforcement program
has been structured so as to ensure the absolute integrity
of the investigative process.
2. Confidentiality and Security in the Criminal
Investigative Process; Almost as important as the
integrity of the investigative process is the security
and confidentiality surrounding criminal case development.
A breach in security can threaten the success of the
investigation and the safety of the investigator.
In addition, it can destroy EPA's credibility with other
law enforcement agencies. Finally, premature disclosure
of a criminal- investigation can unfairly prejudice the
investigative target(s), since the public often perceives
the fact of an investigation as tantamount to guilt. The
criminal enforcement program will be managed, therefore,
in a manner that will guarantee the security of the
investigative process. This means, among other things,
that only people with a demonstrated "need to know" will
review the work product of the Agency's investigative staff.
3. Experienced Staff and Supervisory personnel;
Criminal enforcement can be no- more effective than the
people who participate in and supervise the process.
An important goal in structuring this program has been
to guarantee that the criminal investigative process
is managed and overseen by personnel experienced in the
criminal case development process—experienced criminal
investigators and experienced criminal prosecutors.
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4. Reliable Access to Technical Support; Unlike the
more traditional areas of criminal enforcement, EPA's cases
are often technically sophisticated. Proof of the identity
of pollutants is necessary in most prosecutions and technical
personnel are frequently involved—as team members—during
interviews, in conducting site inspections and record
searches, in the surveillance and documentation of illegal
discharges or emissions, and as experts before the grand
jury and at trial.
Technical support for EPA's criminal cases will be the
primary responsibility of the Regional program offices.
However, substantial-technical assistance will also be
drawn from the National Enforcement Investigations Center
in Denver, Colorado. In addition, in criminal investigations
stemming from Headquarters-managed programs (for example,
the premanufacture notification program under $5 of the
Toxic Substances Control Act) technical assistance will be
provided by the Headquarters staff of the appropriate
Assist.ant Administrator.
5. Close Coordination with the Justice Department,
Local United States Attorneys and Outside Law Enforcement
Agencies; The effectiveness of EPA's criminal enforcement
program will depend on its ability to establish relationships
of mutual trust and respect with the Department of Justice
and the United States Attorneys (who will prosecute EPA's
referrals), and with outside law enforcement agencies such
as the FBI (who will provide investigative assistance and
law enforcement powers in specific investigations). This
program has been designed, therefore, in a manner that will
facilitate the development of long-term relationships
between OLEC's investigative staff and outside offices
or agencies.
6, Consistent, Even-Handed Use of Criminal Sanctions;
Finally, an underlying objective of EPA's criminal enforcement
progran will be to achieve consistent, even-handed use of this
enforcement- option throughout the country. While the subject
matter of criminal docket's may vary from Region to Region,
uniform proced' rzs and policies will be adopted that will
ensure a consistent exercise of the Agency's prccecutorial
discretion on criminal enforcement matters.
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II. MANAGEMENT OF THE CRIMINAL ENFORCEMENT PROGRAM
Historically, criminal sanctions have played only a
minor role in the Agency's overall enforcement program.
As a result/ our institutional experience in this specialized
form of case development is limited.
The Administrator is committed to the development of a '
professional, in-house criminal enforcement capability. It
is essential to the fulfillment of this Agency's obligation
to employ all available enforcement options in addressing
significant instances of environmental misconduct.
- -.t f
The Administrator has delegated the responsibility
to the Associate Administrator for Legal and Enforcement
Counsel and General Counsel to implement and carry out this
program. The Associate Administrator and General Counsel
will maintain operational control for this program through
the Office of Enforcement Counsel.
One significant step toward the implementation of this
program will be the recruitment by the Associate Administrator
and General Counsel of experienced criminal investigators to
assist in Regional case development. I/ However, unlike
other aspects of the Agency's enforcement program, which
have been delegated in significant measure to the Regional
offices, management of this investigative staff, and of the
Agency's criminal enforcement program generally, will be
centralized at EPA Headquarters. Regional legal and
technical staffs will remain, as in the past, indispensable
players in the overall criminal case development process.
However, the particular sensitivity of criminal
I/ The FY 1982 and FY 1983 budgets for the Agency set
aside positions for professional criminal investigators in
the Regional OLEC decision unit. These investigators will
be 1811 series investigators whose exclusive function will
be the investigation of potential criminal activity. They
will not, at present, have law enforcement powers, i.e., the
authority to md\e arrests or to carry weapons. They will,
where circumstances warrant, be eligible for "annually
based" premium pay—authorized by 5 U.S.C. §5545(c)(2)—as
well as the special retirement benefits accorded to law
enforcement officers under 5 U.S.C. §8336(c)(l).
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-4-
enforcement generally/ combined with the limited historical
experience of the Agency, dictate a centralized management
approach during the developmental stages of this program.
The Area Office; A central component of this management
approach will be the development of "Area Offices" to
house the majority of criminal investigators who are to
be supervised by the Associate Enforcement Counsel for
Criminal Enforcement, Office of Enforcement Counsel.
Under the "Area Office" approach, criminal investigator
positions contained in the FY 1982 and FY 1983 budgets will
become Headquarters rather than Regional resources, and will
be part of the staff of the Criminal Enforcement Division.
Recruitment of these investigators shall be accomplirh*;3 as
expeditiously as possible. Following selection by *>£
Associate Administrator and General Counsel, investigators
will be assigned to duty stations in four Area Offices in
host Regions in Philadelphia, Atlanta, Chicago and Seattle.
These Area Offices will have inter-Regional investigative
responsibilities. The. Philadelphia Area Office will cover
Regions I, II and III; Atlanta's Area Office will cover
Regions IV and VI; Chicago's Area Office will cover Regions
V and VII; and Seattle's Area Office will cover Regions
VIII, IX and X.
Each Area Office will be supervised by a "Special-Agent-In-
Charge" (SAIC); at least three additional investigators
(Special Agents) will be assigned to each office. Within
this staff, specific investigators will be assigned primary
responsibility for investigations in non-host Regions to
ensure an equitable distribution of investigative resources
among all Regions. The SAIC will manage the day-to-day
investigative activity of the unit, and will maXe initial
decisions on investigative priorities among the potential
cases within the office's geographical area of responsibility.
The SAIC will also conduct the initial performance evaluations
of the Special Agents in the Area Office.
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From EPA Headquarters, the Criminal Enforcement
Division will monitor the investigative activity in each of
the Area Offices. The Associate Administrator and General
Counsel shall have operational control of the Area Office
investigative units and shall have the authority to allocate
EPA's limited investigative resources among the Regions.
.Further, while day-to-day investigative decisions will be
made in the Area Office under the supervision of an SAIC,
the Associate Enforcement Counsel for Criminal Enforcment
will have the right to direct the investigative activity of
any Area Office in cases of national significance or parti-
cular sensitivity. The Associate Enforcement Counsel for
Criminal Enforcement will also review and concur in per-
formance evaluations of Area Office Special Agents and
conduct the initial performance evaluations of SAICs.
A smaller criminal enforcement unit, also staffed by
experienced criminal investigators, will be located at the
National Enforce-ent Investigations Center in Denver,. .
Colorado. The jurisdiction of this unit will, unlike Aiea
Offices, be nationwide in scope, focusing on cases that span
the jurisdiction of two or more Area Offices. Investigators
assigned to this unit will also participate, where appropriate,
in investigations in which the NEIC is providing technical
support. The NEIC unit—like the Area Offices--will be
managed on a day-to-day basis by an SAIC, who will report in
turn to the Criminal Enforcement Division at EPA Headquarters.
An organizational chart reflecting the management of the
the investigative component of the criminal enforcement
program is included as Attachment A to this memorandum.
Advantages to the Area Office Management Approach;
A centrally-controlled criminal enforcement program
structured around the "Area Office" concept presents several
decided advantages over other management options that have
been considered:
- It provides excellent insulation of the criminal
investigative process, avoiding even the appearance of
vulnerability to outside influences or pressures.
- It combines an adequate number of investigators
in one office to respond to significant criminal activity.
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•• It places responsibility for first and second
level supervision of the investigative process—and for
performance evaluations of staff investigators--in the
hands of personnel with demonstrated, substantial experience
in criminal case development.
-• It provides added flexibility in the shifting of
investigative resources between Regions to respond in
emergency situations.
- It parallels the management and organizational
structures of criminal investigative units in other
Federal agencies, and.,will assist EPA in inspiring the
trust «ind confidence of outside law enforcement agencies—
such a.'» the FBI—that will play an important role in
EPA's developing criminal enforcement program.
- It guarantees consistent treatment of administrative
matters, such as overtime pay, promotions and performance
evaluations, for all Agency investigators.
In sum, the centrally-controlled, "Area Office"
approach will, I believe, provide a framework for the
development of a professional investigative component.
Support for the Field Investigative Units; Basic admini-
strate vtr~an&^TogT^tI^al~TupporT~~ToF~t^\^~Krea. Offices
and the criminal enforcement unit at NEIC will be the
primary responsibility of the host Regions in Philadelphia,
Atlanta, Chicago and Seattle, and of the Director, NEIC.
More specifically, the host Regions and the NEIC will
provide the following day-to-day support functions:
(1) Processing and distribution of paychecks;
(2) Procurement requests;
(3) Time and attendance cards;
(4) Funds control;
(5) Property management;
(6) Secure office space with furniture;
(7) Utilities;
(8) Travel planning and voucher processing;
(9) Parking;
(10) Personnel processing.
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The Associate Administrator and General Counsel
will have responsibility for the following functions:
(1) Recruitment;
(2) Supervision and program direction;
(3) Development of performance standards;
(4) Performance appraisals;
(5) Review and approval of promotions and bonuses;
(6) Budgeting; 2/
(7) Travel approval;
(8) Overtime and premium pay approval;
(9) Allocation of investigative resources.
III. ROLES AND RELATIONSHIPS
The resources necessary to support criminal case
development from the initiation of an investigation to
the completion of a criminal prosecution can be extensive *
In addition, criminal investigations and referrals must
be coordinated with related enforcement or regulatory
functions within the Agency. This memorandum describes
the basic roles and relationships of key players in the
criminal enforcement process. It will be followed by
additional procedures where necessary to ensure early,
effective coordination between the investigative staff and
the legal and technical staffs of the affected Regional or
Headquarters offices.
OLEC; The Enforcement Counsel Matters
The Associate Administrator and General Counsel will
review and approve criminal referrals to the Justice Depart-
ment. Through the Enforcement Counsel, the Associate
Administrator and General Counsel will supervise and direct
the activities of the Criminal Enforcement Division, and
2/ Secretarial support for the Area Offices will be budgeted
for, and provided by, the Office of Legal and Enforcement
Counsel. In addition, I have asked my staff to coordinate with
the Comptroller to analyze the resources necessary for
effective support of all Agency investigators in matters
such as travel and specialized investigative equipment.
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will also ensure consistent and complementary use of civil
and criminal enforcement options available to the Agency.
In this regard, Enforcement Counsel attorneys will coordinate
with the Criminal Enforcement Division during the review
of Regional civil referrals that they feel may be appropriate
for criminal sanctions.
OLECt Criminal Enforcement Division
The Associate Enforcement Counsel for Criminal Enforce-
ment, under the direction of the Enforcement Counsel, will
monitor and supervise the Area Offices and the NEIC investi-
gative unit in all investigative activity. The Criminal
Enforcement Division will provide all legal support for
Headquarters-managed investigations; review all criminal
referreils to the Justice Department; expand Agency training
programs for investigative and technical personnel; coordi-
nate hazardous waste referrals to the Federal Bureau of
Investigation; provide regular liaison with the Land and
Natural Resources Division and local United States Attorneys;
and formulate procedural and substantive guidance for the
conduct of Agency investigations.
The Associate Enforcement Counsel for Criminal Enforce-
ment will also assume primary responsibility'for recruitment
of the Agency's investigative staff; evaluation of the
performance of this staff; monitoring of the use of premium
pay (over-time pay) by Agency investigators; and recommend-
ing how investigative resources should be allocated among
the Regions.
OLEC; The National Enforcement Investigations Center
Historically, the National Enforcement Investigations
Center has provided strong technical support in a number of
EPA criminal cases. In addition, NEIC has been a key player
in the coordination of the Agency's ongoing and highly-successful
training program for EPA technical personnel at the Federal
Law Enforcement Training Center at Glynco, Georgia. Primary
responsibility for technical support of criminal case
development must be carried by the Regional program offices;
however, the National Enforcement Investigations Center will
continue to assume responsibility for technical support in
Agency criminal investigations that have inter-Regional
ramifications or that exceed the resources of the technical
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staffs of individual Regions. Requests for this assistance
will be processed in the same manner as any other request
for the technical assistance of NEIC in an enforcement
matter.
OLEC; General Counsel Matters
In criminal enforcement matters, as in other areas
of Agency activity, the Associate Administrator for Legal
and Enforcement Counsel and General Counsel, through -the
Deputy General Counsel, is responsible for interpreting laws
and supporting regulations to ensure consistent and appropriate
Agency positions on all legal issues. General Counsel
attorneys will assist in resolving legal issues involving
environmental statutes that arise during investigations,
during the review of criminal referrals, or during the
prosecution of criminal cases.
OLEC; The Regional Counsel
The SAIC will look to Regional Counsels for legal
advice on EPA's statutes and regulations during the
investigative process. To facilitate this consultation,
a Regional attorney will be designated to work with the
criminal investigative staff at the initiation of every
investigation. ^./ This attorney will act as primary in-house
counselor during the pre-referral investigative process—a
role that is of particular importance due to the complexity
of EPA's environmental statutes and the technical nature of
the underlying regulations. Regional attorneys assigned to
specific investigations will also coordinate the preparation
of criminal referral packages.
2/ In cases of inter-Regional dimensions, the Regional
Counsel responsible for the Federal District in which the
referral is anticipated will generally be designated as lead
Regional "Counsel, unless the Associate Administrator and
General Counsel makes another designation, for purposes of
consultation during the investigative process, preparation
of the referral package, and review and concurrence in the
referral recommendation.
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R
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of decisions on the scope and focus of investigative activity,
including decisions to initiate, investigate, refer or close
criminal cases.
It is important to note that the Regional Administra-
tor, like any other Agency official, will be kept apprised
'of criminal enforcement matters where necessary to achieve
effective coordination of criminal investigations and other
Agency activity.£/ This will be the case, for example,
during those rare occasions when a decision is made to
pursue parallel civil/criminal enforcement proceedings, or
during investigations of companies or individuals who are
involved with the Agency on other, unrelated matters.
Recognition of these situations will be the responsibility
of the Regional Counsel, the OLEC investigative staff and
the technical and legal personnel assigned to the
investigation.
The Assistant Administrators
As the national program managers, the Assistant
Administrators will work with the Office of Legal and
Enforcement'Counsel in the establishment of Agency-wide
and media-specific criminal enforcement priorities. These
priorities will provide the framework for decisions on
the allocation of our limited investigative and technical
resources in the criminal case development process.
As in other enforcement areas, Assistant Administrators
are also responsible for providing technical support
(including appropriate Headquarters support for investiga-
tions stemming from Headquarters-managed programs), and
for providing resources in Regional program budgets to
support criminal case development. The Office of Legal and
Enforcement Counsel will continue to work closely with the
Assistant Administrators in providing projections of antici-
pated resource needs, and to ensure adequate technical
support for criminal case development.
4/ It goes without saying that information on criminal investi-
gations is highly sensitive, and should be exchanged with
restraint. In addition, matters occurring before the grand
jury must be protected in accordance with the mandate of secrecy
established by Rule 6(e) of the Federal Rules of Criminal
Procedure. Internal Agency coordination on criminal matters
must occur within these constraints.
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The Regional Program Offices
Regional program offices will play an integral role in
the criminal case development process, and in many cases
will be asked to assign a technical person to be a member of
the investigative team. Accordingly, prior to the initiation
•of most investigations, a request will be made to the
Regional program office for technical assistance. In
addition, in all investigations the Regional program office
will be contacted to ensure that no administrative actions
against the investigative target are pending or contemplated.
While every effort riust be made to support meritorious
investigations falling within the criminal enforcement
priorities of the Agency, it is recognized that each Regional
program office acts under finite budget constraints. If
resource difficulties are anticipated, this fact must be
highlighted at the earliest stage, so that alternative
sources of support (such as the NEIC) can be explored. To
facilitate this early coordination, each Regional program
office should designate a "contact" person for liaison on
criminal enforcement activities. This liaison activity
must, cf course, be conducted with appropriate sensitivity to-
the need for confidentiality in criminal matters.
Because of the integral role of Regional technical
personnel, the Office of Legal and Enforcement Counsel has
made a special effort over the past year to provide basic
training in criminal case development through the Federal
Law Enforcement Training Center in Glynco, Georgia. Approxi-
mately 100 technical personnel from every Region (as well as
the NEIC staff) have received this training. The need for
Agency personnel to be sensitive to, and familiar with, the
demanding constitutional and statutory safeguards surrounding
criminal case development is self-evident. Accordingly,
this training will continue. Regional program offices are
asked to ensure that employees who participate in compliance
inspections, or who are regularly involved in enforcement
support activities, attend this training. It is crucial to
the development of a professional" program.
The Justice Department
Through its primary investigative Agency—the Federal
Bureau cf Investigation--the Justice Department will
provide investigative support for the development of
selected cases involving illegal hazardous waste activity, or
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requiring full law enforcenent powers (i.e., the authority
to arrest, to carry weapons and to execute criminal search
warrants).
Further, the Justice Department and local United
States Attorneys will be available for advice during
investigations, and will provide the prosecutorial support
for all EPA criminal referrals. At present, Regional
attorneys are working closely with the Justice Department
on several important prosecutions. While the role of
EPA attorneys in criminal litigation is necessarily more
limited, every effort will be made to develop a significant
role for EPA attorneys in the prosecution of criminal
cases in conjunction with the Justice Department.
IV. REPORTING PROCEDURES
Standardized Agency forms are being developed to
document witness interviews and investigative developments,
as well as the opening and closing of investigations.
These forms will be printed in quadruplicate, and will
be disseminated for Agency-wide use following the hiring
of investigators. One copy of each form will be set
aside upon use during field investigations; these copies
will be sent on a regular basis to the Criminal Enforcement
Division, where a second, complete Agency file will be
maintained on each investigation. The reports will provide
one basic method of monitoring field investigative activity
at EPA Headquarters. Special-Agents-In-Charge in each Area
Office will be responsible for ensuring that reporting
requirements are met by their investigative staffs. The
Associate Enforcement Counsel for Criminal Enforcement will
keep the Associate Administrator and General Counsel and the
Enforcemenent Counsel informed, on a regular basis, of
ongoing case development activity.
V. INITIATION AND CONDUCT OF AN INVESTIGATION
In Section III, above, the roles of various Agency offices
were described. Section V is provided as a general description
of the interaction of these offices during a.routine investi-
gation; of course, these general principles are flexible,
and can change to accommodate the facts of specific cases.
An initial "lead" or allegation of potential criminal
activity may come to the Agency from any of several sources,
including State agencies, routine compliance inspections,
disgruntled plant employees or citizen groups. Regardless
of its source, it should be transmitted immediately to the
Special-Agent-In-Charge of the responsible Area Office, who
will assign a Special Agent to the lead for follow-up.
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If the reliability of the lead is unclear, the Special
Agent will conduct a preliminary inquiry solely to determine
the credibility of the allegation, and to make an initial
assessment of the need for more thorough investigation.
This initial inquiry will be brief, and will involve no
extensive commitment of resources or time. The sole purpose
•is to reach an initial determination on the need for a
complete investigation.
If, in the opinion of the Special Agent and the
Special-Agent-In-Charge, the lead warrants thorough investiga-
tion, the Special Agent will immediately contact the Regional
Counsel in the Region-where the investigation is to be
conducted. The Regional Counsel will ensure that no civil
enforcement action is pending or contemplated against the
investigative target, and will assign an attorney to work
with the investigator during the case development process.
The Reeional attorney and Special Agent will also contact
the appropriate Regional program office to ensure that no
administrative enforcement action is pending or contemplated.
In addition, where the need for technical support during the
investigation is contemplated, the Regional program office
will be asked to assess the availability of technical
resources, and when appropriate to designate a specific
individual to -work with the Special Agent during the course
of the investigation. These activities will be carried out
in consultation with the Criminal Enforcement Division.
If no pending administrative/civil enforcement actions
exist involving the investigative target, a case file will
be opened by the Special Agent and a copy of a case opening
report oent immediately to the Criminal Enforcement Division,
EPA Headquarters. While simultaneous administrative/civil
and criminal enforcement actions are legally permissible,
they will be the exception, rather than the rule. As a
general rule, an administrative or civil proceeding will be
held in abeyance pending the resolution of the criminal
investigation. One exception to this general rule will be
those situations in which emergency remedial response is
mandated. In these situations, however, the criminal
investigation will not be initiated without the prior
approval of the appropriate Regional Counsel and the
Enforcement Counsel. If there is disagreement concerning
the need for a criminal investigation, the matter will be
referred to the Associate Administrator and General Counsel
for action.
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The opening of a case file and submission of a case '
opening report does not commit the Agency to proceed
with a criminal referral at the culmination of the investi-
gation; nor does it reflect an Agency decision that criminal
conduct has occurred, or that criminal sanctions are the
exclusive or appropriate remedy. All enforcement options
remain open, and should be considered, throughout the
ensuing investigation and the formal referral to the Justice
Department.
Management of the investigation will be the primary
responsibility of the Special Agent, acting under the
supervision of the Area Office Special-Agent-In-Charge.
The Special Agent will be responsible for determining
the basic investigative' approach, and will take the lead
in conducting interviews, assembling and reviewing records,
planning and executing surveillances, coordinating with
State, Federal or local law enforcement agencies, planning
and executing searches, developing informants, and performing
other investigative matters. A technical person will work
with the Special Agent during those portions of an investigation
requiring technical expertise.
In pursuing an investigation, the Special Agent will
be responsible for completing all required reports, (interview
summaries; reports of investigation etc.) and for coordination
with the Criminal Enforcement Division as required prior to
specific investigative developments. As a general operating
practice, only one member of the investigative team will
record, or document, any stage or development in the
investigation.
In every investigation opened by the OLEC investigative
staff, a Regional attorney will be assigned to work with the
Special Agent managing the investigation. The Regional
attorney will act as primary in-house counselor during the
pre-referral investigative process. This role is of
particular importance due to the complexity of EPA's environ-
mental statutes, and the technical nature of the underlying
regulations. In addition, legal issues frequently arise
during the case development process concerning the use of
statutory discovery devices; the pursuit of parallel
criminal and civil proceedings; the confidentiality of
business information; delegations of authority within the
Agency; State statutes and enforcement proceedings; inter-
nal EPA policy and guidance; and elements of proof under
EPA's environmental criminal provisions. It will be the
responsibility of the Special Agent to consult with,
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and seek the guidance of, the Regional attorney on these and
similar issues throughout the pre-referral investigative
process.
VI. REFERRAL PROCEDURES
At present, criminal referrals are recommended by
Regional Counsels, reviewed within EPA Headquarters by the
Criminal Enforcement Division and the Enforcement Counsel,
approved by the Associate Administrator for Legal and
Enforcement Counsel and General Counsel, and—upon approval
—directed simultaneously to the Land and Natural Resources
Division and the appropriate local United States Attorney.
With the implementation of a centrally-controlled program
structured around the Area Office concept, these procedures
will be changed somewhat.
As in the past, criminal cases will be developed
as thoroughly as possible prior to referral to the Justice
Department. During this process, informal coordination
between investigative staffs and the Justice Department
and locial United States Attorneys is encouraged. However,
formal ireferral of criminal cases for further investigation
by grand jury, or for prosecution, will require the prior
approval of the Associate Administrator and General Counsel.
A referral recommendation will be developed when the
indepencient field investigation has been exhausted, or when
it can or should proceed no further without the initiation
of a grand jury investigation by the Justice Department. At
this point, the results of the investigation will be assem-
bled in a referral package. The preparation of the overall
referral package will be the responsibility of the Regional
attorney assigned to the investigation. Drafting responsibil-
ities will be shared by members of the investigative
team.
The Special Agent will be responsible for summarizing
for the report the factual evidence developed in the case.
Much of this evidence will already be documented in interview
summaries and investigative reports completed during the
investigative process. Accordingly, the factual portion of
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the report will be a concise summary of the case, followed
by exhibits documenting the evidence that will be proved
at trial.
The Regional attorney will be responsible for a
thorough and coordinated presentation of the statutes and
regulations underlying the referral. This section will be
of crucial importance in determining whether a referral
should be made. Once a referral is sent to the Justice
Department, this section will be helpful in briefing the
Justice Department and local United States Attorneys on the
complexities of environmental laws and regulations, and
should assist in minimizing delays in prosecutorial support
that result from a lack of familiarity with environmental
statutes.
The technical person assigned to the case will be
responsible for presenting the technical portion of the
package,.including a description of the violating facility,
technical evidence Acquired during the investigation, and
a statement of environmental impact.
The present referral package format will -continue in
use unless changed by the Associate Administrator and
General Counsel.
Once the package is prepared, it will be reviewed
by the Special-Agent-In-Charge and the Regional Counsel,
who will act as joint signatories. Technical portions of
the package will also be reviewed by the Regional or Head-
quarters program office, or the NEIC—depending rr. -;he
source of technical support. During this technical review,
the availability of technical resources to support litiga-.
tion should also be reviewed a:.d specifically confirmed by
the appropriate technical office.
Following completion of the referral package and
concurrence in the referral recommendation by the Special-
Agent-In-Charge and the Regional Counsel, three copies of
th3 referral package and all exhibits should be directed to
the Associate Enforcement Counsel for Criminal Enforcement,
Criminal Enforcement Division (EN-329); U.S. Environmental
Protection Agency; 401 M St. S.W.; Washington, D.C. 20460.
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No copies of the referral package will be sent to the local
United; States Attorney or the Justice Department until
Headquarters has reviewed the referral and the Associate
Administrator and General Counsel has approved the referral.
If either the Special-Agent-In-Charge or the Regional
Counsel believe the referral should not be made, that
official should include a statement of the reasons under-
lying this position and make an alternative recommendation
(i.e., close out investigation; change to civil referral;
change to administrative action etc.). The package will
nevertheless be directed to the Criminal Enforcement Divi-
sion for review; a final referral decision will be made by
the Associate Administrator and General Counsel.
The Headquarters review will focus on the adequacy
of case; development; adherence to the criminal enforcement
priorities of the Agency; legal issues of first impression;
consistency with related program office policy; 5/ and
general prosecutive merit. In cases involving particularly
complex issues of law, the Criminal Enforcement Division
will also consult with General Counsel attorneys. If,
following this review process, the referral recommendation
is accepted, referral packages will be directed simultaneously
to the 'J.S. Attorney and to the Justice Department. Appro-
priate cover letters will be drafted by the Criminal Enforce-
ment Division.
Situations may arise in which an emergency referral
to the local United States Attorney is necessary. For
example, immediate resort to the grand jury's compulsory
process may be required in investigations of ongoing
illegal activity, or when there are grounds to anticipate
the flight of a witness. Such situations will be limited.
When they arise, SAICs, following coordination with the
Regional Counsel, will contact the Criminal Enforcement
Division. Following consultation with the Associate
Administrator and General Counsel, telephonic
j>/ Each Assistant Administrator is encouraged to appoint
one individual to coordinate with the Criminal Enforcement
Division on criminal enforcement matters. Subject to the
normal constraints on dissemination of information concerning
criminal cases, consultation will occur during the referral
review process, to ensure that a specific case does not
raise policy issues that should be brought to the attention
of the Associate Administrator and General Counsel prior to
the referral decision.
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authorization for an emergency referral will be granted in
appropriate cases. Copies of all materials transmitted to
the local U.S. Attorney in connection with the emergency
referral will then be directed immediately to the Criminal
Enforcement Division and the Environmental Enforcement
Section, Land and Natural Resources Division, Department of
Justice.
VII. POST-REFERRAL PROCEDURES
Following referral to the Justice Department, control
of the case shifts to the prosecutor assigned to the
referral. Normally, the prosecutor will be a member
of the local United States Attorney's office. In cases
of national significance, or beyond the resources of the
United States Attorney, the case may be managed by the
Environmental Enforcement Section, Land and Natural Resources
Division. In addition, the Land and Natural Resources
Division is currently monitoring the progress of environmental
criminal referrals throughout the country.
The Special Agent responsible for the investigation •
will act as primary liaison with the Justice Department
or the local United States Attorney. This Special Agent
will perform and coordinate additional investigation as
required, and will normally be designated a special agent
of the grand jury if a grand jury presentation or investi-
gation is initiated.
In most cases, the EPA attorney assigned to work with
the investigative staff in the development of the case will
be responsible for fulfilling requests for legal assistance
during the litigation of the case. Program office staff
must be available to provide technical support as needed.
Most of EPA1s criminal cases will be developed further
through the grand jury following referral. Stringent, closely-
monitored rules govern the conduct of grand jury investigations.
Agency officials will be responsible for familiarizing them-
selves completely with these rules prior to participating
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in a grand jury investigation. £/
VIII. PLEA BARGAINING
Negotiations of settlements in criminal cases, i.e.,
plea bargaining, is the primary responsibility of the
Justice Department. Following the referral of a criminal
'case, Agency officials should never enter into independent
negotiation or discussion with the subject(s) of that
referral without prior coordination and approval by the
Justice Department attorney overseeing the case. It
is, of course, entirely appropriate for Agency officials
working on the criminal prosecution--including investigators,
attorneys and technical personnel—to provide input,
suggestions and advice during the negotiation process.
Moreover, the Agency would expect to be consulted on any
final settlement.
IX. REQUESTS FOR ASSISTANCE IN CRIMINAL INVESTIGATIONS
CONDUCTED BY THE JUSTICE DEPARTMENT AND THE FBI
EPA may receive requests for technical, legal or
investigative assistance in environmental criminal cases
that are initiated independently by the Justice Department
or the Federal Bureau of Investigation.
It will be the policy of EPA to provide support for
these requests to the extent resour-ss permit. Requests for
legal or investigative assistance ir. criminal investigations
from the Justice Department or the FBI will be r ? -jwed in
advance by the Criminal Enforcement Division, the Enforce-
ment Counsel, and the Associate Administrator and General
£/ Agency guidelines on grand jury investigations were
circulated by OLEC on April 30, 1982. (See Memorandum,
"Age.-cy Guidelines for Participation in Grand Jury
Investigations;" Associate'Administrator for Legal and
Enforcement Counsel and General Counsel to Assistant Admini-
strators, Regional Administrators, Regional Counsels and
Director, NEIC, 4/30/82). Agency officials should consult
these guidelines prior to participation with the Justice
Department in a grand jury investigation.
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Counsel. Accordingly, regional offices that receive any
such requests should forward the request to the Criminal
Enforcement Division for final determination by the Associate
Administrator and General Counsel.
Any request for technical assistance should be for-
warded to the appropriate program office for determination.
X. SECURITY OF CRIMINAL INVESTIGATIONS
Information on criminal investigations must be
provided with restraint, and only to persons who have
a "need to know" the information. Additionally, special
attention must be given to the care and custody of written
materials pertaining to an investigation. This point is
of particular importance when circulating a referral
package for review. OLEC investigative units will be
equipped with secure office space, filing cabinets, and
evidence vaults. Similar security measures should be
utilized by program office and Regional Counsel staff
assigned to an investigation.
Active criminal investigations shall never be discussed
with personnel outside of the Agency except as is necessary
to pursue the investigation and to litigate the case.
Accordingly, requests for information on active investi-
gations from the news media should be politely but firmly
denied. Moreover, Agency officials should never confirm
the existence of an ongoing field or grand jury investi-
gation in response to outside inquiries.
Finally, in the event of inquiries from Congress,
my staff will work closely with the Congressional Liaison
Office prior to releasing any information or making any
public statements.
XI. RESERVATION
The policy and procedures set forth herein, and
internal office procedures adopted pursuant hereto, are not
intended to, do not, and may not be relied upon to create a
right or benefit, substantive or procedural, enforceaole at
law by a party to litigation with the United Starts. The
Agency reserves the right to take any action alleged
to be at variance with these policies and procedures or
not in compliance with internal office procedures that
may be adopted pursuant to these materials.
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ATTACHMENT A
Organizational Chart
Investigative Component of the Criminal Enforcement Program
Associate Administrate-
For Legal
and Enforcement Counsi
and General Counsel
JL
Enforcement Counsel
Criminal Enforcement
Division
Area Office
(Philadelphia)
Office Leader:
SAIC
Staff Investigators:
3-5 Special Agents
Clerical:
1 Secretary
1 Clerk Typist
Area Office
(Atlanta)
Office Leader:
SAIC
Staff Investigators:
3-5 Special Agents
Clerical:
1 Secretary
1 Clerk Typist
Criminal Enforce-
ment Unit (NEIC)
1 SAIC
1 Special Agent
(Clerical Support to
be provided by the
NEIC).
Area Office
(Chicago)
Office Leader:
SAIC
Staff Investigators:
3-5 Special Agents
Clerical:
1 Secretary
1 Clerk Typist
Area Office
(Seattle)
Office Leader:
SAIC
Staff Investigate!
3-5 Special Agei
Clerical:
1 Secretary
1 Clerk Typist
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
'WASHINGTON. D.C. 20460
C3
MEMORANDUM
SUBJECT: Regional Counsel Reporting Relationship
SZ&ii- '
FROM: Alvin L. Aim <-**"-*> *—*
or PICK or
TMK AOMINI1TMATOM
Deputy Administrator Designate
TO: Assistant Administrators
Associate Administrators
Regional Administrators
Regional Counsels
As part of an overall review of headquarters-regional
matters, I have recently reviewed the relationship among the
Regional Counsels, the Regional Administrators, the Office of
General Counsel, and'the Office of Enforcement Counsel, and
have met with a number of you to discuss this topic. My cen-
tral desire has been to reconcile the need for strong legal
support to allow the Regional Administrators to succeed in
their duties with the need for national consistency in inter-
preting and applying the laws under which the agency operates.
The decisions which follow are an effort to meet both goals.
Accountability of the Regional Administrators for
Enforcement. The Regional Administrator, rather than the
Regional Counsel, will be fully accountable for enforcement
activities and enforcement results. I believe this is prefer-
able to the current system, under which accountability is
divided between the Regional Administrator and the Regional
Counsel. With my decisions today,.the Regional Administrators
now have control of the full range of resources needed for an
effective regional enforcement program and thus are the appro-
priate focus of accountability for that function. The Assistant
Administrator for Enforcement will have the same policy-setting,
review, and oversight responsibilities as the other Assistant
Administrators have for their regional counterparts.
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Allowance holder for Regional Counsel resources. The
Regional Administrator will be the allowance holder for Regional
'Counsel budget allocations. Administering these allowances in
headquarters has proved cumbersome and confusing, with no off-
setting benefits. The allowance holder shift will take effect
October 1, 1983, for FY 1984,
Program direction of Regional Counsels. The Regional
Administrator is the policy-maker for his region, and is the
Regional Counsel's client. Accordingly, the Regional Counsel
and his staff must be responsive to the policies and priorities
established by his client, the Regional Administrator. This
means that the activities of the Regional Counsel will be
determined on a day-to-day basis by the Regional Administrator,
and that fche Regional Counsel is accountable for the quality,
timeliness, and adequacy of the legal services provided to the
Regional Administrator.
Selection and rating of Regional Counsels. Given the
complexity of £?A's regulatory programs, and the possibility
of confusion and damage from divergent legal approaches, I
think we should continue to maintain a single national law
office of which the Regional Counsels are parts. Accordingly,
the lead responsibility for selecting the Regional Counsel and
his staff shall remain with the General Counsel, with the
concurrence of the Regional Administrator on the selection of
the Regiona.'. Counsel, Similarly, the General Counsel shall
review and rate the performance of the Regional Counsel', in
consultation with the Assistant Administrator for Enforcement,
eind with the concurrence of the Regional Administrator. The
General Counsel shall also have the lead in establishing rating
and promotion criteria for attorneys in the Regional Counsel
cffices.
National Consistency. The General Counsel shall review
pleadings filed in regional cases to the extent necessary to
assure consistency in Agency legal arguments and statements on
issues of national significance. The General Counsel should
speak for EPA in interpreting the law. The Regional Counsels
must of course deal with interpretive problems in carrying out
their duty to advise the Regional Administrators. However,
the Regional Counsels should consult with the Office of General
Counsel to the extent necessary to assure consistency in Agency
statements on legal issues.
These decisions will make the delivery of legal services
mere efficient Agency-wide, and will help support an effective,
vigorous enforcement program. Additional directives will detail
how these general decisions will t>e implemented.
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*• ff^. ^
^ I UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
.
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GUIDANCE FOR DRAFTING JUDICIAL CONSENT DECREES
EPA GENERAL ENFORCEMENT POLICY i GM - 17
UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY
EFFECTIVE DATE:
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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 RIGiHT TO ACT AT VARIANCE WITH THESE POLICIES AND PROCEDURES
AND TO CHANGE THEM AT ANY TIME WITHOUT PUBLIC NOTICE.
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TABLE OF CONTENTS
TOPIC PAGE
I. Introduction 0 „ 1
II. Front End Standard Provisions - Providing the
Factual and Legal Background for the Consent Decree .. 3
t
A. Parties 3
Plaintiffs - example 3
Defendants - example ,. 4
Intervenors - example „ 5
' "-•f
B. Procedural History 5
Examples 5
III. Transitional Clause - Providing a Lead into the
Court's Order €
Example 7
IV. Provisions of the Court's Order 7
A. Jurisdiction and Statement of the Claim 7
Jurisdiction - example 7
• .Statement of the claim - example 7
B. Applicability Clause 8
Example 8
C. Public Interest Provision 9
Example • 9
D. Definitions Section 9
Example 10
E. Compliance Provisions 10
1. Generally 10
Example .. 12
Example - Sinter Plant - 13
2. Compliance Provisions for Repeat Violators .. 14
3. Performance Bonds 15
Example 15
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F. Provisions Defining Other Responsibilities of
the Parties to the Decree 15
1. Notification 15
Example 16
2. Penalties 16
a. Generally 16
Examples 16, 17
b. Other Obligations Assumed by Defendants .. 18
Example 19
3. Dispute Resolution Provisions 19
4, Nonwaiver Provision 20
Example 21
5. Stipulated Penalties 22
Example . . ., 23
6. Force Majeure 24
Example 26
7. Public Comment, on the Decree --. . . 27
Example ....'...... 27
8. Retention of Jurisdiction 27
Example 28
9. Confidentiality of Documents 28
Example 28
10. Modification of the Consent Decree 28
Example 29
11. Termination of the Decree and Satisfaction .. 29
Examples 29/ 30
12. Costs of the Action 30
Example N 30
13. Execution of the Decree ' 31
APPENDIX A - Consent Decree Checklist
APPENDIX B - Sample Consent Decrees
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I. Introduction
The purpose of this document is to provide guidance on
provisions which EPA should include when drafting a settlement
agreement covering a civil enforcement action for which the
Federal government has decided that judicial remedies are
appropriate. The document explains the appropriate use of
various standard provisions and provides sample language for
these provisions.
Each judicial consent decree negotiated by EPA differs,
because each deals with a different noncompliance problem and
embodies the results of a separate negotiating process. Pro-
visions contained in decrees must differ to reflect the agree-
ment resulting from these-negotiations. Most consent decrees,
however, also must contain certain relatively standard provi-
sions to address matters which are relevant in virtually 'all
enforcement actions. Use of this standard language will
lessen the review necessary of the resulting draft consent
decree. Of course, local court rules may also mandate specific
forms which must be followed or provisions which must be
included in settlement agreements.
The settlement of a potential civil judicial action
should almost always result in a negotiated consent decree.
Occasionally, in the past, EPA has entered into voluntary
agreements to settle some enforcement actions. Those EPA
officials negotiating settlements in EPA enforcement actions
are not encouraged to use such voluntary agreements and they
should be limited to unique situations, for example,
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in cases in which no prospective action is required from the
defendant.
A consent decree may operate as a release from liability
for the defendant for the violations addressed by the decree.
For this reason, the decree must be narrowly drawn and address
only the allegations made in the complaint. The consent decree
should release the defendant from liability only after the
defendant has complied with all the terms of the decree. In
all cases, settlements must be carefully drafted. Many
parties may be involved as defendants or potential defendants,
particularly in hazardous waste cases; therefore, you should
be certain that non-settling defendants or potential defendants
are not released from liability because EPA .has settled with •
one or .-some of the defendants. (See, Nonwaiver Provision,
page 20 ).
This guidance is meant to apply generally to all EPA media
areas and does not attempt to discuss unique issues limited
to a specific media.. Therefore, EPA attorneys drafting
consent decrees should consult any applicable media-specific
policies for guidance in dealing with these issues. You
should follow separately issued guidance for procedures to
use in conducting negotiations and for the review and approval
of proposed consent decrees.
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II. "Front End" Standard Provisions - Providing the Factual
and Legal Background for the Consent Decree.
A. Parties and Cause of Action
It is obvious that each consent decree must identify
the parties and the cause of action. The plaintiff in every
action is the United States of America, on behalf of the
United States Environmental Protection Agency. Identify the
cause of action by specifying the legal authorities allegedly
violated by the defendant and by briefly describing those
actions by the defendant which led to the filing of the complaint,
The decree should make some reference to the complaint which
has been or will be filed to demonstrate the decree's relation-
ship to pending litigation.
EXAMPLES
•
1. Plaintiff, United States of America, on behalf
of the United States Environmental Protection
Agency (EPA), has filed the complaint herein on
(date) This complaint alleges that the
defendant violated the Clean .Air Act, 42 U.S.C.
§ 7401 e_t seq. and the State Implemen-
tation Plan (the SIP) adopted under the Clean
Air Act by the following actions:
2. Plaintiff, United States of America, on behalf
of the United states Environmental Protection
Agency (EPA), filed the complaint herein on
(date) . This complaint alleges that the
defendant violated the Clean Water Act, 33
U.S.C. §1251 e_t seq. and National Pollutant
Discharge Elimination System (NPDES) Permit No.
by the following actions:
Every consent decree should identify the defendant in terms
of the defendant's status as an individual, corporate entity,
partnership, etc. This section should give enough factual
information to establish the court's personal jurisdiction
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over the defendant and to establish venue. In some situations,
the defendant will own or operate several facilities. Facilities
covered by this decree should be specified with particularity.
If the decree fails to identify precisely those facilities
or sources which are in violation of the relevant statute(s)
and for which relief is provided in the decree, there may be
some question as to the scope of the decree.
EXAMPLE
Defendant, XYZ Steel Corporation (Defendant),
is a Delaware corporation, registered to do
business in the Commonwealth of Virginia
with its prinicipal place of business at 6004
Main Street, Alexandria, Virginia.
Defendant owns and operates an integrated steel-
making facility known as the "Karefull Works",
in Karefull Hills, Smith County, in the Southern
District of Virginia. Defendant owns and
operates various facilities at the Karefull
Works, including among others, a sinter plant,
comprised of two sintering lines; an open hearth
furnace; three blast furnaces; an electric
arc fan shop, comprised of two electric arc
furnaces; and two coke oven batteries. All
of the above facilities are alleged by the
Plaintiff to be sources of air pollution operating
in violation of the State Implementation Plan
and are covered by this decree.
In addition to the plaintiff and defendant(s), any inter-
venors in the suit (often affected States) should be identified
as parties to the decree. Making the intervenors parties to the
decree is necessary for full settlement and can give them the
ability to enforce the decree's provisions. Binding intervenors
to the decree's provisions also provides the defendant with
complete information as to the extent of its liability. If
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motions to intervene are pending, those, as well as any other
outstanding motions, should be resolved by the decree.
EXAMPLE
The State of Ohio has moved to intervene as
Plaintiff. The Commonwealth of Pennsylvania
has also moved to intervene as Plaintiff to
protect its interest insofar as resolution of
the allegations of the complaint affect water
quality in the Mahoning River at the Ohio-
Pennsylvania State line. The motions to
intervene are hereby granted.
B. Procedural History
The decree should include provisions regarding proce-
dural history if the defendant in the case at bar has been
involved in prior relevant enforcement proceedings. It is helpful,
in these cases, to specify the relationship between this deqree
•
and previous decrees and orders in effect with regard to this
defendant. The decree you are drafting may abrogate or add to
the provisions of a previous decree or order. If so, you
should detail these facts in the decree. In some instances,
the previous decree or order may have resolved violations at
the same facility which are so similar to those presently being
addressed that the existence of two decrees would be confusing.
A new decree which incorporates those provisions of the prior
decree still in effect may clarify the obligations of the
defendant. Finally, if the violation of an administrative
order preceded this judicial action, you should note that
fact in this section of the decree.
EXAMPLES
1. Plaintiff and Defendant entered into a-
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Consent Decree to resolve a prior case,
Civil Action No. , and the
Defendant has fully and satisfactorily
complied with that prior Decree.
Plaintiff and Defendant entered into a
Consent Decree, to resolve violations of the
Clean Air Act at defendant's _____
facility. That Decree retains full force and
effect.
Plaintiff issued an administrative order
pursuant to §309 of the Clean Water Act to
the Defendant on (date). The Defendant has
failed to comply with the terms of this
administrative order.
III. "Transitional" Clause - Providing a Lead into the Court's
Order
Traditionally, every consent decree contains a transi-
tional clause which signals the end of the introductory
portions of the decree and the beginning of the Court's
order.
You will most likely draft and execute a consent decree
which is the result of a settlement before the introduction
of any evidence or the finding of any facts. In these instances,
it is inappropriate to recite that these events took place.
."n some instances, settlement may be reached without the
defendant admitting any facts or points of law and refusing to
admit any liability. It is appropriate to use this clause to
indicate this fact.
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EXAMPLE
There has not been a trial on any issue of fact
or law in this case. However, the parties wish
to settle the dispute described above. Accordingly,
they have agreed to the following order through
their attorneys and authorized officials.
THEREFORE, it is ORDERED as follows:
However, if the defendant has admitted certain facts,
these should be explici-tly noted in the decree.
IV. Provisions of the Court's Order
A. Jurisdiction and Statement of the Claim
Every decree must contain a provision reciting that the
court has subject matter and personal jurisdiction. The decree
should recite the statutory authority for the court's jurisdic-
tion. This is particularly important if the defendant disputed
the court's jurisdiction. The following example states the fact
of the court's jurisdiction and provides a waiver by the defen-
dant of any objections to the court's jurisdiction.
EXAMPLE
This Court has jurisdiction over the
subject matter and over the parties
pursuant to 28 U.S.C. §1345; 42 U.S.C. §7603
and 42 U.S.C. 6973. The Defendant
waives any objections it may have to the
jurisdiction of the Court.
Additionally, Federal Rule of Civil Procedure 8(a) requires
that a complaint state a claim for which relief can be granted.
Obviously, courts cannot grant relief where no cause of action
will lie. It is essential to state in the decree that the com-
plaint met this requirement, e.g., "The Complaint filed herein
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states a claim for which relief can be granted". Such a state-
ment does not constitute an admission of liability by the
defendcint, but only that the allegations of the complaint, if
proved, would support the judgment.
B. Applicability Clause
The applicability clause defines those to whom the
decree applies. It binds the successors in interest to both
the plaintiff and the defendant, thus providing for those
instances when ownership of facilities or sources may change
after ontry of the decree. The language used parallels the
language of Federal Rule of Civil Procedure 65(d) since that
rule sets out the scope of injunctions.
EXAMPLE
•
The provisions of this consent decree shall
apply to and be binding upon the parties to
this action, their officers, agents, servants,
employees and successors. Defendant shall
give notice of this consent decree to any
successors in interest prior to transfer
of ownership and shall simultaneously verify
to plaintiff that defendant has given such
notice.
In some cases, particularly hazardous waste site cases,
the decree may include a further provision which will ensure
that subsequent purchasers of the property have notice
that the site was or is a hazardous waste site and that a
consent decree exists which affects the property. For example,.
the decree could provide that it be recorded with the local
office having responsibility for the recording of deeds and
other such instruments. Alternatively, the defendant could
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agree to note the decree on the deed to the property.
C. Public Interest Provision
All consent decrees should contain a provision that the
parties agree and the Court has found that the decree is in the
public interest. Such a statement by the parties and a finding
by the Court makes it more difficult for others to later attack
the decree's terms. (This is especially true for those decrees
which are subject to public comment. See the discussion at
page 27.)
EXAMPLE
The parties agree and the Court finds that
settlement of these matters without further
litigation is in the public interest and
that the entry of this decree is the most
appropriate means of resolving these matters.
D. Definitions Section
Consent decrees which contain many technical or poten-
tially ambiguous terms, or define terms according to agreement
reached between the parties should contain a separate section
listing those definitions. This section can also give defini-
tions for potentially misleading terms.
Of course, definitions given must conform with definitions
given in statutes and regulations. Do not attempt to redefine
terms that have specific legal definitions; however, examples
or illustrations of these terms may be appropriate.
For consent decrees that are very short and limited in
scope a separate section devoted to definitions may be unne-
cessary. Terms defined in specific decrees will, of course,
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vary. The following example demonstrates one form of such a
sect,ion.
EXAMPLE
The following terms used in this consent
decree shall be defined as follows:
a. The terra "days" as used herein shall
mean calendar days.
b. The term "permanently cease operation"/
when''used in such phrases as "per-
manently cease operation of the six (6)
open hearth furnaces", .shall mean the
complete cessation of production at the
relevant source and the termination of
all power or fuel to the source.
E. Compliance Provisions
1. Generally
Consent decrees must require compliance with applicable
statutes or regulations and commit the defendant to a particular
remedial course of action by a date certain. Consent decrees
negotiated by EPA contain compliance provisions whenever it
is necessary for defendant to take remedial action to cure
or prevent violations unless no injunctive relief is necessary
to obtain compliance with applicable law (i.e., penalties
only case).
Compliance provisions set out what steps the defen-
dant nust take to remedy violations of various environmental
statutes and usually define methods EPA can use to determine
the defendant's success in meeting these provisions. The
specific compliance provisions of each decree will vary
depending on the facts of the specific case and the media
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involved. Drafters should consult media-specific policies
for guidance.
Compliance provisions should specify the standard or level
of performance which a source ultimately must demonstrate it
has met. Other than interim standards to be attained until
final compliance is achieved, a decree should not set a
standard less stringent than that required by applicable law because
• -(r
•a decree is not a substitute for regulatory or statutory change.
You should avoid including compliance provisions which
require the defendant to comply solely by installing certain
equipment, unless specific technical standards are required by
applicable regulations. Such provisions should require
compliance with the appropriate standard as well. Such a
provision may allow the defendant to argue that installation
of the equipment fulfills the requirements of the consent
decree even if the equipment fails to achieve compliance
with statutes and regulations. You may include provisions
which require the installation of necessary control technology.
However, the provisions must be clear that installation of
specific equipment does riot relieve the defendant from the
responsibility for achieving and maintaining compliance with
the applicable laws and regulations.^/
_!/ Under some statutes, CERCLA, for example, standards for
clean-up are rarely available. When the decree involves
future clean-up activities rather than cash settlements, the
decree may usefully specify continuing State/EPA responsibilities
for determining future clean-up activity.
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An important part of the compliance section of a decree
is the inclusion of provisions which provide a means of
monitoring the defendant's performance. Depending upon the
performance standard required by the decree, monitoring
i
provisions might, for example, require periodic tests or reports
by the defendant. Test protocols may be set out in technical
appendices to the decree. Generally, in choosing monitoring
• '"••'
provisions you should consider such factors as the impact
on Agency resources of different monitoring requirements
and the ease with which the Agency can proceed with monitoring,
as well as the need for some type of Federal oversight to
ensure that the defendant is addressing noncompliance problems
adequately. For example, you will want to provide for site
entry and access and document review by the Agency in the
decree. You should not waive the Agency's right to assert
or utilize its statutory authorities, such as right of entry
or document production.
EXAMPLE
Any authorized representative or contractor
of U.S. EPA or Intervenors, upon presentation
of his credentials, may enter upon the premises
of the Karefull Works at any time for
the purpose of monitoring compliance with
the provisions of the Consent Decree.
The decree should specify timetables or schedules for
achieving compliance requiring the greatest degree of remedial
action as quickly as possible. Such timetables are particularly
relevant in decrees which mandate construction the defendant
must undertake or cleanup the defendant must accomplish.
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These schedules should include interim dates so that the
Agency can monitor the defendant's progress toward compliance,
EXAMPLE
III. Sinter Plant
A. Applicable Emissions Limitations
1. Emissions from the sinter plant at Defendant's
Karefull Works shall comply with the emission
limitations in 25 Pa. Code SS123.41, 12'3.3 and
123.1 as follows:
a. Visible emissions from any sinter plant
stack shall not equal or exceed 20% opacity
for a period or periods aggregating more
than three (3) minutes in any sixty (60)
minute period and shall not equal or exceed
60% at any time, as set forth in 25 Pa. Code
§123.41.
b. Visible emissions from any part of sinter
plant operations shall not equal or exceed
20% opacity for a period of periods aggregat-
ing more than three (3) minutes in any sixty
(60) minute period and shall not equal or
exceed 60%, as set forth in 25 Pa. Code
§123.41.
c. Mass emissions from the sinter plant
windboxes and from all gas cleaning
devices installed to control emissions at
the sinter plant shall not exceed
grains (filterable) per dry standard cubic
foot (the applicable emission limitation).
d. Fugitive emissions from any source of
such emissions at the sinter plant shall
not exceed the emissions limitation set
forth in 25 Pa. Code §123.1
2. The air pollution control equipment described
below shall be installed in accordance with
the following schedule:
Submit permit application November 1, 1980
to DER and to EPA for
approval
Issue purchase orders May 1, 1981
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Commence installation November 1, 1981
Complete installation September 1, 1982
and start up
Achieve and demonstrate November 1, 1982
compliance
B. Sinter Plant Compliance Program
1. In order to bring Defendant's sinter plant into
compliance with the requirements specified in
paragraph III.A.I.e. above, Defendant shall
install the following air pollution control
equipment on sintering line #1-.:
a. Defendant shall install an air pollution
control device which complies with the
emission limitation of paragraph III.A.I.e.
on #1 sinter plant windbox to control sinter
plant windbox stack emissions.
b. Defendant shall install a scrubber or a
baghouse (or separate baghouse, as appro-
priate) on II sinter line and appropriate
ductwork to replace the existing cyclone.
for control of emissions from the discharge
end of II sinter line.
c. Installation of this equipment in no way
relieves the defendant of the require-
ment of achieving and maintaining comp-
liance with the emission limitations set
out in paragraph III.A.I.
2. Compliance Provisions for Repeat Violators
Vfhen negotiating with a source with a long history of
repeated violations negotiators should consider including
more stringent compliance monitoring provisions in resulting
consent decrees. The decree could include provisions for
more frequent monitoring and testing by the source to ensure
continued future compliance or opportunities for more EPA
monitoring and testing in addition to self-monitoring by the
source.
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2. Performance Bonds
EPA may require performance bonds from a defendant to ensure
that actions required by the decree (i.e., clean-up of a site,
installation of pollution control equipment) are actually com-
pleted. The amount of any such bond will vary from case to
case. The provision should state those circumstances under
which the bond becomes payable. The bond itself is a separate
instrument which sets out more fully those circumstances
under which the bond is forfeited and those conditions under
which the bond is released, as well as any sureties guaranteeing
the bond. Therefore, the bond instrument itself should be
closely reviewed for adequacy.
EXAMPLE
The defendant shall comply with the'follwing
provisions at Blast Furnaces 1, 2, 3 and 4.
a. Defendant shall install an emission
suppression system on furnaces 1 and 4.
• t •
Defendant has posted a bond payable to
United States Treasury in the amount of
$1,000,000 for each of blast furnaces
1 and 4 payable immediately and in full
if defendant fails to certify installation^
of an emission suppression system by December
31, 1982, and demonstration of compliance
with the above emission limitation by December
31, 1982.
F. Provisions Defining Other Responsiblities of the
Parties to the Decree.
1. Notification Provision
Various provisions in consent decrees may require
notification of different events to the plaintiff, defendant
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and/or the court. When this is the case, it is appropriate
to include a provision setting out to whom such notices should
be given.
EXAMPLE
Whenever, under the terms of this decree,
notice is required to be given by one party to
another party and/or the court, such notice
shall be directed to the individuals specified
below at the addresses given, unless those
individuals or their successors give notice in
writing to the other parties that another
individual has been designated to receive
such communications.
(appropriate names and addresses)
2. Penalties
a. Generally
Often, the defendant will be liable for a civil penalty for
« •
its violation of the statute. Some decrees may contain only
penalty provisions in situations in which some sanctions are
appropriate to respond to past violations and to deter future
misconduct, yet compliance provisions are unnecessary because
the defendant has achieved compliance before the execution
of the decree. The decree should state that the payment is
a penalty so the defendant does hot obtain a tax advantage
froir. its payment.
EXAMPLE
Defendant shall pay a civil penalty in the
amount of as a result of the defen-
dant's violation of with regard to
facilities which are the subject of this decree.
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f>
The decree should also state terms for payment of any penalty.
Normally, payment should be in a lump sum within a short time
from the entry of the decree. Installment payments may be allowed
in the following circumstances:
- if the defendant can demonstrate an inability both to pay the
lump sum penalty and to finance remedial action or continue
in operations; and, '
- if there is no reason to believe that further payments will
not be forthcoming.
If the defendant agrees to pay by installments, the decree
can provide for interest at the appropriate judgment interest
rate.
Payment provisions should recite the amount of the payment,
to whom paid, 'how payment is made and when payment is due-. Normally,
the provisions should require defendants to submit a cashier's
check payable to "Treasurer, United States of America" to the
appropriate Regional Counsel.
EXAMPLE
Defendants agree to pay a civil penalty in the
total sum of ONE MILLION, THREE HUNDRED AND FIFTY
THOUSAND DOLLARS ($1,350,000). The terms of
this paragraph do not limit remedies available
for violation of this decree. Payment of ONE
MILLION DOLLARS ( $1,000 ,.000 ) of such penalty
shall be made within five days of the entry of
this decree, by cashiers check payable to
"Treasurer, United States of America", delivered
to the Regional Counsel, USEPA, Region V, 230
South Dearborn Street, Chicago, Illinois 60640.
The remaining THREE HUNDRED AND FIFTY THOUSAND
DOLLARS ($350,000) of such penalty shall be paid
in the same manner, either by December 31, 1982,
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in which event there will be no interest charge,
or by June 30, 1984, in which event interest
shall be charged at the rate provided in 28 U.S.C.A.
§1961, for the time period between the date of entry
of this decree and the date of payment.
b. Other Obligations Assumed by Defendants
During negotiations, defendants may offer to take certain
action in order to offset or in lieu of a cash penalty. For
example, the defendant may offer to install extra pollution
control equipment which'1' is not necessary to meet legal requirements.
If EPA has agreed to accept lesser amounts in settlement
because of extra pollution control activity by the defendant,
drafters of consent decrees must be sure that this agreement
is explicitly noted in the decree, and that the decree requires
the defendant to operate and maintain any "extra" equipment.
Consent decrees have precedential value, a.nd any such' trade-off
between the Federal government and defendants must be readily
apparent to readers of the decree. This provision will also
ensure that the defendant is bound by its agreement to undertake
these actions. You should refer to applicable civil penalty
policies for guidance, in evaluating credit-worthy activities and
their appropriate use.
An effective means of ensuring the defendant's performance
of these actions is to include a provision which defers
collection of some or all of a penalty amount until performance
is completed, so long as the amount ultimately paid is acceptable
under -any applicable penalty policy. The provision could
then excuse payment of the deferred portion of the penalty
entirely when performance has been satisfactorily completed.
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EXAMPLE
The payment of the penalty amount due on (date)
shall be excused by the plaintiff if the plaintiff
finds that the following conditions have been
met.
a) By (date) , defendant shall install and operate
a coke-side shed (as described in paragraph I.B.l.b.)
on each battery to control pushing emissions--
Each shed shall be evacuated continuously to
capture and clean emissions from both the pushing
operation and all door leaks.
b) Defendant shall achieve, maintain and demonstrate
compliance with the emission limitation set forth
in paragraph I.A.l.d. with respect to mass emissions
attributable to coke oven pushing operations by
(date) . Defendant shall achieve and demonstrate
compliance with the emissions limitation set forth
in 25 Pa. Code §123.44(a)(3) with respect to
door emissions under the shed by (date).
c) Defendant shall certify completion of the conditions
listed in subparagraphs (a) and (b) above to the
. plaintiff by certified letter. This notification
should be sent by U.S. Mail, return receipt
requested to (name, title and address) by (date).
3. Dispute Resolution Provision
Disputes may arise between EPA and the defendant after
execution of the decree as to the defendant's compliance with
the terms of the decree. The decree can provide its own mechanism
for resolving some or all of these potential disputes by the
parties before resorting to the court for resolution of the dispute.
Dispute resolution by the parties should be limited to a specific
amount of time. Such a dispute resolution provision will
allow EPA to avoid resolution of each dispute by the court.
Advantages of such a provision include:
a) speedier resolution of disputes because resort to
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-20-
the court may not be necessary; and
b) technical disputes can be resolved by those with the
requisite expertise, thus avoiding the need to
educate the court before evidence can be evaluated.
A number of dispute resolution devices can be used in
decrees. For example:
a) EPA and the defendant could agree to negotiate for a
a limited period of time any such dispute or specified
disputes which arise.
b) The parties could agree to submit the matter to
arbitration. Again, a limited time period should be
specified during which the parties could submit the
matter to arbitration. A specific time limit would be
appropriate for the arbitration process as well. •
c) Failing resolution by the parties, the decree should
provide for application to the court to resolve disputes.
If the matter is submitted to the court for resolution,
the decree should provide that the defendant bears the
burden of proof.
4. Nonwaiver Provision
At times a set of actions by a defendant may violate
separate statutory requirements. One violation may be settled
while other claims are litigated. In all decrees, it is
proper to state that the decree does not affect the defendant's
liability with regard to other statutes or regulations. The
following sample is acceptable.
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-21-
EXAMPLE
This consent decree in no way affects or
relieves defendant of responsibility to
comply with any other State, Federal or
local law or regulation.
If a consent decree settles a portion of a dispute under a
statute, the consent decree should clearly indicate that other
aspects of the case have not been settled. For example, in
some hazardous waste cases an agreement may be reached
dealing with surface clean-up of a site but issues on ground
water contamination may be reserved for later resolution. These
partial consent decrees should clearly state that the defendant
is not fully released from liability.
Various statutes grant EPA specific powers to deal with
emergency situations. The decree may specify that the Agency
retains the power to act in these situations.
EXAMPLE
This decree in no way affects the ability of
EPA to bring an action pursuant to Section
303 of the Act, 42 U.S.C. §7603.
Additionally, you may want to include a provision to
preserve the government's cause of action against third parties
•
who are not parties to the suit and who may be responsible along
with the named defendant(s).
EXAMPLE
This decree does not limit or affect the
rights of the defendants or of the United
States as against any third parties.
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5. Stipulated Penalties
Most decrees should contain provisions for stipulated
penalties. These provisions encourage compliance and simplify
enforcement by providing a significant, clearly defined sanction
in She event the defendant violates a provision of the decree.
Stipulated penalties are appropriate for violation of the
following types of provisions:
a) final and interim compliance requirements/
b) reporting, testing or monitoring requirements,
c) any other performance requirements (including
requirements to pay. civil penalties).
IProvisions for stipulated penalties should include the amount
of th<> penalty, how the penalty should be paid, and to whom the
penally should be paid. To set the amount of a proposed stipulated
penalliy, you should be guided by applicable statutes, regulations
and EPA policies. Normally, defendants should pay stipulated
penalties by delivering a cashiers check made payable to "Treasurer
United States of America" to the appropriate Regional Counsel.
The decree may also provide that the court issuing the
decree will resolve disputes between the parties as to liability
for and the amount of an assessed stipulated penalty. The provision
should also make clear that stipulated penalties are not the
plaintiff's exclusive remedy for the defendant's violation of
the decree and that the plaintiff reserves its right to seek
injunctive relief.
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EXAMPLE
Failure by the defendant to achieve full compliance
as required by Paragraphs IV.A.I through 9, except
as excused pursuant to Paragraph V herein (force
majeure), shall require defendant to pay a stipulated
penalty of $7,500 per day for each day that such
failure continues.
Stipulated penalties are payable upon demand as follows:
Cashiers check payable to: Treasurer, United States
of America
Address for payment: USEPA, Region III
Curtis Building, Second Floor
6th and Walnut Streets
Philadelphia, PA. 19106
Attn: Regional Counsel
Any dispute with respect to defendant's liability
for a stipulated penalty shall be resolved by this
court. The provisions of this paragraph shall not be
construed to limit any other remedies, including
but not limited to institution of proceedings for
civil or criminal contempt, available to plaintiff or
intervenors for violations of this consent decree or
any other provision of law.
You may want to provide for stipulated penalties which esca-
late based on the number of days the source is not in compliance
or on the amount of excess emissions or effluents discharged
by the source in violation of the decree. For example, for days 1
through 30 of violation the stipulated penalty could be $1000
per day. This could increase to $2000 per day for days 30 through
60 and so on. Similarly, excess discharges or emissions could
be expressed as a percentage over the daily limitation and a scale
could be devised for these as well. For example, discharges which
are less than 10% over the daily discharge limitation would be
subject to a stipulated penalty of $500, from 10% to 25%, $1000
and so forth.
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Another approach which may aid the negotiation process is
to t.se a stipulated penalties provision which allows the payment
of penalties for interim violations into some kind of escrow
account. The clause could provide for the return of these payments
to the defendant if timely final compliance is achieved and the
terms of the consent decree are satisfied. If such an escrow
account arrangement is used, EPA staff should review the escrow
agreement itself. Tire" agreement should clearly give the escrow
agent the authority to turn the fund over to EPA in the event
of noncompliance.
6. Force Majeure
The purpose of a force majeure clause is to excuse the
defendant's performance pursuant.to the decree because of cir-
cumstances beyond the defendant's control /e.g., acts of God).
Therefore, such a clause should not be included in a decree
unles.s the defendant insists on its inclusion.
Although a force majeure clause is something the defer'Ir-.t
may want in the decree, it normally will be to EPA's negotiating
advantage if Agency representatives draft the clause. Generally,
the following elements should be included in drafting such a
clause.
a) The clause must clearly limit excused delays in per-
formance to those events which are beyond the control of the
defendant. The decree may define specifically which circum-
stances would trigger the force majeure clause. Arriving at
a list of such circumstances, however, may consume a good deal
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«
of negotiating time. For this reason, the term "circumstances
beyond the control of the defendant" is acceptable. The language
in the example (circumstances entirely beyond the control of the
defendant) is better.
The clause should not allow the defendant to claim economic
hardship or increased costs as circumstances beyond defendant's
control which trigger the force majeure clause.
b) The clause should clearly place the burden on the
defendant to prove that the events causing the delay are based
on circumstances beyond its control. The burden should be one
satisfied by clear and convincing evidence, if possible.
c) The clause should include a provision requiring
notification within a time certain by the defendant to the
plaintiff and the court of any delay or anticipated delay
the defendant claims triggers the force majeure clause. This
notification should include the cause of the delay and the ex-
pected duration of the delay. Failure to give notice of a
particular problem should preclude the defendant from invoking
the force majeure provision based on that problem.
d) The clause should provide that the defendant take
measures to prevent or minimize the delay to the maximum extent
reasonable and to propose a time when the preventive measures
will be fully implemented.
e) The clause should state that events triggering the force
majeure clause do not automatically excuse the defendant from
complying with the terms of the decree. Ultimate compliance
should occur as quickly as possible, consistent with the decree's
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-26-
tenns and any extensions granted because of the force majeure
clause.
f) Finally, the clause should provide some mechanism
for dispute resolution, since there may be instances in which EPA
and the defendant cannot agree that a specific delay is caused by
circumstances beyond the defendant's control. (See the discussion
of dispute resolution provisions on page 19.) it is acceptable
'' t*
to «illow the defendant to submit such disputes to the court for
resolution if agreement cannot be reached between the parties.
EXAMPLE
a) If any event occurs which causes or may cause delays
in the achievement of compliance at Defendant's faci-
lities as provided in this decree, Defendant shall
notify the Court, the Plaintiff and Intervenors, in
writing within 20 days of the delay or anticipated •
delay, as applicable. The notice shall describe in
detail the anticipated length of the delay, the precise
cause or causes of the delay, the measures taken and to
be taken by Defendant to prevent or minimize the delay,
and the timetable by which those measures will be
implemented. The Defendant shall adopt all reasonable
measures to avoid or minimize any such delay. Failure
by Defendant to comply with the notice requirements
of this paragraph shall render this paragraph void and of
no effect as to the particular incident involved and
constitute a waiver of the defendant's right to request
an extension of its obligation under this Decree
based on this incident.
b) If the parties agree that the delay or anticipated delay
in compliance with this decree has been or will be caused
by circumstances entirely beyond the control of Defendant,
the time for performance hereunder may be extended for a
period no longer than the delay resulting from such
circumstances. In such event, the parties shall stipulate
to such extension of time and so inform the Court. In the
event the parties cannot agree, any party may submit
the matter to this Court for resolution.
c) The burden of proving that any delay is caused by
circumstances entirely beyond the control of the
Defendant shall rest with the Defendant. Increased
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. costs or expenses associated with the implementation
of actions called for by this Decree shall not, in any
event, be a basis for changes in this decree or extensions
of time under paragraph b. Delay in achievement of one
interim step shall not necessarily justify or excuse delay
in achievement of subsequent steps.
7. Public Comment on the Decree
A Department of Justice regulation calls for a thirty day
public comment period on consent decrees which enjoin the dis-
charge of pollutants. '(See, 28 CFR S50.7) A provision should
be included in these decrees which acknowledges this reguire-
ment.
EXAMPLE
The parties agree and acknowledge that final
approval and entry of this proposed decree
is subject .to the requirements of 28 CFR
$50.7. That regulation provides that notice
of .the proposed consent decree be given to
the public and that the public shall have
at least thirty days to make any comments.
In the usual case, the proposed consent decree is executed
by the parties and forwarded to the court with a cover letter
advising the court that the decree should not be signed by the
Judge or entered until the thirty day comment period has passed.
When the comment period has passed, the court is advised either
that no adverse comments were received or is advised of comments
received and the EPA/DOJ responses to the comments. The court is
then requested to sign and enter the decree.
8. Retention of Jurisdiction
The decree should include a provision which recites that the
court will retain jurisdiction of the case in order to enforce
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the decree and resolve disputes under the decree not specifically
provided for elsewhere.
EXAMPLE
The Court shall retain jurisdiction to modify and
enforce the terms and conditions of this decree
and to resolve disputes arising hereunder as
may be necessary or appropriate for the construction
or execution of this decree.
9. Confidentiality of Documents
In some actions, defendant will claim that documents
provided by it are confidential in nature. In these cases,
the decree should provide that EPA-regulations will control with
regard to such documents.
EXAMPLE
All information and documents submitted by
defendants to EPA/State pursuant to this
decree shall.be subject to public inspection
unless identified and deemed confidential by
defendants in conformance with 40 CFR Part 2.
The information and documents so identified
as confidential will be disclosed only in
.accordance with EPA and State regulations.
10. Modification of the Consent Decree
Consent decrees entered by the court are court orders and
as such may not be modified without the court's approval.
Currently, consent decrees are executed on EPA's behalf by
the Special Counsel for Enforcement or her delegatee. There _
fore, modifications of decrees should be similarly executed.
A provision in the decree reciting these principles will
help to make clear to defendants what they must do in
order to modify the decree.
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EXAMPLE
Any modification of this consent decree must be
in writing and approved by the Court. Any such
written modification must be executed on EPA's
behalf by the Special Counsel for Enforcement
or her delegatee or successor.
11. Termination of the Decree and Satisfaction
Since the defendant has agreed to settle the case and avoid •
trial, it is appropriate that EPA agree to a termination of the
consent decree after the defendant has complied with fill consent
decree provisions. This provision is most appropriately placed at
the conclusion of the decree or in the introductory 'front end1
provisions of the decree.
This termination may be automatic upon completion of the terms
of the decree. However, a provision calling for a motion for
termination by the plaintiff is preferred. This required action
by EPA would aid in eliminating disputes as to whether compliance
was achieved or not and as to when the consent decree terminated.
The decree may provide for 'a time lag between the time the defen-
dant comes into compliance with the decree and the termination of
the decree. This time lag ensures that the defendant continues to
comply for a specified period of time. When termination is delayed
in this manner, the time period specified is at least 180 days in
most instances.
EXAMPLE
The defendant must demonstrate to the plaintiff's
satisfaction that the defendant has complied with
all of the terms of the decree. One hundred and
eighty days (180) after such a showing by the
defendant, the plaintiff agrees to move the court
to terminate the decree.
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Additionally, during negotiations the defendant may insist
on a provision which recites that the decree constitutes a full
settlement of the action contained in the complaint and that this
settlement bars the plaintiff from any other action against the
defendant based on those violations. Such a clause should not
be included in a decree unless the defendant specifically insists
on its inclusion. These clauses should be narrowly drawn so that
it is clear that only^the specific action in the complaint is
covered. Also, cases with multiple defendants or potential defen-
dants require extra care so that these other parties are not
released from liability when that is not intended.
EXAMPLE
Plaintiff and Intervening Plaintiff will refrain
initiating any other civil enforcement action pursua
to Section 113(b) of the Act, 42 U.S.C. §7413, Sect
304 of the Act, 42 U.S.C. §7604, or applicable state
law, with respect to the limitations contained in
this Decree for the emission of particulate
matter and visible emissions from the bark boiler
while Defendant is in' compliance with this Decree.
12. Costs of the Action
A consent decree should contain a provision which allocates
responsibility for payment of court costs incurred in the action
up to the date of settlement. In most negotiated settlements,
each party bears its own costs.
EXAMPLE
Each party in this action shall bear its
own costs.
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t
13. Execution of the Decree
The decree should include signature lines for those who
will execute the decree on behalf of the parties and for the
court.
The authority to settle judicial actions is currently
delegated to the Associate Administrator for Legal and Enforce-
ment Counsel. Therefore, consent decrees must be signed by
• • tf
the AA for OLEC or his delegatee. Additionally, in keeping with
EPA's Memorandum of Understanding with the Department of Justice,
settlements of cases in which DOJ represents the Agency require
the consultation and concurrence of the Attorney General.
Therefore, the decree should be signed by the Attorney General
or his delegatee.
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APPENDIX A
CONSENT DECREE CHECKLIST
(This checklist can be used as a guide for inclusion of
consent decree provisions.)
NAME OF CASE:
U.S. v.
Civil Action No.
PROVISION
INCLUDED
YES NO I
COMMENTS
Identification of Parties
and cause of action -
Plaintiff & initiation
of the action
Defendant - where defen-
dant does business or is
incorporated, facilities
covered by decree
Intervenors
Procedural history - prior
consent decrees and status
prior administrative action
Transitional Clause
Jurisdiction
Statement of claim - com-
plaint states claim for
relief
Applicability clause -
to whom decree applies
Public Interest - decree
is in the public interest
Definitions
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PROVISION
INCLUDED
YES NO
COMMENTS
Compliance Provisions -
Test method for demonstra-
tion of compliance
Monitoring provisions
Entry and access
Standards defendant must
meet
Schedules - final deadline
and interim schedules
construction schedules
Operation & maintenance
procedures
Performance bonds
Notification provision
Civil penalties -
Amount and form of payment
(lump sum or installment)
Penalty payment to State
Credits
Dispute Resolution
Nonwaiver provision
Stipulated penalties -
Items covered
How payed
Dispute resolution
Escrow arrangements
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PROVISION
INCLUDED
YES NO
COMMENTS
Force Majeure
Events covered
Burden of proof on
defendant
Defendant's duties
(notification requirement)
Dispute resolution
Public comment on decree
(28 CFR §50.7)
Retention of jurisdiction
(by the Court)
Confidentiality of
documents-
Modification of decree
Termination & satisfaction
Costs of the action
Execution of decree
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APPENDIX B
SAMPLE CONSENT DECREES
(Attached are consent decrees from the Air and Water
Programs. Although these decrees do not contain all
of the provisions discussed in the guidance, they
can be used as examples of completed decrees.)
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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
UNITED STATES OF AMERICA, )
)
Plaintiff, ' )
)
and ) CIVIL ACTION NO. G 81-289 CA 7
)
STATE OF MICHIGAN, et al., ) JUDGE BENJAMIN F. GIBSON
)
Intervening Plaintiff, )
)
v. )
)
PACKAGING CORPORATION OF AMERICA )
Defendant )
CONSENT DECREE
Plaintiff, United States of America, representing the
United States Environmental Protection Agency (hereinafter, the
"EPA"), having filed the Complaint herein o.n June 3, 1981;
»
And the State of Michigan, representing the Michigan
Department of Natural Resources (hereinafter, the "DNR") and the
Michigan Air Pollution Control Commission (hereinafter, the
"Commission" or "MAPCC"-), having moved to intervene as a party
plaintiff on June 4, 1981, and this Court having granted said
Motion;
And Plaintiff and Intervening Plaintiff having acted in
concert in this action against Defendant, Packaging Corporation
of America;
And Plaintiff, Intervening Plaintiff and Defendant
having agreed that settlement of this matter is in the public
-------
interest and that entry of this Decree without further litigation
j
is the most appropriate means of resolving this matter;
And Plaintiff, Intervening Plaintiff and Defendant
having moved the Court to enter this Consent Decree;
NOW, THEREFORE, before the taking of any testimony, upon
the pleadings, without adjudication of any issue of fact or law,
without any admission or denial of the violations alleged in the
Complaint and upon consent and agreement of the parties of this
Decree, it is hereby Ordered, Adjudged and Decreed as follows:
STIPULATIONS
1. This Court has Jurisdiction of the subject matter
herein and of the parties consenting for the purpose of entering
this Consent Decree. The Complaint states a claim upon which
relief can be granted'against Defendant,, under Section 113 of the
Clean Air Act, as amended, (hereinafter, the "Act"), 42 U.S.C.
7113.
2. The provisions of this Consent Decree shall apply to
and be binding upon all the parties to this action, their
officers, directors, agents, servants, employees, successors and
assigns, and.all persons, firms and corporations having notice of
the Consent Decree and who are, or will be, acting in concert and
privity with the Defendant to this action or its officers, direc-
tors, agents, servants, employees and successors and assigns. In
the event Defendant proposes to sell or transfer its real
property or operations subject to this Consent Decree, It shall
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adv'ise such purchaser or transferee of the existence of this
t
Decree/ and shall notify all parties to this Decree of such
proposed sale or transfer.
3. The parties agree and acknowledge that final ap-
proval and entry of this Decree Is subject to the requirements of
28 C.P.R. §50.7, which provides that notice of proposed Consent
Decrees be given to the public and that the public shall have at
least 30 days in which to make any comments.
4. Defendant owns and operates a facility in Filer
City, Michigan (hereinafter, the "Filer City facility") which
includes a Rlley bark-fired boiler (hereinafter, the "bark
boiler"). The bark boiler is a source of air pollution emissions
subject to the provisions of Michigan Air Pollution Control
Commission Rules and the federally approved Michigan State
Implementation Plan (hereinafter, the' "Michigan SIP").
5. Former MAPCC Rule R 336.44 established an emission
limitation for partlculate matter of 0.65 pound of particulate
matter per 1000 pounds of exhaust gases, corrected to 50 percent
excess air, for the bark boiler.
6. Former MAPCC Rule R 336.41 established a smoke plume
opacity limitation of 40 percent, generally, with certain exemp-
tions not material to this Decree.
7. On May 31, 1972, the Administrator of the EPA ap-
proved, as'part of the Michigan SIP, MAPCC Rules R 336.44 and R
336.41.
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8. On or about November 19, 1979> Defendant received
from 'the EPA a Notice of Violation citing, Inter alia, the bark
boiler for violations of R 336.44 and R 336.41 of the approved
Michigan SIP. On December 19, 1979, a conference was held at EPA
offices In Chicago, Illinois, with representatives of Defendant
and the DNR, to discuss the cited violations.
9. MAPCC Rule R 336.1331 currently establishes an
emission limitation for particulate matter of 0.50 pound of
• ;(f
particulate matter per 1000 pounds of exhaust gases, corrected to
50 percent excess air, for the bark boiler.
10. MAPCC Rule R 336.1301 currently establishes a smoke
plume; opacity limitation of 20 percent, generally, with certain
exempt^005 not material to this Decree.
11. On Kay 6, 1980, the Administrator of the EPA condl-
tibnally approved MAPCC Rules R 336.1331 and R 336.1301, as part
of the Michigan SIP (45 Fed. Reg. 29791).
12. On or about August 17, 1982, Defendant received from
the EPA a Notice of Violation citing the bark boiler for viola-
tions of R 336.1301 of the Michigan SIP.
13. Defendant owns and operates a boiler (hereinafter,
the "Ko. 5 boiler") at its Filer City facility, which boiler was
formerly a recovery boiler but is currently fired with natural
gas. Defendant has applied to the Michigan DNR for an installa-
tion permit to convert the No. 5 boiler to multi-fuel operation
(including the combustion of coal, wood, bark, wood waste,
sludge, and natural gas). The Commission has recently approved
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the Issuance of such installation permit. The converted No. 5
boiler-will have a baghouse collector as Its air pollution con-
trol equipment (hereinafter the "No. 5 baghouse").
ORDER
In consideration of the foregoing and the representa-
tions made in open Court by the parties hereto, IT IS HEREBY
ORDERED;
Defendant shall achieve, demonstrate, and maintain final
compliance with MAPCC Rules R 336.44, R 336.41, R 336.1331 and R
336.1301, and other emission limitations specified in this
Consent Decree, in accordance with the following paragraphs:
. COMPLIANCE PROGRAM
1. Defendant shall install an add-on collector (side-
stream separator) to the existing pollution control equipment of
the bark boiler according to the following schedule:
a. commence engineering and
preparation of plans and
specifications Completed
b. submit copies of plans
and specifications to EPA
and DNR; submit applica-
tion to DNR for Installation
permit Completed
c. issue purchase order for
collector 1/31/83
d. begin on-site construction 8/31/83
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e. complete construction and
installation 10/31/83
f. complete "shakedown" and
achieve compliance with a
partlculate emission limita-
tion of .'40 pound of partlcu-
late matter per 1000 Ibs of
exhaust gases, corrected to
50 percent excess air, and
MAPCC Rule R 336.1301 11/30/83
g. demonstrate compliance with
the emissions limitations set
forth In Subparagraph l(f) In
accordance with Appendix A 12/31/83
2. If Defendant elects to proceed with the No. 5 boiler
conversion and construction of the No. 5 baghouse In lieu of the
v
compliance program set forth In Paragraph 1 it shall, on or
before March 15, 1983, so notify the EPA and the DNR, In writing,
and certify that It has sent' out requests for bids for the com-
pletion of- the No. 5 boiler conversion and No. 5 baghouse and
that the necessary funds have been appropriated. Upon such
notification and certification, Defendant shall proceed with the
compliance program set forth In Paragraph 3 and shall be there-
after excused from complying with subsequent requirements of
Paragraph 1; provided, that If any stipulated penalties have
accrued, prior to the date of such notification and certifica-
tion, for failure to comply with the requirements of Paragraph 1
such penalties shall then become due and payable upon demand. If
the notification and certification described herein is not given
to the EPA and the DNR on or before March 15, 1983, Defendant .
shall not be relieved from the obligation under Paragraph 1 to
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install the sldestream collector in accordance with the terms
4
thereof".
3. If Defendant elects to proceed with the No. 5 boiler
conversion and complies with the notice and certification re-
quirements of Paragraph 2 on or before March 15, 1983, It shall
install the No. 5 baghouse and either (a) route the bark boiler
exhaust through the No. 5 baghouse, or (b) complete the No. 5
boiler conversion such that no bark or wood wastes are burned in
the bark boiler, but will be burned instead in the No. 5 boiler,
the emissions of which will be controlled by the No. 5 baghouse,
in accordance with the following schedule:
Completed
Completed
6/30/83
2/28/84
a. prepare specifications and
submit copies to EPA and DNR
b. obtain installation permit
c. award contract
d. begin on-site construction
e. complete construction and
installation and achieve com-
pliance at the bark boiler
with a particulate emission
limitation of .05 pound of
particulate matter per 1000
Ibs of exhaust gases, cor-
rected to 50 percent excess
air, and MAPCC Rule RJ36.1301
f. demonstrate compliance with the
emissions limitations set forth
in Subparagraph 3(e) in accor-
dance with Appendix A 7/31/84
If Defendant elects to proceed with the compliance program set
forth in this paragraph it shall not operate the bark boiler
6/30/84
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after'June 30, 1984, unless the emissions thereof are controlled
by the No. 5 baghouse.
4. If the No. 5 boiler and bark boiler are both con-
trolled by the No. 5 baghouse, at no time shall they be operated
simultaneously.
5. If Defendant proceeds with construction and instal-
lation of the sldestream collector in accordance with the terms
of this Decree, nothing herein shall preclude it from proceeding
•( ?
with conversion of the No. 5 boiler at a later date (after March
15, 1983); provided, that such later election to proceed with the
conversion shall not relieve Defendant from any obligation
arising under this Decree to complete the requirements of Para-
graph 1, hereof.
INTERIM REQUIREMENTS
6. Until final compliance is achieved pursuant to
Paragraph 1 or 3, whichever Is applicable, Defendant shall
achieve and maintain compliance by the bark boiler with MAPCC
Rule ,'H 336.1331 and limit the density of visible air contaminants
to a maximum of *U percent opacity, determined as a six-minute
average, except that a maximum of one six-minute average of up to
51 percent opacity shall be permitted in any one hour. Com-
pliance shall be determined in accordance with EPA Method 9,
Appendix A', 40 CPR, Part 60.
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7. The operation and maintenance procedures set forth
*
4
in Appendix B shall be implemented and followed until such time
as bark boiler emissions are controlled by the No. 5 baghouse.
8. Upon request of the EPA or the DNR, and within
thirty (30) days of any such request, Defendant shall perform
stack testing at the bark boiler in accordance with Appendix A.
Defendant shall notify the EPA and the DNR of the date of the
stack test in sufficient time to allow said agencies to observe
the testing. Such tests shall not be requested more often than
every three months unless evidence is shown of noncompliance with
the interim limits specified above.
CONTINUOUS MONITORING REQUIREMENTS
9. Defendant has installed and calibrated, and shall
maintain and operate, a continuous 'opacity monitoring -system -in
the stack which serves the bark boiler, in accordance with the
procedures set forth in **Q CFR Part 60, Appendix B, or any other
applicable procedures approved by the EPA.
10. Beginning with the calendar quarter commencing on
January 1, 1983, Defendant shall prepare quarterly reports of
"excess" emissions as measured by the Opacity-monitor identified
in Paragraph 9 above. The reports shall be submitted to the EPA
and the DNR within 30 days from the end of each calendar quarter
and shall include the following information:
a. The magnitude of "excess" emissions in percent
opacity, the date and time of commencement and
completion of each time period of excess emis-
sions, and the cause of each such exceedance.
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b. If a malfunction is indicated in the report, the
corrective actions taken, if any.
c. The date and tines the opacity monitor was
inoperative, or of system repairs and adjust-
ment. • '
d. When the opacity monitor is inoperative,
all equipment malfunctions and corrective
actions taken.
e. Where no "excess" emissions have occurred, such
shall be stated.
For the purposes of continuous emissions reporting pursuant to
this Decree, "excess" emissions are those opacity monitor
readings which exceed the applicable opacity standard. Average .
values may be obtained by integration over 6 minutes or by
arithmetically averaging a minimum of 24 equally spaced, Instan-
taneous opacity measurements in each 6 minute period.
11. During the period from January'1, 1983, through
March 31, 1983, and for the first 90 days following a demonstra-
tion of compliance pursuant to paragraph Kg), Defendant shall
report all six-minute averages of excess emissions during boiler
operation, Including startup and shutdown. During all other
times., Defendant shall maintain records of opacity during startup
and shutdown and shall report all six-minute averages pf excess
emissions during boiler operation. During startup and shutdown,
unlesjs requested otherwise by the EPA or the DNR, Defendant need
only report the times of excess emissions and the highest and
lowest opacity readings.
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12. After termination of this Consent Decree, Defendant
shall continue to maintain the .information required for "excess"
emissions reports at its Filer City facility and make such infor-
mation available to the EPA and the DNR upon request.
13* Beginning with the calendar quarter commencing on
January 1, 1983, and continuing until all necessary work is
completed, Defendant shall send to the EPA and the DNR, within 30
days from the end of each calendar quarter, quarterly reports on
^progress toward the achievement of final compliance with the
terms of this Decree. If Defendant fails to meet a compliance
schedule increment, it shall notify the EPA and the DNR within 10
days of such failure and set forth the cause therefor.
14. EPA and DNR repesentatives may at any time during
normal business hours enter upon the premises of the Filer City
facility to monitor compliance with this Decree including, but'
not limited to, performing stack tests on the bark boiler.
Authorized contractors of the EPA or the DNR may, upon five days
notice to Defendant, enter upon said premises for purposes of
inspecting the facility or records pertaining to the bark boiler
or stack testing of the bark boiler.
15. All information, reports, and notifications required
by this Decree to be submitted by Defendant shall be sent to the
following addresses:
Chief, Air Compliance Branch Chief, Air Quality Division
United States Environmental Michigan Department of
. Protection Agency, Region V Natural Resources
230 South Dearborn P.O. Box 30028
Chicago, Illinois 6060H Lansing, Michigan 48909
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GENERAL PROVISIONS
16. As consideration for Defendant's entry into this
Consent Decree and the assumption of the obligations provided for
herein, Plaintiff and Intervening Plaintiff will refrain from
initiating any other civil enforcement action pursuant to Section
113(b) of the Act, 42 U.S.C. §7413, Section 304 of the Act, 42
U.S.C. $7604, or applicable state law, with respect to the limi-
tations contained in t'his Decree for the emission of particulate
matter and visible emissions from the bark boiler while Defendant
is in compliance with this Decree.
17. This Consent Decree in no way affects Defendant's
responsibility to comply with any other state, federal or local
regulations or any Order of the Court including, but not limited
to-, Section 303 of the Act; .42 D.S.C. §7604.
18. Defendant acknowledges that it has been advised that
it may be subject to the applicable requirements of Section 120
of the Clean Air Act, 42 U.S.C. §7420, but reserves the right to
contest the assessment of any penalties under such Section.
19. Nothing in this Decree shall be construed as an
admission by Defendant of violations of any provisions of the Act
or of the Michigan SIP.
20. Notwithstanding any other provision of this Decree,
•
Defendant may achieve compliance with any emission limitation or
compliance requirement herein applicable to the bark boiler by
permanently ceasing operation of the bark boiler. Stipulated
-12-
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pehallpies associated with failure to perform any such requirement
or achieve such limitation shall cease to accrue on the date of
actual shutdown and written certification thereof to the EPA and
the DNR. All stipulated penalties which have accrued prior to
such actual shutdown and certification shall become due and
payable upon demand.
21. The EPA and the DNR reserve the right to seek a
modification of this Decree to Impose more stringent emission
limitations on the bark boiler, and to enforce such more strin-
gent emission limitations, by reason of any revised (federally
enforceable) state or federal law or regulation, including any
revised implementation plan. Defendant reserves the right to
seek a modification of this Decree if the EPA promulgates or
approves a revised SIP that contains requirements that are less
•
«
stringent than the emission limitations set forth in the Michigan
SIP for the bark boiler as of the date of lodging of this Decree.
It is the intent of the parties that any such modification of
this Decree be accomplished through mutual agreement on a revised
control strategy or compliance schedule (if necessary), followed
by a Joint application to the Court.
22. The parties anticipate that'the installation of the
add-on collector (sidestream separator) referred to in Paragraph
1 of this Consent Decree will result in compliance with the
partlculate and visible emission limitations further specified in
Subparagraph l(f). Should such compliance not be achieved with
proper operation and maintenance of such equipment, PCA may apply
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to' the MAPCC for the establishment of an alternate visible emis-
sion limitation, pursuant to MAPCC Rule R 336.1301(1) (c), the
establishment of a partlculate mass emission limitation (not to
exceed 0.5 lb per 1,000 pounds of exhaust gases, corrected to 50
percent excess air), or both. In either case, the DNR agrees not
to oppose such application on the basis that compliance can be
achieved by the installation of pollution control equipment
additional to that required by this Consent Decree, unless such
additional pollution control equipment is required because o£ a
change in the applicable law. Such application shall in no way
relieve PCA of Its obligation to fully and timely comply with all
interim and final requirements as set forth in this decree or
from any liability for payment of stipulated penalties pursuant
to Subparagraph 27(e)(l).
23. No provision of any Installation permit necessary to
implement the compliance program set forth in Paragraph 1 shall
be construed to conflict with any express provision of this
Consent Decree.
24. Nothing in this Consent Decree shall be construed to
limit the right of the MAPCC and the DNR to impose and enforce
more stringent emission limitations or'pollution control equip-
ment requirements for the bark boiler as the result of any revi-
sion to the Commission's rules.
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CIVIL PENALTY AND COSTS
25. In consideration of Intervening Plaintiff's agree-
ment to settle this action, Defendant agrees to reimburse the
State of Michigan the sum "of $40,000 for its costs and expenses
associated with this case. Payment shall be made by certified
check payable to "Treasurer, State of Michigan" and sent to the
•
Assistant in Charge, Environmental Protection Division, Depart-
ment of the Attorney General, Law Building, Lansing, Michigan
48913, within 15 days after final entry of this Decree.
26. The United States has determined that, pursuant to
Section 113 of the Act, 42 U.S.C. §7413 and the Civil Penalty
Policy of July 8, 1980, Defendant should pay a civil penalty of
$40,000. Payment shall be made by certified check payable to
"Treasurer, United States of America" and sent to the Regional
Hearing Clerk, United States Environmental Protection Agency,
Region V, 230 South Dearborn, Chicago, Illinois 60604, within 15
days after final entry of this Decree.
STIPULATED PENALTIES
27. It is hereby stipulated and agreed among the parties
that unless excused by the provisions of Paragraph 28 of this
Decree the following stipulated penalty provisions shall apply
and may be enforced by the United States:
a'. If Defendant fails to complete the installation of
all pollution control equipment required by this Decree by
the date specified (in Paragraph 1 or 3, whichever.is
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applicable) It shall be liable for a stipulated penalty of
$7,500 for each day It operates the bark boiler without the
required pollution control equipment.
b. If Defendant Tails to Issue a purchase order for the
{iidestream collector by the date specified In Paragraph l(c),
iLt shall be liable for a stipulated penalty of $2,000 for
each day such failure continues.
c. If Defendant fails to meet any other Interim date of
*. construction schedule (In Paragraph 1 or 3, whichever Is .
applicable), it shall be liable for a stipulated penalty of
41500 for each day such failure continues. Any penalty
liability under this subparagraph will be forgiven If
Defendant meets the final compliance date in the applicable
schedule for'completion of the installation of the required
*
pollution control equipment.
d. If Defendant fails to meet any interim testing
requirement or emission limitation for the bark boiler it
shall be liable for the following stipulated penalties:
1) The sum of $1000 for each day that the
failure to meet a testing requirement
continues;
2) The sum of $1,500 for each day that a
violation of an interim opacity limit
continues;
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3) The sum of $7,000 for each day that a
violation of an interim particulate mass
emission limitation continues.
e. If Defendant 'falls to demonstrate final compliance
with the applicable emission limits under Paragraph 1 (if
applicable) by December 31, 1983, or fails to maintain
compliance thereafter, it shall be liable for stipulated
penalties'as follows:
1) The sum of $2,500 per day for each day
failure to demonstrate and/or maintain
compliance with the specified particu-
late mass emission limit in Subparagraph
l(f) continues. Defendant's total
liability under this subparagraph shall
not exceed $20,000.
2) The sum of $7,000 for each day failure
to demonstrate and/dr maintain com-
• i
pllance with MAPCC Rule R 336.1331
continues.
3) If Defendant fails to demonstrate and/or
maintain compliance with MAPCC Rule R
336.1331 and also falls to comply with R
336.1301, the additional sum of $2,500
for each day failure to demonstrate and/
or maintain compliance with MAPCC Rule R
336.1301 continues.
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f. If Defendant fails to demonstrate final com-
pliance with the applicable emission limits under
Paragraph 3 (if applicable) by July 31, 1984, or falls
to maintain compliance thereafter, It shall be liable
for stipulated penalties as follows:
1) The sum of $2,500 for each day failure
to demonstrate and/or maintain com-
pliance with the specified particulate
mass emission limit in Subparagraph 3(e)
continues. Defendant's total liability
under this subparagraph shall not exceed
$20,000.
• 2) The sum of $7,000 for each day failure
to demonstrate and/or maintain com-
pliance with MAPCC Rule R 336.1331
continues.
• *
3) The sum of $2,500 for each day failure
to demonstrate and/or maintain com-
pliance with MAPCC Rule R 336.1301
continues.
g. If Defendant fails to comply with any of the
operation and maintenance requirements set forth in
Appendix B of this Decree, it shall be liable for a
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' stipulated penalty of $2,500 for each day such failure
continues.
h. If Defendant fails to submit any quarterly
"excess" emissions reports pursuant to Paragraph 10 or
progress reports pursuant to Paragraph 13, it shall be
liable for a stipulated penalty of $500 for each day
such failure continues.
One-half of any payment made under this paragraph shall be by
certified check payable to "Treasurer, Dnited States of America"
and sent as specified in Paragraph 26, within 15 days after a
demand for payment has been made. The remaining one-half of any
payment made under this paragraph shall be by certified check
payable to "Treasurer, State of Michigan" and sent as specified
in Paragraph 25, within 15 days after a demand for payment has
been made. Such payments shall not be considered the exclusive
remedy for violation of this Decree.
FORCE MAJEURE
28. Defendant's obligation to meet any requirement set
out in this Decree, including achievement of compliance with any
specific emission standard or regulation, may only be excused to
the extent that such delay is beyond the control of, and without
the fault of Defendant. Defendant shall notify the EPA and the
DNH in writing within twenty (20) days of the event which causes
or may cause the delay, describing in detail the anticipated
length of the delay, the precise cause or causes of delay, the
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measures taken and to be taken by Defendant to prevent or mini-
mize the delay, and the timetable by which those measures will be
implemented. Defendant will adopt all reasonable measures to
avoid or minimize any such delay.
»
29. If the parties agree that the delay or anticipated
delay was beyond the control of, and without fault of, Defendant
this may be so stipulated and the parties may petition the Court
for appropriate modification of this Decree. If the parties are
'.*'
unable to reach such agreement, any party may petition the Court
for appropriate relief. The burden of proving that any delay was
beyond the control of, and without fault of, Defendant is on
Defendant. Failure by Defendant to comply with the notice re-
quirecents of this paragraph shall render Paragraphs 28 through
30 void and of no force and effect as to the particular incident
involved and constitute a waiver of Defendant's right to request
an extension of its obligations under this Decree based on such
incident. Increased cost, by itself, shall not constitute an
appropriate Justification, for the purposes of this paragraph, to
excuse noncompilance with any of the terms of this Decree.
30. An extension of one compliance date based upon a
particular incident does not necessarily mean that Defendant
qualifies for an extension of a subsequent compliance date or
dates. Defendant must make an Individual showing of proof re-
•
garding each incremental step or other requirement for which an
extension is sought.
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TERMINATION
31. This Decree shall terminate one year after the date
scheduled for demonstration of compliance in Paragraph Kg) or
3(f), whichever is applicable, or at such earlier date as Defen-
dant has demonstrated and maintained compliance with the require-
ments of Paragraph l(f) or 3(e), whichever Is applicable, as nay
be modified by the M.APCC pursuant to Paragraph 22, for a con-
tinuous period of six months, unless either party petitions the
'Court for an extension of this Decree and the Court grants such
extension. Until termination of this Decree, Jurlsdication is
retained by this Court for the purpose of enabling any party to
this Decree to apply to this Court at any time for the enforce-
ment of any terms of this Decree.
For Plaintiff - United States of America:
Dated
HENRY HA^CHT II
Acting Assistant Attorney General
Land and Natural Resources Division
United States Department of Justice
Assistant United States Attorney
Vestfern Dis/tri
.
Regional Admlni
U.S. Environmental
Protection
t of Michigan
ADAfKUS
strato/r )
gency, Region V
Dated
Dated
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By . V< .$tk-.~ _ Dated
DE30RAK CAREER
Assistant Regional Counsel
U.S. Environmental
Protection Agency, Region V
By ^~v , . _ Dated
Courtney M£ Price . Tj
Special Counsel for Enforcement ^
United States Environmental
Protection Agency
For Intervening Plaintiff - State of Michigan, et al.:
By -C^t V^wffc-^ Dated &*^ 7
E.E. VALENTINE ?^
Assistant Attorney General,
Environmental Protection Division
Dated .-1 •?,
STEW A;
Asslstant-In-Charge
Environmental Protection Division
For Defendant - Packaging Corporation of America
By •ygo^r - . _ Dated
K«R. KAYMON
Pi-esldent
Packaging Corporation of America
Attest
A. A. Haller
Assistant Secretary
Packaging Corporation of America
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*
Consent Decree entered in accordance with the foregoing
this day of , 1983.
Judge Benjamin F. Gibson
United States District Court
For The Western District of
Michigan
Deputy Clerk
-2?-
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JUL 15
IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF WEST VIRGINIA
Civil Action No. 77-1163-BL
UNITED STATES OF AMERICA, )
Plaintiff, )
v. )
) CONSENT ORDER
CITY OF WELCH, McDOWELL COUNTY, )
WEST VIRGINIA, a municipal )
corporation, WELCH SANITARY )
BOARD, and the STATE OF WEST )
VIRGINIA, )
)
Defendants. )
THIS MATTER having come before the Court upon the
application of the United States of America for entry of this
order; and
WHEREAS, the United States of America, the City of Welch
(hereinafter, "Welch"), Welch Sanitary Board (hereinafter,
"Board"), and the State of West Virginia have consented to
entry of this order;
WHEREAS, this Court has jurisdiction of this action
pursuant to 28 U.S.C. 1345 and 33 U.S.C. 1319(b);
WHEREAS, venue is proper in this Court pursuant to 28
U.S.C. 1391(b) and (c); and
WHEREAS, the Court finds that: Welch owns a sewage
collection system in McDowell County, West Virginia, which
discharges pollutants into Tug Fork; Welch controls the
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- 2 -
financing and initiation of construction of sewage treatment
work,(5 for that city; Welch created the Board to supervise,
control, administer, operate and maintain any and all works for
the collection and treatment of sewage which are owned by Welch;
Tug Fork is a navigable waterway as defined in the Clean Water
Act, section 502(7), 33 U.S.C. 1362(7); on August 23, 1974,
pursuant to 33 U.S.C. 1342, and based upon an application
submitted on behalf of the Board, the United States (through
the L".S. Environmental Protection Agency) issued a national
pollutant discharge elimination system (hereinafter, "NPDES")
permit for the discharge of pollutants from the Board's sewage
treatment system; the terms or conditions of the permit were
not contested by the Board, Welch, or the State; the permit
• *
became effective on September 22, 1974; the permit required
the Board to submit to the United States not later than March
22, 1975, a compliance schedule for termination of its discharge
in accordance with 33 U.S.C. 1311 (b) (1) (B); the Board has
failed to submit the compliance schedule in violation of the
permit; on May 17, 1976, the United States pursuant to 33
U.S.C. 1319(a)(3) and (4) issued findings of violation and an
order for compliance to the Board, citing the Board for
violations of its permit conditions and directing the Board to
submit to the United States not later than June 18, 1976, a
schedule for compliance; the Board has failed to submit the
schedule for compliance in violation of the May 17, 1976,
order; neither Welch nor the Board have constructed a sewage
***•
treatment works capable of achieving effluent limitations
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- 3 -
based upon secondary treatment as defined by the Adminstrator
of the Environmental Protection Agency pursuant to .33 U.S.C.
1314 (d)(l); Welch and the Board have continued to discharge
pollutants within the meaning of 33 U.S.C. 1311; the discharge
of pollutants by Welch and the Board is not in compliance with
an NPDES permit and is in continued violation of 33 U.S.C.
1311; and
WHEREAS, the parties have agreed that this order shall be
lodged and made available for public comment prior to entry by
the Court, pursuant to the procedures identified at 28 C.F.R.
50.7; and
WHEREAS, entry of this order is in the public interest;
9
NOW THEREFORE,
Pursuant to F.R.C.P. 65, IT IS on this day of
, 1983, ORDERED that:
1'. Municipal compliance plan.
Within 120 days of the entry of this order, or by November
30, 1983, whichever is earlier, the Board shall pursuant to
F.R.C.P. 5 file with the Court and serve upon an individual
designated by the United States Environmental Protection Agency
(hereinafter, "EPA designate") and serve upon an individual
designated by the West Virginia Department of Natural Resources
(hereinafter, "WVDNR designate") a plan (hereinafter,
"municipal compliance plan") for achieving compliance with the
Clean Water Act. The Board shall file a municipal compliance
plan which:
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- 4 -
(a) has been certified by a registered professional
engireer;
(b) identifies a treatment technology which the Board
proposes to use and whieh will achieve the level of effluent
quality attainable through the application of secondary
treatment;
(c) proposes that construction .of the treatment facility
which will achieve the level of effluent quality attainable
through the application of secondary treatment will be started
by no later than May 1, 1984;
(d) proposes that construction of the treatment facility
will be completed no later than May 1, 1986;
(e) proposes that the level of effluent quality
attainable through the application of secondary treatment will
be achieved no later than August 1, 1986;
« t
(f) estimates the capital requirements of the treatment
technology proposed;
(g) estimates the operation and maintenance costs of
the treatment technology proposed;
(h) identifies the financial mechanisms proposed to be
used by the Board for facility construction;
(i) identifies the financial mechanisms proposed to be
used by the Board for generating adequate revenues for operation
and maintenance;
2. Modifications to municipal compliance plan. The
United States may inform the Board of any modifications which
the United States proposes to the municipal compliance plan.-
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- 5 -
In the event the Board agrees to modify the municipal compliance
plan as proposed by the United States, 'the Board shall pursuant
to F.R.C.P. 5 file with the Court, and serve upon the EPA
designate and the WVDNR designate, the modifications to which
the Board and the United States have agreed. In the event the
Board does not agree to modify the municipal compliance plan
as proposed by the United States (or in the event the Board
fails to file with the Court modifications to which the United
States and the Board have agreed), the United States may
pursuant to F.R.C.P. 5 file with the Court and serve upon the
Board proposed modifications to the municipal compliance plan.
The municipal compliance plan shall be deemed to be modified
0
as proposed by the United States unless, within fourteen days
of the filing of the proposed modification, American Cyanamid
applies to the Court pursuant to F.R.C.P. 7 for further order.
3. Implementation of municipal compliance plan; The
Board shall implement the municipal compliance plan filed by
the Board, as modified by (a) modifications filed with the
Court to which the Board and the United States have agreed,
(b) modifications filed by the United States and for which
timely motion for further order has not been made by the Board,
and (c) further order of the Court.
A. Minimum effluent limitations. After August 1, 1986, .
the Board and Welch are enjoined from discharging any effluent
from the collection system or treatment works that does not
achieve the following effluent limitations:
(i) the arithmetic mean of the values for biological
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- 6 -
oxygen demand for effluent samples collected in any period of
thirty consecutive days shall not exceed 30 milligrams per
liter;
(ii) the arithmetic mean of the values for biological
oxygen demand for effluent samples collected in any period of
seven consecutive days shall not exceed 45 milligrams per
liter;
(iii) the arithmetic mean of the values for biological
oxyg€;n demand for effluent samples collected in any period of
thirty days shall not exceed 15 percent of the arithmetic mean
of the values for influent samples collected at approximately
the same times during the same period;
(iv) the arithmetic mean of. the values of suspended
solids for effluent samples collected in any period of thirty
consecutive days shall not exceed 30 milligrams per liter;
(v) the arithmetic mean of the values of suspended
solids for effluent samples collected in any period of seven
consecutive days shall not exceed 45 milligrams per liter;
(vi) the arithmetic mean of the values of suspended
solids for effluent samples collected in a period of thirty
consecutive days shall not exceed 15 percent of the arithmetic
mean of the values for influent samples collected at approximately
the satae time during the same period;
(vii) the effluent values for pH shall be maintained
within the limits of 6.0 to 9.0; and
(viii) the fecal coliform content of the effluent shall
not exceed 200 per'100 milliliter as a 30-day geometric mean
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- 7 -
based on not less than five samples during any 30-day period
nor exceed 400 per 100 milliliter in more than ten percent of
all samples during any 30-day period.
5. Compliance with NPDES permit. After August 1, 1986,
the Board and Welch are enjoined from discharging any pollutant
from the collection system or treatment works except in
compliance with an NPDES permit issued pursuant to the Clean
Water Act.
6* Penalty. The Board shall pay a civil penalty of
[amount], by tendering a check in that amount payable to the
order of the Treasurer of the United States within thirty
days of the entry of this order.
.7. Stipulated penalties. If the Board violates any
provision of this order, the Board shall pay a civil penalty
(i) $100 per day for each of the first 30 days of
violation,
(ii) $200 per day for each of the next 60 days of
violation,
(iii) $500 per day for each of the next 60 days of
violation, and
(iv) $1000 per day for each of the next 60 days of
violation. Thereafter, the United States may apply to the
Court for appropriate penalties. The United States may apply
to the Court at any time for other non-penalty relief in the
event of any violation of the Act, of any permit issued
pursuant to the Act, or of this order.
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- 8 -
• 6'. Nonwaiver provision. This order in no way relieves
any defendant of responsibility to coaply with any other State,
Federal or local law or regulation. The order dated May 17,
1976,, of the United States EPA retains full force and effect.
U.S.D.J.
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GM-18
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IMPLEMENTATION OF DIRECT REFERRALS FOR CIVIL CASES
EPA GENERAL ENFORCEMENT POLICY I GM - 18
UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY
EFFECTIVE DATE: DEC i 1983
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. DC SM«0
28 J9B3
•ttrOHCEMCMT I
MEMORANLOM
SUBJECT: Implementation of Direct Referrals for Civil Cases
Beginning December 1. 19B3
f\ -*- /X
FROM: Courtney M. PriceV^r/J!Zi*»y '" '
Assistant Administrator foe Enforcement
and Compliance Monitoring
TO: Regional Administrators, Regions I - X
Regional Counsels, Regions I - X
Associate Enforcement Counsels
OECM Office Directors
I. BACKGROUND
On September 29, 1983, the Environmental Protection*
Agency (EPA) and the Land and Natural Resources Division of
the Department of Justice (DOJ) entered into an agreement
which, beginning on December 1. 1983, allows certain
categories of cases to be referred directly to DOJ fron EPA
Regional offices without my prior concurrence. A copy of
that agreement is attached to this memorandum.
This memorandum provides guidance to EPA Headquarters
and Regional personnel regarding procedures to follow in
implementing this direct referral agreement. Additional
guidance will be issued as required.
II. PROCEDURES FOR CASES SUBJECT TO DIRECT REFERRAL
The attached agreement lists those categories of
cases which can be referred directly by the Regional
Administrator to DOJ. All other cases must continue to be
reviewed by Headquarters OECM and will be referred by me to
DOJ. Cases which contain counts which could be directly
referred and counts which require Headquarters concurrence
should be referred to EPA Headquarters. If you are uncertain
whether a particular case may be directly referred, you
should contact the appropriate Associate Enforcement Counsel
for guidance.
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-2-
Many of the procedures for direct referral cases are
adequately explained in the September 29th agreement.
'However, there are some points" I vant to emphasize.
Referral packages should be addressed to Mr. P. Henry
Habicht, II, Assistant Attorney General, Land and Natural
Resources Division, U.S. Department of Justice, Washington.
D.C. 20530, Attention: Stephen D. Ramsey. The time limitations
set forth in the agreement for review and initial disposition
of the package will commence upon receipt of the package in
the Lend and Natural Resources Division, and not -at the DOJ
mailroom. Delivery of referral packages to the Land and
Natural Resources Division will be expedited by use of
express nail, which is not commingled with regular nail in
DOJ1 s ma 11 room.
The contents of a referral package (either direct to
DOJ or to EPA Headquarters) should contain three primary
divisions: (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) a brief statement of the facts upon which the
proposed action is based;
(d) proposed relief to be sought against the defendant(s);
(e) significant or precedential legal or factual issues;
(f) contacts with the defendant(s), including any
previous administrative enforcement actions taken;
(g) lead Regional legal and technical personnel;
(h) arty other aspect of the case which is significant and
should be highlighted, including any extraordinary
resource demands which the case may require.
A referral to DOJ or to Headquarters EPA is tantamount
to a certification by the Region that it believes the case
is sufficiently developed for the 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.
-------
AB provided in the September 29, 1983, agreement,
information copies of the referral package nay be provided
to the U.S. Attorney for the appropriate judicial district
in which the proposed case nay be filed. These information
packages should be clearly labelled or stamped with the
following words: "Advance Copy ~ No Action Required At
This Time". Also, information copies should be simultaneously
provided to the appropriate OECM division at Headquarters.
It is important that the directly referred cases be tracked
in our case docket system and Headquarters oversight initiated.
Copies of the referral cover letter will be provided to
OECM1 s Office of Management Operations for inclusion tn the
automated case docket system when Headquarters informational
copy is received at OECM's Correspondence Control Unit.
Department of Justice Responsibilities
DOJ shares our desire to handle these cases as expedi-
tiously as possible. To that end, DOJ has agreed that,
within thirty days of receipt of the package in the Land and
Natural Resources Division at DOJ Headquarters, it will
determine whether Headquarters DOJ or the U.S. Attorney
vill have the lead litigation responsibilities on a specific
case. DOJ will notify the Regional offices directly of its
determination in this regard, with a copy to the appropriate
OECM division. Although USA offices will have lead respon-
sibilities in* many cases, the Land and Natural Resources
Division will continue to have oversight and management
responsibility for all cases. All complaints and consent
decrees will continue to require the approval of the
Assistant Attorney General for the division before the case
can be filed or settled.
DOJ 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. Where it is not possible, DOJ will advise
the Region and Headquarters of any reasons for delays in
filing of the case. However, when DOJ determines that
the USA should have the lead responsibilities in a case, DOJ
will forward the case to the USA within thirty days of
referral to the extent feasible.
DOJ can request additional information from a Region
on a case or return a case to a Region for further develop-
ment. 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.
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-4-
The Deputy Administrator has expressed concern in the
past on the number of cases returned to the Regions or
declined by EPA or DOJ. I have assured the Deputy Administrator
that I will closely track the number of cases declined by
DOJ or returned to the Regions and the reasons for the
declination or return as indications of whether direct
referrals are a feasible method of handling EPA's judicial
enforcement program.
Headquarters OECM Responsibilities
Although OECM vill not formally concur on cases directly
referred to DOJ, OECM vill still review these packages and
may offer comments to the Regions and DOJ. DOJ is free to
request EPA Headquarters assistance on cases, as DOJ
believes necessary. EPA Headquarters review will help to
point out potential issues and pinpoint areas where future
guidance should be developed. OECM will also be available
as a consultant to both DOJ and the Regions on these cases.
OECM will be available to address policy issues as they
arise and, as resources permit, nay be able to assist in
case development or negotiation of these cases. Any request
from a Regional office for Headquarters legal assistance
should be in writing from the Regional Administrator to
me, setting forth the reasons for the request and the type
of assistance needed.
OECM also maintains an oversight responsibility for
these cases. Therefore, Regional attorneys must report
the status of these cases on a regular basis through use
of the automated case docket.All information 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.
Settlements in Cases Subject to Direct Referral
I will continue to approve and execute all settlements
in enforcement cases, including those in cases subject to'
direct referral and amendments to consent decrees in these
cases. This is necessary to ensure that Agency policies and
enforcement activities are being uniformly and consistently
applied nationwide. After the defendants have signed the
settlement, the Regional Administrator should forward a
copy of the settlement to me (or my designee) with a written
analysis of the settlement and a request that the settlement
be signed and referred for approval by the Assistant Attorney
General for the Land and Natural Resources Division and for
entry. The settlement will be reviewed by the appropriate
OECM Enforcement Division for consistency with law and
Agency policy.
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-5-
VIthin twenty-one days from the date of receipt of the
settlement by the appropriate OECM division, I vill either
sign the settlement and transmit it to DOJ Vith a request
that the settlement be entered, or transmit a memorandum to
the Regional Office explaining factors which justify post*
ponement of referral of the package to DOJ, or return the
package to the Region for changes necessary before the
agreesent can be signed.
Obviously, we want to avoid the necessity of
communicating changes in Agency settlement positions to
defendants, especially after they have signed a negotiated
agreement. To avoid this, the Regional office should
coordinate with Headquarters OECM and DOJ in development of
settlement proposals. A copy of all draft settlement
agreements should be transmitted by the Regional Counsel to
the appropriate Associate Enforcement Counsel for review
before it is presented to the defendant. The Associate
Enforcement Counsel will coordinate review of the settlement
with the Headquarters program office and respond to the
Regional office, generally, within ten days of receipt of
the draft. The Regional office should remain in contact
with the Headquarters liaison staff attorney as negotiations
progress. Failure to coordinate settlement development
with appropriate Headquarters offices nay result in rejection
of a proposed settlement which has been approved by the
defendant(s) and the Regional office.
I will also continue to concur in and forward to DOJ
all requests for withdrawal of cases after referral. In
addition, 1 will review and concur in any delay in the filing
or prosecution of a case after referral.. This is appropriate
because cases which are referred to DOJ should be expeditiously
litigated to conclusion, unless a settlement or some other
extraordinary event justifies suspending court proceedings.
The review of reasons for withdrawal or delay of cases
after expenditure of Agency and DOJ resources is an important
function of OECM oversight. Therefore, should the Regional
offices desire to request withdrawal or delay of a case
which has been referred to DOJ, a memorandum setting forth
the reasons for such a request should be forwarded to the
appropriate OECM division, where it vill be reviewed and
appropriate action recommended to me.
III. CASES NOT SUBJECT TO DIRECT REFERRAL
Those cases not subject to direct referral will be
forwarded by the Regional Administrator to the Office
of Enforcement and Compliance Monitoring for review prior
to referral to DOJ. OECM has committed to a twenty-one day
turn-around time for these cases. The twenty-one day
review period starts when the referral is received by the
appropriate OECM division.
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-6-
Within this twenty-one day period, OECM will decide
whether to refer the case to DOJ (OECM then has fourteen
additional days to formally refer the case) , to return the .
case to the Region for further development, or to request
additional information from the Region.
Because of this ihort OECM review period, emphasis
should be placed on dev-eloping complete referral packages
so that delay occassioned by requests for additional infor-
mation from the Regiou will be rare. OECM may refer a case
to DOJ which lacks some information only if the referral
can be supplemented with a minimum of time and effort by
information available to the Regional office which can
immediately be gathered and transmitted to DOJ. However,
this practice is discouraged. In the few instances in
which a case is referred to DOJ without all information
attached, the information should, at A minimum, be centrally
organized in the Regional office and the litigation report
should analyze the completeness and substantive content of
the information.
A referral will be returned to the Region, with an
explanatory memorandum, if substantial information or
further development is needed to complete the package.
Therefore, the Regions should work closely with OECM
attorneys to be certain referral packages contain all
necessary information. ' . .
IV. MEASURING THE EFFICACY OF THE DIRECT REFERRAL AGREEMENT
I will use EPA's case docket system, OECM's quarterly
Management Accountability reports and DOJ'6 responses to
the referral packages to review the success of the direct
referral agreement. OECM will review the quality of the
litigation reports accompanying directly referred cases and
discuss the general quality of referrals from each Regional
office at case status meetings held periodically with DOJ's
Environmental Enforcement Section.
If you have any questions concerning the procedures
set out in this memorandum, please contact Richard Mays,
Senior Enforcement Counsel, at FTS 382-4137.
Attachment
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r l.
' UNITED STATES EKirtRDNMEKTAi. FnrDTECTiOt%
••t-
id t*
Honorable F. Benry Babicbt, XX 'J.
Acting Assistant Attorney General -:
land and natural Resources Division
U.S. Department of Justice
Washington, D.C. 20530
< •'*•."••
Dear Banks •.''-'
" • "'• ' '•'"• '-**
As a result of our meeting on Thursday, September B," 198^
and the subsequent discussions of respective staffs, we are in
agreement that, subject to the conditions set forth below, the
classes of cases listed herein will be referred 'directly fro*
CPA's Regional Offices to the Land and natural Resources Division
of the Department of Justice in Washington, D.C.
The terns, conditions and procedures to be followed in
implementing this agreement are:
• .
1. The Assistant Administrator for Enforcement and Compliance
Monitoring will waive for a period of one year the requirement
of the Assistant Administrator's prior concurrence for referral
to the Department of Justice for the following classes of
judicial enforcement cases:
la) Cases under Section 1414(b) of the Safe Drinking Kater
Act which involve violations of the National Interim
Primary Drinking Hater Regulations, such as reporting or
nonitoring violations, or maximum contaminant violations!
(b) The following cases under the Clean Hater Acts
•
(i) cases involving discharges without a permit
by industrial dischargers}
(li) all cases against minor industrial dischargers!
(iii) cases involving failure to monitor or report by
' industrial dischargers;
-------
(iv) referrals to collect stipulated penalties fr
industrials under consent decrees;
(v) referrals to collect Administrative spill penalties
under Section 311 (J) of the CWXj
. 4 '+*~*r * *!•• '*
(e) All cases under the Clean Air Act except the following:
' * . . . r
(i) cases involving the steel industry*
* . .
(ii) cases involving non-ferrous smelters;
. ... . • ..- • . . • ,
(iii) cases involving National emissions Standards for
Bazardoue Air Pollutants; >
* •*
(iv) cases involving the post-1982 enforcement policy.
2. Cases described in Section 1, above, shall be referred
directly from the Regional Administrator to the Land snd
Natural Resources Division of DOJ in the following scanners
f
(a) The referral package shall be forwarded to the Assistant
Attorney General for Land snd Natural Resources , 0*6.
Department of Justice (DOJ), with copies of the package
being simultaneously forwarded to the 13.5. Attorney
(USA) for the appropriate judicial district in which
the proposed case is to be filed (narked 'advance copy-
. no action required at this tine"), and the Assistant
Administrator for Enforcement and Compliance Monitoring
(DECK) at EPA Headquarters. OECM shal.1 have the following
functions with regard to said referral packages
(i) DECK shall have no responsibility for review of
such referral packages , and the referral shall be
effective as of the date of receipt of the package
by DOJ; however, OECM shall comment to the Region
upon any apparent shortcomings or defects which
it a\ay observe in the package. DOJ Bay, of course »
continue to consult with OECM on such referrals.
Otherwise, OECM shall be responsible only for
routine oversight of the progress and management
of the case consistent with applicable present
and future guidance. OECM shall, however, retain
final authority to approve settlements en behalf
of EPA for these cases, as in other cases.
(ii) The referral package ahall be in the format and
contain information provided by guidance memoranda
as may be promulgated from time to time by OECM in
consultation with DOJ and Regional representatives
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fill I DOJ shall, within 30 days iron receipt of the
referral package, determine (1) whether the Lands
Division of TJQZJ will have lead responsibility for
the case; or 12) whether the USA will have laad
responsibility for the case.
i . ri: • ' * '
While it is agreed that to the extent feasible,
cases in which the USA will have the lead will be
transmitted to the DSA for filing and handling
within this 30-day period, if DOJ determines that
the case requires additional legal or factual
development »t DOJ prior to referring the «att«r
to the USA, the case may be returned to the
Regional Office, or may be retained at the Lands
Division of DOJ for further development t including
requesting additional information from the Regional
Office. Zn any event, DOJ will notify the Regional
Office, OECH and the DSA of its determination of
the lead role within the above-mentioned 30-day
period.
(iv) Regardless of whether DOJ or the DSA is determined
to have lead responsibility for management of
the case, the procedures and time limitations set
forth in the MOD and 2B CFR fO.65 et seq., shall
remain in effect and shall run cpncurrently with*
the management determinations made pursuant -to
this agreement.
3. (a) All other cases not specifically described in paragraph
1, above, which the Regional Offices propose for judicial
enforcement shall first be forwarded to OECH and the
appropriate Headquarters program office for review.
A copy of the referral package shall be forwarded simul-
taneously by the Regional Office to the Lands Division of
DOJ and to the DSA for the appropriate judicial district*
the DSA'* copy being marked 'advance copy-no action required
at this
(b) OECH shall review the referral package within twenty-one
(21) calendar days of the date of receipt of said package
from the Regional Administrator and shall, within said
time period, make a determination of whether the case
should be (a) formally referred to DOJ, (b) returned to
the Regional Administrator for any additional development
which may be required; or (c) whether the Regional
Administrator should be requested to provide any additional
material or information which may be required to satisfy
the necessary and essential legal and factual requirements~
for that type of case.
-------
Any request for information* or return of the
to the Region ahall be transmitted by appropriate letter
or sjemorandun signed by the AA for OECH (or her designer)
within the aforementioned twenty-one day period. Should
O£CM concur In the proposed referral of the case to J>OJ*
the actual referral shall be by letter from the AA for
OECM Cor her designee) signed within fourteen days of
the termination of the aforementioned twenty-one day
review period. Copies of the letters referred to herein
shall be sent to the Assistant Attorney General for the
Lands Division of 909 • .
: ' t<0 Upon receipt of the referral package by DOJ, the
procedures and time deadlines set forth in paragraph
Mo. 8 of the KOU shall apply.
i\\ order to allow sufficient tine prior to implementation of
this agreement to stake the U.S. Attorneys, the Regional Offices
and ouir staffs aware of these provisions, it is agreed that this
agreement shall become effective December 1, 19B3. Courtney Price
will distribute a memorandum within EPA explaining this agreement
and how it will be^implemented within the Agency. (You will receiw
a copy,,) .: ~ . . ..
•s . ''9
I believe that this agreement will eliminate the necessity of
formally amending the Memorandum of Understanding between our
respective agencies, and will provide necessary experience to
ascertain whether these procedures will result in significant
saving; of time and resources. In that regard, I have asked
Courtney to establish criteria for measuring the efficacy of this
agreeaiunt during the one year trial period, and 2 ask that you
cooperate with her in providing such reasonable and necessary
information as she may request of you in naking that determination.
At the end of the trial period—or at any time in the interval—
we may propose such adjustments in the procedures set forth herein
as may be appropriate based on experience of all parties.
!•: is further understood that it is the mutual desire of the
Agency and DOJ that cases be referred to the 05A for filing as
expedittiouBly as possible. '
I appreciate your cooperation in arriving at this agreement*
If thiis meets with your approval, please sign the enclosed copy
in the space indicated below and xeturn the copy to ae for our
files.
Sincerely yours.
Alvin L. A*m
Deputy Administrator
Approve
F. Penry H^bicht, II
Acting Assistant Attorney General
.Land and Natural Resources Division
U.S. Department &f Justice
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GM-19
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CONSENT DECREE TRACKING SYSTEM GUIDANCE
EPA GENERAL ENFORCEMENT POLICY I GM - 19
UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY
EFFECTIVE DATE:
DEC 20 1983
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. DC 20460
DEC &0 1983
orrici or
•NFOKCKMEMT COUNSEL.
MEMORANDUM
SUBJECT:
FROM:
TO:
Concent Decree Tracking System Guidance
CourtTTeyp^ice, Assistant Administrator
Office of Enforcement and Compliance Monitoring
Assistant Administrators
Associate Administrator for Policy
and Resource Management
Associate Administrator for Regional Operations
General Counsel
Associate Enforcement Counsels
Regional Administrators, Regions I-X
Regional Counsels, Regions I-X
I am forwarding to you for use by you and your staff
enforcement guidance on the use of the consent decree tracking
system developed by NEIC and OLEP. This tracking system is
designed to enable the Agency to track the compliance of
consent decrees for all media on a national basis.
This guidance was circulated in draft form to the Regional
Administrators and to the program Assistant Administrators for
review and comment. I believe the guidance will help ensure
proper use of the consent decree tracking system, better
enabling EPA to meet its legal responsibility to the courts of
ensuring that the terms of each consent decree are being met.
This consent decree tracking system will be only as good
as the data that is put into it. In order to ensure that the
consent decree data in the system is kept up to date, I have.
asked Lew Crampton to incorporate a requirement to maintain
the tracking system into the Administrator's Management
Accountability System (AMAS). Staff from Lew's office and
mine will jointly contact each Assistant Administrator's
office in the near future to formally negotiate the measure,
so that it can be included in future AMAS reports.
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-2-
I also have attached another guidance document developed
by my office entitled, "Implementation of Direct Referrals
for Civil Cases Beginning December 1, 1983". This document
provides guidance to EPA Headquarters and Regional personnel
on making direct referrals to DOJ from EPA Regional offices
for certain categories of cases. Both of these documents
should be added to your copy of the General Enforcement
Policy Compendium which was distributed in March of 1983.
A revised table of contents and index for the Compendium are
also attached.
If you have questions concerning this guidance, please
contact Mike Randall at FTS 382-2931 or Gerald Bryan at
FTS 382-4134.
Attachments
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TABLE OF CONTENTS
PAGE
INTRODUCTION 1
Scope and Exclusions 2
TRACKING SYSTEM 4
Tracking System Objectives 4
Key Tracking System Components.... 4
1. The Repository.... 5
2. The Consent Decree Library 5
3. Compliance Monitoring 6
4. Compliance Tracking 7
Tracking System Operation. 8
OFFICE RESPONSIBILITIES 10
1. National Enforcement Investigations Center 11
2. Regional Administrator's Office 12
3. Office of Enforcement and Compliance Monitoring.. 13
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INTRODUCTION
The Environmental Protection Agency (EPA) places a high
priority on consent decree compliance. This is consistent
with the Agency's Congressional mandate to enforce the nation's
environmental laws. It is also consistent with EPA's legal
responsibility to the Courts of ensuring that the terms of
each consent decree are met properly.
A uniform national approach to consent decree compliance
tracking can enhance the Agency's consent decree enforcement
efforts. This uniform approach should incorporate ah
automated management information system intended primarily
for consent decree compliance tracking. This will enable
Agency managers to:
0 Address consent decree compliance problems quickly
and effectively.
0 Assess overall national trends in EPA's consent
decree enforcement efforts.
* Respond quickly and accurately to Congressional
and public inquiries concerning the compliance
status of the Agency's consent decrees.
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-2-
Until recently, EPA had no uniform automated information
system intended primarily for consent decree compliance
tracking. Some Agency offices do use automated information
systems to track source compliance generally. However, the
use of these systems varies throughout the Agency, making it
difficult to integrate compliance data. Moreover, some
offices track consent decree compliance by hand, resulting
in lergthy information retrieval times.
On August 4, 1982, EPA managers met to discuss establishing
a uniform national approach to consent decree compliance
• ..•*)' '' "' ~— - *
tracking which incorporates the use of an automated information
systen, intended primarily for tracking consent decree
compliance. They agreed that this tracking system should
build upon, rather than replace, existing information systems
maintained by various Agency enforcement offices.
Subsequent to that meeting, the National Enforcement
Investigations Center (NEIC), working closely with the Office
of Legal and Enforcement Policy (OLEP), developed ideas for
such a tracking system. This document describes the proposed
tracking system and Agency office roles in implementing and
maintaining it.
Scope and Exclusions
This tracking system will include information on all
court entered judicial consent decrees in enforcement cases to
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-3-
which EPA is a party, as well as the status of compliance
efforts required by these decrees. It will not include:
• State consent decrees to which EPA is not a party.
This includes cases in which EPA may have a
continuing interest in the compliance status of
the decree even though, for example, EPA originally
deferred the underlying enforcement action to
appropriate State authorities. This topic will be
discussed generally in guidance entitled,
•Coordinating Federal and State Enforcement Actions".
0 Federal Facilities Compliance Agreements. These
agreements are negotiated with Federal facilities
to bring them into compliance with applicable
environmental statutes. Executive Order 12088
provides a non-judicial mechanism for negotiating
these agreements. Within EPA, the Office of
Federal Activities (OFA) has the lead responsibility
for tracking compliance with these compliance
agreements. OFA is developing guidance on this
area entitled, 'Federal Facilities Compliance
Program - Resolution of Compliance Problems".
Also, considerations in selecting an appropriate enforcement
response to a consent decree violation are discussed generally
in forthcoming guidance entitled, "Enforcing Consent Decree
Requirements".
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-4-
TRACKING SYSTEM
Tracking System Objectives
This uniform national approach to consent decree compliance
tracking seeks to achieve the following objectives:
* Facilitate consent decree enforcement by uniformly
tracking the compliance status of all EPA consent
decrees.
0 Keep senior Agency managemement informed of the
compliance status of all EPA consent decrees.
0 Provide timely, accurate information upon request
to Congress and the public concerning the compliance
status of EPA consent decrees.
Key Tracking System Components
To achieve these objectives, the tracking system relies
on four key components:
i
1. The Repository
2. The Consent Decree Library
3. Compliance Monitoring
4. Compliance Tracking
These components are described below.
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-5-
1. The Repository
The Repository is a collection of physical copies of over
425 EPA consent decrees NEIC has on file. NEIC assembled
this collection with the assistance of the Regional Offices, the
Department of Justice (DOJ), and the Federal Courts. NEIC
is continuing its efforts to complete the collection of consent
decrees to be filed in the Repository. To facilitate this
effort, the Regional Counsels should forward copies of all
new consent decrees to NEIC for inclusion in the Repository.
NEIC maintains the Repository and, upon request, can
provide a copy of any EPA consent decree on file to requesting
Agency offices.
2. The Consent Decree Library
NEIC developed, and will maintain, the consent decree
library as an automated management information system to
store summaries of each EPA consent decree on file in the
Repository. Each consent decree summary will include the
following information:
0 Case name.
0 Date the consent decree was entered and, if
applicable, the date the decree was modified.
0 Consent decree requirements, including due dates,
0 Information indicating when these requirements
were met.
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-6-
NEIC will develop these summaries and send them to the Regional
Counsels' Offices to review and confirm their accuracy. The
information in the library can be updated by NEIC, based upon
information sent to NEIC by the Office of Enforcement and
Compliance Monitoring (OECM), to reflect the current compliance
status; of EPA consent decrees.
The library contain^ summaries of most EPA consent
decrees on file. Computer terminals will link EPA Bead-
quarters and the Regional Offices electronically with the
library. NEIC will provide OECM and Regional Office personnel
training on how to use the library.
Direct access to the library will provide the Agency's
attorneys and enforcement staff with information on active
or terminated consent decrees which may be useful in drafting
and negotiating new consent decrees. Direct access to the
library will also provide Regional managers with information
on upcoming requirements which may be useful in targeting
source inspections and in projecting resource needs.
3. Compliance Monitoring
Consent decree compliance monitoring is presently
conducted to determine whether individual consent decree
requirements are properly met. Compliance monitoring activities
often include source reporting and on-site inspections.
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-7-
Under the national consent decree tracking system, the
Regional Program Offices are primarily responsible for con-
ducting monitoring activities in accordance with national
guidance issued by EPA Headquarters. The Regional Program
Offices will continue to conduct compliance monitoring using
whatever automated information system (e.g., PCS for Water
Enforcement) they choose to use to assist them in their
monitoring efforts.
4. Compliance Tracking
Compliance tracking is the gathering and compiling of
compliance information which Agency management can use to
determine and assess general trends in the Agency's consent
decree enforcement efforts. Compliance tracking will be
based upon the information gathered by the Regional Program
Offices in the course of conducting their compliance monitoring
activities.
OECM is responsible for tracking EPA's enforcement efforts
on a national level, including whether the Agency is meeting its
legal responsibility to the Courts for ensuring that consent
decree requirements are met. Consequently, OECM will be
principally responsible for compliance tracking, through use
of the automated Consent Decree Library operated by NEIC, to
ensure that Agency consent decree enforcement efforts are
adequate.
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-8-
To facilitate OECM compliance tracking activities,
The Office of Management Operations (ONO) will send each
Regional Administrator periodic information requests concerning
the compliance status of each consent decree in the Region.
These information requests will serve as a tool to ensure
that Regional Offices focus on source compliance with individual
v
milestones in each consent decree.
Tracking System Operation
Tiie operation of the tracking system will draw from the
information stored in the consent decree library. At the
beginning of each quarter, OMO will send to each Regional
Administrator two computer print-outs (see attachments)
containing consent decree information from the consent decree
library. The computer print-outs will list:
a. All consent decree milestones in each Region
which are scheduled to come due during the
present quarter (prospective).
b. All consent decree milestones in each Region
for which the Region was responsible for
ensuring compliance during the preceding
quarter (retrospective).
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-9-
The prospective print-out is intended as a tool for use
by the Regional and OECM management generally. It may be
used, for example, as an alert device to assist each Regional
Administrator in advance preparations for ensuring that
consent decree milestones coming due during the quarter are
met properly.
The retrospective print-out will contain instructions
asking each Regional Administrator to respond to OMO, within
ten working days of the transmission date of the print-out,
with the following summary information:
0 Whether each consent decree milestone which came
due during the preceding quarter was achieved.
• The consent decree milestones which were not
t •
in compliance.
0 Whether any consent decree milestones were
renegotiated.
0 If any milestone is not achieved or renegotiated,
the enforcement response the Region intends to
take to ensure that the milestone is achieved.
The Associate Enforcement Counsels in OECM will review
the information provided by the Regional Administrator for
use in tracking the Agency's overall consent decree enforce-
ment efforts. OMO will send the raw data to NEIC to be
used to update the information in the consent decree library.
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-10-
It will be important for the Regional Administrator to
make ciure that the response is properly coordinated between
the various offices in the Region (e.g., the Regional
Progre.m Offices and the Regional Counsels' Offices). This
will better ensure that the information in the tracking system
is accurate and complete.
' '•)'
OFFICE RESPONSIBILITIES
Three Agency components will share responsibilities in
implementing and maintaining the consent decree tracking
system. These three offices are:
1. NEIC
2. Regional Administrators
3. OECM Headquarters
The respective responsibilities of these offices are specified
below.
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-11-
1. NEIC
NEIC's responsibilities generally will involve the
start-up operations and the maintenance of the Repository and
the Consent Decree Library. This will include the following:
0 Completing the collection of physical copies of
EPA consent decrees to be filed in the Repository.
• Maintaining the Repository and making available to
Agency personnel upon request copies of consent
decrees filed in the Repository.
0 Ensuring that summaries of all EPA consent decrees
filed in the Repository are fed into the Consent
Decree Library. NEIC will send copies of the
summaries to the Regional Counsels' Offices for
review to ensure the accuracy of the summaries.
0 Maintaining the Consent Decree Library and ensuring
the smooth technical operation of the library.
0 Providing OECM and Regional Office personnel with
training on how to use the library and establishing
a contact point in NEIC to respond to Agency
inquiries on proper library use.
0 Updating the Consent Decree Library with compliance
information sent to NEIC quarterly by OMO.
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-12-
2. Regional Administrators
The Regional Administrators are ultimately responsible
for keeping informed of the compliance status of the consent
decrees in their Regions, so that they can act promptly to
remedy any identified instances of noncompliancec It will be
important for the Regional Administrator to make sure that
the Region's consent decree compliance efforts are properly
coordinated between the Regional Program Off ices, the Regional
Counsel's Office, and other appropriate offices in the Region.
With regard to the consent decree tracking system, these
compliance efforts will include:
• Reviewing the consent decree summaries prepared
by NEIC for accuracy prior to final entry into
the Consent Decree Library.
0 Forwarding to NEIC copies of all future EPA
consent decrees that have been entered in Court,
including any renegotiated consent decrees.
0 Conducting compliance monitoring in accordance with
policy issued by the national program offices to
determine if the terms of each consent decree
are met. Regional Offices may use whatever
automated information system they choose to
assist them in monitoring.
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-13-
0 Responding to OHO requests for information
concerning consent decree compliance status*
0 Using the Consent Decree Library as may be
necessary to ensure the compliance of
existing consent decrees and in drafting and
negotiating new consent decrees.
TTOECM
Under the tracking system, OECM's general responsibilities
of tracking consent decree compliance will be shared by OMO
and the Associate Enforcement Counsels. These responsibilities
will include:
0 Sending quarterly information requests
inquiring about the compliance status of the
consent decrees in each Region to each
Regional Administrator.
e Forwarding summary information from
the Regional Administrator to KEIC to use
in updating the Consent Decree Library.
0 Forwarding to NEIC copies of all future EPA
consent decrees in nationally managed cases,
including any renegotiated consent decree in
which the Associate Enforcement Counsel took
the lead in the renegotiation.
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-14-
* Tracking the overall EPA consent decree
enforcement effort using information
contained in the Regional Adminstrator'e
responses to OECM's quarterly consent
decree compliance information requests.
• Evaluating each Region's accomplishments
in monitoring consent decree compliance and
' "•('
responding to noncompliance problems.
The success of this uniform national system for tracking
consent decrees depends upon how well Agency offices work
together in implementing and maintaining the system. If
properly implemented and maintained, the tracking system can
enhance EPA's consent decree enforcement efforts.
If you have any questions concerning the system, please
contact Michael Randall of OLEP at FTS 382-2931 or
Gerald Bryan of OMO at FTS 382-4134.
Attachments
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Attachment A
SAMPLE PROSPECTIVE REPORT FOR THE QUARTER BEGINNING 7/1/83
Listed below are the consent decree milestones which will
come due during the present quarter.
1. Republic Steel Chicago, 111
Milestone: Place purchase order
Due date: 9/15/83
2. Great Lakes Steel Zug Island, MI
Milestone: Commence construction
Due date: 8/1/83
3. Ford Motor Co. Dearborn, MI
Milestone: Demonstrate compliance
Due date: ft/30/83
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Attachment B
SAMPLE RETROSPECTIVE REPORT FOR THE QUARTER ENDED 6/30/83
Please provide the requested information for the
consent decrees milestones listed below.
A. Milestones due in quarter dated 4/1/83 to 6/30/83:
!•> Republic Steel Chicago, 111
Milestone: Submit engineering plan
Due date: 6/30/83
a. Was Milestone Achieved?
(yes or no)
b. If not achieved, was milestone renegotiated?
(yes or no)
c. If renegotiated, please indicate new milestone.
(e.g., new milestone date due is 9/30/83)
d. If not achieved or renegotiated, what action is
contemplated to bring source back into compliance?
(e.g., referral to OLEC HQ)
B. Milestones due in previous quarters which were not met
in those quarters and had not been renegotiated or
achieved as of 3/31/83?
lo Great Lakes Steel Zug Island, MI
Milestone: Place purchase order
Due date: 1/1/83
a. Has milestone been achieved since the previous update?
(yes or no)
b. If not achieved, has milestone been renegotiated since
the previous update?
(yes or no)
c. (Repeat above)
d. (Repeat above)
C. Total number of consent decrees with milestones not
met or renegotiated by 6/30/83. (number)
D. Total number of consent decrees this quarter
brought back into compliance with milestone
requirements due to action (including
renegotiation) taken by the Region? (number)
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GM-20
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GUIDANCE ON EVIDENCE AUDITS OF CASE FILES
EPA GENERAL ENFORCEMENT POLICY «GM - 20
UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY „_.,.
DEC 301983
EFFECTIVE DATE: w
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«»: &•«.
\5S2Z
IjJNITED STATES ENVIRONMENTAL PROTECTION AGENCY.
:* WASHINGTON. D.C. 20460
DEC 3t
MEMORANDUM
SUBJECT: Guidance for Evidence Audit of Case Files for
- Civil Referrals
rerrals ^. f\
M. Pricl^t^IJZvO^^A-c-^
FROM: Courtney j_
Assistant Administrator for Enforcement and
Compliance Monitoring
TO: Assistant Administrators
Regional Administrators, Regions I-X
Regional Division Directors, Regions I-X
Regional Counsels, Regions I-X '••
1 recently forwarded to you a draft policy relating to
the performance of an evidence audit in all cases which were
to be referred to Headquarters for possible judicial enforcement,
and invited comments upon that draft policy.
I have received comments from many of you, and have
considered them carefully. Most of the comments were directed
to the requirement that evidence audits be mandatory in all
cases which were about to be referred to Headquarters. While
I firmly believe that evidence audit would be useful in all
cases, I agree that it should not be mandatory. I have,
therefore, revised the policy so that those cases which, in
the opinion of the Regional Administrator, are sufficiently
complex or involve substantial quantities of documents, may
be subjected to an evidence audit before referral at the
option of the Regional Administrator. After referral, I may
order an evidence audit should I believe one to be warranted.
Attached is the final policy on evidence audits which
incorporates the approach described above. Your comments on
the draft were appreciated, and I would welcome additional
suggestions as experience with evidence auditing is gained
under this policy.
Attachment
cc: Director, NEIC
Deputy Adrr, ; i.. strator
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GUIDANCE FOR EVIDENCE AUDIT OF
CASE FILES FOR CIVIL REFERRALS
INTRODUCTION
Cases developed by EPA, pursuant to the environmental -statutesr
and referred to the Department of Justice for potential civil
litigation, must be based upon rigorously documented evidence
and supporting data in order to minimize delay in filing,
facilitate discovery proceedings/ present a convincing case for
the EPA and DOJ attorneys engaged in pre-trial negotiations,
and finally, to prevail in the courtroom. EPA Headquarters
and Regional staffs have demonstrated widely varying approaches
to the provision of well-ordered referral packages and the
supporting documentation.
The types and volume of documents relating to a case are often
overwhelming. For instance, a single hazardous waste case nay
involve 100,000 or more documents. The attorneys are confronted
with difficult tasks of assembling and organizing all documents,
preparing witness lists, and extracting information necessary to
conduct interrogatories and depositions. Documents supporting
EPA civil referrals may originate in Regional and Headquarters
program offices, State files and/or contractors performing sup-
port services for the Agency. Records obtained from the prospec-
tive defendants are often so voluminous and/or disorganized that
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it is difficult for the EPA/DOJ case management team to effec-
tively review them. Lack of sufficient assembly and organiza-
tion of this material becomes obvious at the time of discovery
(production of documents) or during settlement_and negotiation
discussions. The consequences may include unknowingly exposing
case strategy* inadvertently releasing privileged or confiden-
•
tiai material, or being unaware of documents that could strength-
en or weaken the case. The Agency position is vulnerable to
attack if the EPA/DOJ case management team is not assured of
the integrity of the supporting documentation, as well as a
case file that is organized for rapid and efficient access.
Zndeod, attack of the government's documentation and procedural
weaknesses is now being advocated in journals and papers of the
legal profession as a tactic for defending attorneys.
Evidence Auditing
An evidence audit includes the review, inventory and organization
of the documents that make up a case file. The audit of a
simple case may involve only the assembly and handwritten com-
pilation of the documents present and a review of the case files
to ensure that all pertinent documents are present. The audit
of a highly complex case involving large numbers of documents
may Involve, in addition to assembly and inventory, computerized
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listing and sophisticated categorization, construction of evi-
dence profiles, and elaborate formatting as an aid to understand-
ing the material content of the documents. These audits assist
case attorneys in their preparations for pre-trial and trial
phases of Agency litigation efforts. The evidence audit system
is designed to: (1) establish an overall case document control
system, (2) provide quick and complete access to records, and
(3) provide a means for assuring admissibility of the evidence.
The system is flexible to accommodate the increase of material
as the case progresses and is adaptable to changes in case
strategy.
•
*
With the advent of the hazardous waste enforcement programs and
the conduct of a major portion of the Agency's hazardous waste
site investigations by contractors, the National Enforcement
Investigations Center was assigned responsibility for making
evidence audits available to Regional and Headquarters staffs
for enforcement case referrals developed as a result of these
activities. Accordingly, an evidence audit capability has now
been available for approximately three years and is extensively
used and endorsed by Regional and Headquarters case management
teams who have availed themselves of this service.
Evidence audits lend a major advantage to the case develop-
ment process? enhancing the supportive rationale and develop-
ment of legal strategy of cases; detecting flaws in evidence
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wi':h timeliness that permits repair; the avoidance of presenting
questionable evidence in the court room; and perhaps most impor-...
t&ntly, conserving the time and case-handling capacities of the
ca,»e attorneys and Regional and Headquarters Technical staff.
PROPOSED PROCEDURE
It is recognized that EPA cases vary greatly in terns of com-
plexity involving volume and types of records generated. The
scope of the audit should be tailored to the complexity of the
case and to the number of documents involved.
Because each case is unique, and not all cases nay require an
•
evidence audit, the decision pn whether an evidence audit will
be performedr either for cases referred directly to the Depart-
ment of Justice by the Region or before referral to Headquarters
Office of Enforcement and Compliance Monitoring prior to trans-
mictal to the Department, will be nade by the Regional Administra-
tor or his/her deslgnee. For those cases referred to the Assist-
ant Administrator for Enforcement and Compliance Monitoring,
the Assistant Administrator nay require an evidence audit after
referral by the Region and prior to transnittal to the Depart-
ment of Justice, should it become apparent during the review
process that such an audit is necessary. In general, the
audits should include:
o document assembly
o document organization and review
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o evidence profiles
o document storage and retrieval
'Each of these elements Is discussed briefly in the following
•ections.
Document Assembly
The case management team is responsible for identifying all EPA
and contractor groups generating records for the ease. Each of
these organizational components should be instructed to gather
and transmit complete files to the Regional case attorney or
Headquarters case attorney (for nationally managed cases).
Continuing investigation and data collection, if. any, should be
^^ ^^ i-****"
described in the transmittal aeao from the document generating
group to the case management team and a date specified when the
remaining documents will be transmitted. The attorney should
also gather all of the documents obtained from the prospective
defendant(s) and place them in one location for review.
The NEIC Contract Evidence Audit Team (CEAT) can provide assist-
ance to Regional and/or Headquarters case management teams for
identification of organizational elements generating documents
participating in the case and to track receipt of records. The
team can also assist in the assembly of documents.
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Document Organization and Review
This process establishes a complete case file of readily retriev-
able records. The case management team decides on an organiza-
tional format. A variety of formats is available (chronological*
by subject natter, author, recipient, type of document, etc.).
Once this decision ir made, the documents are examined by the
Evidence Audit Team and placed in the proper order. Each docu-
ment is stamped with a serial number and pertinent identifying
information is recorded on an inventory sheet. Computer services
enhance this effort and can provide keyword search capability.
Computerized document databases are accessible to all members of
the case management team and printouts can be provided to facili-
tate document 'retrieval. Databases are secured and access is
United to those persons authorized by the case management team.
In addition to describing each document, the review process is
designed to identify originals, duplicates, confidential business
information, enforcement sensitive records, privileged material
and evidentiary records.
Files obtained from the prospective defendant(s) are also organ-
ized and reviewed in a similar manner. As new documents are
generated or received, they are added to the system.
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Evidence Profiles
Evidence profiles are graphic or narrative presentations of the
history and chain-of-custody of,evidence from the time of collec-
tion through final disposition. They are particularly useful for
demonstrating integrity of samples and analyses where multiple
laboratories, field teams, or other entities are involved. Field
and laboratory records must be located and audited. Information
documenting the transfer, handling, and storage of samples is
extracted and summarized. The profile identifies the following:
o when evidence was collected
o who collected it
o all transfers of custody
•
o when received by a laboratory
o who received it
o how it was secured
o who performed analytical tasks
o when tasks occurred
o where samples are stored after analysis
The source and serial number of documents containing this infor-
mation is also recorded. This procedure enables the case attor-
ney to assess the adequacy of sampling and analysis records and to
rehabilitate deficient areas in the paper trail. The goal is to
demonstrate integrity of the evidence in order to arrive at a
stipulation for uncontested entry of the data.
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Document Storage and Retrieval
Completed files Dust be controlled to provide quick and complete
access to the documents and .to prevent, deterioration of the filing
aystern. Document control procedures oust be followed to kaep
x track of the location and distribution of All records. A document
control officer (DCO) or the case attorney oust assume this respon-
sibility.. Files ahould be securely stored and Bade available only
on a check-out basis. Computerized inventories enable multiple
users of the files to identify documents they need to access.
The NEIC, through its evidence audit capability has developed an
additional litigation support service to assist Regional case
management t«ams with large and complex cases. The procedures
provide for assembly of records, categorizing, stamping, and in-
ventorying the documents, and making microfiche copies. A com-
puterized listing of the documents is prepared which includes the
following information:
o document control number
o document date
o document type
o source of document
o author
o recipient
o title or subject
-------
Information retrieval can be selected on any of these categories.
Complete microfiche sets can be provided to all members of the
litigation team and hard copies can be made available as needed.
This procedure enables the team to work with the information while
keeping the original files intact.
The evidence audit procedures described above are intended to
lead to admissibility of evidence and to assure that supporting
documents for allegations listed in the complaint are controlled
and available.
OPERATIONAL OUTLOOK
Based on historical data, completion of evidence audits in re-
sponse to requests for assistance from the NEIC Evidence Audit
Team can be expected to be from two weeks for cases involving
small numbers of documents to four to six weeks for complex cases
with large numbers of documents.
During fiscal year 1964, the NEIC Evidence Audit Unit can assist
Regions and Headquarters elements in establishment and implemen-
tation of internal document control and evidence audit procedures
as requested.
To secure evidence audit services, the Regional Adrr.inistracer or
his/her designee she-Id contact either of the two Deputy Project
-------
10
Officers (Mr. Robert Laidlaw or Ms. Geraldine Hilden) at FTS
234-4656 to describe the nature of the case and documents and
work out schedules and logistics. The requestor should then
confirm the request, in writing, to the DPO.
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GM-21
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PL/-/
-21
POLICY ON CIVIL PENALTIES '
EPA GENERAL ENFORCEMENT POLICY #GM - 21
UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY
EFFECTIVE DATE: FEB I fi 1984
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-1-
Introduction
This document, Policy on Civil Penalties/ establishes a
single set of goals for penalty assessment in EPA administrative
and judicial enforcement actions. These goals - deterrence,
fair and equitable treatment of the regulated community, and
swift resolution of environmental problems - are presented here
in general terms. An outline of the general process for the
assessment of penalties is contained in Attachment A.
A companion document, A Framework for Statute-Specific
Approaches to Penalty Assessments, will also be issued today.
This document provides guidance to the user of the policy on
how to write penalty assessment guidance specific to the user's
particular program. The first part of the Framework provides
general guidance on developing program-specific guidance; the
second part contains a detailed appendix which explains the basis
for that guidance. Thus, the user need only refer to the appendix
when he wants an explanation of the guidance in the first part of
the Framework.
In order to achieve the above Agency policy goals, all
administratively imposed penalties and settlements of civil
penalty actions should, where possible, be consistent with the
guidance contained in the Framework document. Deviations from
the Framework's methodology, where merited, are authorized as
long as the reasons for the deviations are documented. Documen-
tation for deviations from the Framework in program-specific
guidance should be located in that guidance. Documentation for
deviations from the program-specific guidance in calculating
individual penalties should be contained in both the case files
and in any memoranda that accompany the settlements.
The Agency will make every effort to urge administrative
law judges to impose penalties consistent with this policy and
any medium-specific implementing guidance. For cases that go
to court, the Agency will request the statutory maximum penalty
in the filed complaint. And, as proceedings warrant, EPA will
continue to pursue a penalty no less than that supported by the
applicable program policy. Of course, all penalties must be consis-
tent with applicable statutory provisions, based upon the number
and duration of the violations at issue.
Applicability
This policy statement does not attempt to address the
specific mechanisms for achieving the goals set out for penalty
assessment. Nor does it prescribe a negotiation strategy to
achieve the penalty target figures. Similarly, it does not
address differences between statutes or between priorities of
different programs. Accordingly, it cannot be used, by itself,
as a basis for determining an appropriate penalty in a specific
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-2-
action. Each EPA program office, in a joint effort with the
Office of Enforcement and Compliance Monitoring, will revise
existing policies, or write new policies as needed. These
policies will guide the assessment of penalties under each
statute in a manner consistent with this document and, to the
extent reasonable, the accompanying Framework.
Until new program-specific policies are issued, the
current penalty policies will remain in effect. Once new
program-specific policies are issued, the Agency should
calculate penalties as follows:
0 For cases that are substantially settled,
apply the old policy.
0 For cases that will require further sub-
stantial negotiation, apply the new policy
if that will not be too disruptive.
Because of the unique issues associated with civil penal-
ties in certain types of cases, this policy does not apply to
the following areas:
0 CERCLA §107. This is an area in which
Congress has directed a particular kind
of response explicitly oriented toward
recovering the cost of Government cleanup
activity and natural resource damage.
0 Clean Water Act §311(f) and (g). This also
is cost recovery in nature. As in CERCLA
§107 actions, the penalty assessment
approach is inappropriate.
0 Clean Air Act §120. Congress has set out in
considerable detail the level of recovery
under this section. It has been implemented
with regulations which, as required by law,
prescribe a non-exclusive remedy which
focuses on recovery of the economic benefit
of noncompliance. It should be noted, how-
ever, that this general penalty policy builds
upon, and is consistent with the approach
Congress took in that section.
Muc.n of the rationale supporting this policy generally
applies to non-profit institutions, including government entities.
In applying this policy to such entities, EPA must exercise judg-
ment case-by-case in deciding, for example, how to apply the
economic benefit and ability to pay sanctions, if at all. Further
guidance on the issue of seeking penalties against non-profit
entities will be forthcoming.
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-3-
Deterrence
The first goal of penalty assessment is to deter people from
violating the law. Specifically, the penalty should persuade the
violator to take precautions against falling into noncompliance
again (specific deterrence) and dissuade others from violating the
law (general deterrence). Successful deterrence is important
because it provides the best protection for the environment. In
addition, it reduces the resources necessary to administer the
laws by addressing noncompliance before it occurs.
If a penalty is to achieve deterrence, both the violator and
the general public must be convinced that the penalty places the
violator in a worse position than those who have complied in a
timely fashion. Neither the violator nor the general public
is likely to believe this if the violator is able to retain an
overall advantage from noncompliance. Moreover, allowing a
violator to benefit from noncompliance punishes those who have
complied by placing them at a competitive disadvantage. This
creates a disincentive for compliance. For these reasons, it
is Agency policy that penalties generally should, at a minimum,
remove any significant economic benefits resulting from failure
to comply with the law. This amount will be referred to as the
"benefit component" of the penalty.
Where the penalty fails to remove the significant economic
benefit, as defined by the program-specific guidance, the case
development team must explain in the case file why it fails to do
so. The case development team must then include this explanation
in the memorandum accompanying each settlement for the signature
of the Assistant Administrator of Enforcement and Compliance
Monitoring, or the appropriate Regional official.
The removal of the economic benefit of noncompliance only
places the violator in the same position as he would have been if
compliance had been achieved on time. Both deterrence and funda-
mental fairness require that the penalty include an additional
amount to ensure that the violator is economically worse off than
if it had obeyed the law. This additional amount should reflect
the seriousness of the violation. In doing so, the penalty will
be perceived as fair. In addition the penalty's size will tend
to deter other potential violators.
In some classes of cases, the normal gravity calculation may
be insufficient to effect general deterrence. This could happen
if, for example, there was extensive noncompliance with certain
regulatory programs in specific areas of the United States. This
would demonstrate that the normal penalty assessments had not been
achieving general deterrence. In such cases, the case development
team should consider increasing the gravity component sufficient to
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-4-
achieve general deterrence. These extra assessments should
balance the other goals of this policy, particularly equitable
treatment of the regulated community.
This approach is consistent with the civil penalty
provisions in the environmental laws. Almost all of them
require consideration of the seriousness of the violation.
This additional amount which reflects the seriousness of the
violation is referred to as the "gravity component". The
combination of the benefit and gravity components yields the
"preliminary deterrence figure."
As explained later in this policy, the case development
team will adjust this figure as appropriate. Nevertheless, EPA
typically should seek to recover, at a minimum, a penalty which
includes the benefit component plus some non-trivial gravity
component. This is important because otherwise, regulated
parties would have a general economic incentive to delay
compliance until the Agency commenced an enforcement action.
Once the Agency brought the action, the violator could then
settle for a penalty less than their economic benefit of
noncompliance. This incentive would directly undermine the
goal of deterrence.
Fair and Equitable Treatment of the Regulated Community
The second goal of penalty assessment is the fair and
equitable treatment of the regulated community. Fair and
equitable treatment requires that the Agency's penalties must
display both consistency and flexibility. The consistent
application of a penalty policy is important because otherwise
the resulting penalties might be seen as .being arbitrarily
assessed. Thus violators would be more inclined to litigate
over those penalties. This would consume Agency resources and
make swift resolution of environmental problems less likely.
But any system for calculating penalties must have enough
flexibility to make adjustments to reflect legitimate differences
between similar violations. Otherwise the policy might be
viewed as unfair. Again, the result would be to undermine
the goals of the Agency to achieve swift and equitable resolu-
tions of environmental problems.
Methods for quantifying the benefit and gravity components
are explained in the Framework guidance. These methods signifi-
cantly further the goal of equitable treatment of violators.
To begin with, the benefit component promotes equity by re-
moving the unfair economic advantage which a violator may have
gained ovex complying parties. Furthermore, because the benefit
and gravity components are generated systematically, they
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will exhibit relative consistency from case to case. Because
the methodologies account for a wide range of relevant factors,
the penalties generated will be responsive to legitimate
differences between cases.
However, not all the possibly relevant differences between
cases are accounted for in generating the preliminary deterrence
amount. Accordingly, all preliminary deterrence amounts should
be increased or mitigated for the following factors to account
for differences between cases:
0 Degree of willfulness and/or negligence
0 History of noncompliance.
0 Ability to pay.
0 Degree of cooperation/noncooperation.
0 Other unique factors specific to the
violator or the case.
Mitigation based on these factors is appropriate to the extent
the violator clearly demonstrates that it is entitled to miti-
gation.
The preliminary deterrence amount adjusted prior to the
start of settlement negotiations yields the "initial penalty
target figure". In administrative actions, this figure
generally is the penalty assessed in the complaint. In judicial
actions, EPA will use this figure as the first settlement goal.
This settlement goal is an internal target and should not be
revealed to the violator unless the case development team feels
that it is appropriate. The initial penalty target may be
further adjusted as negotiations proceed and additional
information becomes available or as the original information is
reassessed.
Swift Resolution of Environmental Problems
The third goal of penalty assessment is swift resolution
of environmental problems. The Agency's primary mission is to
protect the environment. As long as an environmental violation
continues, precious natural resources, and possibly public
health, are at risk. For this reason, swift correction of
identified environmental problems must be an important goal of
any enforcement action. In addition, swift compliance conserves
Agency personnel and resources.
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-6-
The Agency will pursue two basic approaches to promoting
quick settlements which include swift resolution of environmental
problems without undermining deterrence. Those two approaches
are as follows:
1. Provide incentives to settle and institute prompt
remedial action.
EPA policy will be to provide specific incentives to settle,
including the following:
0 The Agency will consider reducing the
gravity component of the penalty for
settlements in which the violator already
has instituted expeditious remedies to
the identified violations prior to the
commencement of litigation.^/ This would
be considered in the adjustment factor
called degree of cooperation/noncoopera-
tion discussed above.
0 The Agency will consider accepting additional
environmental cleanup, and mitigating the
penalty figures accordingly. But normally,
the Agency will only accept this arrangement
if agreed to in pre-litigation settlement.
Other incentives can be used, as long as they do not result in
allowing the violator to retain a significant economic benefit.
2. Provide disincentives to delaying compliance.
The preliminary deterrence amount is based in part upon
the expected duration of the violation. If that projected period
of time Ls extended during the course of settlement negotiations
due to the defendant's actions, the case development team should
adjust that figure upward. The case development team should
consider making this fact known to the violator early in the negoti-
ation process. This will provide a strong disincentive to delay
compliance.
JL/ For the purposes of this document, litigation is deemed to
begin:
0 for administrative actions - when the
respondent files a response to an adminis-
trative complaint or when the time to
file expires or
0 for judicial actions - when an Assistant
United States Attorney files a com-
plaint in court.
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-7-
Intent of Policy and Information Requests for Penalty Calculations
The policies and procedures set out in this document and in
the Framework for Statute-Specific Approaches to Penalty Assessment
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. In addition, any penalty
calculations under this policy made in anticipation of litigation
are exempt from disclosure under the Freedom of Information Act.
Nevertheless as a matter of public interest, the Agency may
elect to release this information in some cases.
Courtney M. Price
Assistant Administrator for
Enforcement and Compliance Monitoring
Attachment
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-8-
ATTACHMENT A
Outline of Civil Penalty Assessment
I. Calculate Preliminary Deterrence Amount
A. Economic benefit component and
B. Gravity component
(This yields the preliminary deterrence amount.)
II. Apply Adjustment Factors
Ac Degree of cooperation/noncooperation (indicated through
pre-settlement action.)
B= Degree of willfulness and/or negligence.
C. History of noncompliance.
D. Ability to pay (optional at this stage.)
E. Other unique factors (including strength of case,
competing public policy concerns. )
(This yields the initial penalty target figure. )
III. Adjustments to Initial Penalty Target Figure After
Negotiations Have Begun
A. Ability to pay (to the extent not considered in
calculating initial penalty target.)
B. Reassess adjustments used in calculating initial
penalty target. (Agency may want to reexamine
evidence used as a basis for the penalty in the
light of new information.)
C. Reassess preliminary deterrence amount to reflect
continued periods of noncompliance not reflected
in the original calculation.
D. Alternative payments agreed upon prior to the
commencement of litigation.
(This yields the adjusted penalty target figure.)
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GM-22
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A FRAMEWORK FOR STATUTE-SPECIFIC APPROACHES
TO PENALTY ASSESSMENTS;
IMPLEMENTING EPA'S POLICY ON CIVIL PENALTIES
EPA GENERAL ENFORCEMENT POLICY #GM - 22
UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY
EFFECTIVE DATE:
' ™ '
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Contents Page
Introduction 1
Writing a Program-Specific Policy 2
I. Developing a Penalty Figure 2
II. Calculating a Preliminary Deterrence Amount 2
III. Adjusting the Preliminary Deterrence Amount 3
to Derive the Initial Penalty Target Figure
IV. Adjusting the Initial Penalty Target Figure 4
During Negotiations
Use of the Policy in Litigation
Use of the Policy as a Feedback Device
Appendix 6
Introduction 6
The Preliminary Deterrence Amount 6
I. The Benefit Component 6
A. Benefit from delayed costs 7
B. Benefit from avoided costs 9
C. Benefit from competitive advantage 10
D. Settling a case for an amount less than 11
the economic benefit component
II. The Gravity Component 13
A. Quantifying the gravity of a violation 13
B. Gravity factors 14
Initial and Adjusted Penalty Target Figure 16
I. Flexibility-Adjustment Factors 17
A. Degree of willfulness and/or negligence 17
B. Degree of cooperation/noncooperation 19
C. History of noncompliance 21
D. Ability to pay 23
E. Other unique factors 24
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11
Appendix (Con't)
II. Alternative Payments 24
III. Promoting Consistency 27
Use of Penalty Figure in Settlement Negotiations 28
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_ 1 _
Introduction
This document, A Framework for Statute-Specific Approaches
to Penalty Assessment, provides guidance to the user of the
Policy on Civil Penalties on how to develop a medium-specific
penalty policy. Such policies will apply to administratively
imposed penalties and settlements of both administrative and
judicial penalty actions.
In the Policy on Civil Penalties, the Environmental
Protection Agency establishes a single set of goals for penalty
assessment. Those goals - deterrence, fair and equitable
treatment of the regulated community, and swift resolution of
environmental problems - will be substantially impaired unless
they are pursued in a consistent fashion. Even different
terminology could cause confusion that would detract from the
achievement of these goals. At the same time, too much rigidity
will stifle negotiation and make settlement impossible.
The purpose of this document is to promote the goals of
the Policy on Civil Penalties by providing a framework for
medium-specific penalty policies. The Framework is detailed
enough to allow individual programs to develop policies that
will consistently further the Agency's goals and be easy to
administer. In addition, it is general enough to allow each
program to tailor the policy to the relevant statutory provi-
sions and the particular priorities of each program.
While this document contains detailed guidance, it is not
cast in absolute terms. Nevertheless, the policy does not
encourage deviation from this guidance in either the development
of medium-specific policies or in developing actual penalty
figures. Where there are deviations in developing medium-
specific policies, the reasons for those changes must be
recorded in the actual policy. Where there are deviations from
medium-specific policies in calculating a penalty figure, the
case development team must detail the reasons for those changes
in the case file. In addition, the rationale behind the deviations
must be incorporated in the memorandum accompanying the settlement
package to Headquarters or the appropriate Regional official.
This document is divided into two sections. The first one
gives brief instructions to the user on how to write a medium-
specific policy. The second section is an appendix that gives
detailed guidance on implementing each section of the instruc-
tions and explains how the instructions are intended to further
the goals of the policy.
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Writing a Program Specific Policy
Summarized below are those elements that should be present
in a program-specific penalty policy. For a detailed discus-
sion of each of these ideas, the corresponding portions of the
appendix should be consulted.
I. Developing a Penalty Figure
The development of a penalty figure is a two step process.
First the case development team must calculate a preliminary
deterrence figure. This figure is composed of the economic
benefit component (where applicable) and the gravity component.
The second step is to adjust the preliminary deterrence figure
through a number of factors. The resulting penalty figure is
the initial penalty target figure. In judicial actions, the
initial penalty target figure is the penalty amount which the
government normally sets as a goal at the outset of settlement
negotiations. It is essentially an internal settlement goal and
should not be revealed to the violator unless the case development
team feels it is appropriate. In administrative actions, this
figura generally is the penalty assessed in the complaint.
While in judicial actions, the government's complaint will request
the maximum penalty authorized by law.
This initial penalty target figure may be further adjusted
in the course of negotiations. Each policy should ensure that
the penalty assessed or requested is within any applicable
statutory constraints, based upon the number and duration of
violations at issue.
II. Calculating a Preliminary Deterrence Amount
!3ach program-specific policy must contain a section on
calculating the preliminary deterrence figure. That section
should contain materials on each of the following areas:
0 Benefit Component. This section should
explain:
a. the relevent measure of economic benefit
for various types of violations,
b. the information needed,
c. where to get assistance in computing
this figure and
d. how to use available computer systems
to compare a case with similar previous
violations.
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0 Gravity Component. This section should first
rank different types of violations according
to the seriousness of the act. In creating
that ranking, the following factors should be
considered:
a. actual or possible harm,
b. importance to the regulatory
scheme and
c. availability of data from other
sources.
In evaluating actual or possible harm, your scheme should
consider the following facts:
I
0 amount of pollutant,
0 toxicity of pollutant,
0 sensitivity of the environment,
0 length of time of a violation and
0 size of the violator.
The policy then should assign appropriate dollar amounts
or ranges of amounts to the different ranked violations to
constitute the "gravity component". This amount, added to the
amount reflecting economic benefit, constitutes the preliminary
deterrence figure.
III. Adjusting the Preliminary Deterrence Amount to Derive the
Initial Penalty Target Figure (Prenegotiation Adjustment)
Each program-specific penalty policy should give detailed
guidance on applying the appropriate adjustments to. the pre-
liminary deterrence figure. This is to ensure that penalties also
further Agency goals besides deterrence (i.e. equity and swift
correction of environmental problems). Those guidelines should
be consistent with the approach described in the appendix. The
factors may be separated according to whether they can be con-
sidered before or after negotiation has begun or both.
Adjustments (increases or decreases, as appropriate) that
can be made to the preliminary deterrence penalty to develop an
initial penaly target to use at the outset of negotiation include:
0 Degree of willfulness and/or negligence
0 Cooperation/noncooperation through pre-
settlement action.
0 History of noncompliance.
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0 Ability to pay.
0 Other unique factors (including strength of
case, competing public policy considerations).
The policy may permit consideration of the violator's ability
to pay as an adjustment factor before negotiations begin. It
may also postpone consideration of that factor until after negoti-
ations have begun. This would allow the violator to produce
evidence substantiating its inability to pay.
The policy should prescribe appropriate amounts, or ranges
of amounts, by which the preliminary deterrence penalty should
be adjusted. Adjustments will depend on the extent to which
certain factors are pertinent. In order to preserve the penalty's
deterrent effect, the policy should also ensure that, except for
the specific exceptions described in this document, the adjusted
penalty will: 1) always remove any significant economic benefit
of noncompliance and 2) contain some non-trivial amount as a
gravity component.
IV. Adjusting the Initial Penalty Target During Negotiations
Each program-specific policy should call for periodic reas-
sessment of these adjustments during the course of negotiations.
This would occur as additional relevant information becomes avail-
able and the old evidence is re-evaluated in the light of new
evidence. Once negotiations have begun, the policy also should
permit adjustment of the penalty target to reflect "alternative
payments" the violator agrees to make in settlement of the case.
Adjustments for alternative payments and pre-settlement corrective
action are generally permissible only before litigation has
begun.
Again, the policy should be structured to ensure that any
settlement made after negotiations have begun reflects the
economic benefit of noncompliance up to the date of compliance
plus some non-trivial gravity component. This means that if
lengthy settlement negotiations cause the violation to continue
longer than initially anticipated, the penalty target figure
should be increased. The increase would be based upon the extent
that the violations continue to produce ongoing environmental
risk and increasing economic benefit.
Use of the Policy In Litigation
!3ach program-specific policy should contain a section on
the use of the policy in litigation. Requests for penalties
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should account for all the factors identified in the relevant
statute and still allow for compromises in settlement without
exceeding the parameters outlined in this document. (For each
program, all the statutory factors are contained in the Frame-
work either explicitly or as part of broader factors.) For admin-
istrative proceedings, the policy should explain how to formulate
a penalty figure, consistent with the policy. The case develop-
ment team will put this figure in the administrative complaint.
In judicial actions, the EPA will use the initial penalty
target figure as its first settlement goal. This settlement
goal is an internal target and should not be revealed to the
violator unless the case development team feels it is appro-
priate. In judicial litigation, the government should request
the maximum penalty authorized by law in its complaint. The
policy should also explain how it and any applicable precedents
should be used in responding to any explicit requests from a
court for a minimum assesment which the Agency would deem
appropriate.
Use of the Policy as a Feedback Device
Each program-specific policy should first explain in detail
what information needs to be put into the case file and into the
relevant computer tracking system. Furthermore, each policy
should cover how to use that system to examine penalty assessments
in other cases. This would thereby assist the Agency in making
judgments about the size of adjustments to the penalty for the
case at hand. Each policy should also explain how to present
penalty calculations in litigation reports.
Courtney M. Price
Assistant Administrator for
Enforcement and Compliance Monitoring
Attachment
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APPENDIX
Introduction
This appendix contains three sections. The first two sections
set out guidelines for achieving the goals of the Policy on Civil
Penalties. The first section focuses on achieving deterrence by
assuring that the penalty first removes any economic benefit from
noncompliance. Then it adds an amount to the penalty which reflects
the seriousness of the violation. The second section provides
adjustment factors so that both a fair and equitable penalty will
result and that there will be a swift resolution of the environmental
problem. The third section of the framework presents some practical
advice on the use of the penalty figures generated by the policy.
The Preliminary Deterrence Amount
The Policy on Civil Penalties establishes deterrence as an
important goal of penalty assessment. More specifically, it speci-
fies that any penalty should, at a minimum, remove any significant
benefits resulting from noncompliance. In addition, it should
include an amount beyond removal of economic benefit to reflect
the seriousness of the violation. That portion of the penalty
which removes the economic benefit of noncompliance is referred to
as the "benefit component;" that part of the penalty which reflects
the seriousness of the violation is referred to as the "gravity
component." When combined, these two components yield the "prelim-
inary deterrence amount."
This section of the document provides guidelines for calcu-
lating the benefit component and the gravity component. It will
also present and discuss a simplified version of the economic
benefit calculation for use in developing quick penalty deter-
minations. This section will also discuss the limited circum-
stances which justify settling for less than the benefit component.
The uses of the preliminary deterrence amount will be explained
in subsequent portions of this document.
I. The Benefit Component
In order to ensure that penalties remove any significant
economic benefit of noncompliance, it is necessary to have
reliable methods to calculate that benefit. The existence of
reliable methods also strengthens the Agency's position in both
litigation and negotiation. This section sets out guidelines for
computing the benefit component. It first addresses costs which
are delayed by noncompliance. Then it addresses costs which are
avoided completely by noncompliance. It also identifies issues
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to be considered when computing the benefit component for those
violations where the benefit of noncompliance results from factors
other than cost savings. This section concludes with a discussion
of the proper use of the benefit component in developing penalty
figures and in settlement negotiations.
A. Benefit from delayed costs
In many instances, the economic advantage to be derived from
noncompliance is the ability to delay making the expenditures
necessary to achieve compliance. For example, a facility which
fails to construct required settling ponds will eventually have to
spend the money needed to build those ponds in order to achieve
compliance. But, by deferring these one-time nonrecurring costs
until EPA or a State takes an enforcement action, that facility
has achieved an economic benefit. Among the types of violations
which result in savings from deferred cost are the following:
0 Failure to install equipment needed to meet
discharge or emission control standards.
0 Failure to effect process changes needed
to eliminate pollutants from products or
waste streams.
0 Testing violations, where the testing still
must be done to demonstrate achieved com-
pliance.
0 Improper disposal, where proper disposal is
still required to achieve compliance.
. ° Improper storage where proper storage is still
required to achieve compliance.
0 Failure to obtain necessary permits for dis-
charge, where such permits would probably be
granted. (While the avoided cost for many
programs would be negligible, there are pro-
grams where the the permit process can be
expensive).
The Agency has a substantial amount of experience under
the air and water programs in calculating the economic benefit
that results from delaying costs necessary to achieve compliance.
This experience indicates that it is possible to estimate the
benefit of delayed compliance through the use of a simple formula.
Specifically, the economic benefit of delayed compliance may be
estimated at: 5% per year of the delayed one-time capital cost
for the period from the date the violation began until the date
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compliance was or is expected to be achieved. This will be
referred to as the "rule of thumb for delayed compliance" method.
Each program may adopt its own "rule of thumb" if appropriate.
The applicable medium-specific guidance should state what that
method is.
The rule of thumb method can usually be used in making
decisions on whether to develop a case or in setting a penalty
target for settlement negotiations. In using this rule of thumb
method in settlement negotiations, the Agency may want to make
the violator fully aware that it is using an estimate and not
a more precise penalty determination procedure. The decision
whether to reveal this information is up to the negotiators.
The "rule of thumb" method only provides a first-cut estimate
of the benefit of delayed compliance. For this reason, its use
is probably inappropriate in situations where a detailed analysis
of the economic effect of noncompliance is needed to support or
defend the Agency's position. Accordingly, this "rule of thumb"
method generally should not be used in any of the following cir-
cumstemces:
0 A hearing is likely on the amount of the
penalty.
0 The defendant wishes to negotiate over the
amount of the economic benefit on the basis
of factors unique to the financial condition
of the company.
0 The case development team has reason to
believe it will produce a substantially
inaccurate estimate; for example, where the
defendant is in a highly unusual financial
position, or where noncompliance has or will
continue for an unusually long period.
There usually are avoided costs associated with this type
of situation. Therefore, the "rule of thumb for avoided costs"
should also be applied. (See pages 9-10). For most cases, both
figures are needed to yield the major portion of the economic
benefit component.
When the rule of thumb method is not applicable, the economic
benefit of delayed compliance should be computed using the Meth-
odology for Computing the Economic Benefit of Noncompliance.
This document, which is under development, provides a method
for computing the economic benefit of noncompliance based on a
detailed economic analysis. The method will largely be a refined
version of the method used in the previous Civil Penalty Policy
issued July 8, 1980, for the Clean Water Act and Title I of the
Clean Air Act. It will also be consistent with the regulations
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implementing Section 120 of the Clean Air Act. A computer
program will be available to the Regions to perform the analysis,
together with instructions for its use. Until the Methodology
is issued, the economic model contained in the July 8, 1980,
Civil Penalty Policy should be used. It should be noted that
the Agency recently modified this guidance to reflect changes in
the tax law.
B. Benefit from avoided costs
Many kinds of violations enable a violator to permanently
avoid certain costs associated with compliance.
0 Cost savings for operation and maintenance of
equipment that the violator failed to install.
0 Failure to properly operate and maintain
existing control equipment.
0 Failure to employ sufficient number of
adequately trained staff.
0 Failure to establish or follow precautionary
methods required by regulations or permits.
0 Improper storage, where commercial storage is
reasonably available.
0 Improper disposal, where redisposal or cleanup
is not possible.
0 Process, operational, or maintenance savings
from removing pollution equipment.
0 .Failure to conduct necessary testing.
As with the benefit from delayed costs, the benefit com-
ponent for avoided costs may be estimated by another "rule of
thumb" method. Since these costs will never be incurred, the
estimate is the expenses avoided until the date compliance is
achieved less any tax savings. The use of this "rule of thumb"
method is subject to the same limitations as those discussed in
the preceding section.
Where the "rule of thumb for avoided costs" method cannot
be used, the benefit from avoided costs must be computed using
the Methodology for Computing the Economic Benefit of Noncom-
pliance. Again, until the Metholology is issued, the method
contained in the July 8, 1980, Civil Penalty Policy should be
used as modified to reflect recent changes in the tax law.
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C. Benefit from competitive advantage
For most violations, removing the savings which accrue
from noncompliance will usually be sufficient to remove the
competitive advantage the violator clearly has gained from
noncompliance. But there are some situations in which noncom-
pliance allows the violator to provide goods or services which
are not available elsewhere or are more attractive to the
consumer. Examples of such violations include:
0 Selling banned products.
0 Selling products for banned uses.
0 Selling products without required labelling
or warnings.
0 Removing or altering pollution control
equipment for a fee, (e.g., tampering with
automobile emission controls.)
0 Selling products without required regula-
tory clearance, (e.g., pesticide registra-
tion or premanufacture notice under TSCA.)
To adequately remove the economic incentive for such viola-
tions, it is helpful to estimate the net profits made from the
improper transactions (i.e. those transactions which would not
have occurred if the party had complied). The case development
team :is responsible for identifying violations in which this
element of economic benefit clearly is present and significant.
This calculation may be substantially different depending on the
type of violation. Consequently the program-specific policies
should contain guidance on identifying these types of violations
and estimating these profits. In formulating that guidance, the
follov/ing principles should be followed:
0 The amount of the profit should be based on
the best information available concerning
the number of transactions resulting from
noncompliance.
0 Where available, information about the
average profit per transaction may be used.
In some cases, this may be available from
the rulemaking record of the provision
violated.
0 The benefit derived should be adjusted to
reflect the present value of net profits
derived in the past.
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lt is recognized that the methods developed for estimating
the profit from those transactions will sometimes rely substan-
tially on expertise rather than verifiable data. Nevertheless,
the programs should make all reasonable efforts to ensure that
the estimates developed are defensible. The programs are encour-
aged to work with the Office of Policy, Planning and Evaluation
to ensure that the methods developed are consistent with the
forthcoming Methodology for Computing the Economic Benefit of
Noncompliance and with methods developed by other programs. The
programs should also ensure that sufficient contract funds are
available to obtain expert advice in this area as needed to
support penalty development, negotiation and trial of these kinds
of cases.
D. Settling cases for an amount less than the economic
benefit
As noted above, settling for an amount which does not remove
the economic benefit of noncompliance can encourage people to
wait until EPA or the State begins an enforcement action before
complying. For this reason, it is general Agency policy not to
settle for less than this amount. There are three general areas
where settling for less than economic benefit may be appropriate.
But in any individual case where the Agency decides to settle for
less than enconomic benefit, the case development team must detail
those reasons in the case file and in any memoranda accompanying
the settlement.
1. Benefit component involves insignificant amount
It is clear that assessing the benefit component and
negotiating over it will often represent a substantial commitment
of resources. Such a commitment of resources may not be warranted
in cases where the magnitude of the benefit component is not likely
to be significant, (e.g. not likely to have a substantial impact on
the violator's competitive positions). For this reason, the case
development team has the discretion not to seek the benefit com-
ponent where it appears that the amount of that component is
likely to be less than $10,000. (A program may determine that
other cut-off points are more reasonable based on the likelihood
that retaining the benefit could encourage noncomplying behavior.)
In exercising that discretion, the case development team should
consider the following factors:
° Impact on violator; The likelihood that
assessing the benefit component as part
of the penalty will have a noticeable
effect on the violator's competitive
position or overall profits. If no such
effect appears likely, the benefit com-
ponent should probably not be pursued.
0 The size of the gravity component; If the
gravity component is relatively small, it
may not provide a sufficient deterrent, by
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itself, to achieve the goals of this policy.
° The certainty of the size of the benefit
component; If the economic benefit is quite
well defined, it is not likely to require
as much effort to seek to include it in the
penalty assessment. Such circumstances also
increase the likelihood that the economic
benefit was a substantial motivation for the
noncompliance. This would make the inclusion
of the benefit component more necessary to
achieve specific deterrence.
It may be appropriate not to seek the benefit component in
an entire class of violation. In that situation, the rationale
behind that approach should be clearly stated in the appropriate
medium-specific policy. For example, the most appropriate way
to handle a small non-recurring operation and maintenance vio-
lation may be a small penalty. Obviously it makes little sense
to assess in detail the economic benefit for each individual
violation because the benefit is likely to be so small. The
medium-specific policy would state this as the rationale.
2. Compelling public concerns
The Agency recognizes that there may be some instances where
there are compelling public concerns that would not be served by
taking a case to trial. In such instances, it may become necessary
to consider settling a case for less than the benefit component.
This may be done only if it is absolutely necessary to preserve
the countervailing public interests. Such settlements might be
appropriate where the following circumstances occur:
0 There is a very substantial risk of creating
precedent which will have a significant
adverse effect upon the Agency's ability
to enforce the law or clean up pollution
if the case is taken to trial.
0 Settlement will avoid or terminate an
imminent risk to human health or the
environment. This is an adequate
justification only if injunctive relief
is unavailable for some reason, and if
settlement on remedial responsibilities
could not be reached independent of any
settlement of civil penalty liability.
0 Removal of the economic benefit would
result in plant closings, bankruptcy, or
other extreme financial burden, and there
is an important public interest in allow-
ing the firm to continue in business.
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Alternative payment plans should be fully
explored before resorting to this option.
Otherwise, the Agency will give the per-
ception that shirking one's environmental
responsibilities is a way to keep a failing
enterprise afloat. This exemption does not
apply to situations where the plant was
likely to close anyway, or where there is a
likelihood of continued harmful noncompliance.
3. Litigation practicalities
The Agency realizes that in certain cases, it is highly unlikely
the EPA will be able to recover the economic benefit in litigation.
This may be due to applicable precedent, competing public interest
considerations, or the specific facts, equities, or evidentiary
issues pertaining to a particular case. In such a situation it is
unrealistic to expect EPA to obtain a penalty in litigation which
would remove the economic benefit. The case development team then
may pursue a lower penalty amount.
II. The Gravity Component
As noted above, the Policy on Civil Penalties specifies that
a penalty, to achieve deterrence, should not only remove any eco-
nomic benefit of noncompliance, but also include an amount reflecting
the seriousness of the violation. This latter amount is referred
to as the "gravity component." The purpose of this section of the
document is to establish an approach to quantifying the gravity
component. This approach can encompass the differences between
programs and still provide the basis for a sound consistent treat-
ment of this issue.
A. Quantifying the gravity of a violation
Assigning a dollar figure to represent the gravity of a vio-
lation is an essentially subjective process. Nevertheless, the
relative seriousness of different violations can be fairly
accurately determined in most cases. This can be accomplished
by reference to the goals of the specific regulatory scheme and
the facts of each particular violation. Thus, linking the dollar
amount of the gravity component to these objective factors is a
useful way of insuring that violations of approximately equal
seriousness are treated the same way.
Such a linkage promotes consistency. This consistency
strengthens the Agency's position both in negotiation and before
a trier of fact. This approach consequently also encourages
swift resolution of environmental problems.
Each program must develop a system for quantifying the
gravity of violations of the laws and regulations it administers.
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This development must occur within the context of the penalty
amounts authorized by law for that program. That system must
be based, whenever possible, on objective indicators of the
seriousness of the violation. Examples of such indicators are
given below. The seriousness of the violation should be based
primarily on: 1) the risk of harm inherent in the violation at
the time it was committed and 2) the actual harm that resulted
from the violation. In some cases, the seriousness of the
risk of harm will exceed that of the actual harm. Thus, each
system should provide enough flexibility to allow EPA to consider
both factors in assessing penalties.
Each system must also be designed to minimize the possi-
bility that two persons applying the system to the same set of
facts would come up with substantially different numbers. Thus,
to the extent the system depends on categorizing events, those
categories must be clearly defined. That way there is little
possibility for argument over the category in which a violation
belongs. In addition, the categorization of the events relevant
to the penalty decision should be noted in the penalty develop-
ment portion of the case file.
B, Gravity Factors
In quantifying the gravity of a violation, a program-specific
policy should rank different types of violations according to the
seriou.-sness of the act. The following is a suggested approach to
ranking the seriousness of violations. In this approach to rank-
ing, tiie following factors should be considered:
0 Actual or possible harm: This factor
focuses on whether (and to what extent)
the activity of the defendant actually
resulted or was likely to result in an
unpermitted discharge or exposure.
0 Importance to the regulatory scheme; This
factor focuses on the importance of the
requirement to achieving the goal of the
statute or regulation. For example, if
labelling is the only method used to pre-
vent dangerous exposure to a chemical,
then failure to label should result in a
relatively high penalty. By contrast, a
warning sign that was visibly posted but
was smaller than the required size would
not normally be considered as serious.
0 Availability of data from other sources;
The violation of any recordkeeping or
reporting requirement is a very serious
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matter. But if the involved requirement
is the only source of information, the
violation is far more serious. By contrast,
if the Agency has another readily available
and cheap source for the necessary infor-
mation, a smaller penalty may be appro-
priate. (E.g. a customer of the violator
purchased all the violator's illegally
produced substance. Even though the
violator does not have the required
records, the customer does.)
0 Size of violator; In some cases, the
gravity component should be increased
where it is clear that the resultant
penalty will otherwise have little
impact on the violator in light of the
risk of harm posed by the violation.
This factor is only relevant to the
extent it is not taken into account by
other factors.
The assessment of the first gravity factor listed above,
risk or harm arising from a violation, is a complex matter. For
purposes of ranking violations according to seriousness, it is
possible to distinguish violations within a category on the basis
of certain considerations, including the following:
° Amount of pollutant; Adjustments for the
concentration of the pollutant may be
appropriate, depending on the regulatory
scheme and the characteristics of the
pollutant. Such adjustments need not be
linear, especially if the pollutant can
be harmful at low concentrations.
° Toxicity of the pollutant; Violations
involving highly toxic pollutants are more
serious and should result in relatively
larger penalties.
° Sensitivity of the environment: This
factor focuses on the location where the
violation was committed. For example,
improper discharge into waters near a
drinking water intake or a recreational
beach is usually more serious than dis-
charge into waters not near any such use.
° The length of time a violation continues;
In most circumstances, the longer a
violation continues uncorrected, the
greater is the risk of harm.
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Although each program-specific policy should address each
of the factors listed above, or determine why it is not relevant,
the factors listed above are not meant to be exhaustive. The
programs should make every effort to identify all factors rele-
vant to assessing the seriousness of any violation. The programs
should then systematically prescribe a dollar amount to yield a
gravity component for the penalty. The program-specific policies
may prescribe a dollar range for a certain category of violation
rathei: than a precise dollar amount within that range based on
the specific facts of an individual case.
The process by which the gravity component was computed must
be memorialized in the case file. Combining the benefit component
with the gravity component yields the preliminary deterrence amount.
In some classes of cases, the normal gravity calculation may
be insufficient to effect general deterrence. This could happen
if there was extensive noncompliance with certain regulatory
progrcims in specific areas of the United States. This would
demonstrate that the normal penalty assessments had not been
achieving general deterrence. The medium specific policies should
address this issue. One possible approach would be to direct the
case development team to consider increasing the gravity component
within a certain range to achieve general deterrence. These extra
assessments should be consistent with the other goals of this
policy.
Initial and Adjusted Penalty Target Figure
The second goal of the Policy on Civil Penalties is the
eguitable treatment of the regulated community. One important
mechanism for promoting equitable treatment is to include the
benefit component discussed above in a civil penalty assessment.
This approach would prevent violators from benefitting economi-
cally from their noncompliance relative to parties which have
complied with environmental requirements.
In addition, in order to promote equity, the system for
penalty assessment must have enough flexibility to account for
the unique facts of each case. Yet it still must produce enough
consistent results to treat similarly-situated violators similarly.
This is accomplished by identifying many of the legitimate differ-
ences between cases and providing guidelines for how to adjust
the preliminary deterrence amount when those facts occur. The
application of these adjustments to the preliminary deterrence
amount prior to the commencement of negotiation yields the initial
penalty target figure. During the course of negotiation, the case
development team may further adjust this figure to yield the
adjusted penalty target figure.
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Nevertheless, it should be noted that equitable treatment is
a two-edged sword. While it means that a particular violator will
receive no higher penalty than a similarly situated violator, it
also means that the penalty will be no lower.
I. Flexibility-Adjustment Factors
The purpose of this section of the document is to establish
additional adjustment factors to promote flexibility and to iden-
tify management techniques that will promote consistency. This
section sets out guidelines for adjusting penalties to account for
some factors that frequently distinguish different cases. Those
factors are: degree of willfulness and/or negligence, degree of
cooperation/noncooperation, history of noncompliance, ability to
pay, and other unique factors. Unless otherwise specified, these
adjustment factors will apply only to the gravity component and
not to the economic benefit component. Violators bear the burden
of justifying mitigation adjustments they propose based on these
factors.
Within each factor there are three suggested ranges of
adjustment. The actual ranges for each medium-specific policy
will be determined by those developing the policy. The actual
ranges may differ from these suggested ranges based upon program
specific needs. The first, typically a 0-20% adjustment of the
gravity component, is within the absolute discretion of the case
development team. £/ The second, typically a 21-30% adjustment,
is only appropriate in unusual circumstances. The third range,
typically beyond 30% adjustment, is only appropriate in extra-
ordinary circumstances. Adjustments in the latter two ranges,
unusual and extraordinary circumstances, will be subject to scrutiny
in any performance audit. The case development team may wish to
reevaluate these adjustment factors as the negotiations progress.
This allows the team to reconsider evidence used as a basis for
the penalty in light of new information.
Where the Region develops the penalty figure, the appli-
cation of adjustment factors will be part of the planned Regional
audits. Headquarters will be responsible for proper application
of these factors in nationally-managed cases. A detailed dis-
cussion of these factors follows.
A. Degree of Willfulness and/or Negligence
Although most of the statutes which EPA administers are
strict liability statutes, this does not render the violator's
I/ Absolute discretion means that the case development team
may make penalty development decisions independent of EPA
Headquarters. Nevertheless it is understood that in all
judicial matters, the Department of Justice can still review
these determinations if they so desire. Of course the authority
to exercise the Agency's concurrence in final settlements is
covered by the applicable delegations.
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willfulness and/or negligence irrelevant. Knowing or willful
violations can give rise to criminal liability, and the lack
of any culpability may, depending upon the particular program,
indicate that no penalty action is appropriate. Between these
two extremes, the willfulness and/or negligence of the violator
should be reflected in the amount of the penalty.
In assessing the degree of willfulness and/or negligence,
all of the following points should be considered in most cases:
0 How much control the violator had over the
events constituting the violation.
0 The forseeability of the events consti-
tuting the violation.
0 Whether the violator took reasonable
precautions against the events con-
stituting the violation.
0 Whether the violator knew or should have
known of the hazards associated with the
conduct.
0 The level of sophistication within the
industry in dealing with compliance issues
and/or the accessibility of appropriate
control technology (if this information is
readily available). This should be balanced
against the technology forcing nature of the
statute, where applicable.
0 Whether the violator in fact knew of the
legal requirement which was violated.
It should be noted that this last point, lack of knowledge
of the legal requirement, should never be used as a basis to
reduce the penalty. To do so would encourage ignorance of
the law. Rather, knowledge of the law should serve only to
enhance the penalty.
The amount of control which the violator had over how
quickly the violation was remedied is also relevent in certain
circumstances. Specifically, if correction of the environmental
problem was delayed by factors which the violator can clearly
show were not reasonably foreseeable and out of its control, the
penalty may be reduced.
The suggested approach for this factor is for the case
development team to have absolute discretion to adjust the
penalty up or down by 20% of the gravity component. Adjustments
in the + 21-30% range should only be made in unusual circumstances.
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Adjustments for this factor beyond +_ 30% should be made only in
extraordinary circumstances. Adjustments in the unusual or
extraordinary circumstance range will be subject to scrutiny in
any audit of performance.
B. Degree of Cooperation/Noncooperation
The degree of cooperation or noncooperation of the violator
in remedying the violation is an appropriate factor to consider in
adjusting the penalty. Such adjustments are mandated by both the
goals of equitable treatment and swift resolution of environmental
problems. There are three areas where this factor is relevant.
1. Prompt reporting of noncompliance
Cooperation can be manifested by the violator promptly
reporting its noncompliance. Assuming such self-reporting is not
required by law, such behavior should result in the mitigation of
any penalty.
The suggested ranges of adjustment are as follows. The case
development team has absolute discretion on any adjustments up to
+ 10% of the gravity component for cooperation/noncooperation.
Adjustments can be made up to _+ 20% of the gravity component, but
only in unusual circumstances. In extraordinary circumstances,
such as self reporting of a TSCA premanufacture notice violation,
the case development team may adjust the penalty beyond the _+ 20%
factor. Adjustments in the unusual or extraordinary circumstances
ranges will be subject to scrutiny in any performance audit.
2. Prompt correction of environmental problems
The Agency should provide incentives for the violator to
commit to correcting the problem promptly. This correction must
take place before litigation is begun, except in extraordinary
circumstances.^/ But since these incentives must be consistent
with deterrence, they must be used judiciously.
2/ For the purposes of this document, litigation is deemed to
begin:
0 for administrative actions - when the
respondent files a response to an adminis-
trative complaint or when the time to
file expires or
0 for judicial actions - when an Assistant
United states Attorney files a com-
plaint in court.
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The circumstances under which the penalty is reduced depend
on the type of violation involved and the source's response to
the problem. A straightforward reduction in the amount of the
gravity component of the penalty is most appropriate in those
cases where either: 1) the environmental problem is actually cor-
rected prior to initiating litigation, or 2) ideally, immediately
upon discovery of the violation. Under this approach, the reduction
typically should be a substantial portion of the unadjusted gravity
component.
In general, the earlier the violator instituted corrective
action after discovery of the violation and the more complete
the corrective action instituted, the larger the penalty
reduction EPA will consider. At the discretion of the case
development team, the unadjusted gravity component may be
reduced up to 50%. This would depend on how long the environ-
mental problem continued before correction and the amount of any
environmental damage. Adjustments greater than 50% are permitted,
but will be the subject of close scrutiny in auditing performance.
It should be noted that, in some instances, the violator
will take all necessary steps toward correcting the problem but
may refuse to reach any agreement on penalties. Similarly, a
violator may take some steps to ameliorate the problem, but
choose to litigate over what constitutes compliance. In such
cases, the gravity component of the penalty may be reduced up
to 25% at the discretion of the case development team. This
smaller adjustment still recognizes the efforts made to correct
the environmental problem, but the benefit to the source is not
as great as if a complete settlement is reached. Adjustments
greater than 25% are permitted, but will be the subject of close
scrutiny in auditing performance.
In all instances, the facts and rationale justifying the
penalty reduction must be recorded in the case file and in-
cluded in any memoranda accompanying settlement.
3. Delaying compliance
Swift resolution of environmental problems will be encour-
aged il: the violator clearly sees that it will be financially
disadvantageous for the violator to litigate without remedying
noncompliance. The settlement terms described in the preceding
section are only available to parties who take steps to correct a
problem prior to initiation of litigation. To some extent, this
is an incentive to comply as soon as possible. Nevertheless, once
litigation has commenced, it should be clear that the defendant
litigates at its own risk.
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In addition, the methods for computing the benefit component
and the gravity component are both structured so that the penalty
target increases the longer the violation remains uncorrected.
The larger penalty for longer noncompliance is systematically
linked to the benefits accruing to the violator and to the con-
tinuing risk to human health and the environment. This occurs
even after litigation has commenced. This linkage will put the
Agency in a strong position to convince the trier of fact to
impose such larger penalties. For these reasons, the Policy
on Civil Penalties provides substantial disincentives to litigat-
ing without complying.
C. History of noncompliance
Where a party has violated a similar environmental require-
ment before, this is usually clear evidence that the party was
not deterred by the Agency's previous enforcement response.
Unless the previous violation was caused by factors entirely out
of the control of the violator, this is an indication that the
penalty should be adjusted upwards.
In deciding how large these adjustments should be, the case
development team should consider the following points:
0 How similar the previous violation was.
0 How recent the previous violation was.
0 The number of previous violations.
0 Violator's response to previous violation(s)
in regard to correction of the previous
problem.
Detailed criteria for what constitutes a "similar violation"
should be contained in each program-specific policy. Neverthe-
less a violation should generally be considered "similar" if the
Agency's previous enforcement response should have alerted the
party to a particular type of compliance problem. Some facts
that indicate a "similar violation" was committed are as follows:
0 The same permit was violated.
0 The same substance was involved.
0 The same process points were the source
of the violation.
0 The same statutory or regulatory provision
was violated.
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0 A similar act or omission (e.g. the failure
to properly store chemicals) was the basis
of the violation.
For purposes of this section, a "prior violation" includes
any act or omission for which a formal enforcement response has
occurred (e.g. notice of violation, warning letter, complaint,
consent decree, consent agreement, or final order). It also
includes any act or omission for which the violator has pre-
viously been given written notification, however informal, that
the Agency believes a violation exists.
In the case of large corporations with many divisions or
wholly-owned subsidiaries, it is sometimes difficult to deter-
mine whether a previous instance of noncompliance should trigger
the adjustments described in this section. New ownership often
raises similar problems. In making this determination, the case
development team should ascertain who in the organization had
control and oversight responsibility for the conduct resulting
in the violation. In some situations the same persons or the
same organizational unit had or reasonably should have had
control or oversight responsibility for violative conduct. In
those cases, the violation will be considered part of the com-
pliance history of that regulated party.
In general, the case development team should begin with
the assumption that if the same corporation was involved, the
adjustments for history of noncompliance should apply. In
addition, the case development team should be wary of a party
changing operators or shifting responsibility for compliance to
different groups as a way of avoiding increased penalties. The
Agency may find a consistent pattern of noncompliance by many
divisions or subsidiaries of a corporation even though the
facilities are at different geographic locations. This often
reflects, at best, a corporate-wide indifference to environmental
protection. Consequently, the adjustment for history of noncom-
pliance should probably apply unless the violator can demonstrate
that the other violating corporate facilities are independent.
The following are the Framework's suggested adjustment
ranges. If the pattern is one of "dissimilar" violations,
relatively few in number, the case development team has absolute
discretion to raise the penalty amount by 35%. For a relatively
large number of dissimilar violations, the gravity component can
be increased up to 70%. If the pattern is one of "similar"
violations, the case development team has absolute discretion to
raise the penalty amount up to 35% for the first repeat violation,
and up to 70% for further repeated similar violations. The case
development team may make higher adjustments in extraordinary
circumstances, but such adjustments will be subject to scrutiny
in any performance audit.
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D. Ability to pay
The Agency will generally not request penalties that are
clearly beyond the means of the violator. Therefore EPA should
consider the ability to pay a penalty in arriving at a specific
final penalty assessment. At the same time, it is important
that the regulated community not see the violation of environ-
mental requirements as a way of aiding a financially troubled
business. EPA reserves the option/ in appropriate, circumstances,
of seeking a penalty that might put a company out of business.
For example, it is unlikely that EPA would reduce a penalty
where a facility refuses to correct a serious violation. The same
could be said for a violator with a long history of previous vio-
lations. That long history would demonstrate that less severe
measures are ineffective.
The financial ability adjustment will normally require a
significant amount of financial information specific to the
violator. If this information is available prior to commence-
ment of negotiations, it should be assessed as part of the
initial penalty target figure. If it is not available, the
case development team should assess this factor after commence-
ment of negotiation with the source.
The burden to demonstrate inability to pay, as with the
burden of demonstrating the presence of any mitigating circum-
stances, rests on the defendant. If the violator fails to
provide sufficient information, then the case development team
should disregard this factor in adjusting the penalty. The
National Enforcement Investigations Center (NEIC) has developed
the capability to assist the Regions in determining a firm's
ability to pay. Further information on this system will be made
available shortly under separate cover.
When it is determined that a violator cannot afford the
penalty prescribed by this policy, the following options should
be considered:
° Consider a delayed payment schedule; Such a
schedule might even be contingent upon an
increase in sales or some other indicator of
improved business. This approach is a real
burden on the Agency and should only be
considered on rare occasions.
° Consider non-monetary alternatives, such as
public service activities; For example, in
the mobile source program, fleet operators
who tampered with pollution control devices
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on their vehicles agreed to display anti-
tampering ads on their vehicles. Similar
solutions may be possible in other industries.
0 Consider straight penalty reductions as a last
recourse; If this approach is necessary, the
reasons for the case development team's
conclusion as to the size of the necessary
reduction should be made a part of the formal
enforcement file and the memorandum accompany-
ing the settlement. j|/
0 Consider joinder of the violator's individual
owners; This is appropriate if joinder is
legally possible and justified under the
circumstances.
Regardless of the Agency's determination of an appropriate
penalty amount to pursue based on ability to pay considerations,
the violator is still expected to comply with the law.
E. Other unique factors
Individual programs may be able to predict other factors
that can be expected to affect the appropriate penalty amount.
Those factors should be identified and guidelines for their use
set out in the program-specific policies. Nevertheless, each
policy should allow for adjustment for unanticipated factors
which night affect the penalty in each case.
It is suggested that there be absolute discretion to adjust
penalties up or down by 10% of the gravity component for such
reasons;. Adjustments beyond the absolute discretion range will
be subject to scrutiny during audits. In addition, they will
primarily be allowed for compelling public policy concerns or the
strengths and equities of the case. The rationale for the reduction
must be expressed in writing in the case file and in any memoranda
accompjinying the settlement. See the discussion on pages 12 and
13 for further specifics on adjustments appropriate on the basis
of either compelling public policy concerns or the strengths and
equities of the case.
II. Alternative Payments
ID the past, the Agency has accepted various environmentally
beneficial expenditures in settlement of a case and chosen not to
J3/ If c\ firm fails to pay the agreed-to penalty in an adminis-
trative or judicial final order, then the Agency must follow
the Federal Claims Collection Act procedures for obtaining the
penalty amount.
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pursue more severe penalties. In general, the regulated community
has been very receptive to this practice. In many cases,
violators have found "alternative payments" to be more attrac-
tive than a traditional penalty. Many useful projects have been
accomplished with such funds. But in some instances, EPA has
accepted for credit certain expenditures whose actual environ-
mental benefit has been somewhat speculative.
The Agency believes that these alternative payment projects
should be reserved as an incentive to settlement before litigation.
For this reason, such arrangements will be allowed only in preliti-
gation agreements except in extraordinary circumstances.
In addition, the acceptance of alternative payments for
environmentally beneficial expenditures is subject to certain
conditions. The Agency has designed these conditions to prevent
the abuse of this procedure. Most of the conditions below applied
in the past, but some are new. All of these conditions must be
met before alternative payments may be accepted:^/
0 No credits can be given for activities
that currently are or will be required
under current law or are likely to be re-
quired under existing statutory authority
in the forseeable future (e.g., through
upcoming rulemaking).
0 The majority of the project's environmental
benefit should accrue to the general public
rather than to the source or any particular
governmental unit.
0 The project cannot be something which the
violator could reasonably be expected to do
as part of sound business practices.
£/ In extraordinary circumstances, the Agency may choose not to
pursue higher penalties for "alternative" work done prior to
commencement of negotiations. For example, a firm may recall a
product found to be in violation despite the fact that such
recall is not required. In order for EPA to forgo seeking
higher penalties, the violator must prove that it has met the
other conditions herein stated. If the violator fails to prove
this in a satisfactory manner, the case development team has the
discretion to completely disallow the credit project. As with
all alternative projects, the case development team has the dis-
cretion to still pursue some penalties in settlement.
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0 EPA must not lower the amount it decides
to accept in penalties by more than the
after-tax amount the violator spends on
the project.£/
In all cases where alternative payments are allowed, the
case file should contain documentation showing that each of
the conditions listed above have been met in that particular
case. In addition when considering penalty credits, Agency
negotiators should take into account the following points:
0 The project should not require a large
amount of EPA oversight for its comple-
tion. In general the less oversight
the proposed credit project would
require from EPA to ensure proper
completion, the more receptive EPA
can be toward accepting the project
in settlement.
0 The project should receive stronger
consideration if it will result in the
abatement of existing pollution,
ameliorate the pollution problem that
is the basis of the government's claim
and involve an activity that could be
ordered by a judge as equitable relief.
0 The project should receive stronger
consideration if undertaken at the
facility where the violation took place.
0 The company should agree tha.t any publicity
it disseminates regarding its funding of
the project must include a statement that
such funding is in settlement of a lawsuit
brought by EPA or the State.
_5/ This limitation does not apply to public awareness activities
such as those employed for fuel switching and tampering violations
under the Clean Air Act. The purpose of the limitation is to
preserve the deterrent value of the settlement. But these viola-
tions are often the result of public misconceptions about the
economic value of these violations. Consequently, the public
awareness activities can be effective in preventing others from
violating the law. Thus, the high general deterrent value of
public tiwareness activities in these circumstances obviates the
need for the one-to-one requirement on penalty credits.
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Each alternative payment plan must entail an identified
project to be completely performed by the defendant. Under the
plan, EPA must not hold any funds which are to be spent at EPA's
discretion unless the relevant statute specifically provides
that authority. The final order, decree or judgment should
state what financial penalty the violator is actually paying and
describe as precisely as possible the credit project the violator
is expected to perform.
III. Promoting Consistency
Treating similar situations in a similar fashion is central
to the credibility of EPA's enforcement effort and to the success
of achieving the goal of equitable treatment. This document has
established several mechanisms to promote such consistency. Yet
it still leaves enough flexibility for settlement and for tailor-
ing the penalty to particular circumstances. Perhaps the most
important mechanisms for achieving consistency are the systematic
methods for calculating the benefit component and gravity compo-
nent of the penalty. Together, they add up to the preliminary
deterrence amount. The document also sets out guidance on uniform
approaches for applying adjustment factors to arrive at an initial
penalty target prior to beginning settlement negotiations or an
adjusted penalty target after negotiations have begun.
Nevertheless, if the Agency is to promote consistency, it
is essential that each case file contain a complete description
of how each penalty was developed. This description should cover
how the preliminary deterrence amount was calculated and any
adjustments made to the preliminary deterrence amount. It should
also describe the facts and reasons which support such adjustments.
Only through such complete documentation can enforcement attorneys,
program staff and their managers learn from each others' experience
and promote the fairness required by the Policy on Civil Penalties.
To facilitate the use of this information, Office of Legal
and Enforcement Policy will pursue integration of penalty infor- .
mation from judicial enforcement actions into a computer system.
Both Headquarters and all Regional offices will have access to
the system through terminals. This would make it possible for
the Regions to compare the handling of their cases with those of
other Regions. It could potentially allow the Regions, as well
as Headquarters, to learn from each others' experience and to
identify problem areas where policy change or further guidance
is needed.
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Use of Penalty Figure in Settlement Discussions
The Policy and Framework do not seek to constrain negotiations.
Their goal is to set settlement target figures for the internal
use of Agency negotiators. Consequently, the penalty figures
under negotiation do not necessarily have to be as low as the
internal target figures. Nevertheless, the final settlement
figures should go no lower than the internal target figures unless
either: 1) the medium-specific penalty policy so provides or
2) the reasons for the deviation are properly documented.
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GM-23
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
VASMIMCTON. OC 104»0
KOV 2 I I2S3
MEMORANDUM
SUBJECT: Guidance Concerning Compliance with the Jencks Act
n T-
FROM: Courtney M. Price^Jft-u-JU-.-v.
Assistant Administrator (j
Office of Enforcement and Compliance Monitoring
TO: Assistant Administrators
Regional Administrators
Regional Counsels
Associate Enforcement Counsels
Director, NEIC
Background
The Jencks Act (IB U.S.C. $3500) provides that in a
federal criminal prosecution, after a witness called by the
United States has testified on direct examination, the court,
on motion of the defendant, shall order the United States to
produce any "statement", as defined in the Act, in the :
possession of the United States that relates to the subject
matter as to which the witness has testified. Any witness
called by the United States is subject to the Jencks Act.
Therefore, the "statements" of environmental engineers,
technicians, laboratory personnel, criminal investigators,
inspectors, and EPA lawyers nay be ordered turned over to
the defense if any of these individuals testifies for the
Government. The need for a complete understanding of the
requirements of the Jencks Act, by all EPA personnel, can-
not be underestimated. The identity of government witnesses
cannot be accurately predicted in advance, and the sanctions
for losing, destroying or misplacing "Jencks Act material"
can be severe.
The Act (the text of which is set forth in Appendix A)
has- generated a considerable amount of case law. Litigation
has mainly concerned questions as to what is a "statement"
and what sanctions should be imposed should the Government
fail to produce Jencks Act material. This memorandum will
discuss these points and the procedures which must be used
to preserve the material.
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Issue'
What written materials will be considered "statements"
subject to production to the defense during the course of
crixiinal litigation?
*•
Discussion
A • statement" is defined in part in 18 U.S.C. J3500(e)
as (1) a written statement made by the witness and signed or
otherwise adopted or approved by him; or (2) a stenographic,
mechanical, electrical, or other recording, or a transcription
thereof, which is a substantially verbatim recital of an oral
statement made by the witness and recorded contemporaneously
the making of such oral statement.
•(e)(l) Statements*: .Under subsection (e)(l), a written
statement can be a report written by an agent and adopted by
the witness. That is, if an agent writes up a report and
either reads it back to the witness or lets the witness read
it and then has the witness, in writing or orally, approve
what has been written, then the witness has "adopted* the
statement and it becomes the witness's statement. This
statement or report does not have to be written at the time
of the interview of the witness. If an agent talks to a wit-
ness, types up a report a few days later and shows the report
to the witness who approves it, it is an "(e)(l) statement"
of the witness. A document written by a witness, whether
signed or unsigned, is also a statement and, if turned over
to an agent , must be. retained as Jencks Act material.
Criminal investigators or agents intentionally obtaining
statements from potential witnesses are not the only EPA
personnel who may create "(e)(l) statements." If an EPA
technician or inspector writes a report which a facility
manager reads and certifies as being accurate* then this
report may be considered the "statement" of the facility
manager. The manager has "adopted* the report. Also, the
note:; or laboratory reports of a technician or inspector
are "(«)(!) statements" as to that technician or inspector.
If the technician or inspector testifies, then these notes
or reports must be turned over to the defense if they relate
to the subject matter of the direct testimony. It does not
mat tor who records the statement or for what purpose; it
remains Jencks Act material. EPA technical personnel mist
keep any notes that they have made of interviews with facil-
ity personnel (or other potential witnesses) as well as notes
recording actions which may later be the subject of a criminal
prosecution.
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*(e)(2) Statements"! Statements which are "(e)(2) statements*
include not only tape recordings, but any notes which can be
considered a "substantially verbatim recital* of a witness's
oral statement. If an agent takes notes quoting, or writing
down in a substantially verbatim form, the words of a witness
and these notes are taken either at or near the time of the
witness's oral statement! these notes become the witness's
*(e)(2) statement*• The agent taking the notes is viewed in
the manner of a stenographer who accurately memorializes the
witness's wordf. The witness does not have to approve or
adopt the agent's notes.He does not have to even know that
notes were being taken. If the agent has captured the witness's
words on paper, then these words are the witness's statement
even if he is unaware that he is making a statement.
Agents who testify in court become witnesses whose
statements also must be turned over to the defense. Investi-
gative reports, written interpretations or impressions of a
case, and written analyses of case problems and issues may
all be "statements' of an agent. For instance, a report of
a witness interview may not be a witness's "(e)(l)" or "(e)(2)"
statement because it does not directly quote the witness or
capture the witness's words in a substantially verbatim form.
However, it may be the *(e)(l) statement" of the agent who
wrote the report. "The written report of the agent, however,
is just as much a verbatim statement of the agent who prepares
'it as a written statement of an informer, incorporated in
the report, is the statement of the informer." Holmes v.
United States, 271 F.2d 655, 658 (4th Cir. 1959).
•Running resumes" of P.B.I, agents, detectives or EPA
•agents are "(e)(l) statements" of the agent and may be
producible. If a Criminal Enforcement Division Special Agent
testifies, it can be anticipated that his/her notes, reports
to SAICs, case referral reports, and investigative reports
will be producible if the direct testimony covers areas
which are discussed in these previously written documents.
United States v. Sink, 586 F.2d 1041 (5th Cir. 1978), cert.
denied, 443 U.S. 912 (1979)i Holmes v. United States, supra.
Although it is incumbent upon the trial judge to separate
out personal evaluations and "discussions of legal and
practical problems of a prosecution" from the "running
resumes" (or from any document which contains Jencks Act
material),-the writer who includes extraneous material always
runs the risk of a judge deciding against excision. United
States v. Pfingst, 377 F.2d 177, 195 (2d Cir.), cert, denied,
412 U.S. 941 (1973). Material in an agent's report which
is sensitive or which might affect the security of EPA's
investigative techniques is not exempt from Jencks Act
requirements. West v. United States, 274 F.2d 885 (6th Cir.
1960), cert, denied, 365 U.S. 619 (1961).
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Notes, reports, etc. r in the hands of any EPA employee—
including criminal investigators, lawyers and technical
persons— are considered *in the possession of the government."
Therefore, if an EPA employee fails to disclose Jencks Act
material to the prosecutor, that failure will b« held against
the Government even though it is the agent rather than the
prosecutor who has failed to preserve something. United
States v. Bryant, 439 F.2d 642 (D.C. Cir. 1971): Emmett v.
Ricketts, 397 F. Supp. 1025 (N.D. C«. 1975); United States v.
fflederberqer, 580 F.2d 63 (3d Cir. 1978); United States v.
, 60~4 F.2d 1102 (8th Cir. 1979). AS soon as a case
is opened by the Criminal Enforcement Division, the agent
assigned to the case should inventory all existing notes and
reports concerning potential government witnesses in the
possession of, or known to, all Agency personnel involved in
the case, and inform them of their obligation to retain such
material. Copies of this Agency's guidance on the Jencks Act
should also be distributed to such personnel.
Courts will require the Government to turn over any material
which fits the 'statement" definition if it relates to the
subject matter of the witness's direct testimony. Any material
which either is not a statement of the witness or does not
relate to the subject matter of the witness's direct testimony
will be excised from the document. A judge may not exercise
his or her own judgment as to what material is important,
. helpiiul or necessary for the defense. If it is a statement
that relates to the direct testimony, it must be turned
over,
Courts have broadly interpreted the phrase "relates to
the liubject matter as to which the witness has testified," in
Section (b) of the Act. However, courts have more restric-
tively defined "statements" under Section (e). Acknowledging
that it is unfair to cross-examine a witness using material
which does not represent what the witness in fact said,
courts have excluded material that is really the agent's
words or impressions rather than those of the witness. Zn
Palermo v. United States, 360 U.S. 343 (1959), the Court
affirmed the denial of the production of a 600-word memoran-
dum in which the Government agent summarized a three and a
half hour interrogation of a witness who testified at trial.
In one of the first Supreme Court decisions discussing the
"statement" definition of the Jencks Act, the Court attempted
to clarify what courts may exclude:
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(S]ummaries of an oral statement which evidence substan-
tial selection of material, or which were prepared after
the interview without the aid of complete notes, and hence
rest on the memory of the agent, are not to be produced.
Neither, of course, are statements which contain the
agent's interpretations or impressions.
360 U.S. at 353. . Xf a court describes an agent's notes as
•rough*, "random* or "brief, it will be signaling its finding
that the notes are not "statements* as to the witness referred
to in the notes.
To determine whether notes accurately reflect a witness's
words, courts will consider the extent to vhica &b* wri&Loe
conforms to the witness's language (e.g., "I dumped it because
X thought the load was hot.*); \/ the number of pages of notes
in relation to the length of the* interview (e.g., one page of
notes after three hours of interviewing); 2/ the lapse of time
between the interview and its transcription*; I/ the appearance
of the substance of the witness's remarks (i.7., are they in
quotation marks? in sentence form?); . 4/ and the presence of
comments or ideas of the interviewer.""^/
The Jencks Act clearly gives the court the authority to
determine, after an in camera inspection, what is Jencks Act
material and what is not. It is not the Government's function
to excise material; rather, any notes or memoranda which
conceivably could be viewed as Jencks Act material should be
provided to .the prosecutor for review by the courts.
\J Palermo v. United States» supra.
2/ United States v. Judon, 581 P.2d 553 (5th Cir. 1978);
DnitedfStates v. Durham, 587 F.2d 799 (5th Cir. 1979);
Goldberg v. United States, 425 D.S. 94 (1976); Palermo v.
United "States, supra.
2/ Campbell v. Dnited States, 365 U.S. B5 (1961).
4/ United States v. Muckenstrun, 515 P.2d 568 (5th Cir.),
Tsert. denied, 423 U.S. 1032 (1975); United States v.
Pennett, 496 P.2d 293 (10th Cir. 1974); United States v.
Bines, 455 F.2d 1317 (D.C. Cir. 1971).
Dnited States v. "Pfingst, supra.
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Issue
When must Jencks Act material be made available to the
defense and what are the sanctions if it is not made
available?
Discussion
If a prosecutor decides to follow strictly the letter
of 'the law, he or she need not turn over Jencks Act material
unt.Ll after the witness has testified at trial for the Govern-
ment. However, because of the delay which this creates (while
! th« defense reviews the material)* most courts expect that a
prosecutor will agree. ;to turn over Jencks Act material either
| at Ithe start of each day of. trial or before the witness testi-
fies; on direct examination. Some prosecutors even allow the
j defense to examine the material before trial.
i
As in any area of the law, different courts interpret
the Jencks Act differently. Prosecutors who are aware of
previous rulings by a court on Jencks Act issues will conform
the:.r practice accordingly. Therefore, what one prosecutor
considers Jencks Act material, another may not. EPA personnel
_ must; accommodate themselves to the practice of the prosecutor
within their jurisdiction.
^ • The Congressional purpose of the Act is to allow the
defendant to have, for impeachment purposes, "relevant and
7 competent statements of a governmental witness in possession
of nhe Government touching the events or activities as to
which the witness has testified at trial." Campbell v. Dnited
States, supra, 365 O.S. at 92. If the defense's ability to
<, cros.s-examine is impeded by the deliberate or inadvertent
i losi;, by the Government, of Jencks Act material, the Court
may decide not to allow the witness to testify at all or to
strike the witness's entire testimony. Of course, the effect
' of completely excluding the testimony of a Government witness
may be significant.
Although the Act does not require the automatic imposi-
tion of sanctions for failure to preserve potential Jencks
a Act material, courts have warned law enforcement agencies of
| their duty to promulgate procedures to ensure preservation.
in
*. {S]anctions for non-disclosure based on loss of evidence
~ will be invoked in the future unless the Government can
show that it has promulgated, enforced, and attempted in
good faith to follow rigorous and systematic procedures
designated to preserve all discoverable evidence gathered
in the course of a criminal investigation. The burden,
of course, is on the Government to make this showing.
Negligent failure to comply with the required procedures
will provide no excuse.
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United States v. Bryant, 439 F.2d 642 (D.C. Cir. 1971)
(footnote omitted)(emphasis in original).
In light of the sanctions that can flow from a failure
to preserve Jencks Act material', as well as Government's
inherent responsibility to preserve discoverable evidence, it
is incumbent upon EPA to develop procedures that trill ensure
this end.
Issue
What procedures should be implemented throughout the
Agency to preserve Jencfcc Act material?
Discussion
•
As a general rule, after a matter is referred to the
Criminal Enforcement Division for investigation, investi-
gators from that Division will be responsible for reports
written to document factual developments in ongoing cases.
This would include, for example, interview write-ups, sur-
veillance reports, documentation of the receipt of physical
evidence, etc. One clear exception to this general rule
will be Agency technical personnel who will continue to
draft reports documenting sampling data and analysis, chain
of custody information, etc.
If more than one investigator is involved in an investi-
gation, only.one report should be written documenting a-
specific event unless circumstances mandate otherwise.
All work notes should be retained by Agency personnel
working on the criminal investigation until the final disposi-
tion of the case. This potential Jencks Act material must
be kept in secured files when not in immediate use. Any
notes taken at the time of the event, or at the time of the
interview, as well as reports composed from the notes must be
retained. Intermediate drafts need not be retained.
Investigative reports and technical reports should not
include the writer's subjective thoughts, impressions or
general opinions concerning a case. If it is thought necessary
to reduce to writing information that is not strictly factual,
this should be kept separately in secured files. It is more
likely that material which is arguably not producible under
the Act will be withheld from the defense if it is kept apart
from material which is clearly Jencks Act material. Rather
than disputing in court which portions of reports should be
excised, everything within a report should be relevant and
objective material. Extraneous material which does not
directly relate to a case should not'be included in investi-
gative reports on that case.
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APPENDIX A
§3500 Demands for production of statements and reports of
witnesses.
(a) In any criminal prosecution brought by the United
States, no statement or report in the possession of the United
States which vas made by a Government witness or prospective
Government witness (other than the defendant) shall be the
subject of subpoena, discovery, or inspection until said wit-
ress has testified on direct examination in the trial of the
case.
(b) After a witness called by the United States has tes-
tified on direct e-xwaiTWtion, the court shall, on motion of
the defendant, order the United States to produce any state-
ment (as hereinafter defined) of the witness in the possession
of the United States which relates to the subject matter as to
which the witness has testified. Zf the entire contents of
any such statement relate to the subject matter of the testi-
mony of the witness, the court shall order it to be delivered
directly to the defendant for his examination and use.
(c) If the United States claims that any statement
ordered to be produced under this section contains matter
which does not relate to the subject matter of the testimony
of the witness, the court shall order the United States to
deliver such statement for the inspection of the court in
camera. Upon such delivery the court shall excise the portions
of such statement which do not relate to the subject matter of
the testimony of the witness* With such material excised, the
court shall then direct delivery of such statement to the
defendant for his use. If, pursuant to such procedure, any
portion of such statement is withheld from the defendant and
the defendant objects to such withholding, and the trial is
continued to an adjudication of the guilt of the defendant,
the entire text of such statement shall be preserved by the
United States and, in the event the defendant appeals, shall
be made available to the appellate court for the purpose of
determining the correctness of the ruling of the trial judge.
Whenever any statement is delivered to a defendant pursuant to
this section, the court in its discretion, upon application of
said defendant, may recess proceedings in the trial for such
time as it may determine to be reasonably required for the
examination of such statement by said defendant and his
preparation for its use in the trial.
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(d) If the United States elects not to comply with an
order of the court under subsection (b) or (c) hereof to
deliver to the defendant any such statement, or such portion
hereof as the court may direct, the court shall strike from
the record the testimony of the. witness, and the trial shall
•proceed unless the court in its discretion shall determine
that the interest interests of justice require that a mistrial
be declared.
(e) The term "statement", as used in subsections (b),
(c)r and (d) of this section in relation to any witness
called by the United States, means—
(1) a written statement made by said witness and
signed or otherwise adopted or approved by him;
(2) a stenographic, mechanical, electrical, or other
recording, or a transcription thereof, which is
a substantially verbatim recital of an oral
statement made by said witness and recorded
contemporaneously with the making of such oral
statement; or
(3) a statement, however taken or recorded, or a
transcription thereof, if any, made by said
witness to a grand jury.
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GM-24
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY JK
ttASMINGTON.DClMtO J/Z
1CV 22«3
or net or
OMMMb
MEMORANDUM
SUBJECT: Working Principles Underlying EPA'c
National Complianre/Enforcemflnt Programs
FROM: Courtney M. _
Assistant Administrator for Enforcement
and Compliance Monitoring
TO: Assistant Administrators
Associate Administrators
Regional Administrators, Regions 1 • X
The working principles for EPA's national compliance/
enforcement programs set out below were developed by the
Compliance/Enforcement Task Group and are intended to establish
the framework and philosophy for the compliance and enforcement
programs administered by EPA.
I believe it is important for us to strive to apply the
principles set out below in managing the*compliance/enforce-
ment components of the Agency's programs. To that end,
please make sure Office Directors and staff members with
responsibilities in these areas receive copies of this memorandum
so they that can use it as a guide in making choices for
managing these programs.
1 expect these principles to be dynamic and to change as
we proceed to implement the program specific compliance and
enforcement strategies the Task Group has developed.
The fundamental objective of EPA's national compliance/
enforcement program administered by EPA and the States is to
protect public health and the environment through a comprehensive
effort to foster full and expeditious compliance with environmental
laws and regulations. Different components of the national
program are designed to achieve this goal through —
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-2-
4
-» setting program goals and priorities to achieve the
environmental benefits;
*
— identifying the regulated community to understand the
scope of the problen;
-<- promoting compliance by the regulated cosmunity;
.. monitoring compliance by the regulated community to
reliably detect violations of lavs and regulations and
establish program priorities;
•» responding appropriately to detected violations;
-- working with State and local governments to achieve
national compliance and enforcement goals;
— continually evaluating our progress in aeetiag our
goals and objectives in each area of the compliance/
enforcement program and refining our efforts accordingly;
-•- building public confidence in our compliance and enforcement
efforts.
Each of these components vill be discussed in Bore detail
below.
I. Setting Prograc Goals and Priorities to Achieve Environmental
Benefits
* federal and State governments oust chare responsibility
for developing and implementing national compliance and
enforcement strategies.
* EPA*s national compliance and enforcement programs
vill be based on realistic and attainable goals.
considering the size of the regulated community and
the scope of the requirements governing its activities.
* Although statutes enforced by EPA nay require strict
compliance in all cases, EPA aust establish priorities
for enforcesent since it is unlikely that ETA could
respond with the same level of effort to each detected
violation. Individual programs «ay establish both
long term and short term goals to achieve full,
expeditious compliance. In establishing and pursuing
these specific goals, national strategies for compliance/
enforcement activities vill base priorities and
targets cm the following factors:
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— likelihood that a violation by a source or
category of sources will result in pollution
presenting a significant risk to human health and
the environment (baaed .OB, for example, the
pollutant(s) at issue, the type and size of the
source, or the likely scope of exposure to the
excess pollution),
— Likelihood that a source or category of sources
will violate environmental lavs or regulations
(based on, for example, £beir sophistication or
compliance history, the Heroes* trx Tcnrpl-exity of
the regulations, or the economic incentives for
noncompliance).
Likelihood that an action vill contribute
significantly toward assuring s credible enforcement
presence (for example, if the action is precedential
in nature, highly visible to the regulated community,
or necessary to ensure that some attention is
paid to a particular compliance/ enforcement area.)
National programs must achieve a balance between those
compliance and enforcement actions which aost clearly
result in significant, immediate environmental benefit
and those designed primarily to support a credible
enforcement presence (and the environmental benefits
which that presence produces less'directly) • • .
The type of compliance or enforcement action chosen in
individual cases will depend on the priority or relative
importance of the action in light of the considerations
listed above and the amount of resources necessary to
pursue a given type of action relative to other possible
actions.
Identifying the Regulated Community to Understand the Scope
of tbe Problem
* To the extent practicable, EPA's national compliance
and enforcement programs Bust be able to identify
parties subject to environmental lavs and regulations
according to the types of requirements governing
their activities and the types of activities they
perform. Such "inventories are useful to establish
priorities and select targets across a program.
This identification also aids in evaluating the
effectiveness of compliance/enforcement programs,,
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-4-
0 ' EPA will pursue All available, cost-effective Beans
for identifyiag the regulated community, including
in-house investigator* and regulatory aecnanins.
0 Priority vill be given to identifying those parties
ID the regulated community who, If in con compliance,
would have a significant iapact on the environment,
public health or the credibility of the enforceaeoc
prog ram.
III. I'mooting Compliance by theTegulated Community
* Compliance promotion entails ensuring that the
regulated community has adequate information, tools,
and techniques available to achieve compliance and
the incentive to use them. Compliance promotion
includes:
clarifying responsibilities for the regulated
community;
— providing technical information on compliance
techniques; and,
— encouraging voluntary efforts to achieve, maintain
and monitor compliance.
* EPA vill promote compliance by resolving issues affecting
permit issuance and by issuing required permits in a
timely manner. Permits should clearly state the
compliance responsibilities of the permittee.
* Regulated parties bear responsibility for ensuring
their own compliance, nevertheless, because preventing
violations is more beneficial for environmental
protection than remedying the violations after they
occur, national programs should provide for compliance
promotion activity.
* A credible enforcement presence based on credible
enforcement responses is a prerequisite to ensure
that regulated parties have incentive to follov
through on compliance promotion efforts.
* Discretion and flexibility should generally be given
to an individual regulated party for deciding on
the best vays it can prevent non compliance.
• Compliance promotion activities should focus on
making accessible meaningful information on compliance
techniques and systems for monitoring compliance
and correcting concompliance.
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•5-
4
* 'Compliance promotion activities should focus most
seriously on situations which involve newly-imposed
or complicated requirements OT inexperienced.
unsophisticated parties.
IV. Monitoring Coapliance; Collecting and Assessing Compliance
Information
* Objectives of compliance monitoring by the Federal
government and States include:
collecting evidence necessary to support enforcement
actions regarding identified violations;
— reviewing source compliance to identify potential
violations;
developing an understanding of compliance patterns
of the regulated community to aid in targeting
activity, establishing compliance/enforcement
priorities, evaluating strategies, and communicating
information to the public; and,
helping to establish an enforcement presence.
* Priorities for compliance monitoring activities should
be set by EPA to achieve the objectives set out above.
Factors to consider in setting priorities among these
objectives and targeting compliance monitoring
activities should include:
— the seriousness of violations which have
been identified in the past for a particular
aource or category of sources;
the extent to which compliance patterns already have
been identified;
— the extent of source review needed to establish a
credible enforcement presence; and,
— the criteria listed in Part I above.
* Methods for compliance monitoring will depend upon the
objective of the monitoring activity and the resource
requirements associated vith the activity. Thus, evidence
collection efforts to support enforcement actions vill
employ more resource-intensive methodologies (e.g.,
on-site inspections by expert, in-house criminal
investigators) than vill surveys of regulated community
compliance patterns (which can rely more easily on
contractors or a elf-monitoring reports).
-------
Regulated parties should keep track of their own
compliance status using any required methods, AS
veil as whatever other means they deea reasonable
to provide themselves vith reliable information.
Where reliable, cost-effective said authorized by lav.
national programs vill rely on enforceable self-reporting
requirements as a primary screening tool for identifying
potential violations.
Because of the importance of self-report ing to the Agency's
task of compliance monitoring, national programs vill
place high priority upon enforcement actions, including
criminal prosecutions, in cases of deliberate distortion
and/or falsification of self-reporting data.
''(f
National programs should use any available legal
authorities to collect useful information, but
must ensure that information requests are precisely
formed to avoid imposing any unnecessary information
collection requirements and should carefully consider
the extent to which the requests may inhibit the
regulated party's own voluntary self-compliance
efforts.
All information requests not qualifying under the
enforcement • exempt ion must conform to the requirements
of the Paperwork Reduction Act.
Programs should identify and use, where cost-effective,
all sources of information concerning violations
(including citizen groups and outside regulatory
and lav en for cm en t agencies).
Clear protocols should be identified to provide adequate
assurance of the quality and reliability of compliance
monitoring data in light of the purpose for which the
data vill be used.
Compliance monitoring activity must, where feasible, assess
regulated parties' success at maintaining compliance as
well as at achieving it initially.
To the extent feasible, national programs will track
compliance patterns across all segments of the regulated
community in order to target enforcement intiatives
by identifying the relative seriousness of problem
areas. Where not presently feasible, national programs
should attempt to identify and pursue vays for attaining
that capability.
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-7-
*
4
Responding to Violations (Enforcement Responses)
* Federal or State officials, as appropriate, will evaluate
each detected violation and make a conscious decision as
to the appropriate enforcenent response.
* Enforcement responses to violations vill seek to
balance the following goals:
— Correction of the violation as quickly as practicable
in light of governing law, technological feasibility
and ongoing environmental risk.
— Deterrence of future violations by the came party
or other parties.
— Equitable treatment of the regulated eonnunity
through a uniform approach to selecting enforce-
ment responses and by taking responses which
remove significant benefits the violator nay
gain through noncompliance.
~~ Punishment of serious, willful wrong-doing by
imposition of crininal sanctions.
-- Effective use of enforcement resources through the
least resource-intensive enforcement response
which still pern its achievement of the other national
enforcement goals.
* Priorities for targeting violations for enforcement
responses should be based on criteria listed in Part I.
Governseat officials may decide according to these
criteria that a technical violation merits such low
priority that no further response action need be
considered.
* The severity of the response necessary to pursue these
national enforcement goals will depend upon the following
considerations:
— the range of responses authorized by law;
— the actual or potential ham to public health
and the environment presented by the violation;
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-*-
(
— other significant public expense or injury caused
by the violation;
— economic benefit accruing to the violator;
— the violator's efforts to identify, report, aad
correct the violation independent of the enforcement
response;
the violator's previous history of compliance/non-
compliance;
-- the culpability of the violator;
the sufficiency of evidence demonstrating a violation
linked to the party in question;
— the likelihood that a given response may establish
good or bad precedent; and.
.. the importance of the action to maintaining a
credible enforcement presence.
These sane factors, as veil as a violator's ability to
pay, should be considered in deciding whether to pursue
civil penalties, and for what amount. The economic
benefit to a violator fron noncompliance is a particularly
important objective to consider in deciding on an appro-
priate amount. Civil penalty actions are appropriate,
even if the underlying violation has been corrected, if
necessary to establish adequate deterrence against future
violations or to restore equity relative to other members
of the regulated community which have been ia compliance.
The form of the enforcement response (e.g., administra-
tive vs. judicial) is not important per se. as long as
the response can achieve desired results. Programs
vill chose responses based on the facts of the case
and the factors set out above. Each available enforce-
ment tool (including judicial litigation) Bust be
used often enough to establish the credibility of
that tool and provide real incentives for regulated
parties to pursue solutions in the context less
drastic measures (e.g.. negotiations).
If a lover level enforcement response doe* not
result in achievement of the objectives for that
response, EPA vill escalate its enforcement response
accordingly.
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-s-
Negotiated resolution of enforcement actions should
be viewed as a cost-effective way of responding to
violations as long as the response still achieves
national enforcement goals. However, a credible
threat of litigation or enforceable administrative
action is necessary for an effective negotiation
program.
Negotiations and other response activity oust adhere to
definitive, government- established schedules to ensure
expeditious completion and remedy. Government officials
— • apprise the alleged violator of the violation quickly
so as to facilitate its correction;
develop prior to the start of negotiations a common
and clear understanding of the desired remedy or
relief; and,
in litigative enforcement matters, communicate through
the attorneys representing each side.
Government officials must avoid taking any actions
or making representations which may foreclose possible
future enforcement actions in a case, particularly
in the event that new information subsequently comes
to light.
To preserve a credible enforcement presence, the
use of exemptions or relaxation of operative permit
provisions instead of enforcement responses as a
means of 'addressing committed violations should be
avoided unless exemptions or revisions are truly
warranted (i.e., the source qualifies for exemption
through straightforward application of criteria),
i
When Agency officials have determined that a response to
a violation should be developed as a potential criminal
enforcement action, civil proceedings typically
should await completion of the criminal action
unless injunctive relief is necessary.
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-10-
M
* Unless expressly exempted, con-profit institutions,
including government entities, L*ve the Bane compliance
responsibilities as entities operated for profit.
The factors set out belov. in light of the seriousness
of the violations, may affect the length of the
violator's compliance schedule or the amount of
penalties imposed, but not the institution's ultimate
obligation to compl'yTnevertheless, because at x&e
unique characteristics of these institutions, selec-
tion of responses to violations by these institutions
vast carefully consider:
— the availability of funds to the institution to
aeet the costs of compliance;
-- the extent,''if any, to which economic benefit from
non-compliance nay have motivated the institution
or have disadvantage^ complying competitors; and,
— the ability of the institution to pay penalties.
* EPA will respond to violations by Federal facilities
through the mechanisms provided by Executive Order 12086.
* Enforcement responses to violations once initiated,
must be completed expeditiously and monitoring must
be undertaken to ensure that affected parties comply
with the requirements which the responses impose.
* Administrative or judicial orders should be drafted in
a manner which facilitates their enforcement. Require-
ments and responsibilities should be clear and
capable of being enforced.
* Significant violations of requirements imposed in prior
enforcement responses to address comparable violations
merit responses of their own which are at least as
severe as the prior response. Such a response should
Include, in appropriate cases, actions for civil or
criminal contempt. Responses which are inadequate
to bring continuing violations to a halt can undermine
the establishment of a credible enforcement presence.
VI. Coordinating Federal and State Activities
* Most environmental protection statutes provide States
with the lead role in compliance and enforcement
activities once EPA has authorized the State program.
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•11-
EPA retains the lead compliance end enforcesent role
for statutory programs requiring national administration
(e.g., programs which.regulate nationally-marketed
products). Otherwise, it has been EPA policy to
transfer the administration of such compliance and
enforcement programs to State and local governments
in a nanner consistent with applicable statutory
requirements*
EPA and the States oust work together to develop national
and local strategies and to plan their respective roles
in implementing these strategies. Toles -nay vary accord-
ing to the programs and States involved, but in all cases
should be articulated clearly at the planning stage of
strategy implementation.
EPA responsibilities include formulating national compliance
and enforcement goals and priorities; development of
necessary policy, guidance, and procedures; overseeing
State performance; providing grants, technical assistance,
and training to States; and pursuing compliance and
enforcement action directly for nationally-administered
programs and for other cases where necessary to ensure
successful implementation of national strategies.
Such activities, should reflect early and continuing
consultation with States.
State responsibilities include direct implementation of
authorized compliance and enforcement programs consistent
with national strategy and policy; putting federal grants
and technical assistance to effective use; contributing
meaningfully to the development of national policy and
strategy; and providing EPA with information necessary
to oversee and evaluate State activities and national
program implementation.
Oversight of State activities by EPA is undertaken to
ensure that compliance/enforcement responsibilities
are being carried out by the States. .Moreover,
oversight is a tool EPA uses to improve both Federal and
State enforcement programs by identifying problem areas
and aiding States in resolving problems identified.
EPA must base its oversight of State compliance and
enforcement activities according to clearly articulated
measures of State success in pursuing the goals of the
national compliance/enforcement program.
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•12-
States oust provide EPA with the information necessary
to perform oversight. EPA must define information
needs clearly and uniformly, limit information gathering
to that necessary to oversee State activities and
national program implementation, and avoid frequent
changes to the acope of reporting requirements, to the
extent feasible.
EPA vill take the following action (or a combination
of these actions) when oversight identifies an ineffective
state compliance and enforcement program (depending on
the degree of
-- provide more training for State employees or technical,
or on-site administrative assistance; or
implement more detailed reporting requirements;
— take a more active role in compliance *nd enforcement
actions;
-- vithdrav State program authorization (but only in the
most extreme cases).
EPA vill consider providing additional funds to help
States- improve effectiveness if it is clear that
inadequate funding is causing the ineffectiveness,
that additional funding at the State level is cot
readily available, and that Federal funds are available.
The level of scrutiny EPA gives to individual State
actions vill depend on:
demonstrated State success in implementing a
given program, i.e., achieving acceptable rates
of compliance;
— the extent to which the State requests direct
involvement;
the environmental importance of a given individual
action; and.
•- the minimum level necessary to ensure the integrity
of the national enforcement effort.
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-13-
4
* Where legal authority exists. States generally will
have primary responsibility for monitoring compliance
and pursuing responses, to identified violations.
However, EPA has ultiaate responsibility for ensuring
effective national enforcement of environmental
lavs. Therefore, EPA vill take an active role in
natters in which the State is unable or unwilling to
act, adequately or expeditiously, or if the natter
is one which has national implications or precedential
impact. EPA will exercise this authority based upon
clear criteria and will assure proper coordination
with "State programs.
* States will have flexibility in choosing appropriate
enforcement responses, which need not be identical to
the response which EPA might have chosen, nevertheless,
EPA will take its own action, despite ongoing State
action, if EPA finds that State response to a significant
violation is npt expeditious or is clearly inappropriate
or inadequate to achieve the relevant goals of an
enforcement response (as listed in Section V).
* EPA vill not expect States to take enforcement actions
which are more severe or expeditious than EPA itself
would take in practice under comparable authorities.
* Both EPA and the States are responsible for keeping each
other informed on significant ongoing compliance and-
enforcement activity of interest to the other to promote
proper coordination, mutually-supportive action, and
effective use of resources at both levels of government.
VII. Implementing. Evaluating and Refining Strategies
* Regional offices and State agencies, in consultation with
each other, aust develop their own plans for implementing
national program strategies.
* Each national program oust track compliance and enforce-
ment activity implementing its national strategy in order
to
— evaluate the success of the program in achieving
the strategies goals;
-- maintain understanding of patterns of compliance and
noncompliance in the regulated community.
-------
-u-
0 EPA will pursue the establishment of national tracking
eye tens which can facilitate strategy evaluation and
refinement by indicating, at A oininuBJ:
.. compliance rates and patterns for significant
aources;
—• the extent of compliance review activity (i.e.,
inspections, •elf-monitoring reports, etc.);
the extent of complete and expeditious imple-
mentation of enforcement responses.
0 Periodic evaluation of strategy implementation on
the national, Regional, and State level vill be
undertaken within EPA to influence the annual budget
process and operating guidance.
9 Periodic refinement of strategies vill take place
based on formal evaluation results and other relevant
information. Refinement can focus both on new ways
to achieve the original goals of the program or on
achieving new goals established for the refined
strategy.
VIII. Building Public Confidence in EPA** Enforcement and
Compliance Programs
* A credible enforcement program is the foundation of
an effective national strategy which ensures that
regulated parties have the requisite incentive to
achieve full and expeditous compliance. National
programs must possess the following characteristics
to promote establishment of a credible enforcement
presence:
-- Fairness. Oversight of the activities of regulated
parties «u*t be conducted In an unbiassed aanaex.
Enforcement responses vust be commensurate with the
seriousness of a violation, yet be flexible enough to
account for extraordinary circmstances relevant to
the violation. Violators should not benefit
froa their violations relative to parties which
are in compliance.
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•15-
Certainty. Compliance requires en ts aust be defined
with sufficient clarity and precision to communi-
cate expected standards of behavior. The national
programs nust be effective in identifying significant
violations and establish an adequate likelihood
that any kind of violation can be detected.
Responses to identified violations nust be
consistent, expeditious and follow these principles
and specific national guidance.
Uniformity. EPA should follow a uniform view
of which actions constitute a violation of a
given legal requirement. EPA and States should
employ reasonably similar treatment toward parties
in comparable situations.
Openness. Final actions taken in the compliance
and enforcement areas will be available for public
scrutiny to the extent allowed by law and the
extent to which the success of future enforcement
activity is not jeopardized.
-------
GM - 25, was revised in November 1988. The old version
has been deleted and relevant excepts of the new docu-
ment have been put in its place in the manual. A
complete copy of the strategy can be obtained from the
Office of Federal Activities.
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GM-25
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EPA
United States
Environmental Protection
Agency
Office of
Federal Activities
Washington, D.C.
EPA/00 FA 88-001
November 1988
Federal Facilities
Compliance Strategy
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Federal Facilities
Compliance Strategy
Office of Federal Activities
U.S. Environmental Protection Agency
November 1988
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
NOT 8
THE ADMINISTRATOR
The U.S. Environmental Protection Agency (EPA) believes that Federal agencies have an
inherent obligation to comply with all Federal environmental statutes in the same manner
and degree as all other regulated entities. It is imperative that every effort be made to
ensure that Federal facilities achieve and maintain high rates of compliance with all
environmental requirements. And it is important to EPA's compliance and enforcement
efforts at non-Federal entities that facilities of the Federal government demonstrate that they
have their "own house in order." In order to demonstrate EPA's commitment in mis
important area, we have established a new goal for our Federal Facilities Compliance
Program which states that EPA shall help "ensure that Federal agencies achieve compliance
rates in each media program which meet or exceed those of major industrial and major
municipal facilities."
To help achieve this goal, EPA has developed a new Federal Facilities Compliance Strategy
which establishes a comprehensive and proactive approach to achieving compliance at
Federal facilities. This document, also known as the "Yellow Book", provides the basic
framework and consistent guidelines for all EPA media programs (e.g., air, water,
hazardous waste, etc.) to follow in their compliance and enforcement activities at Federal
facilities. It also attempts to reconcile EPA's dual responsibilities to provide technical
assistance and advice to Federal facilities pursuant to Executive Order No. 12088, and our
statutory authorities to take enforcement actions for violations at Federal facilities in
appropriate circumstances.
Recently-authorized environmental statutes have included special requirements and
additional provisions which are specific to Federal facilities. These provisions clarify that
Federal agencies must comply with environmental laws in the same manner and degree as
all other facilities subject to such requirements. EPA intends to utilize the full range of its
available enforcement authorities to ensure compliance by Federal facilities. However,
EPA also recognizes that there are some limitations and differences in the types of
enforcement actions which EPA can take at Federal facilities. These special circumstances
have made it clear that if EPA is to be truly effective in ensuring high compliance rates at
Federal facilities, a separate strategy such as this is needed to address this unique subset of
facilities which we regulate.
Thorough and consistent implementation of this Strategy should significantly strengthen
EPA's compliance and enforcement program for Federal facilities. We will apply the same
timeframes for taking enforcement action at Federal facilities as EPA docs for other
facilities. We also have established a formal dispute resolution process with strict time
periods for escalation when Compliance Agreements or Consent Orders cannot be
expeditiously negotiated between EPA Regional offices and Federal facilities.
This Strategy also emphasizes the use of innovative compliance management techniques
(e.g., environmental auditing), selected initiatives for improved compliance tracking of
Federal facilities and more effective use of the Federal Agency A-106 Pollution Abatement
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Planning Process. In addition, since many of EPA's programs are delegated to the States,
we have devoted a separate chapter in this document to the critical role of States in
responding to compliance problems at Federal facilities.
In closing, I would like to reiterate that EPA is very serious in its efforts to ensure
compliance by Federal facilities, and we will take all necessary actions, including
enforcement in appropriate circumstances, to improve the environmental status of facilities
of the Federal government. Federal facilities have done much to increase the effectiveness
of their environmental management programs, but further progress is needed if Federal
facilities are to meet their obligations to comply to the fullest extent possible with all of the
environmental laws. We at EPA believe that this is an attainable goal and look forward to
working together with affected parties in implementing this strategy and demonstrating that
Federal facilities can truly be the model for compliance which we feel they are capable of
becoming.
Dae I Lee lit, Thomas
Adminis
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FEDERAL FACILITIES COMPLIANCE STRATEGY
TABLE OF CONTENTS
Page
Number
INDEX OF EXHIBITS vi
LIST OF ACRONYMS AND ABBREVIATIONS vii
LIST OF APPENDICES ix
EXECUTIVE SUMMARY x
CHAPTER L- INTRODUCTION
A. PURPOSE OF THE STRATEGY .' 1-2
B. OVERVIEW OF THE STRATEGY 1-3
CHAPTER n.- SUMMARY OF RELEVANT ENVIRONMENTAL STATUTES AND
EXECUTIVE ORDERS
A. FEDERAL FACXLTTY COMPLIANCE WTTH STATE AND LOCAL
POLLUTION CONTROL STATUTES H-l
B. FEDERAL ENVIRONMENTAL STATUTES ' H-l
B.I dean Air Act n-2
B.2 Qean Water ACL H-2
B.3 Resource Conservation and Recovery Act n-4
B.4 Federal Insecticide, Fungicide, and
Rodenticide Act H-5
B.S Toxic Substances Control Act n-6
B. 6 Comprehensive Environmental Response,
Compensation, and Liability Act n-6
B.7 Safe Drinking Water Act H-7
C. EXECUTIVE ORDERS H-8
C.I Executive Order 12088 - Federal Compliance with
Pollution Control Standards D-8
C.2 Executive Order 12146 - Management of Federal
Legal Resources n-9
C.3 Executive Order 12580 - Suoerfund Implementation II-9
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Page
Number
CHAPTER IR- IDENTIFICATION OF THE REGULATED COMMUNITY
A. DEFINITION OF A FEDERAL FACILITY ffl-1
B. STRATEGY FOR IDENTIFYING AND TRACKING THE
UNIVERSE OF FEDERAL FAOUTIES ffi-1
B. 1 Identifying the Types of Federal Facilities
in the Regulated Community ffl-2
B .2 Improved Use of Available Information and
Existing Data Systems. ffl-2
t B.3 Special Initiatives ffl-4
CHAPTER IV.- COMPLIANCE PROMOTION. TECHNICAL ASSISTANCE AND
TRAINING
A. COMPLIANCE PROMOTION IV-1
A.I Information Transfer IV-1
A.2 Identifying Compliance Patterns of
Federal Agencies IV-2
A.3 Environmental Auditing IV-3
B. TECHNICAL ASSISTANCE AND TRAINING IV-5
B.I Technical Assistance IV-5
B.2 EPA "Hotline" Assistance IV-6
B. 3 Federal Facilities Compliance Program
Assistance and Oversight IV-7
B. 4 Training Opportunities for Federal Facilities
Compliance Personnel IV-7
CHyVPTER V. - COMPLIANCE MONITORING
A. OBJECTIVES OF COMPLIANCE MONITORING ACTIVITIES V-l
B. SOURCE SELF-MONITORING, REPORTING AND
RECORDKEEPING REQUIREMENTS V-2
C. INSPECTION STRATEGY FOR FEDERAL FACILITIES V-3
C.I Annual Inspection Planning V-4
C.2 Regional Reporting of Inspection and Enforcement
Activities at Federal Facilities V-4
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Page
Number
C.3 Identification of Environmentally
Significant Federal Facilities for
Multi-Media Inspections V-4
C.4 Coordination with States on Federal
Facilities Inspections. V-5
C4.a Annual Meeting with States on
Federal Facilities Compliance V-5
C.4.b State Reporting on Federal Facility
Compliance Status V-5
D. » ACCESS TO FAOLniES REQUIRING SECURITY
CLEARANCES V-6
E. SUBMISSION AND REVIEW OF FEDERAL AGENCY A-106
POLLUTION ABATEMENT PLANS AND PROJECTS V-6
E.1 Identification of Priority Projects V-7
E.I.a A-106 Compliance Classes V-7
E. 1 .b Targeting Resources to Address
Priority Areas V-8
E.2 A-106 Process Overview and Time Table V-8
E.3 State Participation in the A-106 Process V-10
CHAPTER VL- ENFORCEMENT RESPONSE TO COMPLIANCE PROBLEMS AND
VIOLATIONS OF ENVIRONMENTAL LAWS AT FEDERAL
FACILITIES
A. OVERALL COMPLIANCE POLICY AND PHILOSOPHY VI-2
B. EPA RESPONSE TO FEDERAL FACILITIES VIOLATIONS VI-3
B.I Federal Facilities Compliance Process: Civil
Administrative Enforcement Procedures VI-4
B.l.a Notification of Violation VI-4
B. 1 .b Response by Federal Facilities:
Certification of Compliance or
Remedial Action Plans VI-5
B. 1 .c Initial Negotiation of Compliance
Agreements or Consent Orders VI-6
B. 1 .d Issuance of Proposed Consent Orders
or Proposed Compliance Agreements VI-8
B.I.e Internal EPA Dispute Resolution Procedures VI-9
B. 1 .f Federal Facilities Dispute
Resolution Process VHO
ui
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Page
Number
B. 1 .g Use of Executive Order 12088 •
Federal Compliance with Pollution
Control Standards VI-11
B. 1 .h Use of E.0.12146-Resolution of Interagency
Use of Legal Disputes VI-12
B. 1 .i Use of Other Dispute Resolution
Procedures for Violations of Signed
Agreements or Consent Orders. VI-11
B. 1 .j Impact of Funds Availability on
Achieving Compliance and Negotiating
Compliance Schedules VI-12
B.l.k Exemptions VI-13
»
B.2 Enforcement Actions for Violations at
Federal Facilities Directed at Non-Federal
Parties VI-14
B.2.a Limitation on Gvil Judicial
Enforcement Actions Applies Only to
Executive Branch Agencies VI-14
B.2.b Contractor and Other Private Party
Arrangements Involving Federal
Facilities VI-14
B.2.C Contractor Listing VI-16
B. 3 Criminal Enforcement Actions at
Federal Facilities VI-16
B. 4 Press Releases for EPA Enforcement Actions at
Federal Facilities VI-16
B.5 Monitoring Compliance VI-17
CHAPTER VII. - ROLE OF THE STATES IN RESPONDING TO FEDERAL
FACILITIES VIOLATIONS
A. STATE RESPONSE TO FEDERAL FACILITIES VIOLATIONS VH-1
A.I Use of State Enforcement Authorities VII-1
A.2 State Enforcement Response Lead Following
EPA Inspection in Delegated States VH-2
A.3 EPA Involvement in State Enforcement Actions VII-2
A.4 Relationship of State Administrative and
Judicial Citizen Suits to EPA Compliance
Agreements, VH-3
B. FEDERAL FAdUTIES IN THE STATE/EPA ENFORCEMENT
AGREEMENTS PROCESS VH-3
IV
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Page
Number
B.I Gear Oversight Criteria and Oversight
Approach. VIM
B. 1 .a Identification of and
Priorities for the Regulated
Community VIM
B.l.b Clear and Enforceable Requirements VIM
B. 1 .c Accurate and Reliable Compliance
Monitoring VIM
B.l.d High or Improving Rates of
Continuing Compliance VIM
i B. 1 .e Timely and Appropriate Enforcement
Response VII-5
B.l.f Accurate Recordkeepingand
Reporting VII-5
B.2 Direct EPA Enforcement VH-5
B.3 Advance Notification and Consultation. Vn-3
CHAPTER Vm.- EPA ROLES AND RESPONSIBILITIES FOR PROGRAM
IMPLEMENTATION
A. REGIONAL OFFICE STAFF VHI-1
A.I Regional Administrator VDI-1
A.2 Regional Administrator/
Deputy Regional Administrator VEQ-2
A.3 Regional Counsel Vm-2
A.4 Regional Program Staff/Division Directors Vm-3
A.5 Regional Federal Facilities Coordinator Vffl-4
B. EPA HEADQUARTERS OFFICES VHI-6
B.I Headquarters Program Offices Vffl-7
B .2 Office of External Affairs/Office of
Federal Activities Vm-8
B.3 Office of Enforcement and Compliance
Monitoring Vm-10
B.4 Office of General Counsel Vm-10
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INDEX OF EXHIBITS
Page
Number
I-I EPA Federal Facilities Coordinators ............... . ...... 1-5
in-1 Defining the Federal Facility Coordinators ....... ............ ffl-6
III-2 Identification of the Regulated Community of
Facilities with Federal Involvement .............. . ........ ffl-7
in-3 Federal Facilities Identification Numbers .................... ffl-9
lD-4 Program Information Systems .......................... HI- 11
«
IV-1 The EPA Journal ............................ . ...... IV-9
V-l Media Program Inspections ................. . ............ V-ll
V-2 Annual Timetable of Key A-106 Events ........ . ............ V-14
V-3 Federal Agency A-106 Pollution Abatement Plan-
Project Repon Form No. 3500-7 ............. ............ V-15
V-4 EPA Inadequate and Needed Sheets and the Federal
Agency Response Formats .............................. V-16
\?l-l Timely and Appropriate Enforcement
Response Matrix ................................... VI-18
>HI-2 Federal Facility Enforcement Response Process
and Dispute Resolution Process ......................... VI-21
V*-3 EPA Initial Enforcement Response to Violations
at Facilities with Federal Involvement. ......... . . . ......... VI-23
YUM EPA Regional Office Staff Coordination .................. Vm-11
VTH-2 EPA Headquarters Office Staff Coordination ........ . ...... VHI-12
VI
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LIST OF ACRONYMS AND ABBREVIATIONS
AA Assistant Administrator
AO Administrative Order
ATS Administrator's Tracking System
•
CAA QeanAirAct
CERCLA Comprehensive Environmental Response, Compensation, and Liability Act
OOOO Contractor Owned/Contractor Operated
COCO (E) Contractor Owned/Contractor Operated (Equipment)
CWA QeanWaterAct
DOD Department of Defense
DOJ Department of Justice
DRA Deputy Regional Administrator
E.O. Executive Order
ESD Environmental Services Division
FARES Federal Activities Regional Evaluation System
FEMA Federal Emergency Management Agency
FFIS Federal Facilities Information System
FIFRA Federal Insecticide, Fungicide, and Rodenticide Act
FINDS Facility Index System
GAO General Accounting Office
COCO Government Owned/Contractor Operated
GOGO Government Owned/Government Operated
GOPO Government Owned/Privately Operated
IRIS Integrated Risk Information System
JOCO Jointly Owned/Contractor Operated
NEIC National Enforcement Investigations Center
NRC Nuclear Regulatory Commission
vii
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LIST OF ACRONYMS AND ABBREVIATIONS (Continued)
NOV Notice of Violation
QARM Office of Administration and Resources Management
GEA Office of External Affairs
•
QECM Office of Enforcement and Compliance Monitoring
(FA Office of Federal Activities
OGC Office of General Council
OIRM Office of Information and Resource Management
OMB Office of Management and Budget
OMSE Office of Management Systems Evaluation
OPPE Office of Policy and Program Evaluation
ORD Office of Research and Development
POGO Privately Owned/Government Operated
PWSS Public Water Supply System
RA Regional Administrator
RAP Remedial Action Plan
RCRA Resource Conservation and Recovery Act
SARA Superfund Amendments and Reauthorization Act
SDWA Safe Drinking Water Act
SNC Significant Noncomplier
SPMS Strategic Planning and Management System
TSCA Toxic Substances Control Act
UIC Underground Injection Control
vm
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APPENDIX A
APPENDIX B
APPENDIX C
APPENDIX D
APPENDIX E
APPENDIX F
APPENDKG
APPENDIX H
APPENDIX I
APPENDDCJ
APPENDKK
LIST OF APPENDICES
Summaries of Federal Environmental Statutes:
. dean Air Act (CAA)
. dean Water Act (CWA)
. Resource Conservation and Recovery Act (RCRA)
. Federal Insecticide, Fungicide and Rodenticide Act (FIFRA)
. Toxic Substances Control Act (TSCA)
. Comprehensive Environmental Response, Compensation, and
Liability Act (CERCLA)
. Safe Drinking Water Act (SDWA)
Executive Orders 12088,12146, and 12580
EPA Program Definitions for Majors, Minors, Significant
Noncornpliers and Significant Violators
EPA Environmental Auditing Policy
EPA "Hotline" Assistance
Reporting, Recordkeeping, and Self-Monitoring Requirements Under
the CAA, CWA, CERCLA and RCRA
OMB Circular No. A-106
Department of Justice Letters (10/11/83 and 12/20/85) and
Congressional Testimony on Federal Facilities Compliance (4/28/87)
Enforcement Response Authorities by Program
Sample Enforcement Response Forms and Letters
Enforcement Actions under RCRA and CERCLA at Federal Facilities and
Elevation Process for Achieving Federal Facility Compliance Under RCRA
APPENDDC L Policy on Publicizing Enforcement Actions
IX
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EXECUTIVE SUMMARY
-------
EXECUTIVE SUMMARY
The Federal Facilities Compliance Strategy establishes a comprehensive and
proactive approach to achieving and maintaining high rates of compliance at Federal
facilities. It provides the basic framework for EPA's media programs to follow in ensuring
that Federal facilities are fully integrated into Federal and State compliance monitoring and
enforcement activities. It also attempts to reconcile the Agency's dual responsibilities of
providing technical assistance and advice to Federal facilities to help ensure their
compliance, as required under Presidential Executive Order No. 12088, and of taking
enforcement actions against Federal facilities, where appropriate, as provided for in the
various environmental statutes.
This Strategy clarifies that Federal agencies must comply with environmental laws
in the same manner and degree as non-Federal entities and EPA will utilize the full range of
its available enforcement mechanisms to ensure compliance by Federal facilities. However,
EPA also recognizes that there are certain limitations and differences in the types of
enforcement actions which EPA will take at Federal facilities. In addition, EPA's mandate
to provide technical assistance as well as the restrictions inherent in the Federal budget and
appropriations process influenced EPA's decision that a separate strategy was needed to
address compliance problems at Federal facilities.
This document was written to serve several audiences: to serve as guidance for
EPA Headquarters and Regional staff; to clarify State and Federal compliance monitoring
and enforcement roles; to inform Federal agencies of EPA's strategy and identify
procedures to be followed when violations have been discovered; and finally, to
communicate EPA's approach for addressing compliance problems at Federal facilities to
Congress, the public, and concerned interest groups.
Chapter II - Summary of Environmental Statutes and Executive Orders
Federal agencies generally must comply with all provisions of Federal
environmental statutes and regulations as well as all applicable State and local requirements,
with the exception of very limited Presidential exemptions which may be issued on a site-
specific basis. Presidential Executive Orders also stress the mandate for Federal facilities to
comply fully with environmental requirements and to establish procedures for ensuring that
this is accomplished, including special procedures for resolving compliance disputes within
the Executive Branch involving EPA and other Federal agencies.
Chapter HI - Identification of the Regulated Community
A more definitive inventory of Federal facilities will enable EPA to establish more
effective priorities and select targets for assistance, compliance monitoring, and
enforcement activities. The Strategy clarifies that EPA is focusing on that subset of Federal
facilities which have potential for environmental impact
The Strategy defines the various types of Federal facilities and Federal lands, and
describes how available sources of information and program data systems will be used by
EPA to identify and track compliance at Federal facilities. It outlines new actions that EPA
will undertake to improve the quantity and quality of information on the Federal facilities
universe, including reviews of Federal facility classifications and major/minor facility
-------
definitions and the identification of important Federal facility minors and environmentally
significant facilities on a multi-media basis.
Chapter IV - Compliance Promotion, Technical Assistance and Training
To meet its unique responsibilities under E.O.12088 to provide technical assistance
and advice to Federal agencies, EPA is establishing a more systematic communications
system for exchange of information on new or revised regulatory or statutory
environmental requirements. The Strategy describes the functions of EPA's various
[Hotlines" and encourages Federal agency personnel to utilize these services to assist them
in maintaining compliance at their facilities. In addition to information transfer, the
Strategy introduces improved approaches for informing Federal facilities of available
training courses. EPA will attempt to target particular agencies for courses in areas where
an Agency has had a pattern of compliance problems.
«
EPA has a unique opportunity to work with other Federal agencies and the States to
identify broad patterns of current and potential compliance problems among facilities in a
given Agency. Based upon information from Regions and States about patterns of
noneompliance by Federal facilities, EPA will develop a comprehensive strategy to correct
these noncompliance patterns and will work with the parent Agency to ensure the strategy
is implemented. In an effort to prevent future compliance problems, the annual A-106
planning process will be used more effectively to inform Federal agencies of EPA priority
areas find request them to direct their A-106 projects to these areas where appropriate.
Federal facilities are also encouraged to adopt environmental auditing programs to
help achieve and maintain higher levels of overall compliance. EPA will provide technical
assistance to other Federal agencies in the initiation and implementation of auditing
programs.
ChapUT V—Compliance Monitoring
The Strategy strengthens compliance monitoring activities as Federal facilities by
ensuring that EPA or the States' presence is being demonstrated at all Federal agencies
which have the potential for environmental impact Federal facilities are to be inspected at
least &i> frequently as all other sources, consistent with the priorities, frequencies and types
of inspections established in each media program guidance. In addition, Regions are to
identify the most environmentally significant Federal facilities across several media
programs as candidates for multi-media inspections.
EPA plans to improve the efficiency and effectiveness of the Federal agency A-106
pollution abatement planning process by addressing compliance problems at Federal
facilities before they become violations, linking the process more closely to identified EPA
environmental priorities and other systematic program improvements.
Chapter VI - EPA Enforcement Response at Federal Facilities
The most significant provisions of this Strategy deal with the basic approach and
procedures EPA will use when responding to violations at Federal facilities. The strategy
clarifies* that Federal agencies are required to comply with environmental laws the same as
non-Federal regulated entities and that EPA will utilize all of its available enforcement
mechanisms at Federal facilities. The strategy also recognizes that there are certain
XI
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limitations and differences in terms of the types of enforcement action which EPA will take
against Federal facilities.
EPA and States are to pursue "timely and appropriate" enforcement responses to
address violations at Federal facilities in a manner similar to actions taken to address
violations at non-Federal facilities. EPA's enforcement responses emphasize that if a
violation is not or will not be corrected within the timeframe for violations of mat class, an
enforcement action should be taken consistent with media program guidance.
•
EPA's formal enforcement responses for Federal facilities emphasize the use of
mutually negotiated remedial actions and schedules in the first instance, formalized through
Compliance Agreements or Consent Orders, depending upon program authorities and
guidance. EPA will issue proposed administrative enforcement actions where mutual
agreement cannot be reached in a timely manner, and will promptly utilize all available
dispute resolution mechanisms to effectively resolve areas of disagreement. Hie Strategy
also, clarifies that Federal agency officials are required to take all available steps to obtain
sufficient funds to achieve compliance on the most expeditious schedule possible.
EPA's enforcement process for Executive Branch Agencies is purely
administrative, and neither provides for civil judicial action nor assessment of civil
penalties.1 This limitation does not apply to enforcement actions taken by States as
authorized under various statutes nor to EPA actions directed to non-Federal operators of
Federal facilities who are not officials of Executive Branch Agencies. EPA will pursue the
full range of its enforcement authorities against private operators of Federal facilities (e.g.,
GOCOs) where appropriate and also take action against Federal agencies at COCO facilities
in certain circumstances. EPA will develop a COCO Enforcement Strategy as a follow-up
to this document to further clarify this issue.
Chapter VII - Role of the States in Federal Facilities Compliance
States generally may exercise a broader range of authorities and enforcement tools
than EPA to address violations at Federal facilities. Under many statutes, delegated or
authorized States can use the full range of these enforcement authorities to address Federal
facility violations to the same extent they are used for non-Federal facilities. States are also
encouraged, wherever possible, to pursue bilateral, negotiated agreements or Consent
Orders with Federal facilities. In any delegated State enforcement action involving Federal
facilities EPA will be careful not to interfere with the State's enforcement proceedings.
However, EPA will be available upon request to either party to help facilitate expeditious
compliance.
State and Federal roles in compliance and enforcement are defined through
State/EPA Enforcement Agreements negotiated by the Region and each of its States for
each media program, consistent with the Policy Framework for State/EPA Enforcement
Agreements and program-specific implementing guidance. While most aspects of these
Agreements pertain equally to Federal and non-Federal facilities, the Strategy outlines
several areas in which Federal facilities should be explicitly addressed in the Enforcement
Agreements process.
This limitation does not apply to penalties for violations of Interagency Agreements under Section 120
of the 1986 Superfund Amendments and Reauihorization Act (SARA).
Xll
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As pan of the State/EPA Enforcement Agreements process, Regions should review
die Strategy with their States and address five areas: (1) the enforcement approach the State
plans to use for responding to Federal facility violations; (2) the types of situations where
the State would request EPA support or direct action; (3) any additional information die
Slat! has agreed to report to EPA on Federal facilities compliance and enforcement
activities; (4) how the State will be involved in the A-106 process; and (5) plans for a joint
EPA/State annual review of compliance problems at Federal facilities in the State.
•
Chapter VIII - EPA Roles and Responsibilities for Strategy Implementation
The Strategy clarifies EPA roles and responsibilities for implementing this Strategy
and Che overall Federal facilities compliance program. It outlines the roles of the Regional
staff and the various Headquarters offices.
t The Strategy emphasizes the need for Federal facilities to be integrated into the
ongoing compliance and enforcement activities of each EPA media program. The Federal
facilities Coordinator's role is to coordinate Regional program office implementation of
thesct activities. Implicit in this Strategy is the need for teamwork among the various
offices and staff involved in addressing Federal facilities compliance.
************
This Strategy replaces the previous program document, entitled "Resolution of
Compliance Problems at Federal Facilities" (known as the "Yellow Book"), dated January
1984, and will still be referred to as the "Yellow Book." Full implementation is being
phased in over the next few years, beginning in tnid-FY 1988. The enforcement response
provisions are to be fully implemented immediately. EPA's Annual Operating Year
Guidance will set subsequent priorities for the implementation of the remainder of this
Strategy. Enforcement and remedial response procedures under CERCLA/SARA generally
are not addressed by this document. However, references to CERCLA/SARA have been
included in several places for informational purposes only.
In addition, the Strategy document has a number of Appendices which contain
various reference documents, model response forms, compliance agreements, definitions
of key EPA terms, etc., all of which should prove to be helpful to environmental staff in
other Federal agencies. Additional copies of the Strategy may be obtained by written
request to EPA at the following address:
U.S. Environmental Protection Agency
Office of Federal Activities (A-104)
Federal Facilities Compliance Program
401 M Street, S.W.
Washington, D.C 20460
xin
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VI. ENFORCEMENT RESPONSE TO COMPLIANCE
PROBLEMS AND VIOLATIONS OF ENVIRONMENTAL
LAWS AT FEDERAL FACILITIES
This Chapter outlines the basic approach and procedures which EPA uses when
responding to violations of environmental law at Federal facilities.1 It explains the concept
of timely and appropriate enforcement response and why it is important to gaining high
levels of compliance. It discusses unique features of Federal enforcement procedures,
'State enforcement responses to Federal facility violations as well as the enforcement roles
and responsibilities of each level of government EPA media program offices also may
develop specific enforcement guidance for Federal facilities through either their annual
Operating Guidance or in other program policy documents. However, any media-specific
enforcement guidance which is issued for Federal facilities will be consistent with the basic
framework and concepts set forth in this strategy.
* In summary, EPA and States are to pursue "timely and appropriate" enforcement
responses to address violations at Federal facilities in a manner similar to actions taken to
address violations at non-Federal facilities. EPA's enforcement response guidance
emphasizes that if a violation is not or will not be corrected within the timeframe for
violations of that class, a formal enforcement action must be taken consistent with media
program guidance, including required degrees of formality and rimrliimn
EPA's enforcement approach for Federal facilities emphasizes the importance of
negotiated responses for the correction of violations and schedules formalized through
Compliance Agreements or Consent Orders, depending upon program authorities and
guidance. Where agreement cannot be reached on all issues in a timely manner, EPA will
promptly utilize all available enforcement and dispute resolution mechanisms to effectively
resolve areas of disagreement.
This chapter also clarifies that Federal officials are expected to take all available
steps to obtain sufficient funds to achieve compliance on the most expeditious schedule
possible. While EPA recognizes that the Anti-Deficiency Act places certain limitations on
Federal officials' abilities to commit funds which they have not been authorized to spend,
they may seek additional funds where needed to correct identified compliance problems.
EPA's enforcement response for Executive Branch agencies differs somewhat from
its enforcement against non-Federal parties in that it is purely administrative, and neither
provides for civil judicial action nor assessment of civil penalties.2 This does not apply to
enforcement actions taken by States as authorized under various statutes nor to EPA actions
directed to non-Federal operators of Federal facilities (e.g., GOCO's). EPA will pursue
the full range of its enforcement responses against private operators of Federal facilities in
appropriate circumstances. In addition, sanctions may be sought against individual
employees of Federal agencies for criminal violations of environmental statutes.
The provisions of this Chapter are not applicable to enforcement actions under CERCLAVSARA. Any
references to GERCLA/SARA are included for information purposes only.
This limitation does not apply ID penalties for violations of Interagency Agreements under Section 120
of the 1986 Superfund Amendments and Reauthorizatioo Act (SARA) pursuant to Sections
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A. OVERALL COMPLIANCE POLICY AND PHILOSOPHY
Enforcement is an essential supplement to the strong public mandate for Federal
facilities to comply with Federal, State and local pollution control requirements to the
extent as non-Federal entities. Enforcement reinforces the special sense of public duty to
comply that this mandate instills in our Federal officials. It is generally recognized by tPA
and the public that compliance promotion activities such as technical assistance and training
are not in themselves sufficient to create full compliance nor to provide the necessary
•incentives for public >r private officials to affirmatively prevent and anticipate problems in
complying with environmental laws.
Federal agencies must comply with Federal environmental laws in the same manner
and degree as non-Federal entities and EPA will utilize the full range of its available
enforcement mechanisms to ensure Federal facilities compliance. Federal environmental
statutes require that, in most circumstances, facilities of the United States Government
comply with Federal, State, and local pollution control requirements to the same extent as
non-Federal entities. There are, however, certain limitations and differences in terms of the
type) of enforcement actions which EPA will take against Federal facilities. Unique
considerations and procedures that are applicable when enforcement is undertaken against
Federal facilities by EPA are explained in the next section of this Chapter.
Federal and State enforcement officials must adhere to the concept of timely and
appropriate enforcement response, which EPA and the States have defined for each
prop-am to establish a strong, stable, and predictable national enforcement presence. What
this means is that if violators are not returned to compliance within a certain timeframe,
through a variety of informal contacts and enforcement responses, timely formal
enforcement action is required Timely and appropriate enforcement response guidance,
with its timelines, required degree of formality, sanction and escalation, is deemed essential
to aclueving high levels of Federal facility compliance.
National guidance issued for each environmental program establishes timelines for
key milestones in the enforcement Framework for Implementing State/Federal Enforcement
Agreements," which sets forth the Agency's general principles on timely and appropriate
enforcement response, and program implementing guidance are summarized in Exhibit VI-
1 and Appendix C This exhibit also includes the criteria for defining what constitutes a
formal enforcement response. The principles of timely and appropriate enforcement
response apply to the full range of sources regulated under Federal statutes; however, the
application of specific timelines and definitions in Exhibit VI- 1 is generally directed to the
most significant violations in each environmental program. Appendix C contains each of
the EPA media programs' definitions for significant noncompliance. Regions and States
should also apply these timeframes to other types of violations at Federal facilities to the
extent possible with available resources and consistent with media program guidance.
The national timely and appropriate milestones are adapted to specific legal
enforcement mechanisms and procedures unique to each State. Agreements which embody
these "timely and appropriate" requirements and definitions are reached between EPA
Regions and States and committed to writing in State/EPA Enforcement Agreements,
discussed more fully in Chapter VH These agreements may also specifically address other
compliance activities and response actions of Federal facilities.
EPA emphasizes negotiation with responsible Federal officials on corrective actions
and schedules needed to expeditiously resolve noncompliance situations. EPA will
generally use either Compliance Agreements or Consent Orders (depending upon available
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statutory authorities and media program guidance) as the primary mechanism for
formalizing agreements with Federal facilities.
B. EPA RESPONSE TO FEDERAL FACILITIES VIOLATIONS
The Federal enforcement process outlined in this Section is designed to provide a
uniform approach to responding to violations at Federal facilities, recognizing that each
environmental statute establishes somewhat different enforcement response mechanisms.
There are several facu.s which distinguish EPA's enforcement response to Federal
facilities from enforcement at non-Federal facilities and by the States:
(a) EPA has a broad mandate to provide technical assistance and advice to Federal
agencies to ensure their compliance, as required under Executive Order 12088 (See
detail in Chapter n). However, implementing this mandate will not interfere with
the application by EPA (or States) of timely and appropriate enforcement
* procedures to achieve the most expeditious schedule of ffmrlM**T
(b) EPA places emphasis on negotiations with responsible Federal officials in resolving
Federal facility noncompliance with enforcement documents issued on consent and
signed by both parties. This Strategy also explains how failure to reach agreement
in a timely manner will be resolved.
(c) Federal EPA enforcement actions and procedures for resolution of compliance
problems differ in certain respects for Federal versus non-Federal facilities:
i. EPA will not bring civil judicial suit against Executive Branch Agencies and will
rely upon administrative enforcement mechanisms for Federal facilities as outlined
in Appendix I. This respects the position of the Department of Justice mat civil
suits within the Federal establishment lack the constitutionally required "justiciable
controversy." (See Appendix H which contains the Justice Department's testimony
on this issue at a Congresional oversight hearing in April, 1987).
u. EPA generally will not assess civil penalties against Federal facilities under
most environmental statutes.3 This also is in response to the Justice Department
position disn'tefd above as well as Federal District court rulings which have issued
conflicting decisions as to whether or not the United States government has clearly
and unambiquously waived its soverign immunity for penalties under various
environmental statutes.
Hi EPA will negotiate Compliance Agreements or Consent Orders with Federal
agencies to address violations at Federal facilities. The timeframes for negotiation
of Compliance Agreements and Consent Orders are defined by EPA's media
specific "timely and appropriate" criteria. Prior to issuing a final Compliance
Agreement or Consent Order to a Federal facility, the Federal Agency will be
provided an opportunity to meet with EPA to discuss key issues and to sign it on
This limitation does not apply to penalties for violations of Interagency Agreements under Section 120
of the 1986 Superfund Amendments and Reauthorization Act (SARA) pursuant to Sections
109(aXlXE)and 122(g)of SARA.
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' consent prior to the order or agreement becoming final and effective.4 This
approach is also based in part on DOJ's written position which states that
"Executive Branch agencies may not sue one another nor may one agency be
ordered by another to comply without the prior opportunity to contest the order
within the Executive Branch."
iv. Additional dispute resolution procedures are provided in media program
guidance to resolve compliance issues through EPA, and if necessary, involve
OMB under E.0.12088 for funding disputes, the Attorney General under E.O.
12146 for legal interpretation and the EPA Administrator under E.0.12580 for
CERCLA/SARA.
v. Federal facilities, like all public entities, face problems in ensuring that funds
are adequate to meet environmental requirements and remedy noncompliance. The
obligation to comply is not altered by such funding considerations; the most
, expeditious means of achieving compliance and obtaining funds is expected.
However, the process for acquiring funds does pose unique considerations which
should be taken into account in negotiating compliance schedules as described in
Section B.l.f.
B.1 Federal Facilities Compliance Process: Civil Administrative
Enforcement Procedures
The Federal facilities compliance process outlines the administrative procedures
EPA will follow when responding to civil violations identified at Federal facilities. This
process is illustrated in Exhibit VI-2 and discussed below. These procedures apply when
civil enforcement responses are directed at facilities of Executive Branch Agencies.
B.1 .(I Notification of Violation
EPA monitors compliance status and identifies violations at Federal facilities
through reviews of source self-monitoring and reporting documents, onsite inspections,
and the A-106 process. Once a violation is discovered, EPA makes a.determination of
noncompliance and takes its initial enforcement response.
EPA's initial enforcement response to an identified violation may vary depending
on the type of violation and nature of the violator. Media-specific guidance governs the
type of initial response and timeframe for such response. See Appendix I for types of
enforcement mechanisms used under each Federal environmental program. When EPA has
made iits determination that a violation has occurred at a Federal facility. Federal Facilities
Coordinators or media program staff may informally notify the facility (e.g., via telephone)
prior to issuance of formal written notification. If Federal Facilities Coordinators provide
this informal notification, they should first consult with appropriate media program staff.
This vail provide the Federal facility with some additional time to remedy the identified
violation before receiving formal written notification from EPA.
Generally, EPA issues a Notice of Violation (NOV), or other program equivalent as
the initial written notice for requiring response to address significant violations. NOVs or
program equivalents issued for violations at Federal facilities are similar to those issued for
EPA may issue unilateral administrative orders to Federal facilities under Section 106 of SARA
following concurrence by the Department of Justice pursuant to Section 4(bXl) of Executive Order
12580.
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non-Federal violations except that they should not mention civil judicial actions by EPA.
At a minimum. NOVs or their program equivalent issued for Federal facilities should:
• Be issued to base commander or facility director level officials.
• Describe the violation and how it was identified.
• State that the consequences of not meeting the requirements stated in the NOV in a
timely manner or responding to EPA by the dates specified will result in ,ie
issuance of an order or formal escalation of the enforcement action. Relevant
citizen suit provisions of involved statutes may also be cited here.
• Explain that the Federal agency can either submit a written certification that it has
corrected the violation if only a short-term "fix" is required or an action plan and
schedule for a violation requiring more extensive remedial action. Selection of a
' date for requiring submission of a certification of compliance or remedial action
plan and schedule is dependent on the timely and appropriate timeframes shown for
each program in Exhibit VI-1. In certain cases, EPA may also include a schedule,
proposed order, or proposed compliance agreement as pan of or attached to the
NOV. The NOV should also state the number of days EPA will take to respond to
the reply.
• Refer to any available alternatives to compliance (e.g., Presidential exemptions or
specific legislative relief).
• Offer to schedule a meeting or conference with Federal agency officials who are
authorized to sign a Compliance Agreement or Consent Order. These officials must
also have the authority to make the necessary budget requests to correct the
violation according to the schedule outlined in the Agreement
The NOV, or program equivalents, should be tailored to address the specific
noncompliance situation identified at the facility. Appendix J provides a model for
developing an NOV. Copies of all NOVs and other enforcement actions issued by EPA to
Federal facilities shall be sent to the involved Headquarters media program enforcement
office with a copy to the Office of Federal Activities.
B.1.b Response by Ftdtral Facilities: Certification of Compliance
or Remedial Action Plans
Once a facility has received the official notice of violation or program equivalent, it
is required to submit either a certification of violation correction, or a remedial action plan
(RAP) to EPA. A facility can also dispute EPA's noncompliance rinding through appeals as
provided for through the dispute resolution process outlined in Section B.l.e.
The certification of violation correction will consist of a letter from the facility
which identifies the violation and describes remedial action taken. It is accompanied by
support documentation that demonstrates achievement of compliance. When remedial
actions needed to correct the violation will exceed the timeframes for timely and appropriate
enforcement response for either achieving compliance or being subject to formal
enforcement response, the facility must submit a remedial action plan. The plan should:
• Describe the noncompliance situation;
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• Identify die corrective actions to be taken;
• Outline the schedule for implementing the remedial actions; and
• Describe the content and frequency of progress reports.
EPA will acknowledge the receipt of the proposed certifications and remedial action
plani; with a written response. An example of such a Response Form is provided in
•Appendix J. A response should be worded so the facility is not insulated from farther EPA
or State enforcement action. The response should also specify a date by which EPA will
respond which should normally be within 30 days. In complex situations, detailed
comments may follow thereafter.
Remedial actions and schedules proposed by the Federal facility may serve as a
basis for a Compliance Agreement or Consent Order. Although a remedial action plan does
not Constitute an EPA enforcement response, it may be used as a basis for monitoring
future compliance for violations that are not sufficiently significant, as defined in program
guidance, to mandate formal enforcement response.
In the event of disputes in instances where formal enforcement response is not
necessary, the Region may use the dispute resolution processes described in Section B.Le
to father escalate and resolve compliance.
B.1.C Initial Negotiation of Compliance Agreements or Consent
Orders
Where formal enforcement response is required, following the notification of
violation, EPA generally will use Compliance Agreements or Consent Orden as the
primary formal enforcement response to formalize bilateral agreements between EPA and a
Fedesal agency to ensure expeditious return to compliance. Compliance Agreements will be
used as EPA's principal formal enforcement response unless media program guidance
indicates that statutory authorities are available for use of Consent Orders for Federal
facilities violations. Appendix I indicates die specific enforcement responses in each media
program and highlights those which are avai
.able for use at Federal facilities. Consent
Orden should be used when agreements are negotiated jointly with a State and the State has
administrative order authority.
It is EPA policy that Compliance Agreements or Consent Orders should be
negotiated within required media-specific, "timely and appropriate" timeframes or EPA may
take further formal administrative enforcement action to achieve compliance. EPA will
prepare Compliance Agreements or Consent Orders for joint signature by the affected
fanliiy and EPA. At a minimum til Compliance Agreements and Consent Orden should
state nhat the violating facility is accountable for meeting timeframes and taking required
actions as outlined in the Agreement or Order or be subject to further enforcement action.
In ceitain cases, it may be necessary to negotiate a two phased agreement or order for the
same violation: the first detailing a schedule for studies necessary to correct the problem
and the second establishing a plan and schedule for remedying the problems based on the
results of the studies. The time schedules included in both may overlap or be concurrent.
Environmental audit provisions will be emphasized in negotiations in instances in
which, the Federal agency can constructively be directed to correct similar violations which
are likely to occur at other related facilities or there appear to be systematic compliance
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management problems. This is consistent with the July 9, 1986 Policy Statement on
Environmental Auditing, 51FR 25004 (See Appendix D).
Federal Facility Coordinators will assist the media program offices and the Regional
Counsel's office in preparing and negotiating Compliance Agreements or Consent Orders
with Federal agencies. Appendix J outlines a format to use when developing a Compliance
Agreement or Consent Order for a Federal facility. This sample Compliance Agreement
incorporates model language developed by the Department of Justice.
•
EPA media programs may consider including enforceabiliry clauses in Compliance
Agreements with Federal facilities which reference the applicable citizen suit provisions of
the involved statute. The RCRA program has developed a model "Enforceabiliry Clause"
to be included in all RCRA Federal Facility Compliance Agreements. These clauses
reference the use of applicable citizen suit provisions by States or citizens for failure to
comply with terms or schedules in Compliance Agreements. See Appendix J for a copy of
thetRCRA Program Enforceabiliry Clause. Certain EPA Media program offices also have
developed specific guidance concerning Compliance Agreements. For example, the RCRA
program model language for Federal facility Compliance Agreements is contained in the
lanuarv 25, 1988 memorandum "Enforcement Actions under RCRA and CERCLA it
Federal Facilities," which is contained in Appendix K.
• Timely and Appropriate Response Criteria
EPA's timely and appropriate enforcement guidance sets forth the criteria for the
commencement of an enforcement action at a facility in violation. The negotiation of
Compliance agreements and Consent Orders at Federal facilities are subject to EPA's timely
and appropriate enforcement response criteria. Based on the type of violation at the facility,
this guidance establishes the time it should take to issue the initial enforcement action, the
type of enforcement action that should be taken, and the amount of time it should take the
facility either to achieve full physical compliance or to enter into a Consent Order or
Compliance Agreement which incorporates a schedule for achieving compliance.
• If compliance is not achieved or a Compliance Agreement or Consent Order can not
be negotiated within required media-specific timcframes, EPA generally will issue a
proposed order or proposed compliance agreement prior to escalating its enforcement action
using the dispute resolution procedures outlined in Section B.l.e.
Timeframes for issuance of proposed Administrative Orders or Compliance
Agreements and their program equivalents will follow media-specific timely and
appropriate guidance as shown in Exhibit VI-1.
Informal assistance from OF A and Headquarters media program offices can be used
at any point in the process. Regional program offices are encouraged to request OFA
assistance through the Federal Facilities Coordinators who will assist them in contacting
Federal agency regional operations and commands to resolve compliance problems. OFA
and the media program office will work directly with the parent agency's Headquarters
office and appropriate EPA Headquarters and Regional legal and compliance program
offices to try to resolve the problem.
EPA Regional staff also should successively escalate unresolved issues up to the
Deputy Regional Administrator (DRA), to the extent appropriate before taking formal
administrative action due to unresolved issues in remedying compliance problems. The
DRA may then contact an equivalent level official of the other Federal Agency in an effort
to achieve resolution.
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B.t.d Ittuanct of Proposed Constnt Orders or Proposed
Compliance Agrttmtntt
EPA may issue proposed administrative orders or proposed Compliance
Agreements at a number of different points in the compliance process in order to expedite
the timely resolution of violations by Federal facilities. Proposed orders or compliance
agreements generally are issued to Federal facilities when:
" A Federal facility fails to respond by the date(s) specified in • notification of
violation or program equivalent
° A Consent Order or Compliance Agreement cannot be or is not successfully
negotiated within the timeframes established in media-specific guidance because of
disagreement on proposed remedial actions, the schedule for correcting the
1 violation, or other outstanding issues.
• A Federal facility has violated the terms of a signed Compliance Agreement or
Consent Order.
* There is an imminent and substantial endangerment to human health or the
environment which necessitates immediate ac *
When initial negotiations for a Compliance Agreement or Consent Order ID address
tile violations at a Federal facility exceed the timely and appropriate enforcement response
timeframes for resolving violations, EPA shall escalate the enforcement response action by
issuing either a proposed administrative order or a proposed Federal Facility Compliance
Agreement to the violating Federal facility. EPA's use of either a proposed order or a
compliance agreement as the formal enforcement mechanism for Federal facility violations
is dependent upon both the scope of EPA's administrative order authority under each of the
environmental statutes and media program-specific enforcement guidance on the
appropriate use of Consent Orders vs. Compliance Agreements at Federal facilities.
Appendix I contains a statute-by-statute summary of EPA's administrative enforcement
response authorities for Federal facility violations. Since there are certain procedural
differences when using orders vs. compliance agreements at Federal facilities, these two
mechanisms are discussed separately as follows:
• Compliance Agrtemena
Where agreement has not been reached within the media program's timeframes for
formal enforcement action, EPA generally will issue a proposed compliance agreement
to a Federal facility and allow a specified period of time, usually 30 days, for the
Federal agency to respond in writing as to whether it agrees with the terms of the
agreement or whether it will seek resolution of disputed issues through EPA dispute
resolution process procedures. Upon issuance of the proposed compliance agreement,
EPA will notify the Federal facility that failure to either agree to the conditions of the
agreement or resolve the remaining issues within 30 days of issuance will trigger the
formal dispute resolution process. If at the end of the 30-day period, the Federal
agency chooses to accept the proposed compliance agreement, the agreement will
• become final and effective upon signature by both parties. If die Federal Agency
appeals the conditions of the compliance agreement in writing or fails to respond within
30 days, the formal EPA dispute resolution procedures will be initiated. See Section
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file, below which outlines the formal procedures for escalating and resolving disputes
between Executive Branch agencies.
• Consent Orders
Where EPA has statutory administrative order authority for Federal facilities, and
where it is specified in media-program guidance, EPA will issue a proposed
administrative order to a Federal facility and allow a specified period of time, generally
30 days, for the Federal agency to respond in writing stating whether it will (a) accept
the terms of the proposed order on consent or (b) seek resolution through formal
administrative appeals procedures EPA has established for the type of order which was
issued (e.g., "Final Administrative Hearing Procedures for RCRA Section 3008 (h)
Orders," issued by EPA on February 19, 1987). If the Federal facility chooses to
accept the proposed order within the 30-day time period, it will be signed by both
parties and become a final consent order.
If the Federal facility fails to take advantage of this, opportunity and does not
respond to EPA within the 30-day time period specified in the proposed order, die
order will become a final administrative order, effective at the time established in the
proposed order. It is important to point put that it is incumbent upon the Federal
agency to respond to EPA in writing within the timeframe specified in the proposed
order (i.e., generally 30 days) or it will become a final administrative order which will
foreclose any further opportunity to negotiate and sign an order on consent This
approach is consistent with the Justice Department's position that EPA may not issue
Administrative Orders to other Federal agencies "without the prior opportunity to
contest the order within the Executive Branch."
When a Federal facility has chosen to appeal a proposed order through EPA's
established administrative appeals procedures, it shall be subjected to such proceedings
in the same manner and degree as any private party. If a settlement is reached through
the use of these appeals procedures, EPA and the involved Federal facility will both
sign a final administrative order on consent. If, however, these administrative
proceedings have been fully exhausted and agreement cannot be reached on consent,
the formal dispute resolution process will be initiated and the dispute will be escalated
to EPA Headquarters following the steps outlined in Section B.l.e. The proposed order
will be stayed pending escalation and resolution of the dispute.
B.1.« Infernal EPA Dlsputt Resolution Proctdurts
This strategy sets forth EPA's basic Federal Facilities Dispute Resolution Process
as described in detail in Section B.l.f below. There are however, certain existing formal
administrative procedures which are applicable to all regulated entities and these will be
utilized for Federal facilities in appropriate circumstances. Certain media programs also
have issued specific written guidance for resolving disputes at Federal facilities which may
be followed consistent with the process outlined in Section B.l.f.below. The types of
internal EPA dispute resolution procedures that may be utilized to resolve compliance
problems at Federal facilities are:
1) Administrative procedures established for certain specific statutory authorities (e.g.,
"Final Administrative Hearing Procedures for RCRA Section 3008(h)");
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2) Media-program specific written guidance for dispute resolution at Federal facilities
(e.g., "Elevation Process for Achieving Federal Facility Compliance Under
RCRA," March 24,1988 (See Appendix K)); or
3) EPA's Federal Facilities Dispute Resolution Process as described below.
If available, established administrative procedures should first be invoked to resolve
disputes between Executive Agencies. If there are no existing administrative procedures in
pUux to resolve a conflict at a Federal facility, the Regions should utilize media specific
guulance, when available, or the general Federal facilities EPA Dispute Resolution Process
outlined below. Media-specific dispute resolution procedures for Federal facilities still
follow the general concepts set forth in the EPA Federal Facilities Dispute Resolution
Process. However, media-specific guidance may contain certain variations to
accommodate media program procedural difference or preferences,
B.f.f Ftdtral Facllltlts Dlsputt Rtsolutlon Process
Tbt focus of EPA's Federal Facilities Dispute Resolution Process is on cases where
EPA and the Federal agency are unable to agree on the conditions, terms or schedules to be
contained in a Compliance Agreement or Consent Order. This process is also
utilized for resolving disputes resulting from violations of signed agreements or orders. In
add:don, certain EPA media programs (e.g., RCRA) have established other dispute
resolution procedures for use when a facility has violated the terms of a signed Older or
agreement as described further in section B.l.f.
EPA will make every effort to resolve noncompUance disputes at the Regional level
However, when EPA and a Federal agency are unable to reach formal agreement in a
signed Consent Order or a signed Compliance Agreement, the dispute will be formally
referred by the Regional Administrator (RA) to the Assistant Administrator (AA) for the
affected media program, the AA for the Office of Enforcement and Compliance Monitoring
and the AA for External Affairs as shown in Exhibit Vl-2. This joint referral should take
place only after the Regional Office has tried to resolve the issue within established
time frames for guiding what constitutes "timely and appropriate" enforcement response
(See Exhibit VI-1). In the Federal facility compliance process, the use of internal EPA
dispute resolution procedures is the functional equivalent of a referral of civil judicial
enforcement actions for prosecution in the sense that it provides a final forum in which
disputes may be resolved for Executive Branch Agencies.
A formal referral shall be sent to EPA Headquarters within 60 days after the
established media timefirame for formal enforcement action has been exceeded and the
Federal facility has failed to sign a proposed order or proposed compliance agreement. If a
proposed order has been appealed, EPA's formal administrative appeals procedures should
first be exhausted prior to making a formal referral to EPA Headquarters. The referral
package should describe the identified violation, provide a historical summary of the
communications and negotiations with the facility, identify enforcement actions taken
(including any State or citizen actions), identify the unresolved issues and include
appropriate support data, with documentation similar to a litigation report The referral
package must be signed by the EPA Regional Administrator.
The Office of Federal Activities, or the lead media program office, will notify the
RA in writing when Headquarters receives the referral package and also will report to the
Reg: on informally on a monthly basis and quarterly on a formal basis the status of those
facilities formally referred to Headquarters. The involved EPA Headquarters media
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program office, with assistance from OFA and OECM, will attempt to negotiate an
acceptable solution with the parent Federal agency Headquarters office within a m««imvm
of 90 days of the referral to EPA Headquarters. At the conclusion of this ninety-day
period, if these negotiations are unsuccessful, the Assistant EPA Administrator for the
affected media program will refer the dispute to the Administrator for resolution.
The EPA Administrator has primary responsibility for resolving environmental
disputes between Executive Branch agencies. The EPA Administrator will consult with the
' head official of the parent Federal agency and make every effort to reach agreement on an
acceptable solution to the problem. If the EPA Administrator determines that there are
remaining issues that cannot be resolved, the Administrator may exercise his authority to
invoke the procedures afforded by Executive Order 12088 or Executive Order 12146 and
involve either OMB or DOJ, respectively, in resolution of the dispute.
B.1.g Use of Executive Order 12088 • Federal Compliance with
' Pollution Control Standards
Section 1-602 of Executive Order 12088 states that "the Administrator shall make
every effort to resolve conflicts regarding such violations between Executive tgenices."
The EPA Administrator may request OMB's involvement particularly in cases where
funding or schedules are the primary issues in resolving the dispute. Section 1-603 further
clarifies that OMB "shall consider unresolved conflicts at the request of the Administrator."
This means that the EPA Administrator is the only Executive Branch official who can
formally request OMB resolution of a conflict between Federal agencies under Executive
Order 12088. The section further states that in resolving such conflicts OMB "shall seek
the Administrator's technological judgment and determination with regard to the
applicability of statutes and regulations."
It also is important to point out that Section 1-604 of Executive Order 12088 states
that "these conflict resolution procedures are in addition to, not in lieu of, other procedures,
including sanctions, for the enforcement of applicable pollution control standards." This
provision recognizes that applicable EPA internal dispute resolution procedures shall be
utilized prior to Executive Order 12088 being invoked by the EPA Administrator.
B.Lh Use of Executive Order 12146 • Resolution of Interagency
Legal Disputes
Executive Order 12146 (Appendix B) provides for the nominal of legal disputes
between Federal agencies to the U.S. Attorney General whenever Executive Branch agency
heads are unable to resolve such legal disputes. The Executive Order clarifies that an
interagency legal dispute" would include "the question of which [agency] has jurisdiction
to •HminicMr a particular program or to regulate a particular activity." In addition, Section
1-402 of Executive Order 12146 specifically states thac
"Whenever two or more Executive agencies whose heads serve at the
pleasure of the President are unable to resolve such a legal dispute, the
agencies shall submit the dispute to the Attorney General prior to proceeding
in any court, except where there is specific statutory vesting of
responsibility for a resolution elsewhere."
This means that while the EPA Administrator may invoke E.0.12088 for Federal
facility disputes related primarily to funding and scheduling issues, he may invoke
Executive Order 12146 in cases involving legal disputes. Therefore, for Federal agency
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legiil disputes the EPA will utilize its internal dispute resolution procedures prior to
invoking EO. 12146 as outlined above. When a legal dispute cannot be resolved between
the EPA Administrator and the involved Agency head, the EPA Adminstrator may request
the involvement of the Justice Department in resolving the dispute as outlined inE.0.
12146. Another significant difference between the EO. 12088 and the E.0.12146 dispute
resolution procedures is that, unlike E.O. 12088, referral of disputes to the Attorney
General is not limited to EPA, ie., either Federal agency or both that are involved in a legal
dispute may submit the case to the Justice Department.
B.1.1 Use of Other Dispute Resolution Procedures for Violations of
Signed Agreements or Consent Orders
The internal dispute resolution procedures outlined above are used primarily to
resclve disputes which arise prior to the rtnalization of a signed Compliance Agreement or
Consent Order (e.g., the involved parties cannot agree on the terms, conditions or
schedules in the order or agreement). However, there are also situations where disputes
occur when a Federal facility violates the terms of a Compliance Agreement or Consent
Order which has already been signed by both EPA and the involved agency. In such cases,
other dispute resolution procedures may be utilized if EPA and the Federal facility had
previously agreed to use other means of resolving disputes that arise in the context of
signed agreements or consent orders. For example, the RCRA program has developed this
type of dispute resolution process as outlined in their January 25. 1988 guidance
memorandum "Enforcement Actions Under RCRA and CERCLA it Federal Facilities"
(See Appendix K). The primary differences between these procedures and what is provided
for in the Federal Facilities Dispute Resolution Process (Section B.l.f.) are different
time frames and establishment of the EPA Administrator as the final arbiter for disputes
resulting from violations of signed agreements.
In addition, the use of alternative dispute resolution (ADR) procedures, Le.,
employing neutrals such as mediators, fact-finders, or arbitrators, may be very helpful in
resolving compliance problems and disputes at a Federal facility (See the Administrator's
Guidlance on the Use of Alternative Dispute Resolution in EPA Enforcement Cases, dated
August 14,1987).
B.1..J Impact of Funds Availability on Achieving Compllancs and
Negotiating Compliance Schedules
The Federal environmental statutes generally require that Federal facilities must
comply with pollution control requirements to the same extent as non-Federal entities. The
oblif anon of a Federal facility to comply is not solely contingent upon the availiabiliry of
existing funds. In fact. Executive Order 12088 sates that, "the head of each Executive
Branch agency shall ensure that sufficient funds for compliance with applicable pollution
control standards are requested in the agency budget" Specific exemptions under the
statutes discussed in Section B.l.k. do provide a highly limited exception where the
President has specifically requested an appropriation as pan of the budgetary process and
the Congress failed to ""ire available such requested appropriation (See RCRA (6001,
CAAJ118.CWAS313).
Federal facilities are expected to seek all possible means of funding to achieve
environmental compliance. While the A-106 pollution abatement process is the primary
vehicle which Federal agencies use to plan for environmental projects, it is not the only
funding related mechanism available. Many compliance problems may not require large
capiul expenditures, e.g., operation and maintenance (O&M) activities, and Federal
VH2
-------
agencies tit expected to use all available existing funds to return to compliance in such
circumstances. Some Federal agencies have O&M accounts or capital accounts for building
and construction funding, which can serve as a source of funds. If a compliance problem
does require significant capital expenditures, the agency can consider reprogramming
funds, transfer authority, or requesting a supplemental appropriation, which will enable an
agency to receive funds in the year in which they are needed.
During negotiations on Compliance Agreements and Consent Orders, Federal
• officials will be expected to offer the most expeditious means of funding required remedial
action(s). However, EPA recognizes that the Anti-Deficiency Act (31 U.S.C. (1341)
prohibits Federal officials from commiting funds beyond those they are authorized to
spend. Therefore, the language in the model Compliance Agreement in Appendix J simply
commits the Federal official to seek any additional necessary funding where existing funds
are unavailable to correct identified compliance problems. Additional appropriations should
be sought only where it has been determined that existing agency funds are either
unavailable or inadequate to address the violations. The Federal official signing a
Compliance Agreement or Consent Order should have the authority to obligate the funds or
make the necessary budget requests to expeditiously correct the violation according to the
schedule outlined in die Agreement or r J
Section 1-602 of E.O.12088 provides the opportunity for OMB to consider such
alternate sources of compliance funding as reprogramming or environmental accounts and
should be used by Federal agencies to ensure that all possible avenues of securing
necessary funds are exhausted
B.1.k Examptlons
As directed by Section 1-703 of E.O. 12088, EPA can advise the President on
recommendations made by Federal agencies concerning exemptions of facilities from
compliance with applicable environmental regulations. Exemptions may be granted only
where such exemptions are necessary in the interest of national security or in the paramount
interest of the United States. Additional requirements are imposed in particular
environmental statutes, e.g., in some, such an exemption is authorized for one year and
may be renewed, if necessary. In addition, as noted in Section B.I A, exemptions may
only be granted for lack of funds if the President specifically requests such funds from
Congress and they are denied. Section B of Chapter n summarizes the provisions of each
of the statutes which provide for such exemptions. It should be noted that while such
exemptions are provided for in the statutes, they have been rarely, if ever, invoked to date,
and it is not anticipated that there will be any increase in the request or granting of
exemptions in the future.
The Regional office will assist any Federal facility which believes it cannot comply
with pollution control requirements in finding ways to achieve compliance. Every effort
will be made to negotiate an alternative to an exemption which is acceptable to the parent
Federal agency, EPA, and State and local pollution control agencies.
If a Federal agency recommends that a facility receive an exemption, the EPA
Regional office will provide OF A, the Headquarters media enforcement office and OECM
with documentation of the problem so that EPA can establish a position on the exemption.
The Regional office should also submit its analysis of the pros and cons of granting such
an exemption. The analysis should include the positions of any affected States. OF A will
then submit a recommended position for the Administrator to submit to OMB with the
views of all affected offices within EPA.
VM3
-------
If an exemption is granted to • Federal facility, EPA will provide assistance to the
facility in order to correct the pollution problem as expeditiously as possible. The objective
is to bring the facility into compliance prior to the expiration of the exemption to preclude
the need for a renewal A copy of the exemption will be sent to any affected States.
6.:2 Enforcement Actions For Violations at Fedora! Facilities
Directed at Non-Federal Parties
•
This section outlines EPA's enforcement approach for addressing violations at
Federal facilities which are operated by private contractors or other non-Federal parties,
whilch generally are subject to the full range of EPA's civil judicial and administrative
enforcement authorities.
B.ij.a Limitation on Civil Judicial Enforcement Actions Applies Only
to Executive Branch Agencies
Although EPA will not bring civil judicial enforcement action or assess civil
penilties under most statutes against other Executive Branch Departments and Agencies,
EPA intends to exercise its full authority to bring civil suits and assess civil penalties, as
appropriate, against parties that are not subject to this constraint.
Bc2.b Contractor and Other Private Party Arrangements Involving
Federal Facilities
Most environmental statutes authorize enforcement response to be pursued against
eithtT facility owners, operators or both to correct violations or environmental law. There
are numerous Federal facilities and public lands which have some level of private party or
non-Federal government involvement in their operation or use. In its April 28, 1987
Congressional testimony the Department of Justice stated that EPA has the authority to take
enforcement action against private contractors at Federal facilities (See Appendix H). There
may be cases where it will be more appropriate to direct enforcement responses to these
other parties, or to both the non-Federal party and the Federal agency depending on the
nature of the non-Federal involvement, the language of the involved environmental statute
or other factors. This issue arises frequently at government-owned, contractor-operated
Federal facilities, commonly known as GOCO facilities.
• EPA Enforcement Response Policy a COCO Faculties
EPA's initial enforcement response at GOCO facilities is influenced by a number of
factors including: the statutory language as to who can be held responsible, (Le., providing
thaft enforcement can be directed at the ownrr, operator or both); decisions made by State
and 1EPA officials in deciding who the permit holder should be in the case of permit
violations; established contractual arrangements; the nature and type of violation(s); and
other factors which may determine where enforcement response will yield the most
expeditious return to compliance and deterrence for future violations. In this regard, it is
EPA policy to pursue the full range of its enforcement authorities against contractor
operators of government-owned facilities in appropriate circumstances. EPA also may take
enforcement actions against Federal agencies at GOCO facilities following the procedures
outlined earlier in this chapter. In certain situations, it may be appropriate to pursue
enfoTtxment actions against both the private contractor and the involved Federal agency.
VI-14
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Enfo
As t follow-up to this strategy, EPA will be developing in Agencywide GOCO
ment Strategy which will provide more detailed criteria and factors to be considered
in determining which party or parties to pursue enforcement action against This strategy
shall also address the extent to which there are certain Federal agency-specific
circumstances which could affect to whom EPA's initial enforcement response should be
directed.
Exhibit VJ-3 provides definitions of the various types of facilities and lands with
•Federal involvement This exhibit designates which party EPA generally will direct its
initial enforcement response against when violations are identified (i.e., either the Federal
agency or the involved private party). Oiven the complex mix of public and private
ownership, operation, and use of the term "Federal facilities," the guidelines in Exhibit VI-
3 should help EPA to eliminate delays in taking initial action to return violators to
« It is important to note that this approach focuses only on the party at which EPA's
"initial enforcement response" will be directed. Following this initial response, EPA's
review of additional information and possible discussions with each party may affect
against which party any further enforcement action should be taken, if such further action is
necessary. In addition, EPA's enforcement response against either or both parties does not
limit or otherwise restrict any future determination of their possible joint or several liability
in cases involving CERCLA or RCRA cleanup actions. Simultaneous enforcement actions
against both the Federal agency and the contractor should be considered if this would
facilitate resolution of the compliance problem.
• Notification Procedures for GOCO Enforcement Actions
When EPA has determined which party it will pursue enforcement action against,
EPA will make every effort to notify (through, at a minimum, a formal copy (cc) of the
enforcement action) other involved parties of the action being taken against either the
Federal facility or the contractor. This is important not only to enhance effective
communication but also to assist in bringing about expeditious compliance and remedying
the violation as soon as possible.
When EPA determines that its initial enforcement response will be directed at the
contractor, EPA will take enforcement action appropriate for private parties. This will
usually be an NO V, administrative complaint or the program equivalent (depending on the
nature of the violation and the media program guidance) to the contractor explicitly stating
that they are primarily or individually responsible for correcting the violation in a timely
manner and for responding directly to EPA by the date specified. The limitations on civil
judicial enforcement and on the imposition of penalties that is applicable to enforcement
actions against Federal Executive Branch Agencies, are not applicable to enforcement
actions taken against non-Federal parties. Where the notice or complaint is sent to the
contractor, it also will state that the involved Federal agency has been simultaneously
notified of the action being taken against the contractor. A copy (cc) of the action taken
against the contractor should not only inform the Agency of the enforcement action being
taken against the contractor but also include a notice which emphasizes the importance of
their responsibility to effectively oversee their contractor to ensure compliance (See
Appendix J). It should also request the Agency's complete cooperation in working with the
contractor to correct the violation and return the facility to compliance as Quickly as.
possible. In circumstances where Federal funding is required to correct the violation, the
approach and considerations described in Section B.l.j. are applicable and will be
considered in any agreements reached on expeditious compliance schedules,
Vl-15
-------
- -' When EPA determines that its initial response should be directed at the involved
Federal facility, EPA will send, where appropriate, an NOV or the program equivalent to
the Federal facility stating that they are responsible for correcting the violation in a timely
manner and for responding to EPA by the date specified A copy of the notice will be sent
simultaneously to the involved contractor.
B.2.c Contractor Lifting
The regulations at 40 CFR Part 15 establish the contractor listing program in which
facilities that violate Clean Air or Qean Water Act standards may be put on a Ust of
Violating Facilities. Any facility on the List is ineligible to receive any non-exempt Federal
government contract, grant, or loan, or other assistance. Contractors operating Federal
"ities are not exempt from being placed on the tj«»
Such listing is mandatory where a violation at a facility gives rise to a criminal
conviction under ft 113(c) of the CAA or 5 309(c) of the CWA. It Is EPA policy to initiate
discretionary listing actions against recalcitrant contractors who are operating Federal
facilities in a manner which causes continuing or recurring violations of the CAA or the
CWA. Under the regulations, EPA may initiate a discretionary listing action against a
facility only if the facility is already the subject of requisite EPA or State enforcement action
against the contractor. The policies and procedures for the contractor listing program are
described in guidance issued by OECM "Implementation of Mandatory Contractor Listing,"
August 8,19S4; "Implementation of Discretionary Listing Authority," July 18,1984; and
"Contractor Listing Protocols," October 1987.
6.3 Criminal Enforcamant Actions it Fadaral Facllltlts
In situations where employees of Federal agencies have committed criminal
violations of environmental statutes applicable criminal sanctions may be sought against
such individuals, in the same manner as is done with respect to employees of other types of
regulated entities. Such criminal violations will be addressed in accordance with the
investigative policies and procedures of the EPA/NEIC Office of Criminal Investigations
and the Agency's criminal enforcement priorities set by the Office of Enforcement and
Compliance Monitoring.
6.4 Prass Ralaaaaa for EPA Enforcamant Actlona at Fadaral
Facllltlaa
It is the policy of EPA to use die publicity of enforcement activities as a key element
of the Agency s program to promote compliance and to deter noncompliance with
environmental laws and regulations. Publicizing EPA enforcement actions on an active and
timely basis informs both the public and the regulated community of EPA's efforts to
ensure compliance and take enforcement actions at Federal facilities. The issuance of press
releases in appropriate circumstances can be a particularly effective tool for expediting
timely compliance at violating Federal facilities.
Consistent with EPA November 21, 1985, "Policy on Publicizing Enforcement
Actions," (Appendix L) the strategy for EPA press releases on enforcement actions at
Federal facilities is as follows:
• Press releases generally will be issued for major enforcement actions such as:
YI-16
-------
.; - Significant Compliance Agreements or Consent Orders signed by both parties
(and approvals of major RAPs where Compliance Agreements are
ary).
• Referral of disputes to EPA Headquarters when agreement cannot be reached at
the Regional level
• Proposed contractor listings and the administrative decision to list
• »
All press releases should be done as a pan of communications strategy which will
be developed for all EPA enforcement actions involving Federal facilities consistent with
EPA Order No. 1510.1 "Communication Strategy Document Development" issued April 7,
1987 and transmitted by memorandum from the Administrator to all EPA Senior Managers
on June 24,1987. This order states that "Communication Strategy Documents will be
developed for all major actions by the appropriate AA or RA." "Enforcement Actions" are
included in the definition of Agency actions covered by the Order (See section 5 of EPA
Order 1510.1). At a minimum, these communication strategies should include provisions
for notifications to OEA and affected Headquarters program offices as well as a senior
ranking official at the affected Federal facility or agency.
EPA's decision to issue a press release and the contents of press releases are not
negotiable with Federal agencies or other regulated entities. The publicity of enforcement
actions against Federal facilities must be consistent with EPA's "Policy On Publicizing
Enforcement Actions" (GM-46) jointly issued on November 21,1985 by the Office of
Enforcement and Compliance Monitoring and the Office of External Affairs; in addition, in
the case of criminal enforcement actions such publicity must be in accordance with the EPA
guidance memorandum (GM-55) "Media Relations on Matters Pertaining to EPA's
Criminal Enforcement Program" jointly issued by the Office of Enforcement and
Compliance Monitoring and the Office of External Affairs on December 12,1986.
B.5 Monitoring Compliant*
The EPA Regional office is responsible for monitoring a Federal facility's
compliance with any remedial actions and associated schedules which have been agreed to
in formal EPA enforcement actions. Such Compliance Agreements or Consent Orders
between EPA and Federal facilities are tracked in the EPA Consent Decree Tracking System
maintained by the Office of Enforcement and Compliance Monitoring. Regional Federal
Facilities Coordinators in cooperation with the regional program offices, must closely
review A-106 submissions against all Compliance Agreements, Consent Orders, approved
remedial action plans or consent decrees to ensure that projects and corrective actions
agreed to are being requested as scheduled. Compliance monitoring and the A-106 process
are further addressed in Chapter V.
VI-17
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EXHIBIT Vl-l
TWEIT AND APPROPRIATE ENFORCEMENT RESPONSE MATRIX
illcy rramewort 1
tional programs nust
tabllsh benchmark or
lestones for what
«st1tvtes timely and
•propriate enforcement
.ses toward ultimate
•solution and full
'jrsical compliance.
i d«sl9ntng over-
fht criteria for
mely enforcement
fsponse, each prcg-
• will attempt to
.pture the fol loving
incepts:
A set umber of
ys from detection
' violation to
HPDES*
Tes
Drinking
water*
Tes
OIC*
AIRS
Tes
Tes
Date of »1ola-
tlon 1s when
agency learns
about violation
Required to
screen all ONRs
within 30 days
of receipt.
By the time a
permittee ap-
pears on th«
QNCR, Informal
or formal en-
forcement ac-
tions should
have been Initi-
ated.
Clock starts
after State
is consider-
ed to have
•discovered*
an SNC
(within 2
months after
the end of
each report-
ing period).
Clock
starts
30 days
after
date of
insp. or
receipt
of sel f-
monl tor-
Ing re-
port.
The SNC
Shoul d
be re-
solved
by the
end of
the
quarter
in which
the SNC
first
appears.
Clock starts
30 days af-
ter date of
Inspection
or receipt
of a source
self -moni-
tor Ing re-
port which
first iden-
tifies the
violation.
By day 45
source should
be notified
by State of
the violation
RCRA«
fes
Clock starts when
case development
staff deteralncs
a violation has
occurred through
revlev of Inspec-
tion report and/
or other data
(for tracking pur-
poses, fiied at
45 days after in-
spection.
Initial enforce-
•ent response for
Class I violators
is an MOV within
30 days of dis-
covery. For High
Priority Violators
thcru is no initt-
tial tnforatl ac-
tion—the initial
action is formal.
US-1/5A
Interpretative
lule re State
Prtaacy for
•se violations
fihich deal on-
ly with in-
stances where
IPA refers
violations to
State, not
with viola-
tions dis-
covered by "*
States.
Clock starts
•Hen CM re-
fers signifi-
cant violators
to State.
State has 10
days to ini-
tiate an In-
vest if at ion
(can obtain
extensions
based on cL
cuvstancej
•Pol Icy Fraaework for State/EPA Enforcement Agreements* August 25, 1986.
•FT 1987 National Guidance for Oversight of NPOES Progran* April 18, 1986.
Guidance for FT 1987 PVSS Enforcement Agreements,' August 1986, "PUSS Compliance Strategy,' April 1. 1987.
and definitions of Timely and Appropriate Action «nd Significant Non-Compliance.' August 27, 1987.
•MlC-Prograi Guidance 153,' December 1986 and TJIC Co»pll«nce Strategy.* March 31. 1987.
•Timely and Appropriate Enforcement Response Guidance* April U, 1986.
•Enforcement Response Policy* December 21, 1984.
Interpretive Rule • FIFRA State PrimKy Enforcement Responsibilities, 40 CFR P«rt 173, Jan. IS. 1983.
\n 10
-------
vl>i (continued)
T1NELY MO APPROPRIATE CITORCEMCNT RCSPOftSE NATKIX
11 cv Framework
\er a specific
I of time, a
•ange of en-
«ent tools
r bt used to try
achieve COB-
iance.
HPOES
Discussed full
range of Infor-
mal, formal,
administrative.
and judicial
enforcement
tools.9
Printing Miter
Discusses full
range of infer-
M), forma),
administrative
and judicial
enforcement
tools.10
UIC
Discusses
full range
of Informal,
formal, ad-
mini strati ve,
and judicial
enforce-
ment tools.
AIR
RCRA
Focuses on Allows for full
formal enforce- range of en-
men t but Impl ies forcement res-
use of Informal ponses for
tools. CPA may Class I i II
develop case at violations.
day 90 and will
normally Issue
at day 120
If violation is
still un-
resolved.
rtFIA
Interpretive
mle focuses
•A formal
enforcement
action.
A prescribed num-
ef days from 1ni-
1 action within
ch a determination
uld generally be«
e that either coa-
ance has been
leved or an edninf-
atlve enforcement
Ion has been taken
:h meets minimum
Ml requirements.
judicial referral
initiated as
•oprlate.8-
Prior to
appearing on a
2d QNCR for the
same violation
(generally w/i
60 days of the
1st QNCR identi-
fying the SNC)
permittee must
be in compliance
or formal en-
forcement action
must be taken.
(p. 30) Per-
mittees that are
Still in viola-
tion on the 2d
QNCR. go on
Exceptions List
which is part of
SPMS system.
Prior to
appearing on
a 2d quarterly
report for the
same violation,
source must be
in compl lance,
on an enforce-
able compli-
ance schedule,
or formal en-
forcement ac-
tion must be
taken.
Prior to
appearing on
a 2d quarter-
ly report for
the same vio-
lation.
source must
be In com-
pliance, on
an enforce-
able schedule
or formal
enforcement
action must
be taken.
ly day 120.
source must be
either 1n com-
pliance or on an
administrative
or judicial or-
der, subject to
referral, or
subject to pro-
posed SIP revi-
sion that is
likely to be
approved and is
scheduled for
State hearing.
Nigh Priority
Violators must
commence with
formal enforce-
ment within
W days of
discovery. For
medium priority
violator. If com-
pliance Is not
achieved w/1 90
days after the
violation discovery,
a decision to
escalate is made.
After tmt t*»
vestlgatton
Is completed.
States mave
30 days to
commence Che
enforcement ;
action.
Formal enforcement action defined in Policy Framework as having, at a minima, the following elements:
- £«^licitl> requires recipient to take some corrective/remedial action, or refrain from certain behavior, to
achieve or maintain compliance;
- Ciplicitly 1s baed en the issuing agency's determination that a violation nas occurred;
• Requires specific corrective action, or specifics a desired result that may be accomplished as the recipient
chooses. ••*< specifies a timetable for completion:
- My Impose requirements In addition to ones relating directly to correction, e.g.. specific monitoring,
planning, or reporting requirements; and
- Contains requirements that are independently enforceable without having to prove original violation and
Subjects the person to adverse legal consequences for noncompllance.
See "Enforcement Management System Guide* issued 2/27/86 by AA for Mater for Enforcement Response Guide.
See 'Safe Drinking Water Act Public Hater System Settlements" - Interim Guidance" issued 11/17/83 by AA for OECM.
VT.IO
-------
EXHIBIT vi-l (continued)
TINILT AND APPROPRIATE ENFORCEMENT RESPONSE WTRIX
IIcy Framework _
Follow-Up end
calation: Asptcl-
c point at which a
termination Is «ade
trier that finaS
yslcal compliance
s been achieved or
at escalation to
judicial enforce-
it action should be
«en if such actions
*e not already
m initiated.
•JPOES
Drinking Mater
UIC
AIR
RdtA
Final physical
ipl lance date is
vly established
l required of
; facility.
Expeditious
•slcal ccnpH-
.e is required.
Scope of Co*era/rad
violations.
En forewent
case-specific
No specific
language
StfCt as
defined ana
appl led to
all well
classes.
Enforcement
case-specific
Expeditious
compliance
implicit an
guidance.
The following
cUsses of SIC:
Class A SSP vi-
olators in non-
attaimeAt areas
Enforcement
case-specific
Expeditious
compliance
required.
Applies to
Nigh Priority
Violators and
mcdtue priority
violators
Enforcement
case-specific
.
rule < )'
signif. /
violations
that EPA re-
fers to State
Not •pproprf.
etc
In violation
for pollutant for
which area is in
mootttalnment.
•NSPS violators and
sources operating in
violation of Part C*
0 peralt requirements;
end KESHAP violators.
-------
EXHIBIT VM
FEDERAL FACULTIES ENFORCEMENT
RESPONSE PROCESS
INSPECTION
OR SELF-
REPORTED
VIOLATION
EPA
ISSUES
NOV/NON
K»
NEGOTIATE
GREEMENT
EPA ISSUES
PROPOSED
AGREEMENT/
ORDER
ORDER
BECOMES
EFFECTIVE
FEDERAL
AGENCY
RESPO
1
t
INIT1
DISP
RESOL
INITIATE
DISPUTE
RESOLUTION
PROCESS
INITIATE
FORMAL
APPEALS
PROCESS
-------
EXHIBIT VI-2
(Continued)
FEDERAL FACILITIES DISPUTE RESOLUTION PROCESS
HEAD OFFICAL
OF THE PARENT
FEDERAL AGENCY
EPA
ADMINISTRATOR
REGIONAL
ADMINISTRATOR
DOJ
UNDER
E.O. 12146
OMB
UNDER
E.O. 12088
REFFERAL
WITHIN 90 DAYS
AA FOR AFFECTED
MEDIA PROGRAM
AA, OECM; AND
AA, OEA
NEGOTIATIONS
NOT TO EXCEED
90 DAYS
PARENT FEDERAL
AGENCY HEAD-
QUARTERS
OFFICE
FORMAL REFERRAL OF
DISPUTE WITHIN 60 DAYS
AFTER TIMEFRAME FOR
ENFORCEMENT ACTION IS
EXCEEDED
-------
EXHIB
EPA INITIAL ENFORCEMENT RESPONSE
TO VIOLATIONS AT FACILITIES WITH FEDERAL INVOLVEMENT
tJ
Acronym/
Torm Definition
OOOO:
PERMITTEE:
WITHDRAWAL
FROM PUBLIC
USE:
OOCO:
JOCO:
COPO:
COCO:
COCO(E):
POOO:
LEASEE:
GRANTEE:
CLAIMANT:
PATENT .
HOLDER:
HOLDER:
nmiarit tin •*••••!
parmi nouaraj.
^\mn4<****wtf**^9QuncYto**>to^r^'f^n.\x*to^f«*r**\j***
Poacy and Uanagaimol Act aa long aa t» tolandad uaa doaa not tooK* da**uc*>n
of via land (a.0. rnaftaiy uaaa and oainaj.
or portona of il ara oparaiad by pnvata eontTactorfa).
and prcwJuraa aoma gftoda and aarvirtaa tor Via FaitaraJ apancy and atMna tor its own IAM
or prott
Govanwiiart ownadto*^alalv ooafiiad ia a tacJity ajhara *Sa cw^nmanl has laasad
al or part of ito laality to a privata opafator for t-W oparabon and prolt
manulaclura a product or prowida a aarvtea. '
or opooo tof mi oporooono.
baankwuad a patent
land) toil 3ft CFB 2S1 SI.
EieapHa* «r
Rooponoo
Dtroetool ot:
viol Kaon oocufrad.
Excapl • oVtalad by ata
EMOpt V petuoon obotw
rodOral brMy for tio fw
MO 01 owiof mcvra.
-T.fc . J i li ii «
ogoncy oporodon.
OrnorvFoMwripoAo.
— FEDERAL
FACILITY
FEDERAL
FACILITY
OR
PRIVATE
PARTY
PRIVATE
PARTY
-------
CHAPTER VII
ROLE OF THE STATES IN
RESPONDING TO FEDERAL
FACILITIES VIOLATIONS
-------
VII. ROLE OF THE STATES IN RESPONDING
TO FEDERAL FACILITIES VIOLATIONS
The purpose of this Chapter is to clarify the role of the States in responding to
Federal facilities violations and to highlight several aspects of the State/EPA relationship
that will be spelled out in the State/EPA Enforcement Agreements. This Chapter should be
read in conjunction with Chapter VI, which sets forth the basic approach and procedures
'EPA and delegated or approved States will use when responding to violations of Federal
law at Federal facilities.
A. STATE RESPONSE TO FEDERAL FACILITIES VIOLATIONS
States with delegated or authorized Federal programs have primary responsibility
for responding to violations at Federal facilities under most of the environmental statutes
with a few exceptions such as toxic chemical controls under TSCA, and enforcement of
certain motor vehicle requirements under the Clean Air Act In addition, as direumd in
Chapter II-A of this Strategy most Federal environmental statutes require that Federal
facilities must comply with Federal laws and regulations, but also with all applicable State
and local environmental requirements to the same extent as non-Federal entities.
EPA retains parallel legal authority and responsibility to enforce Federal law even in
delegated or approved States, As a matter of policy, in order to avoid duplication of effort
where both EPA and States have parallel enforcement authority, EPA enforcement action in
States where programs are delegated or approved only take place when a State: (1) fails to
take timely and appropriate action, (2) requests EPA to take the lead or decide that joint
enforcement action is appropriate, or (3) in other limited circumstances as outlined in the
"Policy Framework for Implementing State/EPA Enforcement Agreements." The remainder
of this section highlights the following areas concerning State responses to Federal facility
violations;
• The use of State enforcement authorities;
• State eriforcement response following EPA inspections in delegated States; and
• The relationship between EPA and State enforcement actions against Federal
facilities.
A.1 Ust of Statt Enforctmtnt Authorities
As noted above, most EPA statutes envision that States with adequate authority and
capability will assume operating responsibility for environmental programs, including
Federal facilities. While the extent of delegation varies from program to program and State
to State, the majority of EPA'$ responsibility for direct program administration on a day-to-
day basis including initial obligation for enforcement, has been assigned to the States
through delegation or authorization.
States are not subject to the same constraints as EPA regarding enforcement actions
against Federal facilities. As a result. States generally may exercise a broader range of
authorities and enforcement tools than EPA to address violations at Federal facilities.
States should use the full range of their enforcement authorities to address Federal facility
violations to the same extent they are used for non-Federal facilities while meeting the
requirements of timely and appropriate enforcement response. States are also encouraged,
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wherever possible, to pursue bilateral, negotiated agreements, or consent orders or decrees
ts appropriate with Federal facilities or three party (EPA/State/Federal agency) agreements
as outlined in Section B.l.c where this would facilitate compliance. EPA will, however,
deem acceptable any State enforcement approaches which are at least comparable to EPA's
in meeting goals for timely and appropriate enforcement response.
A.S! Stata Enforeamant Rasponsa Laad Following EPA Inspactlon
In Dalagatad Statas
Even where program authorities ire authorized or delegated to States, EPA may
conduct inspections of regulated entities, including Federal facilities, for a variety of
purposes including State oversight, response to citizen complaints, as pan of special
enforcement initiatives, or where required by statute (e.g., RCRA Section 3007(c) and
(d)), EPA generally provides States with advance notification prior to such inspections and
generally invites them to participate.
When violations are identified through such EPA inspections of Federal facilities in
delegated States, EPA will immediately contact the State and offer them the first
opportunity to pursue timely and appropriate response with the involved Federal facility,
consistent with the State's delegated authority. EPA will send the inspection report
identifying any violations to the Federal facility simultaneously with EPA's sharing of this
information with the State. An up-front mutual decision will then be made between EPA
and the responsible State agency as to which of them will take any follow-up action. If a
State is unwilling or unable to take action, or fails to take action in a timely manner after
initially agreeing to pursue the case, EPA will take direct Federal action after advance
consultation and notification of the State pursuant to the State/EPA enforcement agreement.
To the extent possible, arrangements should be made in advance in individual
State/EPA Enforcement Agreements on the types of situations involving Federal facilities in
which the State would request EPA support or direct action, paying particular attention to
these situations in which follow-up is required to EPA inspections. In particular, in the
case of a State's use of an EPA inspection as the basis for its own action, EPA and the
State; should agree on how EPA evidence and expertise will be utilized in taking State
enforcement action. How the State uses EPA's inspection report will be up to the State so
long as the state's response to any violations identified by EPA's inspection report are
addressed in a timely and appropriate manner.
A.3 EPA Involvamant In Stata Enforeamant Actions
Because of EPA's ongoing responsibility to provide technical assistance and
support to Federal Agencies in achieving compliance, as required under E.0.12088, EPA
may need to be involved in assisting to resolve noncompliance problems even when a State
takes the lead in an enforcement action. If either the State or the Federal facility in violation
requ<£ts EPA's involvement, EPA will participate to the extent determined appropriate by
affected Regional program division directors in consultation with the Federal Facility
Coordinator. EPA's involvement should focus more on resolving disputes rather than on
providing project-level technical assistance to the Federal facility which could conflict with
the State's ongoing enforcement proceedings.
As directed in E.O. 12088, EPA has a duty to "make every effort to resolve
conflicts regarding such violations between Executive agencies and, on request of any
pony, such conflicts between an Executive agency and a State, interstate or a local agency."
However, in each such case, EPA's involvement will respect the perogatives of the State to
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pursue independent enforcement action and EPA will be careful not to interfere with Stue
enforcement proceedings. EPA will offer both parties its assistance to promote a speedy
resolution of identified problems, and communicate fully with both the State agency and
affected Federal agency officials of its responses and suggested role consistent with EPA't
conflict of interest rules and judicial ethics,
A.4 Rtlatlonshlp of Statt Administrative and Judicial Citizen Suits
to EPA Compliance Agreements
Usually, when EPA pursues a judicial enforcement action against a violator, it
serves as a bar to further enforcement action by States or citizen (under citizen suit
provisions provided in most of the statutes) for similar action for the same violation. The
Federal EPA enforcement process described for Executive Branch Agencies relies heavily
on Compliance Agreements, which do not bar State administrative or judicial actions or
citizen suits to compel compliance by Federal Agencies. Therefore, when EPA has
negotiated a Compliance Agreement, as opposed to issuing an Order on consent, it would
not legally affect the rights of non-parties to the Agreement Despite EPA's belief that in
the vast majority of cases Compliance Agreements should be a very effective means of
ensuring a prompt return to compliance, there may be circumstances in which States or
private citizens choose to exercise their rights to take further enforcement action. EPA
encourages such non-parties to the EPA/Federal agency Compliance Agreement to fully
consider and use it as a basis for relief sought in their own actions to seek expeditious
compliance. It is also for the above reasons that it is desirable for States to sign Compliance
Agreements and Consent Orders along with EPA and involved Federal facilities. In
addition, EPA compliance agreements may contain enforceabiliry clauses which rcwgiUTt
the rights of states and citizens to enforce these agreements through the citizen suit
provisions of the relevant statutes.
B. FEDERAL FACILITIES IN THE STATE/EPA ENFORCEMENT
AGREEMENTS PROCESS
State and Federal roles are defined through negotiated multi-year State/EPA
Enforcement Agreements, which are reviewed annually on a State-by-State basis for each
environmental program. Implementation of these agreements is guided by the EPA "Policy
Framework for State/EPA Enforcement Agreements" (issued June 26,1984, revised and
reissued June, 1986), associated national program implementing guidance, and an annual
guidance meroo on the enforcement agreements process from the Deputy Administrator to
the Regions. The purposes of these Agreements are: to establish clear expectations for
what constitutes a good State or EPA enforcement program through oversight criteria
specified in advance, to establish clear roles and responsibilities for State and Federal
enforcement to avoid duplication of effort and use limited resources effectively and
efficiently, and to ensure effective national reporting of accomplishments.
The Regions have a great deal of flexibility in determining the form of the
agreements and the internal process for handling the agreements. Some Regions have
umbrella agreements thai include all programs in one comprehensive agreement negotiated
between the RA and the State Environmental Commissioner. Other Regions have program-
specific agreements with the respective State Agency. To the extent possible, Regions are
encouraged to incorporate the enforcement agreement provisions into existing documents,
e.g., grants, Memorandum of Understanding's, State/EPA Agreements.
The timing of negotiations/reviews of the agreements depends on the vehicle chosen
and the Region or State planning cycle. Regional program staff should consult with the
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Federal Facilities Coordinator in the development and negotiation of the Enforcement
Agreements.
While most aspects of the Agreements pertain equally to Federal and non-Federal
facilities, this Chapter focuses on how Federal facilities should be explicitly ^rrsifd in
ths State/EPA Enforcement Agreements in three of the areas covered in the Policy
Framework: clear oversight criteria, criteria for direct Federal action, and advance
notification and consultation.
B 1 CLEAR OVERSIGHT CRITERIA AND OVERSIGHT APPROACH
There are seven general criteria mentioned in the Policy Framework and covered in
various forms in program guidance:
B,1.i Identification of and Priorities for the Rtgulattd Community
States will be expected to have included Federal facilities in their inventories and
program information systems, appropriately identified as such through the use of assigned
Federal facility ID numbers. The Federal Facility Coordinator will make the information
available to the State on the different types of Federal facilities using the FINDS
information system. As pan of the enforcement agreements process, EPA Regions and the
Suite will review any special needs for identifying and tracking Federal facilities.
B.l.b Clear and Enforceable Requirements
Requirements established through permits, compliance agreements, administrative
orders, and consent decrees should define in enforceable terms a timetable for Federal
facility remedial actions. In particular, EPA and the States need to assure that Federal
facilities have permits that are current If there are permitting problems at Federal facilities,
Regions and States should develop a strategy for addressing them as part of the annual
work plan negotiations process, consistent with national program permitting strategies,
where applicable.
B.l.c Accurate and Reliable Compliance Monitoring
EPA and the State will review the planned inspection schedules for the coming year
for each program to ensure that Federal facilities are inspected at required frequencies.
EPA will assist in resolving any particular problems of access to facilities that the
Stales may be encountering, including instructions on how to obtain security clearances,
where necessary.
B.'l.d High or Improving Rates of Continuing Compliance
As pan of each media program tracking system, administering agencies should
track the progress of returning Federal facility significant violators to compliance. To
ensure broad Federal facility compliance, the States may be asked to participate in targeted
initiatives in compliance monitoring and enforcement for Federal facilities of specific
agencies or by facility type.
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B.1.t< Timely and Appropriate Enforcement Response
States are responsible for talcing timely and appropriate enforcement action, as
described in Chapter VI. EPA Regions and States are to reach agreement on adapting
national definitions of appropriate enforcement response and timerrames to state-specific
authorities and procedures. Regions and States should discuss the enforcement approach
the State generally plans to use for responding to Federal facility violations. They should
also reach agreement on any differences in procedure that the State plans to use, if any, that
'are different from those used for non-Federal facilities. For example, the Region and State
should discuss any upfront agreements the State wants to make about taking enforcement
action based on an EPA inspection (e.g., for statutorily-required EPA inspections of
Federal TSD's in RCRA), and agree on how Federal or State evidence and expertise will be
used in taking such action.
B.^.f Accurate Recordkeeplng end Reporting
In order to support an effective program, administering agencies must have timely.
complete, and accurate information on Federal facility compliance status and enforcement
actions. States should report Federal facility compliance data as pan of each program's
reporting measures and commitments (e.g., SPMS and program-specific system). The
Regions should also request States to provide different information on Federal facilities
compliance status if mutual agreement can be reached as pan of the State/EPA enforcement
agreements process. EPA is especially interested in receiving copies of State enforcement
actions at Federal facilities.
B.2 DIRECT EPA ENFORCEMENT
EPA will take direct Federal action principally where a State is unwilling or unable
to take "timely and appropriate" enforcement action, or where the State asks EPA to join in
or take enforcement action. To the extent possible, arrangements should be made in
advance, as pan of the enforcement agreement, concerning the types of situations in which
the State would request EPA to take direct enforcement action to address Federal facility
violations.
B.3 ADVANCE NOTIFICATION AND CONSULTATION
As pan of the agreements process, Regions and States are to agree in writing as to
who, how, and when EPA will notify and consult with the State agency in advance of
Federal inspections and enforcement actions. Federal facilities may involve a greater or
different need for coordination between States and Regions than non-Federal facilities,
particularly where the Federal facilities request EPA technical assistance or where EPA is
required to conduct an inspection (e.g., under RCRA). Because Federal facilities
compliance problems are often of a multi-media nature, it may be appropriate to arrange a
single point of contact in a State, statewide or in a particular program, for Federal facility
issues.
The advance notification and consultation protocols in the State/EPA Enforcement
Agreements should incorporate any of the above-mentioned types of special arrangements
necessary for Federal facilities.
The protocols should also address how the State will be involved in the review of
Federal agency A- 106 submissions, and include plans for an annual review of patterns of
compliance problems at Federal facilities in the State.
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CHAPTER VIII
EPA ROLES AND
RESPONSIBILITIES
FOR
PROGRAM IMPLEMENTATION
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VIII. EPA ROLES AND RESPONSIBILITIES
FOR PROGRAM IMPLEMENTATION
The Federal Facilities Compliance Program is a multi-media program requiring
close coordination and cooperation among all involved parties. The purpose of this
Chapter is to clarify the roles and responsibilities of EPA Headquarters staff and the
Regional offices for implementing the Federal facilities program and this Strategy. This
•Chapter is necessary in order to ensure implementation and integration of all elements of
this strategy into the various media programs and EPA's overall internal management
systems.
The EPA tasks for ensuring Federal facilities compliance are divided between the
Regional offices and Headquarters staff. Coordination among both staffs is necessary to
ensure that this Strategy is executed consistent with national and program policies,
procedures, and guidance. Therefore, this Chapter has been divided into the following
sections:
(1) Regional office staff • This section addresses the roles and responsibilities of the
Regional Administrator, Deputy Regional Administrator, Regional Counsel
Regional Program Staff/Division Directors, and Regional Federal Facilities
Coordinators for implementing various aspects of the Strategy.
(2) Headquarters offices - This section describes the roles and responsibilities of those
Headquarters offices that have certain responsibilities for coordinating and working
with the Regions on Federal facility activities.
Responsibilities for implementing key strategy features such as identification of the
regulated community, technical assistance/ training, compliance monitoring, involvement in
the A-106 review process, and participation in the dispute resolution process are described
for Headquarters and Regional program offices and staff.
A. REGIONAL OFFICE STAFF
The following section describes the roles and responsibilities of the Regional office
staff with regard to the Federal facilities program. See Exhibit VIII-1 at the end of this
Chapter for a diagram which depicts these Regional relationships.
A.1 Regional Administrator
The Regional Administrator (RA) ensures that Agency policies and guidance on
implementing Executive Orders 12088 and 12146 and the environmental statutes are
effectively carried out The RA is responsible for the level of Federal facility compliance in
the Region through encouragement of and support for the Regional staff in their efforts to
resolve compliance problems at Federal facilities. The RA will formally refer disputes with
other Federal agencies that cannot be resolved at the Regional office level within established
media tirnefraroes to the Assistant Administrator (AA) for the affected media program, the
AA for External Affairs and the AA for OECM. These referrals will be signed by the
Regional Administrator.
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A.!2 Regional Administrator/Deputy Rtglonat Administrator
The RA or Deputy Regional Administrator (DRA) defines the following based on
internal Regional operating procedures consistent with the guidelines in this strategy:
(i) Involvement of Regional Counsels and the role of Program Divisions in the
issuance of enforcement actions and negotiations of compliance agreements for
Federal facilities;
(b) The process for evaluating inspection schedules for Federal facilities and
opportunities for multi-media inspections and the respective roles of the Program
Divisions, Environmental Services Divisions (ESD's) and Federal Facilities
Coordinators in this process;
(c) Designation of Regional staff responsible for signing Compliance Agreements,
* NOVs, Consent Orders, etc., for Federal facilities violations;
(d!) Assurance that Regional program reviews/audits of delegated State programs
include a review of the State's progress in addressing Federal facilities
compliance problems and ensuring that Federal Facilities Coordinators are informed
and involved in these reviews;
(e) Responsibilities for Regional review of Federal agency A-106 submissions and
coordination with States on the A-106 process; and
(f) Assurance that Federal facilities compliance is specifically addressed in State/EPA
enforcement agreements.
In appropriate cases where agreement cannot be reached in the negotiation of
Compliance Agreements or Consent Orders with Federal facilities, Regional staff should
escalate unresolved issues to the RA/DRA for resolution within media specific timely and
appropriate timeframes prior to issuance of a proposed Order. The RA/DRA may then
choo!« to contact an equivalent level official at the involved Federal agency to attempt to
resolve remaining issues.
A.3 Rtglonal Counstl
Upon request, the Regional Counsel provides legal advice to the RA, the Federal
Facilities Coordinator, and the Regional media program staff on:
o Determining the compliance status of Federal facilities;
* Evaluating the sufficiency of data supporting compliance determinations;
• Negotiating agreements on solutions to compliance problems;
• Resolving compliance disputes with Federal facilities; and
• Reviewing draft Compliance Agreements and Consent Orders for their legal
sufficiency and consistency with Agency policy.
Each Region should clearly identify the role of the Regional Counsel in the Federal
facilities compliance process. It is imperative, however, that the Regional Counsel consult
with OECM and Headquarters Office of General Counsel on questions of national
significance concerning Federal facilities.
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A.4 Regional Program Staff/Division Directors
Each Region is responsible for designating a staff person to serve as the primary
point of contact for the Federal Facilities Coordinators to deal with on media-specific
Federal facilities compliance issues. This designee also is responsible for the following
activities.
Identifying the Regulated Community • Ensure that Federal facilities data in program
•information systems is maintained through the use of a support identification code for
Federal facilities.
Technical Assistance/Training • Assist Federal Facilities Coordinators with their Rei
multi-media technical program workshops for Federal facilities in their Region. In addition,
provide the Federal Facilities Coordinator and OFA, at the beginning of the fiscal year,
with the program's annual training plan and notify the Federal Facilities Coordinator of all
program training courses and workshops which will be open to Federal facilities in the
Region. On a quarterly basis, notify the Federal Facilities Coordinator of availability of
spaces for Federal facilities participants.
On-me-job training opportunities should be considered for officials of other Federal
agencies where feasible, in cooperation with Regional Federal Facilities Coordinator.
Compliance Monitoring • Ensure that Federal facilities are receiving the required number of
inspections for programs where EPA has the lead. This includes conducting at least the
same percentage of program oversight inspections for Federal facilities as is done for other
facilities in delegated or approved states. The Regional media-program contact should
provide the Regional Federal Facilities Coordinator with copies of all EPA inspection
reports of Federal facilities.
State Oversight - Develop and negotiate the State/EPA Enforcement Agreements in
consultation with the Federal Facilities Coordinator and ensure that at least the required
number of inspections of Federal facilities are being conducted in delegated or authorized
States.
The Regional media-contact should ensure that a separate component in the
Regional reviews/audits of delegated programs is included on State handling of Federal
facilities compliance problems. This insert should be developed in consultation with the
Federal Facilities Coordinator.
Responding to Violations • At the beginning of the fiscal year and periodically as required
by the program, the Regional media-contact in coordination with the Regional Federal
Facilities Coordinator, identifies those Federal facilities in significant noncompliance and
following media-program Strategic Planning and Management System (SPMS)
requirements, reports program actions against the identified Federal facilities Significant
Noncomplien (5 NO) to Headquarters. Also, works with the Federal Facilities Coordi-
nator to establish quarterly targets for Federal facilities inspections.
Following consultation with the Regional Federal Facilities Coordinator, the
program offices are responsible for issuing NOVs, Compliance Agreements, and/or
Consent Orders, where appropriate, for Federal facilities violations within the time frames
established in program-specific timely and appropriate guidance. Program Division
Directors have the responsibility for sign-off on Federal facilities NOVs, Compliance
Agreements and Consent Orders in most Regions consistent with the delegations of
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authorities for their respective media. Federal Facilities Coordinators should be notified by
Division Directors prior to issuance of any enforcement action to i Federal facility. For any
dilutes formally referred to Headquarters under the RA's signature, the program offices
are responsible for formulating referral packages, in consultation with the Federal Facilities
Coordinator.
Where there is contractor or other private parry involvement at a Federal facility
(e.jj., GOCO's), the program office must ensure that other panics receive a copy of any
•edorcemem action sent to any of the involved parties.
Involvement in A-106 Review Process • Another responsibility of the Regional media-
program contact is to review all Federal agency A-106 submissions and provide comments
to the Federal Facilities Coordinator on media-related pollution ab. -rnent projects in the
arais of engineering, timeliness, and cost to ensure that proposcu projects have been
appropriately designed and adequately funded to meet compliance requirements. In
addition, Regional media-program contacts must work with the Federal Facilities
Coordinator on identified media program priority areas that should be targeted for A-106
projects by Federal agencies.
As requested, media-program contacts should participate in on-site preliminary
pluming and design review conferences for significant projects with the Federal Facilities
Coordinator.
Consent Decree Tracking System • In consultation with the Regional Federal Facilities
Coordinator, media-program contacts will report to HQOECM on the status of eprnplianct
with the schedule and actions agreed to in an EPA Compliance Agreement or Consent
Order with Federal facilities, following guidance on the Agency's Consent Decree Tracking
System. Items reported should be consistent with SPMS requirements for consent decrees.
(Thi; is consistent with the guidance on "Consent Decree Tracking," Memorandum from
Alviii L. Aim, Deputy Administrator, dated August 15,1984.)
A.5 Regional Federal Facilities Coordinator
The Federal Facilities Coordinator is responsible for coordination with Regional
program offices on implementation of Federal facilities compliance activities in the Regional
office. The Coordinator also is the Regional liaison with the Office of External Affairs
(OEA) and serves as the primary point-of-contact for EPA with all Federal agencies in the
Region on environmental compliance matters. Duties of the Coordinator typically include:
• Ensuring that the Regional staff are knowledgeable on guidance issued by OEA:
« Coordinating and quality assurance of Regional A-106 reviews;
* Monitoring actions being taken by the Regional staff to resolve compliance
problems at Federal facilities;
e Coordinating negotiations of Compliance Agreements; and
• Providing data to OEA on the compliance status of Federal facilities located in the
Region.
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Besides those duties mentioned above, the Federal Facilities Coordinator has specific
responsibilities for implementing various aspects of this Strategy and the Federal facilities
program as highlighted below.
Identifying the Regulated Community • Regional Federal Facilities Coordinators regularly
identify Federal facilities information, by type of facility, (i.e., COCO, GOCO, POGO,
etc.) in the Facility Index System (FINDS) information system. Data for mis system is
provided by Regional program offices and States in order to track the compliance status of
Federal facilities. In addition to identifying the regulated community via FINDS data, all
Coordinators should develop a name list for applicable media programs of those Federal
facilities minor sources considered to be environmentally significant (limited to no more
than to 10% of all minor sources per program) and monitor the compliance status of these
sources. Besides maintaining the list of minor sources, they also track those facilities
which are the most environmentally significant in each Region. This list is updated
annually in consultation with media program staff.
Technical Assistance/Training • The Federal Facilities Coordinators are tasked to conduct at
least one Regional multi-media technical program workshop annually for Federal facilities
in their Region with assistance from program offices. In addition, they invite Federal
agency environmental personnel in each Region to bimonthly meetings to discuss new and
upcoming program, generic compliance problems, etc.
The Coordinator serves as the Regional clearinghouse for information exchange
with Federal agencies on new regulations, policies, etc. They also identify appropriate
EPA training courses and workshops for the Federal agencies and in coordination with
media program offices and conduct compliance program assistance visits to facilities to help
them with overall environmental program practices and management.
As pan of their technical assistance role, Federal Facilities Coordinators provide
Federal agencies assistance with designing environmental auditing programs through
training, workshops, guidance manuals, etc.
Compliance Monitoring • Federal Facilities Coordinators work with Regional program
offices and Environmental Services Division (BSD) to establish quarterly targets for
Federal facilities inspections and schedule multi-media inspections, as appropriate. As pan
of this effort, the Coordinators provide ESD annually with a name list of Federal facilities
that are appropriate candidates to receive multi-media inspections based upon their
environmental significance in a number of media program areas.
Pan of their compliance monitoring tasks involve coordination with program offices
prior to negotiations with States on the State/ EPA enforcement agreements to decide on a
mutually acceptable approach to receive compliance and inspection data on Federal facilities
from delegated or approved States.
Involvement in A-106 Review Profess • Coordination of the Regional office review of
Federal agency A-106 submissions is overseen by the Federal Facilities Coordinators in
accordance with national guidance provided by OFA and OMB. The Coordinators work
with the program offices in evaluating the adequacy of proposed projects in the areas of
engineering, timeliness and cost to ensure that the projects have been appropriately
designed and adequately funded to meet all compliance requirements. The Coordinators are,
responsible for final quality assurance of Regional reviews and for the timely submission
of materials to OFA.
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ries of the A-106 submissions are provided by the Coordinators te*the States in
January of each year for their review. Once the States receive their copies, the
Coordinators conduct an annual meeting with appropriate State representatives to discuss
their comments on A-106 projects as well as any identified Federal agency patterns of
noncompliance.
Federal agencies are informed of selected annual program priority areas toward
which A-106 projects should be targeted. Federal Facilities Coordinators work with the
•agencies to ensure that-A-106 projects an proposed for facilities with compliance
problems.
Federal Facilities Coordinators are available to participate in preliminary planning
and design review conferences on significant projects at Federal facilities, as appropriate.
They may also request media program technical assistance when necessary.
Responding to Violations -At the beginning of the fiscal year, in coordination with the
Regional program offices, the Regional Federal Facilities Coordinators identify the names
of those Federal facilities in significant noncompliance. They assist with negotiations of
Compliance Agreements between EPA media programs and involved Federal agencies to
resolve identified compliance problems and violations. As pan of this process, the
Coordinator may informally notify the Federal facility of identified violations following an
EPA inspection and prior to issuance of written notification of violation. Hie FFC should
initiate informal notification process after first consulting with the affected media program
offices.
Dispute Resolution Process • As described in Chapter VI, Federal Facilities Coordinators
may informally request Headquaner's OFA assistance in resolving disputes at any point in
the Federal facilities compliance resolution process. They also will assist the program
office in developing referral packages for disputes formally referred to Headquarters under
the Regional Administrator's signature.
Consent Decree Tracking • Each Coordinator provides the program offices assistance with
tracking the status of EPA Compliance Agreements and Consent Orders with Federal
facilities for reporting to Headquarters and input into the Agency's Consent Decree
Tracking System.
B. HEADQUARTERS OFFICES
The following Headquarters staff have certain responsibilities for working with the
Regions on Federal facilities activities, resolving compliance problems, and developing
poucy and guidance:
Program Offices;
OEAOFA;
OECM;
OGCand
Office of the Administrator.
See Exhibit Vffl-2 at the end of this chapter for a diagram depicting these Headquarters
relationships.
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B.1 Headquarters Program Offices
In order to fully implement this Strategy it is critical that the program offices work
with OFA to ensure that media-specific regulations, policies and guidance, and Federal
facilities compliance guidance are mutually consistent and address Federal facilities
compliance issues where appropriate. Also, it is important that the program offices:
• Meet with OFA periodically to ufcntify and discuss generic a)inpliiince problems at
Federal facilities.
• Continue to provide OFA with speakers, documents and other assistance for the
monthly meetings of the EPA/Federal Agency Environmental Roundtable.
• Ensure that Headquarters evaluations of Regional programs address Federal
facilities compliance and that program offices report the results of these evaluations
to OFA.
In addition to these general responsibilities, Headquarters program offices are tasked to
ensure that specific initiatives of this Strategy are integrated program-wide as discussed
below.
Identifying the Regulated Community • Program office staff will maintain current Ft
facilities data on program information systems and data bases for tracking purposes 1
upon input from Regions and States and ensure that proper Federal facilities identify
.Federal
i based
upon input from Regions and States and ensure that proper Federal facilities identification
numbers are included for all appropriate sources.
Compliance Monitoring • Headquarters program office staff will ensure that the required
number of Federal facilities inspections (of majors, etc.) are being conducted annually by
Regions and the States, as appropriate. Headquarters will verify that the Regions are
conducting at least the same number of oversight inspections for Federal facilities as for
other facilities in delegated States.
Dispute Resolution Process - The involved media program office shall have the lead in
resolving disputes referred to Headquarters, in cooperation with OFA and OECM. Each of
the Headquarters program offices shall provide technical advice and assistance in the
resolution of disputes upon referral from the Region. Headquarters media program offices
shall notify OFA and provide copies of any Federal facility disputes which have been
referred to their office, either formally or informally.
Compliance Statistics - Headquarters program offices will work with OMSE, OECM and
OFA to improve the quality of Federal facilities data currently in EPA's various
Headquarter and Regional media tracking and information systems. Program offices will
periodically review their definitions of "majors" to ensure that Federal facilities are
adequately addressed. In addition, appropriate offices will issue guidance requiring
Regions and States to code input data into existing tracking and information systems with
Federal facilities indicators and identification numbers as appropriate. Periodic
management reports for the Federal facility subset of regulated sources for subminal to
OFA will be prepared by program office staff, as requested
Involvement in A-106 Review Process • Review of Regional program staff A-106
submissions "by the program offices is necessary to ensure that media program priority
areas are reflected in proposed projects and to identify compliance problems. All program
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offices should meet annually with OFA to update media program priority areas that are to
be •*Mr»wi by Federal agencies through the A-106 process.
Development of Policy and Guidance - Media-specific policies and guidance will be
developed by appropriate program offices. These policies and guidances should, where
appropriate, address implementation of program requirements by Federal agencies. Upon
request by the media program office, OFA can coordinate Federal agency review and
comment on media i'n>£> **** documents.
B.2 Offlct of External Affairs/Office of Fadaral Actlvltltt
OEA/OFA is responsible for ensuring effective implementation of Section 1-6 of
Executive Order 12088 which specifies the administrative procedures to be used in
re solving compliance problems at Federal facilities. OEA/OFA also chairs the EPA
Standing Committee on EO. 12088.
OEA establishes applicable Agency policy and guidelines on Federal facilities
compliance in consultation with OECM, OGC and the Headquarters program offices.
Implementing operating guidance for the Regional Federal Facilities Coordinators is
developed and issued by OEA/OFA.
OFA conducts annual audits (Le., the FARES review) of Regional Federal facilities
programs to ensure proper adherence to national guidance, thorough coordination with
Regional program offices, adequate and ongoing assistance to Federal agencies, and overall
consistency of the program with this Strategy.
OEA is the principal point-of-contact with the national offices of other Federal
agencies through the EPA/Federal Agency Environmental Roundtable.
OEA assists affected Headquarters program offices in resolving Federal facilities
compliance problems which the Regional offices escalate for dispute resolution. In
addition, OEA actively participates in Agency strategic planning and management systems
to ensure Federal facilities compliance concerns are being integrated into program priorities
and plans and provides analysis of patterns of Federal facilities noncompliance to program
offices on an annual basis.
Periodic reports on the compliance status of Federal facilities are prepared by
OEA/OFA for administrative purposes. A quarterly report identifying major Federal
facilities which are not meeting substantive pollution control requirements is produced for
the Administrator. The Federal agencies are provided, semi-annually, with a listing of all
non-complying facilities under their jurisdiction. A nm\\»r report is submitted annually to
the OMB. This OMB report will be expanded to include information on the compliance
status of all Federal facilities. In addition, OEA/OFA conducts annual meetings with
Headquarters offices of other Federal agencies to discuss identified patterns of
Doncompliance. Other OEA/OFA Federal facilities responsibilities are addressed below.
Identifying the Regulated Community • Coordination with Headquarter program offices
and the FINDS office is done by OEA/OFA staff to ensure that program information
systems have adequate and current information for tracking Federal facilities compliance
status.
Technical AssistancefTraining - OEA/OFA conduct monthly meetings of the EPA Federal
Agency Environmental Roundtable for top Federal agency officials to exchange information
vra-s
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regulations, policies, etc. Participation of program office staff is solicited regularly
meetings.
Currently, OEA/OFA is implementing a comprehensive system for technical
•once, training and information transfer in cooperation with program offices and
tonal Federal Facilities Coordinators.
OEA/OFA serves as a national clearinghouse for opportunities for other Federal
icy participation in EPA training courses and workshops, and technical assistance
ices available from the National Enforcement Investigations Center (NEIQ and die
ce of Research and Development (ORD) labs. Also, ensures that all of the EPA
ines are accessible to Federal agency personnel
OEA/OFA coordinates extensively with the Office of Administration and Resources
•gement (OARM) in the planning and development of the EPA Training Institute to
re opportunities are available for Federal facilities participants. Also, coordination
OECM on the development of the basic inspector training .course occurs for the same
ose.
Federal agencies are encouraged to implement environmental auditing programs and
t/OFA provides assistance in designing and establishing such programs through
shops, manuals, guidance, etc.
toe Resolution Process • When requested by Regional program staff, in consultation
the Federal Facilities Coordinator, OFA will provide informal assistance by working
Evolved agencies' parent offices to attempt to resolve disputes. Such assistance
t working with the parent agency of the noncomplying facility, where appropriate,
k • " ir» MMJ • m W •••• «••«? •^•MWIB* «k£W»»W* W» »»»W ••W««WM«ft**J ***£ »l»^»*»»Jf W »•*• V • 9 jf» WBT* MBMPf
V that funds are made available to correct identified violations as expeditiously as
i or to secure the cooperation of a recalcitrant facility manager.
After the RA has tried but been unable to resolve disputes within established media
frames, the cases are formally referred jointly to Headquarters media program office,
!M and OFA for resolution. Upon receipt of the referral package, OFA or the media
ram office will notify the RA in writing of their receipt of the package.
OEA/OFA may assist in negotiations of a mutually acceptable solution between
xdia programs and the official re
fcadauaners of the parent agency.
\A tor the affected n
inistrator for resolution.
^ ^,— — -___-_„ _ — — — __- — ^ ____^_._ ._. _.
media programs and the official responsible for environmenal compliance matters at
ieadauaners of the parent agency. If this effort fails, within a maximum of 90 days
\A for the affected media program office escalates the problem to the EPA
OFA will develop and maintain a system for notifying the Regional Administrator
nally on a monthly basis and formally on a quarterly basis on the status of those
ral facilities actions formally referred to Headquarters.
'.vement in A-106 Review Process • OEA/OFA is tasked to coordinate the Agency-
review of Federal agency A-106 submissions via the Pollution Status Report and
jce the annual report to OMB evaluating proposed projects for use by OMB in budget
w process.
vrn-9
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If 3 Office of Enforcement and Compliance Monitoring
OECM advises the Administrator, and OEA, and provides guidance to die Regional
Offices on general enforcement and compliance policy issues relating to Federal facilities
including:
the cotnpl'gncf f**^ of Fgdffiil
• Assessing the sufficiency data supporting compliance determinations;
• Conducting negotiations of agreements on solutions to compliance problems;
• Resolving compliance disputes with Federal frgHfoff:
• Assuring that Federal facilities compliance efforts support national
compliance and enforcement objectives;
• Developing (with OFA and media programs) compliance and en/or
strategy guidance for Federal facilities;
• Coordinating and overseeing the State/EPA enforcement agreements process;
• Maintaining the Agency consent decree melting system, including tracking of
Federal facilities compliance agreements; and
• Conducting follow up on possible criminal violations.
OECM also provides assistance and expertise in the use of alternative dispute resolution
proaxiures for resolving compliance problems at Federal facilities.
B.4 Office of General Counsel
OGC provides legal advice and assistance to the Administrator, OEA, media
program offices and the Regional counsels on legal matters and interpretations related to
FedaaJ facility compliance with the environmental statutes. OGC also plays a major role in
resohing interagcncy legal disputes and in making referrals to the Department of Justice
under Executive Order 12146 when necessary.
vm-io
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EXHIB11 . ,IM
EPA REGIONAL OFFICE STAFF
REGIONAL
ADMINISTRATOR
DEPUTY
REGIONAL
ADMINISTRATOR
PROGRAM
STAFF
FEDERAL
FACILITY
COORDINATOR
REGIONAL
COUNSEL
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EPA HEADQUARTERS OFFICE STAFF
OFFICE
OF GENERAL
COUNSEL
OFFICE
OF THE
ADMINISTRATOR
-^
MEDIA
PROGRAM
OFFICES
OFFICE
OF
EXTERNAL
AFFAIRS
-
|;:
OFFICE OF
ENFORCEMENT
AND COMPLIANCE
MONITORING
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GM-26
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\,•/
I UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
liAR * 1964
MEMORANDUM
SUBJECT: Headquarters Review^and Tracking >CLf Civil Referrals
FROM: Courtney M. Price
Assistant Administrator
Office of Enforcement and Compliance Monitoring
TO: Regional Administrators
Regions I-X
Regional Counsels
Regions I-x
Associate Enforcement Counsels
The Office of Enforcement and Compliance Monitoring is
committed to working cooperatively with Regional Offices to
track civil enforcement litigation and to generally improve
management of EPA' s enforcement litigation. The following
procedures provide for expedited handling of case referrals
which continue to be reviewed by Headquarters and for over-
sight of "direct" case referrals. They also clarify roles
in the management of various classes of judicial actions.
This guidance supplements and, where inconsistent, supersedes
previous guidance on review and tracking of civil referrals.
I. CLASSIFICATION OF REFERRALS
Four distinct classes of cases have evolved in the Agency's
civil judicial enforcement program. Those classes of cases and
roles in handling each class nay be described as follows:
Class I: Nationally managed cases involving highly
significant and precedential issues of major
importance in the particular program, or
involving 'activities in more than one Region,
The lead legal and/or technical responsibilities
in such cases usually rest in Headquarters, with
assistance from the Regional office(s).
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Class Us Cases involving issues of significance which
may be unique or precedential, or which are
important to establish or further Agency
enforcement goals. The lead legal and
technical responsibilities in such eases
usually rest in the Regional offices, with
substantial assistance and oversight from
Headquarters.
Class 112: Caves which are significant and important to
Agency enforcement goals, but which are not
likely to raise issues which are unique or
precedential. The lead legal and technical
responsibilities in such cases rest in the
Regional offices. Headquarters involvement
will be limited to general oversight to ensure
that Agency policies are followed and that
cases are being prosecuted in an expeditious
manner. Routine communications should take
place directly between Regional attorney
staff and the Department of Justice or U.S.-
Attorneys.
Class IVs Cases which may be referred directly from the
Regions to Department of Justice (DOJ)
Headquarters pursuant to the September 29,
1983 letter agreement between Alvin L. Aim
for EPA and F. Henry Habicht, 31 for DOJ
(copy attached). Direct referrals are
presently authorized for the more routine
cases in the Air and Water programs.
Headquarters attorney involvement in those
cases will be limited to summary review and
oversight as described herein. Routine
communications should take place between
Regional Attorney Staff and DOJ or U.S.
Attorneys.
The classes of cases which fall within the Class IV are
set forth with specificity in the letter agreement between
Alvin Aim and F. Henry Habicht, II dated September 29, 1983.
For all other cases, the initial determination of category
and lead responsibilities will be made by the Regional
Administrator at the time the referral package is forwarded
to Headquarters for review. That determination should be
included as a part of the cover memorandum accompanying and
summarizing the referral package. Unless the Associate Enforr
ment Counsel for the appropriate OECM division disagrees, the
case will be handled accordingly. Should the Associate
Enforcement Counsel believe that the case has been
roiscateyorized, he or she should consult with the Regional
Adminis; rator-or the designated Regional enforcement contact
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-3-
regarding the classification of the case or decision on lead
responsibilities. The Associate will also notify the Regional
Counsel of the issue. If agreement cannot be achieved* I will
determine the appropriate classification and lead responsi-
bilities after consultation with all relevant parties within
the Agency.
After the initial classification of a case, facts nay
develop or issues arise which will justify a reclassification.
Either the Associate Enforcement Counsel or the Regional
Administrator (or the designated Regional enforcement contact
person) nay suggest reclassification of a case or modifi-
cation of lead responsibilities. The decision on reclassifi-
cation will be made as described above for original classifi-
cation.
II. EVALUATION OF DIRECT REFERRALS
On December 1, 1983 we started a one year trial period for
direct referral of certain types of enforcement litigation to
the Department of Justice. The types of civil enforcement
cases for which I have waived the requirement of concurrence
are listed in a September 29, 1983 letter from Alvin L. Aim to
F. Henry Habicht, II (copy attached). Procedures for imple-
menting the direct referral process were detailed in a
November 28, 1583, memorandum I addressed to Regional
Administrators, Regional Counsels and Headquarters staff (copy
attached). As a point of clarification, it is my intent that
contempt actions may also be handled as direct referrals if the
original case would meet the current criteria for direct referral
Headquarters will review and evaluate the information copy
required to be furnished to EPA Headquarters when each direct
referral is sent to the Department of Justice. Associate
Enforcement Counsels for the programs where direct referrals
are utilized will prepare checklists which, at a minimum,
provide for review of the following criteria:
A. Appropriateness of direct referral
The case should be clearly within one of the categories
enumerated in the September 29, 1983, letter from Alvin Aim to
P. Henry Habicht, II for which direct referral nay be used.
Contempt actions in cases which fit the direct referral cate-
gories may also be handled through direct referral procedures.
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-4-
B, Format of the cover memorandum
The referral package should include the Case Data and
Facility Data forms and a cover memorandum which identifies
and discusses at least the following subjects: nature of the
case, cause of action, proposed remedy, issues of national
oj: precedential significance, description of consultation
for case development (including names of Headquarters and
DOJ attorneys contacted), identification of Regional contact
persons, and basis for treating case as a direct referral.
C,, Substantive adequacy of direct referrals
Each direct referral package should contain the following
elements:
1. An adequate cause of action;
2. Description of evidence sufficient to prove the
violations (copies of documentary evidence should
be attached, if possible, and the person(s) with
custody of all evidence should be identified);
3. Evaluation of potential defendants and a discussion
of why the named defendants were selected;
4. Discussion of State involvement in efforts to
resolve the violations;
5. Evaluation of potential defenses and how they can
be refuted;
6. Evaluation of issues of precedential significance
in the case, including a discussion about how the
positions proposed by the Regional Office are
consistent with law and national policy;
7. Description of the environmental harm to be remedied
or other reasons which justify prosecution of the
case at the time of referral;
8. Description of the remedy to be sought or the
specific discovery required to establish a remedy
in the case;
9. Discussion of-penalties to be sought (a) if the
case proceeds to trial and (b) as an initial
settlement position; and
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-5-
10. Description of attempts made to settle the case,
problems encountered in settlement discussions,
and the date of the last contact with the source
owner or other potential defendant.
Within 30 calendar days after receiving the information
copy of a direct referral the Associate Enforcement Counsel
will send a copy of the completed checklist to the Regional
Office, maintaining a file copy to serve as a basis for
periodic evaluation.
If a case which is not within the category for direct
referral is erroneously sent through the direct referral pro-
cess, the Associate Enforcement Counsel will prepare a
response ranging from a simple notice to the Region indicat-
ing why the direct referral was erroneous to a withdrawal
from the Department of Justice. If a case which should have
been directly referred to the Department of Justice is
erroneously sent to Headquarters for concurrence, the
Associate will, after consultation with the Region, forward
it to the Department of Justice as a direct referral. A copy
of the memorandum forwarding the case to the Department of
Justice will be sent to the Region.
III. TRACKING ALL REFERRALS IN THE COMPUTER DOCKET
All civil cases must be entered and tracked in the
Enforcement Docket System. Guidance on responsibilities for
docket procedures is contained in memoranda dated April 21,
1963, November 23, 1983, and November 28, 1983 (copies
attached). The following docket guidance supplements and,
where inconsistent, supersedes those memoranda.
Each Regional attorney has primary responsibility for
updating all of his or her active cases as part of the monthly
update procedures. Headquarters attorneys will also continue
to provide information to the system. Case Status Update
reports will be sent on or about the first of each month to
the Regional Docket Control or Regional Coordinator for
distribution to the responsible Regional attorneys. By the
10th of each month, the Regional attorney must see that an
update is submitted to the Regional data analyst (if the
Region has one) or is mailed to Headquarters Docket Control*
Bruce Rothrock (LE-130A).
As with all referrals, an information copy of direct
referrals must be sent to Headquarters, directed to my atten-'
tion, and must include completed Case Data and Facility Data
Forms (copies of those forms are attached). The Correspondence
Control Unit (CCU) will route the package to the appropriate
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-6-
OECM division, and will give the Case Data Form, the Facility
Data Form, and a copy of the cover letter referral memorandum
to Headquarters Docket Control for entry of the case into
the Docket System. Regions with Regional Docket Control should
give copies of the Case and Facility Data Forms and the
referral memorandum directly to regional data analyst for entry
into the system. Failure to attach those forms nay result in
tie cases not being entered in the Docket System, and the
Region not receiving credit for the case at the time of
referral.
Copies of direct referral packages are to be sent simul-
taneously to the Department of Justice and EPA Headquarters.
Tie 'Date to EPA Headquarters" and the "Date Referred to
DDJ" shown in the Case Docket System will be the date on the
cover letter from the Regional Administrator. The System is
being modified so that direct referrals will be identified
aid can be separately retrieved from the System. A new
event for 'Date Received EPA HQ" will also be added. This
event will be used as an approximate date when the Land
aid Natural Resources Division, Department of Justice,
receives the referral package and, consequently, when the
thirty day clock begins to run for determining whether
Headquarters DOJ or the q.S. Attorney will have the lead•
litigation responsibilities as provided in the September 29,
1983 letter agreement between Alvin Aim and Henry Habicht, XI.
IV. REFERRALS REQUIRING CONCURRENCE
The review criteria for direct referrals contained in
this memorandum also apply to cases which require Headquarters
concurrence. Rather than incorporating the results of review
in a file checklist, however, the results will be incorporated
in the memorandum that Associates prepare for me recommending
whether to refer the case to the Department of Justice or
return the case to the Region. A copy of the memorandum will
be sent to the Region, if the case represents a type that
should be considered for direct referral in the future, the
memorandum addressed to me should so indicate.
All settlements require Headquarters concurrence. Thus,
referrals which include a consent decree to be filed with
the complaint require Headquarters concurrence. Such referrals
should contain the following elements:
1. A clear statement of a cause of action;
2. Identification and discussion of any issues of
national significance;
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-7-
3. Analysis justifying proposed penalties in terms of
applicable penalty policies; and
4. An enforceable consent decree which (a) resolves
the violation, (b) is in accordance with require-
ments of applicable statutes, regulations and
policies and (c) includes an appropriate termi-
nation date or specifies tone other process for
concluding the court's jurisdiction. See "Guidance
for Drafting Judicial Consent Decrees" (GM-17)
issued October 19, 1983 for a complete description
of consent decree requirements.
V. MANAGING THE CIVIL ENFORCEMENT DOCKET
Involvement by the Associate Enforcement Counsels in all
cases, including those that do and do not require Headquarters
concurrence, will provide a basis for developing national
expertise and will identify areas where national guidance is
needed. In addition it will prepare us to respond quickly
when settlement proposals are submitted for approval. Me
must ensure that litigation is expeditiously prosecuted, that
national policies are implemented and that statutory require-'
ments are scrupulously observed. Whenever Headquarters
identifies a problem, the Associate Enforcement Counsel
should communicate with the Regional Counsel and Department
of Justice. Where quick resolution cannot be informally
achieved, the Associate should communicate in writing on the
subject to the Regional Office and Department of Justice and
place a copy of the nemo in the Headquarters case file. I
rely on the judgment of each Associate as to when a matter is
of sufficient importance that it should be called to my
attention.
The Associate Enforcement Counsels will monitor the
activities of the Regions and the Department of Justice to
make sure that all cases are vigorously prosecuted after
referral. Extensive informal discussions and efforts at
voluntary resolution normally occur prior to referral. We
should move forward resolutely when litigation is required.
Settlement discussions may, of course, proceed on a parallel
track, but they generally should not result in suspension of
litigation activities. My November 28, 19B3 memorandum
describing procedures for implementation of direct referrals
specifically requires that I concur in any delay after a
case has been referred to the Department of Justice. Whether
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-8-
or not the case was directly referred, the Associates should
identify and call to my attention any instance where the
government has caused or agreed to delay in the filing or
prosecution of any case without my consent.
The Associate Enforcement Counsels will use the
computerized enforcement docket and other available information
to monitor the overall litigation effort. In addition, they
and their staffs will make periodic visits to Regional offices
to fulfill this office's oversight role, unless action is
required to ensure that an Agency policy or a legal require-
ment is followed, or that a case is prosecuted expeditiously,
this office will not interject itself into individual class
III or Class iv cases. Headquarters attorneys may, at the
request of a Regional office to the Associate Enforcement
Counsel, provide assistance, consistent with resource
availability and other priorities.
My November 28, 1983 memorandum on direct referrals
indicates that Regional offices should obtain Headquarters
approval for settlement proposals before they are forwarded
to the defendant. This procedure should apply to to all
cases whether or not they were directly reffered. Each
Associate Enforcement Counsel is authorized to approve
settlements at this stage, using his or her judgment whether
to confer with me on critical issues before agreeing to a
proposal. The Associate will make sure the settlement meets
the criteria set forth above for consent decrees, complies
with all applicable policies and laws, and is consistent
with national program objectives. I must approve all final
settlements before they are filed in court.
Attachments
cc: Office Directors, DECK
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INDEX OF ATTACHMENTS
1. Memorandum from Courtney M. Price, Assistant Administrator
for Enforcement and Compliance Monitoring to Regional
Administrators, Regional Counsel, Associate Enforcement
Counsels and OEM Office Directors (November 28, 1983)
(concerning implementation of direct referrals beginning
December 1, 1983)•
2. Memorandum from Courtney M. Price, Assistant Administrator
for Enforcement and Compliance Monitoring to Regional
Counsels (November 23, 1983) (concerning further instructions
for maintenance of the enforcement docket system).
3. Letter from Alvin L. Aim, Deputy Administrator, U.S. EPA to
F. Henry Habicht, 11, Acting Assistant Attorney General,
US Department of Justice (September 29, 1983) (concerning
direct referral of classes of cases)..
•
4. Memorandum from Courtney M^ Price, Assistant Administrator
and General Counsel to Associate Enforcement Counsels,
Regional Counsels, OLEC Office Directors and Correspondence
Control Unit (April 21, 1983) (concerning procedures for
maintenance of enforcement docket system).
5. Enforcement Docket System Case Data and Facility Data Forms.
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GM-27
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*"
! UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. O.C. 20460
Affi 18 B84
IWOftCfMEMTANO
COMPUAMCX MONTTOM
MEMORANDUM
SUBJECT: Guidelines for Enforcing Federal District Court Orders
FROM: Courtney M. Price {jbjJZi rTrO^x-*-*
Assistant Administrator for Enforcement
and Compliance Monitoring
TO: Assistant Administrators
General Counsel
Inspector General
Regional Administrators
Regional Counsels
Attached please find the most recent addition to the General
Enforcement Policy Compendium entitled "Guidelines for Enforcing
'Federal District Court Orders in Environmental Cases.* The
document emphasizes the very high priority we attach to preserving
the integrity of court orders to enable the Agency to maintain its
credibility with the courts, the public, and the regulated community
so as to achieve environmental objectives. If you have any
questions concerning this guidance, please contact Glenn Unterberger,
Director of the Office of Legal and Enforcement Policy. He nay
be reached at (FTS) 382-4541.
Attachment
cc: Assistant Attorney General for Land and Natural Resources
Chief, Environmental Enforcement Section, DOJ
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GUIDELINES FOR ENFORCING FEDERAL DISTRICT COURT ORDERS
IN ENVIRONMENTAL CASES
Purpeties .
This guidance emphasizes the importance of enforcement of
Federal district court orders that embody either consensual or
nonconsensual resolutions of environmental enforcement litigation.
It establishes uniform Agency objectives in preparing for and in
responding to violations of court orders. The goal of this
initiative is to minimize the number of violations of court
orders and to facilitate enforcement efforts when such violations
are detected. Recently, the Agency developed the Consent Decree
Tracking System which will provide a centralized data base and
reporting system to upgrade consent decree enforcement. Ultimately,
the lists of 'significant violators* maintained in each program
area should include all significant violations of court orders.
Policy
EPA places a very high priority on enforcement of court orders.
This policy ensures that defendants meet the requirements of each
court order in order to achieve the objectives of the underlying
civil Action. Moreover, vigorous enforcement of court orders is
essential to enable the Agency to maintain its credibility with
the cojrts, the public, and the regulated community * and to achieve
the desired environmental objective.
Scope
Th;is guidance specifically applies to the enforcement of consent
decree;; and nonconsensual orders entered in Federal district court
that romedy violations of any of EPA's laws or regulations. It
also covers the following areas:
•— Drafting court orders to ensure enforceability.*
— Selecting responses to violations of consent decrees
and other court orders.
— Considering other procedures in implementing an
enforcement response.
\/ Additional guidance on drafting enforceable consent decrees
"~ can be found in Agency policy entitled, "Guidance for Drafting
Judicial Consent Decrees' (General Enforcement Policy Compendium,
GM-17, dated 10/19/83).
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Drafting Orders to Ensure Enforceability
EPA should obtain terms that are legally enforceable in
negotiating a consent decree or writing an order at the request
of the court. The order should provide for reasonable methods
for monitoring compliance with the order's requirements and should
establish adequate incentives for compliance.
Careful elimination of areas for future dispute can
facilitate enforceability. Requirements in the order should
be clear, understandable, and should avoid any possible
ambiguities. The order should both clearly require compliance
with the applicable regulations and establish the method or
procedure that will be used to determine compliance. In some
cases, it may be appropriate to specify the pollution control
technology to be used. In no event, however, should the order
deem compliance to mean anything but compliance with the
applicable legal requirement.
In every case, the obligation to comply must rest solely
with the defendant. Provisions that operate to "excuse" non-
compliance, e.g., a force majeure clause, should be narrowly and
explicitly drawn.2 The order should avoid any ambiguities
regarding the defendant's compliance obligations associated with
revisions to the underlying requirements. If the litigants
•expect future legislative or regulatory changes to the underlying
requirements, the court order must clearly establish the procedures
that would change the order's compliance obligations. The order
should provide that revision to the underlying requirement does
not excuse noncoropliance with the terms of the order unless and
until the court amends the order.
The order should establish explicit compliance verification
procedures. Because inspections are likely to be more objective
than self-monitoring, the order should provide authority for EPA
to conduct inspections at reasonable times. If resources will
not permit detailed inspections by EPA or State or local
authorities, some alternative form of compliance verification
(e.g., self-monitoring, self-reporting, third-party verification)
should be required. In such cases, the order should require the
defendant to conduct compliance tests at its own expense on the
basis of the test methods established in the order. In addition,
Economic hardship should not be established as a force majeure
event. Instead, the defendant suffering the hardship should
petition the court for a modification of the order. See,
Federal Rules of Civil Procedure Rule 60. EPA should oppose
such petitions unless the defendant convincingly demonstrates
extreme circumstances that justify modifications to the order.
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-3-
the order should provide for prior notice to EPA to enable the
Agency to observe the test or other critical event. However,
the order should always preserve EPA's authority to inspect or
otherwise .obtain information on its own, and should also provide
for inspections by EPA contractors.
Compliance verification requirements should not be more
burdensome to the defendant than is necessary to determine
compliance. EPA should carefully review each report that the
defendant submits to verify that it includes all of the information
that the order requires. The order should provide that the
information used by defendants to generate self-reports must be
retained for a reasonable period of time, and that EPA must have
access to such information during that period of time. A provision
which establishes that self-monitoring and third party verification
information is admissible in proceedings to enforce the order is
highly desirable.
To facilitate verification of compliance with penalty payment
provisions, the Regional Office must ensure that, at a minimum,
it receives notice when penalties that are due have been paid.
The Regional Office should maintain organized records indicating
penalty collection dates.
It is essential to include in court orders the mechanisms
necessary to assure compliance with the terms of those orders.
Such mechanisms may include stipulated penalties, posting and
forfeiture of performance bonds or letters of credit, suspension
of operation, increased reporting requirements, and advance
approval from EPA f'or certain activities. Regional Offices
should determine appropriate mechanisms on a case-by-case basis
taking into account the factors described below.
The compliance mechanisms should be strong enough to deter
noncompliance by, for example, removing the economic incentives
for noncompliance, yet flexible enough to deal equitably with
the possible range of future violations. The force majeure
clause and prudent exercise of prosecutorial discretion are the
proper mechanisms for providing flexibility. In addition, the
compliance incentive provisions should not be excessive although
stipulated penalties should permit assessments which are large
enough to take into account that the violator of a court order
is, by definition, a recividist or a recalcitrant and, therefore,
in need of more serious incentive to comply.
The order should expressly provide that the compliance
mechanisms therein are not the exclusive remedies available to
the government. This type of provision preserves the government's
ability to seek civil or criminal contempt penalties, specific
performance of compliance provisions, and such other relief
as the government may deem appropriate to obtain final compliance
or to provide adequate deterrence against future violations.
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-4-
'Court orders should generally require the defendant to
maintain and be able to demonstrate compliance for a specified
period of time after the initial demonstration of compliance.
This requirement ensures that the defendant is likely to remain
in compliance. This provision should be consistent with the
order's termination clause.
Finally, the order should explicitly state that it is binding
on subsequent owners, operators, assignees, and other successors
in interest in the facility. The order should require that these
successors, etc., receive notification of the existence of the
court order. The order should also require notification to EPA
of any transfer of interest.
Selecting Responses to Violations of Court Orders
The primary objectives of enforcement of court orders are to
correct the violation expeditiously, deter future violations by
the defendant and by the regulated community, and preserve the
integrity of court ordered remedies so as to achieve the desired
environmental protection objective. Responses to violations
must be prompt and firm to reflect the importance which EPA
attaches to the court ordered requirements.
The government may pursue a range of remedies to address
violations of court orders. These remedies include specific
performance of the order's requirements (e.g., through a notion
to enforce the order), additional specific performance requirements,
stipulated monetary penalties, civil and criminal contempts,
contractor suspension and debarment proceedings in appropriate
cases involving the Clean Air Act or the Clean Water Act, and
revised or extended compliance schedules (in the limited circumstances
described below). These remedies may be used individually or in
combination.
The government must weigh several factors in deciding upon
the type and extent of relief to pursue. The chief factors are
the environmental harm or risk caused by the violation, the
degree of willfulness or negligence displayed by the defendant,
the degree of economic benefit accruing to the defendant from the
noncomplying behavior, any attempts to mitigate the violation, the
deterrence value of the response, and the likelihood that the
response will remedy the violation. It is also appropriate to
consider the defendant's history of noncompliance and any
extraordinary costs borne by the public. In addition, and
as a secondary consideration, the government must assess the
resource implications of the enforcement response.
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All responses must require compliance with the order's
terms as Quickly as possible. This requirement includes initiation
of post judgment proceedings to collect civil penalties originally
imposed in; the decree for the underlying violation if the defendant
has failed to pay such penalties. Collection should be for the
full penalty amount.
Responses to violations of court orders typically should be
more severe than those which the government normally would seek
for a comparable initial violation of a statute, regulation/ or
administrative order. Absent a convincing demonstration by the
defendant of mitigating circumstances* the government typically
should pursue significant monetary penalties unless the violations
are clearly de minimis. •' Penalties must remove any appreciable
economic benefit accruing to the violator. In addition to recouping
economic benefit, the penalties should reflect the recidivistic
or recalcitrant behavior of the defendant. The case file must
include an explanation of why the case managers have decided to
pursue a particular penalty figure or no penalty.
Tho government should seek imposition of specific relief
beyond dhat already required in the court order when necessary to
provide adequate assurances of future.compliance. Factors to
consider in determining the need for such assurances are the like-
lihood of future violations, the environmental harm or risk which
a future violation would be likely to pose, and the government
resources involved in monitoring compliance with the additional
requirements. Examples of further specific relief include more
stringent reporting requirements, advance EPA approval of relevant
activities by the defendant, temporary or permanent shutdown of
violating facilities, more stringent operation and maintenance
obligations, and posting of revocable or irrevocable letters of
credit or performance bonds.
Normally, the government should avoid agreeing to extensions
of compliance schedules without pursuing significant monetary
penalties. Extensions without penalties typically should be
limited to cases in which the defendant can prove that the violation
was cauued by circumstances falling squarely within the force
majeure clause of the order. Moreover, an extension without
penalties is permissible only if the extension poses limited
environmental harm or risk, and a substantial public interest
basis exists for extending the deadline. Extensions of compliance
schedules must set realistic timetables for compliance aimed at
securing compliance as quickly as possible. In any event, the
defendant must continue to otherwise comply with the order.
Tht; government should also consider the possibility of
criminal contempt under the provisions of 18 U.S.C. § 401(3)
in situzitions of aggravated noncompliance with consent decrees
for which punishment is a legitmate objective of an enforcement
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rcspons'e. Factors to be considered in deterroing the appropriate-
ness of criminal sanctions includei (1) the scope and duration
of the noncompliance involved in the violation of the consent
decree; (2) the environmental contamination or human health
hazard resulting from that noncompliance; (3) the willfulness of
the violation (in a criminal contempt action the government Bust
show that the violation was willful and deliberate)} C4) any
falsification activity involved in the noncompliance (i.e.,
misrepresentation by the party subject to the consent decree
concerning compliance with that consent decree); (5) the ability
of the party that is subject to the consent decree to achieve
compliance; and (6) the evidence of motivation for the noncompliance.
When dealing with deliberate noncompliance with a civil
consent decree, one is by definition dealing with a corporation
or individual that has already gone through less severe enforcement
actions which have proven ineffective. The potential for using
criminal contempt should, therefore* be considered in all
significant cases of noncompliance with judicial consent decrees
Other Matters To Consider In Implementing An Enforcement Response
The government should make every effort to coordinate enforcement
responses with any governmental co-plaintiff. If no satisfactory
agreement is possible, EPA must still fulfill its mandate to enforce
environmental laws. Similarly, the government should give careful
consideration to the enforcement concerns of private co-plaintiffs,
particularly regarding final settlements. Even if the private
party's role is limited to commenting on the settlement, the
government should carefully consider such comments.
The government should establish a timetable for responding
to a violation which reflects the high priority EPA places on
enforcement of court orders. The timetable should take into
consideration the nature of the violation, the need, if any, to
take immediate action, the sufficiency of the available proof,
and the complexity of the potential enforcement litigation. In
uncomplicated cases that do not present an emergency to the public
health or environment and, absent time requirements specifically
imposed by the court order, the Regional Office should attempt
to develop and refer the case to Headquarters within 45 days from
the date the violation was detected. Headquarters and the Justice
Department should process cases according to the timetable
established in the September 29, 1983, agreement between the EPA
Deputy Administrator and the Assistant Attorney General for
Land and Natural Resources.
Any consent decrees and modifications to consent decrees must
be in writing and signed by the Assistant Administrator for the •
Office of Enforcement and Compliance Monitoring and the Assistant
Attorney General for Land and Natural Resources. Attorneys must
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make clear to the defendant that the government requires such
signatures to legally bind the Dnited States notwithstanding
recommendations of acceptance of the terms of the document by
the government negotiators.
The policies and procedures set forth 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.
Courtnf" M. Price
Assistant Administrator for
Enforcement and Compliance Monitoring
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GM-28
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"V,
I UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
/ WASHINGTON. D.C. 20460
•
*t
JUN 13 1984
MEMORANDUM
SUBJECT:
FROM:
TO:
orricf 0*
•**0*CtM|inANO
.-.-.-.* rt^rv?*
Liability of Corporate Shareholders and Successor
Corporations For Abandoned Sites Under the Compre-
hensive Environmental Response, Compensation, and
Liability Act (CERCLA)
Courtney M. Price
Assistant Administrator for
and Compliance Monitoring
nforcement
Assistant Administrator for
Solid Waste and Emergency Response
Associate Enforcement Counsel for Waste
Regional Administrators
Regional Counsels
Introduction
The following enforcement memorandum, which was prepared
in cooperation with the Office of General Counsel, identifies
legal principles bearing on the extent to which corporate
shareholders and successor corporations may be held liable
for response costs that arise as a result of a release of a
hazardous substance from an abandoned hazardous waste facility.
In the discussion section pertaining to each part, the memorandum
reviews the law on'the subject from established traditional
Jurisprudence to current evolving standards. Although general
.rules of liability are delineated, these principles must be
carefully applied to the unique fact pattern of any given
case.
I. THE LIABILITY OF CORPORATE SHAREHOLDERS UNDER CERCLA
Background
Normally, it is the corporate entity that will be held
accountable for cleanup costs under CERCLA. In certain
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instances, however, EPA nay want to extend liability to include
corporate shareholders. This may arise, for example, where a
corporation* which had owned or operated a waste disposal site
at the time of the contamination, is no longer in business.
The situation nay also occur if a corporation is still in
existence, but does not have sufficient assets to reimburse
the fund for cleanup costs. There are two additional policy
reasons for extending liability to corporate shareholders.
First, this type of action would promote corporate responsibil-
ity for those shareholders who in fact control the corporate
decision-making process? it would also'deter other shareholders
in similar situations from acting irresponsibly. Second, the
establishment of shareholder liability would aid the negotiation
process and motivate responsible parties toward settlement.
i
Traditional corporation law favors preserving the corporate
entity, thereby insulating shareholders from corporate liability.
Nevertheless, as will be discussed below, there are exceptions
to this general principle that would allow a court to disregard
corporate form and impose liability under CERCLA on individual
shareholders.
Issue
£
V'hat is the extent of liability for a corporate share-
holder under CERCLA for response costs .that arise as a result
of a release of a hazardous substance from an abandoned hazardous
waste facility?
i
Summary
The question of whether EPA can hold a shareholder of a
corporation liable under CERCLA is a decision that must turn
on the unique facts' specific to given situation. Generally,
however, in the interests of public convenience, fairness, and
equity, EPA may disregard the 'Corporat*2 entity when the shareholder
controlled or directed the activities of a corporate hazardous
waste generator, transporter, or facility.
Discussion
Section 107(a)(2) of CERCLA provides that any owner or
operator of a facility which releases a hazardous substance
shall be liable for all necessary response costs resulting
from such a release. Section 101(20)(A)(iii) of CERCLA clearly
states that the term 'owner or operator* as applied to abandoned
facilities includes 'any person who owned, operated, or otherwise
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-3-
controlled activities at such facility immediately prior to
such abandonment" (emphasis added).
In addition, Sections 107(a)(3) and 107(a)(4) of CERCLA
impose liability for response costs on any person who arranged
for the disposal or treatment of * hazardous substance (the
generator), as veil as any person who accepted a hazardous
substance for transport to the disposal or treatment facility
(the transporter).
The term 'person* is defined in CERCLA Section 101(21)
as, inter alia, an individual, firm, corporation, association,
partnership, or commercial entity. A 'shareholder may exist
as any of the forms mentioned in Section 101(21). Therefore, a
shareholder may be considered a person under CERCLA and, conse-
quently, held liable for response .costs incurred as a result
of a release of a hazardous substance from a CERCLA facility
if the shareholder:
• Owned* operated, or otherwise controlled activities
at such facility immediately prior to abandonment
(CERCLA Section 107(a)(2)i Section 101(20)(A)(iii)]t
.•
• Arranged for the disposal or treatment (or
arranged with a transporter for the disposal or
treatment) of the hazardous substance [CERCLA
Section 107(a)(3))» or .
• Accepted the hazardous substance for transport to
the disposal or treatment facility selected by such
person [CERCLA Section 107(a)(4)J.
Notwithstanding CERCLA's statutory language, courts
normally seek to preserve the corporate form and thus maintain
the principle of limited liability for its shareholders. V
In fact, fundamental "to the theory of corporation law is"
the concept that a corporation'is a Legal separate entity, a
legal being having' an exis&nefe separate and distinct from
I/ See Pardo v. Kilson Line of Washington, Inc., 414 F.2d
"~ 1145, 1149 (D.C. Cir. 1969); Krivo Industrial Supply Co.
v. National Distillers t Chem. Corp., 483 F.2d 1098,
1102 (5th Cir. 1973), modified per curiam, 490 F.2d 916
(5th Cir. 1974); Homan' and Crimen, Inc. v. Harris, 626
F.2d 1201, 1208 (5th Cir. 1980).
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that .of its owners." £/ This concept permits corporate
shareholders "to limit their personal liability to the extent
of their investment.* 2/ Thus, although a shareholder nay
be considered a *persoK" under CERCLA (and therefore subject
to the Act's liability provisions), the application of corporate
law would tend to shield the shareholder from such liability.
Nevertheless, a court nay find that the statutory language
itseli! is sufficient to impose shareholder liability notwith-
standing corporation law. V Alternatively, to establish
shareholder liability, a co~urt nay find that the general prin-
ciples; of corporation law apply but, nonetheless, let aside
the lilnited liability principle through the application of
the equitable doctrine of 'piercing the corporate veil.*
!!imply stated, the doctrine of piercing the corporate
veil refers to the process of disregarding the corporate
V Krivo Industrial Supply Co. v. National Distillers t Chem.
"" Corp., 483 F.2d 1098, 1102 (Sth Cir. 1973), modified peT
curiam, 490 F.2d 916 (Sth Cir. 1974).
3/ Id.
.!/ §111 United States v. Northeastern Pharmaceutical and
~" Chemical Company, Inc., et al. , 80-5066-CV-S-4, memorandum
op. (W.D. Mo., 1984). In Northeastern Pharmaceutical the
district court noted that a literal reading of Section
101(20) (A) 'provides that a person who owns interest in a
facility and is actively participating in its management
ct.n be held liable for the disposal of hazardous waste."
(Memorandum op. at 36.) The court went on to find that
there was sufficient evidence to impose liability on one
of the defendants pursuant to this statutory definition
of 'owner and operator,' and the Section 107(a)(l) liability
provision of the Act. The fact that the defendant was a
mcjor stockholder did not necessitate the application of
corporate law, and thus the principle of limited liability:
"To hold otherwise and allow [the defendant] to be shielded
by the corporate veil 'would frustrate congressional purpose
by exempting from the operation of the Act a large class
of persons who are uniquely qualified to assume the burden
imposed by ICERCLA]." (Memorandum op. at 37, citation
omitted. )
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entlty to hold either corporate shareholders or specific
individuals liable for corporate activities. V
In order to determine whether to disregard corporate form
and thereby pierce the corporate veil, courts generally have
sought to establish two primary .elements. */ First, that the
corporation and the shareholder share such""a unity of interest
and ownership between them that the two no longer exist as
distinct entities. '/ Second, that a failure to disregard the
corporate form woulH create an inequitable result. 8/
The first element nay be established by demonstrating
that the corporation was controlled by an 'alter ego.* This
would not include 'mere majority or complete stock control,
but complete domination, not only of finances, but of policy
and business practice in respect to the transaction attacked
/ s_ee_ Henn, LAW OF CORPORATIONS §5143, 146 (1961). This
~~ doctrine applies with equal force to parent-subsidiary
relationships (i.e., where one corporation owns the
controlling stock of another corporation).
£/ Generally, courts have sought to establish these elements
** in the context of various theories, such as the 'identity,'
•instrumentality," "alter ego," and "agency" theories.
Although these terms actually suggest different concepts,
each employs similiar criteria for deciding whether to
pierce the corporate veil.
2/ See United States v. Standard Beauty Supply Stores,
Inc., 561 F.2d 774, 777 (9th Cir. 1977); FMC Fin. Corp.
v. Murphree, 632 F.2d 413, 422 (5th Cir. 1980).
8/ See Automotriz Del Golfo de Cal. S.A. v. Resnick, 47 Cal.
" 2d 792, 796, 306 P.2d 1 (1957); DeWitt Truck Broker, Inc.
v. W. Ray Flerming Fruit Co., 540 F.2d 681, 689 (4th
Cir. 1976). Some jurisdictions require a third element
for piercing the corporate veil: that the corporate
structure must have worked an injustice on, or was the
proximate cause of injury to, the party seeking relief.
See e.g., Berger v. Columbia Broadcasting System, Inc.,
453 F.2d 991, 995 (5th Cir. 1972), cert, denied, 409
U.S. 848, 93 S.Ct. 54, 34 L.Ed.2d 89 (1972); Lowendahl
v. Baltimore t O.R.R., 247 A.D. 144, 287 N.Y.S. 62, 76
(1936), aff'd 272 N.Y. 360, 6 N.E.2d 56 (Ct. App. 1936),
but see, Brunswick Corp. v. Kaxman, 599 F.2d 34, 35-36
(2d Cir. 1979).
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so that the corporate entity as to this transaction had at the
time no separate mind, will or existence of its own."
In analyzing this first element, courts have generally
considered the degree to which corporate •formalities have
been followed [so as] to Maintain a separate corporate iden-
tity." 10/ Por example, the corporate veil has been pierced
in instances where there had been a failure to maintain adequate
corporate records, or where corporate finances had not been
kept separate from personal accounts. ££/
The second element of the test is satisfied when the
failure to disregard the corporate entity would result in
fraud or injustice. !£/ t^is would occur, for example, in
cases where there has .'been a failure to adequately capital-
ice for the debts normally assocated with the business
undertaking, ££/ or where the corporate form has been employed
to misrepresent or defraud a creditor. **/
Berger v. Columbia Broadcasting System, Inc., 453 F.2d
991, 995 (5th Car. 1972), cert, denied, 409 U.S. 848,
93 S.Ct. 54, 34 L.Ed.2d 89 (1972).
Lsbadie Coal Co. v. Black, 672 F.2d 92, 96 (D.C. Cir.
1982); See Dewitt Truck Broker, Inc^ v. W. Ray F lemming
Fruit Co. , 540 F.2d 681, 686 n. 14 (collecting cases)
T*th Cir. 1976).
Lakota Girl Scout C., Inc. v. Havey Fund-Rais. Man., Inc.,
519 F.2d 634, 638 (8th Cir. 1975); Dudley v. Smith, 504
F.2d 979, 982 (5th Cir. 1974).
*2/ Some courts require that there be actual fraud or injustice
oliiin to fraud. See Chengelis v. Cenco Instruments Corp.,
3B6 F. Supp 862 (W.D. Pa.) aff 'd mem., 523 F.2d 1050 (3d
Cir. 1975). Most jurisdictions do not require proof of
actual fraud. See DeWitt Truck Brokers v. VJ« Ray Flemming
Fruit Co., 540 F.2d 681, 684 (4th Cir. 1976).
il/ £ii Anderson v. Abbot, 321 U.S. 349, 362, 64 S.Ct. 531,
88 L.Ed. 793 '.1944)? Machinery Rental, Inc. v. Herpel
(In re Multiponics , Inc.), 622 F.2d 709, 717 (5th Cir.
1980).
£J/ See FMC Fin. Corp. v. Hurphree, 632 F.2d 413, 423 (5th
Cir. 1980).
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In applying the dual analysis, courts act under consider*
at16ns of equity; therefore, the question of whether the
corporate veil will be lifted is largely one of fact, unique
to a given set of circumstances. However, the substantive
law applicable to a case may also have great importance. For
example, in applying state corporation law, state courts have
been generally reluctant to pierce the corporate veil. *v
Federal courts, however, in applying federal standards,""Rave
shown more willingness to disregard the corporate entity and
hold individuals liable for corporate actions. **/
In nany instances federal decisions do draw upon state
law and state interpretations of common law for guidance. £V
However, federal courts that are involved with federal
question litigation are not bound by state substantive law
or rulings. *8/ In such cases, either federal common law
See discussion in Note, Piercing the Corporate Law Veil:
The Alter Ego Doctrine Under Federal Common Law, 95
Harvard L.R. 853, 655 (1982).
It is well settled that a corporate entity must be dis-
regarded whenever it was formed or used to circumvent
the provisions of a statute. See United States v. Lehigh
Valley R.R., 220 U.S. 257, 259, 31 S.Ct. 387, 55 L.Ed.
458 (1911); Schenley Distillers Corp. v. United States,
326 U.S. 432, 437, 66 S.Ct. 247, 90 L.Ed. 181 (1945);
Kavanaugh v. Ford Motor Co., 353 F.2d 710, 717 (7th
Cir. 1965); Casanova Guns, Inc. v. Connelly, 454 F.2d
1320, 1322 (7th Cir. 1972).
17/ See Seymour v. Hull t Horeland Eng*g, 605 F.2d 1105 (9th
Cir. 1979); Rules of Decision Act, 28 U.S.C. $1652 (1976).
Generally, federal courts will adopt state law when to
do so is reasonable and not contrary to existing federal
policy. United States v. Polizzi, 500 F.2d 856, 907 (1974)
See also discussion in note 19, infra.
18/ UNITED STATES CONSTITUTION art. VI, el. 2.
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-8-
or specific statutory directives may determine whether or not
to pierce the corporate veil. *V
See Anderson v. Abbot , 321 U.S. 349, 642 S.Ct. 531, 88
L.Ed. 793 (1944)i Town of Brookline v. Gorsuch, 667 F.2d
215, 221 (1981). For a general discussion of federal
common law and piercing the corporate veil see, note 15,
supra. The decision as to whether to apply state law or
• federal standard is dependent on many factors:
i
•These factors include the extent to which: (1) a
need exists for national -uniformity ; (2) a federal
rule would disrupt commercial relationships predicated
on state law; (3) application of state law would
frustrate specific objectives of the federal program;
(4) implementation of a particular rule would cause
administrative hardships or would aid in administrative
conveniences; (5) the regulations lend weight to the
application of a uniform rule; (6) .the action in
question has a direct effect on financial obligations
of the United States; and 17) substantial federal
interest in the outcome. -of the litigation exists.
Even with the use of these factors, however, whether
state law will be adopted as the federal rule or
a unique federal uniform rule of decision will be
formulated remains unclear. The courts have failed
to either mention the applicable law or to state the
underlying rationale for their choice of which law to
apply." Note, Piercing the Corporate Veil in Federal
Courts; -Is Circumvention of a Statute Enough?, 13 Pac.
L.J. 1245, 1249 (1982) (citations omitted).
In discussions concern* ng^CERCLty the courts and Congress
have addressed several of the above mentioned factors.
CERCLA. For example, the need for national uniformity to
carry out the federal superfund program has been clearly
stated in United States v. Chem-Dyne, C-l-82-840, slip op.
(S.T. Ohio, Oct. llr 1983). In Chem-Dyne, the court stated
that the purpose of CERCLA was to ensure the development
of a uniform rule of law, and the court pointed out the
dangers of a variable standard on hazardous waste disposal
practices that are clearly interstate. (Slip op. at
11-13.) See also, Ohio v. Georgeof f , 562 F. Supp. 1300,
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. The general rule applied by federal courts to cases in-
volving federal statutes is that "a corporate entity may be
disregarded in the interests of public convenience, fairness
and equity.* ££/ In applying this rule, "federal courts
will look closely at the purpose of the federal statute to
determine whether that statute places importance on the
corporate form.* «y Furthermore, where a statute contains
specific directives on when the corporate entity may be
disregarded and individuals held liable for the acts or debts
of a valid corporation, courts oust defer to the congressional
mandate. **/
i
Thus, even under general principles of corporation law,
courts may consider the language of statute in determining
whether to impose liability on corporate shareholders.
Therefore, a court may use the statutory language of CERCLA
either as a rationale for piercing a corporate veil (when
corporation law is applied) or as an independent statutory
basis for imposing liability (notwithstanding the general
principles of corporation law). 23/
(continued)/
•
1312 (N.D. Ohio, 1983); 126 'Cong. Rec. H. 11,787 (Dec.
3, 1983).
The Chem-Dyne court stated that "the improper disposal
or release of hazardous substances is an enormous and
complex problem of national magnitude involving uniquely
federal interests." (Slip op. at 11.) The court further
noted that *a driving force toward the development of
CERCLA was the recognition that a response to this
pervasive condition at the State level was generally
inadequate: and that the United States has a unique
federal financial intejf-esl in thfe trust fund that is
funded by general and excise ta«s.B (Slip op. at 11,
citing, 5 U.S. Code Cong. 4 Ad. News at 6,142.) See
also, 126 Cong. Rec. at B. 11,801.
Capital Telephone Company, Inc. v. F.C.C. , 498 F.2d 734,
738 (D.C. Cir. 1974). •
21/ Town of Brookline v. Gorsueh, 667 F.2d 215, 221 (1981).
I2/ Anderson v. Abbot, 321 U.S. 349, 365, 64 S.Ct. 531,
88 L.Ed 793 (1944).
see discussion, supra, note 4.
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Conei.usion
The Agency should rely upon the statutory language of the
Act us the basis for imposing liability on any person who
controlled or directed the activities of a hazardous waste
facility immediately prior to abandonment, or on any person
who is a generator or transporter, notwithstanding the fact
that that individual is • shareholder. Additionally, and
alternatively, the Agency nay rely on the general principles
of corporation law to pierce the corporate veil by applying
the current federal standard of public convenience, fairness,
and equity. However, when seeking to pierce the corporate
veil, the Agency should be prepared to apply the traditional
dual test previously discussed in order to provide additional
support for extending liability to corporate shareholders.
XX. THE LIABILITY OF SUCCESSOR CORPORATIONS UNDER CCRCLA
Background
Section 10?(a)(2) of CERCLA extends liability for response
costs to "any person who at the time of disposal of any hazardous
substance owned cr operated any facility at which such hazardous
substances were disposed of." Situations nay arise, however,
where a corporation, which previously had owned or operated a
hazardous waste facility, now transfers corporate ownership to
another corporation. In such cases, it is important to determine
whether the liability of the predecessor corporation's action
regarding the disposal of hazardous waste is also transferred
to the successor corporation. 34/
Issue
What is the extent of liability for successor corporations
under CERCLA?
24/ tfhe discussion that follows is equally applicable to
successor corporations of generators and transporters
iissociated with hazardous substances released from CERCLA
facility.
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Sumtnary
When corporate ownership is transferred from one cor-
poration to another, the successor corporation is liable for
the acts of its predecessor if the new corporation acquired
ownership by merger or consolidation. If, however, the
acquisition was through the sale or transfer of assets, the
successor corporation is not liable unless:
a) The purchasing corporation expressly or
impliedly agrees to assume such obligations;
b) The transaction amounts to a *de facto" consoli-
dation or mergeri
c) The purchasing corporation is merely a continu-
ation of the selling corporation; or
d) The transaction was fraudulently entered into
in order to escape liability.
Notwithstanding the above criteria, a successor corpora-
tion may be held liable for the acts of the predecessor
corporation if the new corporation continues substantially
the same business operations as the selling corporation.
Discussion
The liability of a successor corporation, according to
traditional corporation law. is dependent on the structure of
the corporate acquistion. £v Corporate ownership may be
transferred in one of three ways: 1) through the sale of stock
to another corporation; 2) by a merger or consolidation with
another corporation; or 3) by the sale of its assets to another
corporation. 26/ Where a corporation is acquired through the
"purchase of aTl of its outstanding stock, the corporate
'entity remains intact and retains its liabilities, despite
25/ See N.J. Transp. Dep't v. PSC Resources, Inc., 175 N.J.
Super. 447, 419 A.2d 1151 (Super. Ct. Law Div. 1980).
26/ Note, Torts - Product Liability - Successor Corporation
Strictly Liable for Defective Products Manufactured by
the Predecessor Corporation, 27 Villanova L.R. 411, 412
(1980) (citations omitted) [hereinafter cited as Note,
Torts - Product Liability].
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the change of ownership." 27/ By the sane token, a purchasing
corporation retains liability for claims against the predecessor
company if the transaction is in the form of a merger or con-
solidation. ££/ Where, however, the acquisition is in the form
of a sale or other transference of all of a corporation's assets
to a successor corporation, the latter is not liable for the
debts and liabilities of the predecessor corporation. «'/
There are four exceptions to this general rule of non-
liability in asset acquisitions. A successor corporation
Is liable for the actions of its predecessor corporation if
one of the following is shown:
1) The purchaser expressly or impliedly
agrees to-assume such obligations;
2) The transaction amounts to a *de facto"
consolidation or merger)
3) The purchasing corporation is merely a
continuation of the selling corpor-
ation; or
4) The transaction is entered into fraudulently
in order to escape liability. 30/
The application of the traditional corporate law approach
to successor liability has in many instances led to particularly
N.J. Transp. Pep't v. PSC Resources, Inc., 175 N.J.
Super. 447, 419 A.2d 1157 (Super. Ct. Law Div. 1980).
££/ j[d. A merger, occurs when one of the combining corpor-
ations continues to exist; a consolidation exists when
all of the combining corporations are dissolved and an
entirely new corporation is formed.
£V 5>ee N.J. Transp. Dep't v. PSC Resources, Inc., 175 N.J.
liuper. 447, 419 A.2d 1151 (Super. Ct. Law Div. I960),
citing, Jackson v. N.J. Manu. Ins. Co., 166 N.J. Super.
488, 454 (Super. Ct. App. Dav. 1979), cert, denied, 81
N.J. 330 (1979).
30/ Id., Note, Torts - Product Liability, supra note, 26 at
?i!3 n. 15-18.
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harsh and unjust results, especially with respect to product
liability cases. 3V Therefore, in an effort to provide an
adequate remedy and" to protect injured consumers, courts
have broadened the exemptions to the general rule by either
modifying or recasting the *de facto" and "mere continuation*
exemptions to include an element of public policy. ££/
More recently, however, the general rule has been aban-
doned altogether by several jurisdictions and, in essence, a
new theory for establishing successor liability has evolved
based upon the similarity of business operations. 33/ The
new approach has been cast by one court in the following ways
•[w]here...the successor corporation acquires
all or substantially all of the assets of the
predecessor corporation for cash and continues
!!/ See McKee v. Harris-Seybold Co., 109 N.J. Super. 555,
264 A.2d 98 (Super. Ct. Law DIV. 1970), aff'd per curiam,
118 N.J. Super. 480, 288 A.2d 565 (Super. Ct. App. Div.
1972); Kloberdanz v. Joy Mfg, Co., 288 F.Supp. 817 (0.
Colo. 1968).
See N.J. Transp. Dep't v. PSC Resources, Inc., 175 N.J.
Super. 447, 419 A.2d 1151 (Super. Ct. Law Div. I960):
See also, Knapp v. North Are. Rockwell Corp., 506 F.2d
361 (3d Cir. 1974), cert, denied, 421 U.S. 965 (1975);
Cyr v. B. Of fen k Co., 501 F.2d 1145 (1st Cir. 1975)?
Turner v. Bituminous Gas Co., 397 Mich. 406, 244 N.W.2d
673 (1976)":
33/ The theory has also been referred to as the "product-
line" approach. In adopting this new approach to
successor liability, some courts have abandoned the
traditional rule of non-liability in asset acquisitions.
See e.g., Ray v. Alad Corp., 19 Cal. 3d 22, 560 P.2d
3, 136 Cal. Rptr. 574 (1977). Other courts have con-
sidered the new approach as an exemption to the general
rule. See e.g., Daweko v. Jorgensen Steel Co., 290 Pa.
Super. Ct. 15, 434 A.2d 106 (1981)j Note, Torts - Product
Liability, supra note, 26 at 418 n. 38. And, a few
jurisdictions have rejected the new approach. See
Travis v. Harris Corp., 565 F.2d 443 (7th Cir. 1977)?
Tucker v. Paxson Mach. Co., 645 F.2d 620 (8th Cir. 1981).
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essentially the same manufacturing operation
as the predecessor corporation the successor
remains liable for the products liability claims
of its predecessor.* *4/
This theory of establishing successor liability differs
from the *de facto* and 'mere continuation* exemptions in that
the new approach does not examine whether there is a continuity
of corporate structure or ownership (e.g., whether the predecessor
and successor corporation share a common director or officer).
Instead, according to the new theory, liability will be imposed
if th32, 431 A.2d 811 (1981).
£V S5e_e Ray v. Alad Corp., 19 Cal. 3d 22, 560 P.2d 3, 136 Cal.
Ilptr. 574 (1977); some form of acquisition, however, is
utill required. See Meisal v. Modern Press, 97 Wash.
;>d 403, 645 P.2d 693.
36/ 175 N.J. Super. 447, 419 A.2d 1151 (Super. Ct. Law Div.
1980);
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A similar 'continuity of business operation* approach has
been used in cases involving statutory violations. "/ jne
Ninth Circuit, for example, held in a case involving~the Federal
Insecticide, Fungicide, and Rodenticide Act [FIFRA] 38/r that
"EPA's authority to extend liability to successor corporations
•terns from the purpose of the statute it administers, which is
to regulate pesticides to protect the national environment.* 39/
Furthermore, the court noted that *[t]he agency nay pursue the"
objectives of the Act by imposing successor liability where it
will facilitate enforcement of the Act." ££/ After establishing
that there had been violations of FIFRA by the predecessor
corporation, the court found that there was substantial continuity
of business operation between the predecessor and successor
corporations to warrant imposition of successor liability.
Although CERCLA is not primarily a regulatory statute,
public policy considerations and the legislative history of
the Act clearly indicate that federal law would be applicable
to CERCLA situations involving successor liability. *v
Therefore, it is reasonable to assume that courts wouTd similarly
adopt the federal 'continuity of business operation approach"
in cases involving CERCLA.
Conclusion
In establishing successor liability under CERCLA, the
See Golden State Bottling Co. v. *NLRB, 414 U.S. 168, 94
S.Ct. 414, 38 L.Ed2d 388 (1973); Slack v. Havens, 522
F.2d 1091 (9th Cir. 1975). v
1 U.S.C. 5136'e^t se£.
Oner II, Inc. v. Unitefl'sfates Environ. Protection
Agency, 597 F.2d 1B4, 186 (9th Cir. 1979).
See discussion, supra, n. 19; One of Congress1 primary
concerns in enacting CERCLA was to alleviate the vast
national health hazard created by inactive and abandoned
disposal sites. See e.g. , Remarks of Rep. Florio, 126
Cong. Rec. H. 9,154 (Sept. 19, I960), 126 Cong. Rec.
H. 11,773 (Dec. 3. 1980).
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Agency should initially utilize the "continuity of business
operation" approach of federal law. However, to provide
additional support or an alternative basis for successor
corporation liability, the Agency should be prepared to apply
the traditional exemptions to the general rule of non-liability
in asset acquisitions.
ccs A. Janes Barnes, General Counsel
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^^^ I UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
V^""^/ WASHINGTON. D.C. 20460
JUN 15 1984
COMIUMS MOMTOMM6
MEMORANDUM
SUBJECT: Guidance on Counting and Crediting Civil Judicial
Referrals
FROM: Courtney M. Pric<
Assistant Administrator for'Enforcement
and. Compliance Monitoring
TO: Regional Administrators, Regions I - X
Regional Counsels, Regions I - X
PURPOSE
vj
The purpose of this memorandum is to provide guidance
as to what constitutes a civil judicial referral and as to
which activities by Regional offices relating to judicial
referrals will be credited for accountability purposes.
This guidance addresses issues associated with the
following types of referral situations:
• multi-facility referrals;
• adding counts to previously referred cases;
• contempt actions;
• modifying or amending consent decrees;
• cases returned to Regions and re-referrals; and .
• the effective date of a referral.
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BAC*GROUND
For approximately three years, OECM and its predecessors
have rel-ied primarily on the use of the automated DOCKET
as the official Agency record of the number of referrals of
civil cases to Headquarters, the number of referrals to the
Department of Justice, and as the tracking system for the
current status of active judicial enforcement cases. For the
most part, the DOCKET system has proved to be very satisfactory,
provided an effort is made to maintain the information in the
system up-to-date. The system currently reflects the best
information available about our judicial enforcement system.
The information in the DOCKET system also serves as a
measure used in the Strategic Planning and Management
System (SPMS) and, therefore, the crediting of certain
activities provides measures used to evaluate Regional
offices. Because information in DOCKET is used for this
purpose, we must be certain we are properly crediting the
activities of the Regional offices, and that everyone with
responsibilities in these areas knows the ground rules for
the system.
MULTI-FACILITY REFERRALS
THE DOCKET SYSTEM WILL MAINTAIN BOTH A 'FACILITY' AND A
'CASE' COUNT, AND THE REGIONAL OFFICES WILL BE GIVEN CREDIT
FOR P.EFERRALS ON THE "FACILITY" BASIS. THIS GIVES THE
AGENCY FLEXIBILITY IN ITS APPROACH TO COUNTING REFERRALS
AND AN ADDITIONAL DIMENSION IN QUANTIFYING THE EXTENT OF
OUR JUDICIAL ENFORCEMENT PROGRAM.
DISCUSSION; Cases against multiple facilities owned or
opera ted by the sane defendant may be and frequently are
joined by the Regions into one referral, or if made the
subject of separate referrals, are frequently joined into
the name case by the Department of Justice or the courts.
The question then becomes whether those cases are to count
as one referral or multiple referrals, depending on the number
of facilities.
There are several compelling and logical reasons for
counting such referrals on a facility basis, rather than
strictly on the case basis, at least insofar as internal
Agency record-keeping is concerned. The resources required
to discover, develop and manage these cases must generally
be considered on the facility basis, since each facility is
usually separate and unique, and requires being addressed
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independently regardless of whether they are consolidated
into the sane proceeding because of commonality of the
parties. In addition, the Regions can easily achieve
credit for a referral on each facility on the case basis
by preparing separate referrals for each facility. This
procedure, however, would only achieve an expenditure of
additional time and paperwork, which should not be oncouraged.
On the other hand, it would be impossible to use a
facility basis of counting referrals to the exclusion of
the case basis. There are occasions when the number of
cases referred or pending by EPA are significant, and it
would be misleading to the public, Congress or other interested
persons to represent the Agency as having the number of
cases pending which are reflected by the number of facilities
involved.
Since DOCKET currently maintains information on both a
case and a facility basis, it is a simple matter to continue
to utilize that information, and for internal purposes, to
credit the Regional offices with the number of referrals
represented by the number of facilities included in the
cases. An additional advantage to maintaining this dual
system of counting is that it would give the Agency, the
public and Congress a more accurate picture of the extent
of the Agency's enforcement program.
ADDING COUNTS TO PREVIOUSLY REFERRED CASES
THERE IS A PRESUMPTION THAT CREDIT FOR A NEW REFERRAL WILL
NOT BE GIVEN FOR THE ADDITION OF A NEW CAUSE OF ACTION TO
AN EXISTING CASE. IF A REGIONAL OFFICE THINKS CREDIT FOR A
NEW REFERRAL IS APPROPRIATE IN SUCH A PARTICULAR SITUATION,
THEN THE BURDEN IS ON THAT REGIONAL OFFICE TO DEMONSTRATE:
(1) THAT THE NEW CAUSE OF ACTION IS SIGNIFICANTLY DISTINCT
AND DIFFERENT FROM THE ORIGINAL CAUSE(S) OF ACTION; (2) THE
EVIDENCE REQUIRED TO SUPPORT THE NEW CAUSE OF ACTION IS SO
DIFFERENT THAT SUBSTANTIAL ADDITIONAL RESOURCE REQUIREMENTS
ARE IMPOSED UPON THE REGIONAL OFFICE; AND (3) THAT THE NEW
CAUSE OF ACTION ARISES FROM CIRCUMSTANCES UNFORESEEN AT THE
TIME OF THE ORIGINAL REFERRAL. THE ADDITION OF NEW CAUSES
OF ACTION UNDER 5107 OF CERCLA TO CASES WHICH WERE ORIGINALLY
FILED FOR INJUNCTIVE RELIEF UNDER RCRA OR CERCLA WILL
NORMALLY QUALIFY AS EXCEPTIONS.
DISCUSSION! The issue of whether to allow an additional
referral due to the addition of a cause of action which was
not included in the original referral arises most frequently
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in hazardous waste eases which were initiated as suits for
injunctive relief under the "imminent and substantial endanger-
aent* provisions of RCRA and/or CERCLA, and which are subsequently
being converted to cost-recovery actions under S107 of CERCLA
due to cleanup of the site.
Occasionally, however, causes of action are authorized
to be added to pending cases which were inadvertently
omitted in the initial referral, or which are intended to
merely fortify the legal basis for the Government's claims,
but.do not require significant additional evidence to support
thos« claims.
It is difficult to expound a universal policy stating
that the addition of a cause of action to an existing suit
will or will not be counted as a new referral under all circum-
stances. The test here should be: Is the new cause of action
so distinct and different from the original cause(s) of action,
and is the evidence required to support the new cause of action
so different, that in deference to the resource requirements
imposed upon the Region to support it, the Region should be
credited with a new referral? In addition, the circumstances
under which the case was originally referred without the
new cause of action should be examined to determine whether,
in the exercise of good legal judgment and diligence, the
new cause of action should have been included at that time.
Under the test set forth above, credit should usually
be given for the addition of a cause of action under $107
of CERCLA, since those normally change the objectives of
the case from those originally involved, and raise substantial
new legal and evidentiary requirements.
Decisions as to whether the presumption has been
overcome for these cases will be made by the appropriate
Associate Enforcement Counsel in consultation with the
Regional Counsel. If the AEC and RC cannot agree, the issue
should be raised to me and the appropriate Regional
Administrator for resolution.
CONTEMPT ACTIONS
THE REGIONAL OFFICES CURRENTLY RECEIVE AND WILL CONTINUE TO
RECEIVE CREDIT FOR A NEW REFERRAL FOR THE REFERRAL OF
CONTEMPT ACTIONS FOR VIOLATION OF CONSENT DECREES.
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DISCUSSION: There are several reasons why this activity
should be credited as a new referral. First, the monitoring
of consent decrees to ensure compliance by the defendant is
an Agency priority, and should be encouraged. To refuse to
credit the Regions with referrals for contempt of those
decrees discourages the assignment of resources to those
aonitoring efforts.
Second, the amount of resources necessary to conduct
the monitoring of consent decrees nay be as substantial as
that required to determine the initial violation upon which
the decree is based.
Third, from a 'bookkeeping" viewpoint, the original
case is removed from the active case docket when the consent
decree is entered, and placed on the consent decree docket.
Therefore, there is no problem of 'double counting" of such
cases on the active docket. Zn any event, contempt cases
are usually so noted in the docket, and can be related to
the original cases if necessary for historical counting
purposes.
AMENDMENT"OR MODIFICATION OF CONSENT DECREES
A PRESUMPTION EXISTS THAT MODIFICATION OR AMENDMENT TO AN
EXISTING CONSENT DECREE WILL NOT RESULT IN CREDIT FOR A NEW
REFERRAL. BOWEVER, THE REGION CAN REBUT THAT PRESUMPTION
AND GAIN CREDIT FOR A NEW REFERRAL BY DEMONSTRATING (1)
THAT THE MODIFICATION OR AMENDMENT IS SIGNIFICANT AND
SUBSTANTIAL IN RELATION TO THE CASE AS A WHOLE; (2) THAT IT
AROSE FROM CIRCUMSTANCES WHICH WERE UNFORESEEN AT THE TIME
OF ENTRY OF THE ORIGINAL DECREE; AND (3) THAT IT REQUIRED
THE COMMITTMENT OF SUBSTANTIAL AND SIGNIFICANT RESOURCES TO
INVESTIGATE AND NEGOTIATE IN EXCESS OF THOSE WHICH WOULD RAVE
BEEN EXPENDED FOR TRACKING COMPLIANCE WITH THE ORIGINAL
DECREE.
DISCUSSION; As in the case with the addition of a new cause of
action to a pending suit, it is difficult to state a simple
policy regarding the credit of a new referral for an amendment
to an existing consent decree. The resources required to
determine or confirm the need for such amendments varies
from case to case, and with the complexity of the problem
giving rise to the necessity to amend the decree. Some
amendments arise from circumstances which were unanticipated
at the time the original decree was entered, and can be very
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complex and resource-intensive. Zn such cases, it would be
fair to encourage the Regional Offices in their tracking of
consent.decrees to allow then credit for a new referral for
an amendment to a consent decree. However, most amendments
are merely to extend a deadline for completion of construction
or for other minor adjustments, and do not require a signi-
ficant committment of resources to negotiate or accomplish
over those which would be required to track the performance
of the original decree.
. Decisions as to whether the presumption has been over-
come in these cases will be made by the appropriate Associate
Enforcement Counsel in consultation with the Regional Counsel.
If tihe AEC and RC cannot agree, the issue should be raised
to me and the appropriate Regional Administrator for resolution.
REFERRALS RETURNED TO REGIONS AND RE-REFERRALS
REFERRALS ARE CREDITED IN THE QUARTER INDICATED BY THE DATE
SHOW ON THE COVER MEMORANDUM FROM THE REGIONAL OFFICE.
RETURNED REFERRALS WILL NOT BE DEDUCTED PROM REGIONAL
TOTALS. THEREFORE, ADDITIONAL CREDIT WILL NOT BE GIVEN POR
RE-REFERRALS. A SEPARATE CATEGORY OP CASES RETURNED TO THE
REGION WILL BE MAINTAINED BY DOCKET AND OECM WILL TRACK THE
NUMBER OF CASES RETURNED ON A QUARTERLY AND REGIONAL BASIS.
CASES RETURNED TO THE REGIONS AND NOT RESUBMITTED TO HEADQUARTERS
WITHIN 90 DAYS WILL BE RECLASSIFIED AS CONCLUDED CASES DECLINED
BY EPA.
DISC'JSSIONt After a case has been referred from the
Regional Office to Headquarters or the Department of Justice
(depending on whether it is a regular or 'direct* referral),
that case may be returned by Headquarters or DOJ to the
Regional Office for a number of reasons, usually for addi-
tional development.
At the present time, the DOCKET maintains data on a
category of cases designated as "Returned to Region*, so that
there is a record of returned referrals. These cases are
counted as active enforcement cases because the category is
used for cases Headquarters expects will be pursued after
further development. Therefore, we have never attempted to
deduct those returned eases from the Regional totals in
arriving at a net number of referrals.
Deducting returned cases from the number of referrals
leads to many questions as to whether the case will be
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deducted from the total of referrals for the fiscal year
and/or quarter in which the ease was originally referred,
or the year in which the case was returned to the Region,
if those years are not the sane. This could lead to a
constant readjustment of the number of referrals for any
given quarter.
Due to the usual demand for specific and definite
numbers of referrals from within and without the Agency at
the conclusion of a quarter or a fiscal year, it is highly
desirable to have a relatively definite number of referrals
ascertained as soon as possible after the conclusion of the
quarter and fiscal year. In order to achieve this, and for
simplicity in recordkeeping, it is preferable to maintain
on a regional and quarterly basis the number of referrals
and the number of cases returned to that Region. This will
provide an indication of the number of cases a specific
Region has referred which required return for further
development, without requiring re-calculation of quarterly
and fiscal year referral numbers.
However, we need to be certain that these cases do
not continue to be counted as active cases when they are
not resubmitted by the Regions. Therefore, if a case
returned to the Region is not resubmitted to Headquarters
within 90 days, the case will normally be reclassified as a
concluded case which was declined by EPA.
EFFECTIVE DATE FOR CASE REFERRALS
CASE REFERRAL PACKAGES (OR COPIES THEREOF, IN THE CASE
OF DIRECT REFERRALS) ARE CREDITED IN THE QUARTER AND FISCAL
YEAR ACCORDING TO THE DATE OF THE COVER MEMORANDUM FROM THE
REGION, PROVIDED THAT THE REFERRAL PACKAGE IS RECEIVED
BY HEADQUARTERS WITHIN FIVE CALENDAR DAYS FOLLOWING THE
CLOSE OF A FISCAL QUARTER.
DISCUSSION: While this is admittedly a minor issue, it is
one which has proved troublesome in the past, particularly
at the end of fiscal years and quarters. Some referral
packages dated immediately prior to the end of the fiscal
year or of a quarter have been received well into the
following months, necessitating a readjustment in the
number of referrals over a considerable time period. Due to
the interest in these numbers within and without the Agency,
it is desirable that those numbers be fixed as soon as
possible following the end of a quarter.
Use of the date on the package would not necessarily
resolve the concerns expressed above, and would still
require readjustment in referral numbers over a period of
time due to delays in the mail service. Use of the date on
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-8-
whieh the package was received in Headquarters may not be
entirely fair to the regional offices due to delays in mail
service and to potential delays in internal Headquarters
mail distribution. The allowance of a reasonable specified
time beyond the end of the quarter would allow for delays
in mail service, and seems fair to both Headquarters and
regional concerns.
Regions do not receive credit for any referral unless
and until that referral is received and entered in the
DOCKET system. This is particularly true of 'direct*
referrals, where a copy of the referral package must be
forwarded to Headquarters to be entered into the DOCKET.
EFFECTIVE DATE OF THIS GUIDANCE
THE PROCEDURES SET OUT ZN THIS GUIDANCE WILL BECOME
EFFECTIVE BEGINNING WITH REFERRALS RECEIVED IN THE FOURTH
QUARTER OF FISCAL YEAR 1984.
cc: Associate Enforcement Counsels
OECM Office Directors
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WASHINGTON. D.C. 20460
IV jr ••%•»•.• *•„
erv*. *•> «
MEMORANDUM.
SUBJECT: Policy and Procedures on Parallel Proceedings at the
Environmental Protection Agency
F?DM: Courtney K. Pric
Assistant Administrator
Office of Enforcement and
Compliance Monitoring
TC: Assistant Administrators
Regional Administrators
Regional Counsels
Director, NEIC
Ee :kground
Civil or administrative actions pjrsjed simultaneously with
criminal investigation or proserjticr, of the sane party(ies), and
relating to the same esser.tial sutject matter, are called parallel
proceedings. Violations of oost of the environmental laws within
EPA's jurisdiction carry the potential of both civil and criminal
sanctions. EFA's enforcement options therefore often include
administrative proceedings or referral to the Department of Justice
for civil or criminal litigation. In addition, EPA will occasion-
ally seek to conduct a criminal investigation in a natter also
requiring a remedial response to eliminate environmental contamin-
ation or potential human health hazards. In short, the potential
for parallel proceedings at EPA is high.
In the face of due process arguments to the contrary, it has
been held unequivocally that parallel proceedings are constitu-
tional. Recognizing that the government often must pursue bcth
civil and criminal routes to protect the public, the Supreme Court
in United States v. Kordel. 397 U.S. 1 (1970), established the
legality- of parallel proceedings. This case involved an in rem
action for the seizure of certain misbranded drugs, as veil as a
criminal referral with respect to those responsible for the cis-
branding. The Court pointed out that prompt action in both the
civil and the criminal courts can be necessary to protect the
public interest. This same rationale can be used in the environ-
mental field, where misconduct may create a danger which can only
be addressed by a civil or administrative action for remedial
relief. Proceeding civilly, however, does not foreclose pursuit of
other remedies, such as a criminal prosecution, where appropriate.
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,
ings pending the ultimate out cone
crir.inal trial.
397 C'.S. »t 11. Since Kordel. other courts have sanctioned paral-
lel proceedings barring "special circumstances".
civil proceedings without endan-
gerir.j its criminal ease. Thus, we should not block
parallel investigations by these agencies in the absence
of "special circumstances" in which the nature of the
proceedings d'emonstrably prejudices substantial rights
of the investigated party or of the government.
. Dresser Industries, Inc.. 628 F.2d 136S, (&.C. Cir.Ker. bane)
dene:, *-5 U.S. 993 (1980).
Notwithstanding the legality of parallel proceedings, a number
cf circumstances militate in favor cf keeping such dual actions to
a minimum. Inherent in the simultaneous pursuit of civil, •adminis-
trative and/or criminal sanctions is the possibility of legal chal-
lenges and administrative difficulties. First, it would be an
inappropriate use of Agency resources, as well as a questionable
exercise of enforcement discretion, for EFA to seek criminal and
civil sanctions in every case where both are legally permissible.
Because of considerations discussed within this memorandum, separ-
ate staffs will often be usec1 for the civil/ administrative action
and the parallel criminal investigation. The number of EPA staff
involved in an enforcement action against one party nay, therefore,
be doubled while not substantially changing the nature of the relief
obtained.
Further, when parallel actions are initiated by the govern-
ment, _]_/ defense allegations of abuse often arise. Whatever the
substance of the charges, the delay and effort occasioned by the
need to respond to and litigate these charges can counterbalance
the potential benefits of the dual actions. Typical objections to
parallel proceedings include the allegation that the government
I/ Parallel actions may develop when a defendant in a criminal •
"case initiates a civil suit against the government or when an
individual or corporation who is the plaintiff in a civil action
becomes a defendant in a criminal case involving the sase matters
In such a situation, even though the government has net created
the dual actions, similar parallel proceedings issues arise.
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has acxed deceptively by seeking more than one type of relief
without promptly notifying the party involved, or that the
government is using one of the actions to assist the other.
Conversely, the government may find that the criminal defendant
seeks to obtain information about the prosecution of the criminal
case through the use of civil discovery devices.
Because of the above stated resource and legal considerations,
parallel proceedings should be undertaken only when clearly warranted
by the facts of a given situation.
Issue
Under What Circumstances Are Parallel Proceedings Warranted?
«
Policy
Zn light of the limited criminal investigative resources
available to the Agency, criminal investigations and referrals
are necessarily limited to situations of the most significant
and/or flagrant environmental misconduct. Accordingly, the
issue of parallel proceedings should arise in only a limited
number of cases.
Within this limited category of cases, if the environmental
misconduct is ongoing, or if circumstances otherwise necessitate
irnunctive relief or remedial action, a parallel proceeding is
appropriate. Where there is no need fo: injunctive or remedial
relief, and the purpose of a civil/administrative action would
be limited to the assessment of penalties for past misconduct,
pa:allel proceedings will normally be avoided and the civil
action held in abeyance while the criminal enforcement process
proceeds. In such situations, Agency officials should monitor
the criminal case closely to ensure that it is developed as
expeditiously as possible.
Discussion
This policy supports the use of parallel proceedings
in those situations in which the public interest necessitates
dual actions, i.e., cases involving significant and flagrant
environmental misconduct that also require injunctive/remedial
response through the civil enforcement apparatus. However,
where the purpose of enforcement is limited to the assessment
of penalties, the simultaneous pursuit of civil as well as
criminal sanctions through parallel proceedings is discouraged.
By'so limiting the use of parallel proceedings, unnecessary
legal challenges as well as resource strains will be avoided.
In addition, the policy recognizes the reluctance frequently
manifested by Federal prosecutors to penalize a defendant through
both administrative/civil and criminal sanctions.
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Finally, by deferring the civil proceedings until after the com-
•pletion of the criminal action in penalty-only cases, the government
will'be,able to take advantage of the doctrine of res judicata.
That is,' identical issues which have been resolved in the govern-
ment's favor in the criminal case do not have to be relitigated in
the civil action. On the other hand, any issues or verdicts con-
trary to the government's position in the criminal case will not
bind the court hearing the subsequent civil case because of the
lesser burden which the government (if plaintiff) must bear in a
civil Actioh.
Issue
In Those Situations in Which Parallel Proceedings Are Necessary,
Wf.en Should Notice of the Existence of the Parallel Proceeding Be
Given to the Common Subjects?
Pol icy ....;/
Notice that a criminal investigation has commenced, or that a
referral for criminal prosecution has been m?.de, is not a legal
requirement. A target does not have to be made aware of the en-
forcement steps that the Agency is pursuing or contemplating. However,
the Agency should consider giving notice of the potential for a
criminal prosecution to the common sutject(s) at the initiation of
every parallel proceeding. A statement advising the suriject(s)
that "the Agency is free to choose civil, criminal or administra-
tive enforcement actions ani taring one type of action does not
preclude pursuing another type of action" may be appropriate.
Whether or not the Agency elects to affirmatively ma«e such a
statement, this type of answer should be given routinely to ques-
tions from targets about the existence of, or the potential for,
parallel actions. The Agency must be careful never to affirm-
atively misrepresent the potential for a criminal case.
Discuss :,on
Before a criminal investigation is initiated, the Special
Agent from the Off ice.of Criminal Investigations routinely contacts
the Regional Counsel and the regional program office in the region
where the investigation is to be conducted. This is to discover
whe.the? administrative/civil enforcement action is pending or contem-
plated. This initial coordination is meant to ensure that a paral-
lel proceeding does not occur without the knowledge of appropriate
Agency personnel. When a civil action commences, it would likewise
be advisable for the Regional Counsel and/or regional program
offices to check with the Office of Criminal Investigations if
there is any question of the existence of a criminal investigation.
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Notice of the potential for parallel civil and criminal pro-
ceedings should be given to the subjeet(s), either orally or in
writing (depending upon the previous methods of communication in
the particular matter or upon the nature of the situation), when-
ever it i/ill not unduly jeopardize pursuit of the criminal inquiry,,
The timing, as well as the mechanics of how and who should give
the notice, should be decided jointly by the attorneys and agents
assigned to the criminal enforcement case and the Agency personnel
assigned to the civil/adir.inistrative action. Unilateral notifica-
tion without coordination by personnel assigned to either case can
disrupt and confuse the parallel investigations and should not
occur*
While not always legally mandated, this prophylactic measure
allows the comron subject to protect himself against self-incrimina-
tion by ooving the court for a stay, a protective order, or other
relief in the civil proceeding, while shielding the government
from subsequent charges of deception or abuse of the civil proceed-
ing. In eases in which parties have testified or have' provided
incriminating information, courts have been critical of the govern-
ment where there have been previous misrepresentations or unfulfilled
promises of immunity. See, e.g., SEC v. ESM Government Securities,
Inc., 64S F.2d 310 (5th Cir. 1981); United States v. Parrott, 248
T7~Supp« 196 (D.D.C. 1965); United States v. Guerina, 112 F. Supp.
126 (E.D. Pa. 1953); United States v. Rand, 308 F. Sup?. 1231
(N.D. Ohio 1970).
If the Agency chooses not to notify the target of the start of
a criminal investigation, the execution of a criminal search warrant*
t'H- presentation of credentials by an EPA criminal investigator in
an interview context, or the issuance of grand jury subpoenas'will
accomplish the same functior. by making the criminal focus obvious.
Sc long as the Agency has net previously misrepresented the poten-
tial for a criminal action, it can not be accused of being deceptive
just because the targets have not been notified until the investi-
gation has become public knowledge.
If directly asked whether a criminal investigation has been
undertaken or whether such an investigation (or prosecution) is
contemplated, an EPA employee may of course decline to reply.
However, in some circumstances a court may find that silence
constitutes a form of deception. (See below). An alternative
response would be a statement that "the Agency is free to choose
civil, criminal or administrative enforcement actions and taking
one type of action does not preclude pursuing another type of
action". It is clear, however, that the government cannot deny
the existence of a criminal investigation or referral or mislead
the party into believing that cooperation with the civil action
will preclude a criminal case, if this is untrue. SEC v» ESM
Government Securities, Inc., supra. In United States v. Fields,
592 F.2d 638, 643 (2d Cir. 197fc), cert, denied, 442 U.S. 917 (1979),
the Court criticized the conduct of two SEC employees who (while
negotiating a consent decree in a civil suit) failed to .disclose
that a criminal referral had been made. The District Court con-
cluded that defense counsel had interpreted the SEC's silence
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- 6 -
regarding the referral as an agreement not to make the referral.
Perhaps the key fact in the case, however, was that the defense
had rnade it expressly known that it was entering into the decree
to avoid a referral. Although the Second Circuit held that dis-
missilng the indictment was too severe a sanction, it did chastise
the JiEC for its conduct and warned against such misleading silence
in the future. Id. at 647. See also United States v. Rodman,
519 l\2d 1058 (1st Cir. 1975)1 "
In a series of cases involving the Internal Revenue Service,
courUs have held that, in the absence of affirmative misrepresen-
tations, a taxpayer has not established that information was
obtained through deceit and trickery. Specifically discounting
silence as per se fraud, one court stated that "silence can only
be equated withTraud where there is a legal or moral duty to
speak or where an inquiry left unanswered would be intentionally
ris loading". United Slates v. Prudden, 424 F.2d 1021 (5th Cir.
1970). In United States v. Tonahill. 430 F.2d 1042, 1044 (5th Cir.
1970), the Court found that, when specifically asked whether they
were investigating a crime, IRS Special Agents did not engage in
irrpe:rmissir.le trickery when they did not directly answer that a
"criminal investigation" was occurring but instead stated that
"their function was to reconcile the large discrepancies to see if
they were the result of innocent "errors".
Where circumstances require that notice of the potential
f-: ii criminal prosecution he delayed until the investigation
(eitner field or grand jury) is cor.pleted,2/ then not only must the
government be extremely careful not to mislead the party but infor-
mation provided by the ccr.ron subject in the parallel civil
pioe^eding will generally not be transferred to the attorneys and
agents involved in the criminal inquiry. The transfer of infor-
mation from a civil to a parallel criminal enforcement action
when the party is unaware that he may be the subject of a criminal
investigation has not been directly addressee; and condemned by the
courts.2/ However, such a procedure would invite allegations of
impropeT use of the civil proceedings to further the criminal
investigation.
2/ If-there is strong likelihood of evidence destruction, witness
intimidation, or ongoing criminal activity, reasons certainly
exis: to delay disclosure or notice of the potential for a criminal
investigation or referral.
2/ Where defendants have been aware of the parallel proceeding and
have objected in advance to their statements being transferred from
ar. a;ency to the Department of Justice, courts have nevertheless
apprsved such transfers. SEC v. Dresser Industries, Inc., surra.
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Issue
Should Miranda-type Warnings Be Given Under Any Circumstances To
'Subjects *of Parallel Proceedings?
Full Miranda warnings are unnecessary in non-"custodial" set-
tings. However, modified warnings should be given before a comr.on
subject is required to provide evidence testimonial in nature*/
during civil proceedings. That is, warnings should occur before
a comnon subject is deposed* and before an administrative hearing
or trial is held at which a party may testify. An administrative
request for business documents is not considered "testimony"
and need not trigger a disclosure of a criminal investigation.
Schmerber v. California, 384 U.S. 757 (1966).
Discussion
These warnin-s are separate and apart from the "notice" dis-
cussed earlier in this memorandum. "Notice" pertains to a state-
ment from the Agency that a natter Bay result in both criminal and
civil action fry the Agency. It is issued to avoid criticism that
tf.*» Agency has acted deceptively or that it has misrepresented the
nature of its contacts with an individual or company. "Warnings",
en the other hantj, are a response to the Fifth Amendment consider-
ations which arise whenever an individual is compelled by the
government to provide information. It informs the individual that
his responses may be used against him in subsequent proceedings.
Full Miranda warnings, or acvice of rights, are not required,
or advisable, in connection with the compulsion of testimony in
the civil proceeding, since the testimony is not elicited in a
"custodial" setting._5/ A warning which will adequately inform the
party may consist of~a simple statement that violations of environ-
mental statutes may subject an individual to both civil and crimi-
nal sanctions and that statements made by the individual may be
used against him in any further proceedings. Warnings are crucial
when the subject is asked to give testimonial evidence and she/he
£' "Testimonial evidence" is that which is communicative in nature
or'"from the witness's own mouth." Private papers (such as a
diary) or oral testimony come within the zone of privacy protected
by the Fifth Amendment but ordinary documents or books which may
include Incriminating information do not. United States v. Fisher,
425 U.S. 391 (1976).
$/ The Supreme Court in United States v. -Miranda, 384 U.S. 436 (1966)
"held that a suspect's Sixth Amendment right to the assistance of
counsel attaches as soon as government agents take him into custody
or otherwise restrict his freedom of action in any significant way.
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-8-
is net!'represented by counsel. The Court in United States v.
Kordel, supra,. expressly distinguished the facts in tr.at landmark
case .Iron the situation in which a party is unrepresented by coun-
sel in the civil proceeding, noted the Fifth Amendment considera-
tions at issue, and irrplied that it might have held differently if
the defendant had not had counsel.
Issue
Where Parallel Proceedings Are Initiated, When and How Should
Stafl:i Be Separatee?
Poliey
If the defendant or target is on notice of the existence of
the parallel proceeding -and no grand jury work has begun, staffs
nay be interchanged.
Once a grand jury investigation is initiated, personnel with
access to granc jury materials should have nc further involvement
in the parallel civil action in light of the statutory requirements
pfiteining to grand jury secrecy. Because almost every environ-
mental criminal case will require grand jury investigation prior'
tc indictment, and because at least partial separation of civil
an-; criminal staffs wjjl be required after the initiation of the
5.and jury investigation, it is usually best to -separate staffs
a: the time of initiation cf tr.e parallel proceeding.
Piscussion
The separation of staffs does not require a separation of
supervisory personnel so long as grand jury material is not dis-
closed to any supervisor who is involved in supervising staff
working on the civil or administrative proceedings.^/ Supervisors
who are not involved in the civil/administrative proceedings and
who believe it neces.sary to become familiar with the grand jury
investigation, should raise this issue with the Justice Department
prosecutor supervising the case.
_6/ Even the recent Supreme Court opinions (United States v. Sells
Engineerinc, Inc., U.S. , 33 Crim. L. Rep. 3243 (June 30,
19 63 ) ; Unites States v. Escrct, U.S. , 33 Crim. L. Rep.
3259 (June 30, 1963)), whicn have directly discussed the topic of
"grand jury material" have not clarified what is meant by this
term. Broadly interpreted, "grand jury material" wight be consid-
ered to include not only the testimony of grand jury witnesses and
the documents subpoenaed by the grand jury but also any of the
substantive matters which are the subject of the grand ju:y investi-
gation.
-------
Separating the staffs which are working on each action can also
negate the defense argument that one proceeding is being used to
develop the other. Although the courts have approved parallel
proceedings, there must be a legitimate purpose for each proceeding.
A "legitimate purpose" is found where independent goals exist
for each action and neither action is being pursued solely to
advance or strengthen the other. Public interest considerations
justifying parallel proceedings would disappear should the government
abuse its power to initiate both actions by interfering with the
independent integrity of either action. A separation of staffs
avoids the conflict in roles that may be perceived if there is
involvement in both of the actions. The appearance of a conflict
or of an abuse of the grand jury process (by assisting in a parallel
civil action) is also avoided by the early separation of staffs.
Issue
May Information Developed in Criminal Proceedings Be Provided for
Use in Parallel Civil Proceedings and Vice-versa?
Pol icy
Grand jury material may never be passed to anyone working on
a parallel civil proceeding. In fact, grand jury material may
never be discussed with anyone who is net on the so-call'ed "6(e)"
list. Fed. R. Crim. P. 6(e). Information developed in criminal
field investigations may be passed to civil staff for their use.
However, such information must be clearly documented to show where
and when the information was obtained so that allegations of grand
jury abuse may be countered at a sjbsequent date. The Agency
should be prepared to demonstrate that the information passed to
the civil side from personnel working on the criminal case was not
oMained by the use of a grand jury.
Information obtained in civil cases from subjects of a paral-
lel proceeding may be provided to personnel working on the criminal
case, if the subjects were on notice of the potential for a parallel
criminal proceeding when the information was provided by the subjects,
and if warnings were given prior to testimonial situations. If
the subjects were not on notice or were not given warnings, then
information provided by them should not be turned over to personnel
working on the criminal case.
Discussion
Where there has been no notice (of the potential for a crimi-
nal proceeding) or warnings (of the Fifth Amendment considerations)
or there are other indicia of potential unfairness to the target,
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information obtained in a civil proceeding from the subject of a
'parallel criminal proceeding should be isolated and withheld. See
United States v. Kordel, supra, 397 U.S. »t 12.
In SEC v. Dresser Industries, Inc.f supra, the Court did not
object to the transfer of information from government attorneys
involved in civil/administrative matters to prosecutors on the
criminal side. 'Where the agency has a legitimate non-criminal
purpose for the investigation, it acts in good faith under the
[United States v. LaSalle National Bank, 437 U.S. 298 (1978)]
conetption even if it might use the information gained in the
investigation for criminal enforcement purposes as well.' 628
F.2d at 1387 (footnote omitted). Notice was not an issue in this
case because the company records were subpoenaed simultaneously by
both the SEC and the grand jury, placing the company on notice of
the parallel proceeding. Moreover, it would not be legitimate
for information to go in the opposite direction (i.e., information
obtained through a grand'',jury passing to the civil/administrative
enforcement authorities).^/
Finally, it should be noted that the bar on exchange of infor-
mation from a civil to a criminal proceeding pertains only to
information obtained (1) from the common target--corporate or indi-
vidual, ani (2) after the initiation of the parallel proceeding.
Information in the possession of the government prior to the initi-
ation of a criminal investigation may be freely exchanged.
Information sought by an agency which has 'already been subpoe-
naei by a grand jury, while not available from the members of the
prosecution team, can be obtained by the civil side of the agency '
by use of civil discovery devices, if it is sought for its own
sake and not for the purpose of uncovering what took place before
the grand jury. United States v. Interstate Dress Carriers. Inc.,
280 F.2d. 52, 54 (2c Cir. 1960), cited ±n SEC v. Dresser Industries,
Inc., supra, 628 F.2d at 1382; accord, Capitol Indemnity Corp. v.
First Minnesota Construction Co., 405 F. Supp. 929 (D. Minn. 1975);
United States v. Saks and Co., 426 F. Supp. 812 (S.D.N.Y. 1976);
Davis v. Romney, 55 F.R.D. 337 (E.D. Pa. 1972). This is consistent
with the general proposition that, so long as each investigation
and proceeding has it'own legitimacy, then the tools available to
each may be used accordingly.
2/ The Federal grand jury exists for and can satisfy only one
purpose—to enforce Federal criminal law. Information developed
in the course of a grand jury proceeding may not be made available
for use in administrative or civil proceedings absent a court order.
Fed. R. Crim. P. 6(e). A "special circumstance" indicating an im-~
proper use of a parallel proceeding is the use of a grand jury to
help a civil or administrative case. United States v. Proctor fc
GarrMe Co. , 356 U.S. 677, 683 (1956); United States v. John Doe,
341 F. Supp. 1350 (5.D.N.Y. 1972).
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-11-
Issue
To What Extent May the Government Use Civil Discovery Tools When
There Is a Pendinc Parallel Action?
So long as the above stated policies on notice, warnings,
and separate staffing are pursued, the government may use
what«ver civil discovery tools are available to pursue legitimate
aims in the civil proceeding. Civil discovery may not, however,
be used to pursue evidence solely relevant to the criminal
case. At the court's discretion, stays or protective orders
may be granted upon a party's notion.
Discussion
The presumption under the Federal Rules of Civil Procedure .is
that discovery s^culd be available to each party to the fullest
extent possible. On the other hand, the Federal Rules of Criminal
Procedure limjt discovery to only that information specifically
covered within the rules. Prior to trial, a criminal defendant
ha« the rig^t to obtain from the government any statements alleged
to have been made by the defendant to agents of the government,
the defendant's criminal record, and documents, tangible objects
ana any reports of examinations or tests which the government
intends to use as evidence in its case in chief.
In a criminal action, t-.is difference (in discovery rules) can
leal to an unfair advantage be:ng gained, by either side, through '
the use of the more liberal civil discovery rules. For example,
information about defense witnesses, strategy, and anticipated
testimony (otherwise unavailable prior to a criminal trial) can be
uncovered by the government through the use of interrogatories,
depositions and/or requests to produce. Similarly, a defense
attorney, by initiating a civil suit against the government or as
a respondent in a civil suit, could take advantage of the civil
discovery rules to depose government witnesses and file interroga-
tories to reveal information normally unavailable to a criminal
defendant. Therefore, courts have been sensitive to the need to
ensure the integrity of each branch of the parallel proceeding.
In SEC v. Dresser Industries, Inc., supra, the Court held
that the limitations placed on the use of the IRS administrative
summons enunciated in United States v. LaSalle National Bank,
supra, are inapplicable to the SEC. Accord, SEC v. First Financial
Group of Texas, 659 F.2d 660 (5th Cir. 1980). UnderTTSalle, the
IRS is precluded from using its administrative summons authority
after a case has been referred to the Department of Justice for
criminal prosecution. EPA, like the SFC but unlike the IRS, pos-
sesses .statutory authority to pursue investigations of both a
civil and a criminal nature. Therefore, while the IRS has no prac-
tical authorized purpose for issuing a summons after a referral
-------
to Justice, if EPA decides to pursue both civil «nd criminal cases,
•its summons authority continues undiminished even after referral,
provide;!', that the purpose is to develop the civil action. SEC v.
Dresser industries, Inc., supra, 628 F.2d at 1381.J/ Many of the
IRS cases can be viewed as sui generis because of The particular
statutory authority under which that agency operates.
Courts historically have been sympathetic to claims by both .
the government and individuals that civil discovery rules are
being • Jiplo'ited to benefit the party in the criminal proceeding.
In deciding the appropriate remedy, the court will weigh the public
and the plaintiff's interest in the speedy resolution of the civil
suit agjiinst the potential for prejudice to the defendant and the
interest; in maintaining the procedural integrity of the criminal
justice system. S£C v. Control Metals Corp., 57 F.R.D. 52 (S.D.N.Y,
1972); Campbell v. Eastland, 307 F.2d 478 (5th Cir. 1962), cert.
denied,"371 U.S. 953 (1963). Both the government and individuals/
corporations have successfully sought stays of civil proceedings.
Unless fthe interests of justice weigh against the equitable relief
of a stay, cojrts generally will grant stays of the entire civil
proceeding, or at least of the discovery process, pending the dis-
position of the criminal matter. Protective orders can also be
er.^loye<3 to prevent the transfer of information between branches
of government or to limit the scope of tne information transferred.
Difficulties can be anticipated in EPA-initiated cases when
the government must oppose a stay because of its need to proceed
civilly and criminally. The defendant will seek to use civil dis-
covery to depose government witnesses while resisting the govern-
ment's attempts to uncover defenses. If the government can negoti-
ate a stipulated injunctive relief together with a stay of the
remainder of the civil suit pending the criminal disposition, some
of thesr? difficulties may be resolved. Otherwise, a mixture of
partial stays and narrowly framed protective orders may be the
only alternative.
Protective orders or stays (Fed. R. Civ. P. 26(c),(d)) may be
granted at the discretion of the trial judge. At least one court
has found it to be violative of due process to force the defendant
tc go forward in an administrative hearing while a criminal proceed-
ing is pending. Silver v. McCamey, 221 F.2d 873 (D.C. Cir. 1965).
8/ This is distinguishable from the situations discussed in the
TPA guidance on the "Guidelines for the Use of Administrative
Discovery Devices in the Development of Potential Criminal Cases."
In that guidance, the issues were presented in the context of
cases which were going to be either civil/administrative or criminal
actions, but not both. If an Agency decision is made that a case
should be referred for criminal prosecution alone, then it would
be clearly improper to use administrative discovery devices after
such referral.
-------
However, there are other alternatives to a stay, such as a narrowly
framed protective order, sealing the responses to interrogatories,
or precluding the use of the products of civil discovery at crimi-
nal trials* which can be employed instead of an all-encompassing
McSurely v. McClellan, 426 F. Supp. 664 (D.D.C. 1970).
Claims of Fifth Amendment privilege are an oft-cited reason
for a request for a stay. If a civil defendant is "compelled" to
testify, his testimony cannot later be used to incriminate him.
But a civil defendant is not compelled to testify merely because
the fact-finder may draw adverse inferences from his failure to
testify. Baxter v. Palmioiano, 425 U.S. 308, 317-18 (1976). Some
court! have granted stays where a defendant must either invoke the
Fifth Amendment, and thereby jeopardize his civil/administrative
case, or provide information which may be used against him in the
criminal case. United States v. American Radiator and Standard
Sanitary Corp . , 2*72 F. Supp. 6 9 1 (w.D. Pa.), rev'd on other
383 F.2d 201 (3d Cir. 1967), cert, denied, 390 U.S. 922 (1961
Dienstag v. Bronser, 49 F.R.D. 327 (S.D.N.Y. 1970); Perry v.
HcGuire, 36 F.R.D. 272 (S.D.N.Y. 1964); Paul Harrigan and Sons v.
Enterprise Animal Oil Co., 14 F.R.D. 333 (E.D. Pa. 1953).
Other courts have sympathized with the defendant but refused
tc grant protective orders, a stay or other relief despite Fifth
Amendment issues. In SEC v. Rubinstein, 95 F.R.D. 529 (S.D.N.Y.
19-12), the Court cited a statutory authorization to»pass informa-
ticn from the SEC to the Department of Justice, and prior judicial
approval of such action in United States v. Fields, supra , and in
SEC v. Dresser Industries, Inc., supra, and denied the motion to
se«] discovery.
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GM-31
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I
I UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
t. WASHINGTON. D.C. 20460
if 3i
1984
CfFiCE Of
ENFORCEMENT AND
COMPLIANCE MONITOftlKG
MEMORANDUM
SUBJECT:
FROM
TO:
Guidance for Implementing EPA's Contractor
Listing Authority
Courtney M.
Assistant Administrator for Enforcement
and Compliance Monitoring
Assistant
Assistant
Assistant
Assistant
Administrator for
Administrator for
Administrator for
Administrator for
and Evaluation
General Counsel
Inspector General
Regional Administrators
Air and Radiation
Water
External Affairs
Policy, Planning
I. Purpose
The purposes of this document are to briefly describe:
1) EPA's contractor listing authority, 2) the interim agency
policy prior to final promulgation of revisions to the listing
regulations at 40 C.F.R. Part 15, and 3) the proposed revisions
to 40 C.F.R. Part 15. Further, the document gives some general
guidance on when to bring a contractor listing action, and
explains how the Agency's Strategic Planning and Management
System will account for listing actions as enforcement responses,
i
II • Background
The Clean Air^Act1 and the Clean Water^Act2, as implemented
by executive orcer^ and Federal r3gulation, ** authorize EPA to
I/ Clean Air Act, Section 306, 42 U.S.C §7606.
2/ Clean Water Act, Section 508, 42 U.S.C. §1368
V Executive Order 11738, September 12, 1973
_4/ 40 C.F.R. Part 15
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-2-
preclude certain facilities from obtaining government contracts,
grants, or loans, if the facility is violating pollution control
standards. Commonly called "contractor listing", this program
assures that each Federal Executive Branch agency undertakes
procurement and assistance activities in a manner that will
result in effective enforcement of the air and water acts.
Contractor listing also ensures that owners of noncomplying
facilities do not receive an unfair competitive advantage in
contract awards based on lower production costs.
In the past, EPA has seldom used contractor listing in
the enforcement program. Currently, one facility (Chemical
Formulators, Inc., Nitro, West Virginia)5 is on the List of
Violating Facilities. Contractor listing can be an effective
enforcement tool, and EPA policy calls for Regional Office
enforcement personnel;to actively consider the viability of
this option to obtain compliance with Clean Air Act and Clean
Water Act standards.
With a view toward improving and streamlining the contractor
listing program, EPA has proposed revisions to 40 C.F.R Part 15
(copy attached). The proposed revisions provide additional
procedural protections to facilities which are the subject of
listing recommendations and expand the range of situations which
may trigger the listing sanction.
Ill. Interim Listing Policy While Regulations Undergoing Revision
A. Grounds; By statute, EPA must list a facility which
has c;iven rise to a person's conviction under Section 309(c)
of the CWA or Section 113(c)(l) of the CAA, and that person
owns, leases, or supervises such facility (mandatory listing).
Otherwise, prior to promulgation of the revised Part 15 regulations,
EPA nay list a facility only on the following grounds set forth
in the current Section 15.20(a)(l) (1979) (discretionary listing).
Specifically, EPA may list a facility only if there is continuing
or rocurring non compliance at the facility and
0 The facility has given rise to an injunction,
order, judgment, decree, or other form of civil
ruling by a Federal, State, or local court issued
as a result of noncompliance with clean air or
clean water standards, or the facility has given
rise to a person's conviction in a State or local
court for noncompliance with clean air or clean
water standards, and that person owns, leases, or
supervises the facility.
a The facility is not in compliance with an order
under Section 113(a) of the CAA or Section 309U)
of CWA, or has given rise to the initiation of
5/ 46 F.R. 16324, March 12, 1981
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-3-
court action under Section 113(b) of the CAA or
309(b) of the CWA, or has been subjected to
equivalent State or local proceedings to enforce
clean air or clean water standards.
B. Procedures; Prior to promulgation of the revised
regulations, EPA will employ the procedures proposed in the
revised regulations for discretionary listing and the procedures
in the current regulations [Section 15.20(a ) (2)(1979)] for
mandatory listing, explained below. EPA will use the procedures
proposed in the revised regulations for discretionary listing
because these regulations provide greater procedural protections
than the current regulations6. Because the revised mandatory
listing regulations authorize less procedural protections than
the current procedures, however, EPA will continue to employ
the current regulations until the revised mandatory listing
procedures are legally effective.
We recognize that some confusion may result during the
interim period, so you should not hesitate to contact the EPA
Listing Official7 to resolve any problems. Upon promulgation
of the final rules, we will revise this guidance as necessary.
IV. The Listing Program and the Proposed Revisions to Part 15
Even under the revised regulations as proposed, the basic
framework for listing actions is substantially the same as
established by the present regulations. The proposed revisions
to Part 15 clarify the distinctions between mandatory and
discretionary listing, and establish some different procedures
for each type of listing.**
A. Mandatory Listing
If a violation at a facility gives rise to a criminal
conviction under Section 113(c)(l) of the CAA or Section 309(c)
of the CWA, listing of the facility is mandatory if the convicted
person owns, leases or supervises the facility. Not only is
listing mandatory, but section 15.10 makes the listing effective
£/ One exception is that EPA will continue to use the Listing
Review Panel to review decisions of the Case Examiner. The
Panel consists of the AAs for OECM and Policy, Planning and
Evaluation, the General Counsel, and a representative from
the Office of the Deputy Administrator who shall serve as a
non-voting member.
2/ I have designated Edmund J. Gorman of the Office of Legal
and Enforcement Policy (LE-130A) as EPA's Listing Official.
Ke can be reached at (FTS) 426-7503.
_8/ Hereinafter all citations are to the proposed revised Part 15
regulations unless otherwise expressly stated.
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-4-
automatically upon a conviction. As soon as o conviction occurs,
the Associate Enforcement Counsel for Criminal Enforcement
must notify the Listing Official.
The Listing Official is responsible for sending written
notification to the facility and to the Federal Register. Both
documents must state the basis for and the effective date of
the mandatory listing.
Removal from the mandatory list may occur only if: (1) the
Assistant Administrator certifies that the facility has corrected
the condition that gave rise to the criminal conviction under
Section 113(c)(l) of the CAA or Section 309(c) of the CWA, or
(2) a court has overturned the criminal conviction.
B. Discretionary Listing
1. Basis for Discretionary Listing
Discretionary listing may occur if the recommending person
can show a "record of continuing or recurring noncompliancef"
and that a requisite enforcement action has been initiated or
concluded. The proposed revisions broaden the discretionary
listing authorities by including additional statutory provisions
under which EPA can bring enforcement actions that can trigger
applicability. Under the proposed regulations, any of the
following enforcement actions may serve as a basis for listing
if there is also a record of continuing or recurring nonccmpliance
at the facility:
1. A federal court convicts any person under Section
113(c)(2) of the CAA, if that person owns, leases,
or supervises the facility.
2. A State or local court convicts any person of a
criminal offense on the basis of noncompliance
with clean air or clean water standards if that
person owns, leases, or supervises the facility.
3. A federal, state, or local court issues an injunction,
order, judgment, decree, or other form of civil
ruling as a result of noncoinpliance with clean air
or clean water standards at the facility.
4. The facility is the recipient of a Notice of
Noncomliance under Section 120 of the CAA.
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-5-
5. The facility has violated an administrative order
under:
. Section 113(a) CAA
. Section 113(d) CAA
. Section 167 CAA
. Section 303 CAA
. Section 309(a) CWA
6. The facility is the subject of a district court
civil enforcement action under:
. Section 113(b) CAA
. Section 204 CAA
Section 205 CAA
. Section 211 CAA
. Section 309(b) CWA
2. Initiating the Discretionary Listing Process
The listing process begins with a recommendation to list
filed by a "recommending person" with the Listing Official.
Recommending persons include any member of the public, Regional
Administrators, the Assistant Administrator for Air and Radiation,
the Assistant Administrator for Water, the Associate Enforcement
Counsel for Air, the Associate Enforcement Counsel for Water,
and Governors. The recommendation to list is a written request
that: (1) states the name, address, and telephone number of
the recommending person, (2) describes the facility, and (3)
describes the alleged continuing or recurring noncompliance,
and the parallel enforcement action. Section 15.11(b).
The Listing Official must review the recommendation to
determine whether it meets the requirements of Section 15.1Kb).
If it does, the Listing Official then must transmit the
recommendation to the Assistant Administrator for Enforcement
and Compliance Monitoring who shall in his/her discretion,
decide whether to proceed with the listing action. If he/she
decides to so proceed, the Listing Official then must notify
the facility of the filing of a recommendation to list. The
facility then has 20 working days to request EPA to hold a
listing proceeding. If the facility requests the proceeding,
the Listing Official must schedule it and notify the recommending
person and the facility of the date, time, and location of the
proceeding. The Assistant Administrator must designate a Case
Examiner to preside over the listing proceeding.9
V If the facility does not make a timely request for a listing
proceeding, the Assistant Administrator will determine whether
to list the facility based upon the recorr.r.endation to list
and any other available information.
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3. The Discretionary Listing Proceeding
The discretionary listing proceeding is informal, i.e.,
there are no formal rules of evidence or procedure. The
recommending person and the facility may be represented by
counsel, present relevant oral and written evidence and, with
the approval of the Case Examiner, either party may call,
examine, and cross-examine witnesses. The Case Examiner may
refuse to permit cross-examination to the extent it would:
(1) prematurely reveal sensitive enforcement information which
the government may legally withhold, or (2) unduly extend the
proceedings in light of the usefulness of any additional
information likely to be produced. Section 15.13(b), A trans-
cript of the proceeding along with any other evidence admitted
in the proceeding constitutes the record. For the Case Examiner
to approve a recommendation to list, the recommending person
must persuade the Case Examiner that he/she has proved each
elemant of a discretionary listing by a preponderance of the
evidence.
The Case Examiner must issue a written decision within 30
working days after the proceeding. The Listing Official then
must notify the recommending person and the facility of the Case
Examiner's decision. The party adversely affected may appeal
the decision to the General Counsel. The appeal, which is
filed with the Listing Official, must contain a statement of
(1) <:he case and the facts involved, (2) the issues, and (3)
why <:he decision of the Case Examiner is not correct based on
the ::ecord of the proceeding considered as a whole. The General
Counsel must issue a final decision, in writing, as soon as
practicable after reviewing the record. The Listing Official
then must send written notice of the decision to the recommending
person and to the facility, and must publish the effective
date of the listing in the Federal Register if the General
Counsel upholds the Case Examiner's decision to list.
Removal from the list of Violating Facilities can occur in
any of the following circumstances:
1. Upon reversal or other modification of the criminal
conviction decree, order, judgment, or other
civil ruling or finding which formed the basis
for the discretionary listing, which reversal or
modification removes the basis for the listing;
2. If the Assistant Administrator for OECM determines
that the facility has corrected the condition(s)
which gave rise to the listing;
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3. If, after the facility has remained on the
discretionary list for one year on the basis of
Section 15.11(a)(4) or Section 15.11(a)(5) and
a basis for listing under Sections 15.11(a)(l),
(2), or (3) does not exist, then removal is
automatic; or
4. If the Assistant Administrator for OECM has
approved a plan for compliance which ensures
correction of the condition(s) which gave rise to
the discretionary listing.
The removal process begins with a request for removal
filed with the Listing Official by the original recommending
person or by the facility. The Assistant Administrator for
OSCM then must review the request and issue a decision as soon
as possible. The Listing Official then must transmit the
decision to the requesting person.
If the Assistant Administrator for OECH denies a request
for removal, the requesting person may file a written request
for a removal hearing. A Case Examiner designated by the
Assistant Administrator then conducts a removal hearing. The
removal hearing is an informal proceeding where formal rules
of evidence and procedure are not applicable. The parties to
the proceeding may be represented by counsel and may present
written and oral testimony. In addition, with the approval of
the Case Examiner, the parties may call, examine, and cross-
examine witnesses to the extent that any further information
produced will be useful in light of the additional time such
procedures will take. The Case Examiner must base his/her
written decision solely on the record of the removal hearing.
VJithin 20 working days of the date of the Case Examiner's
decision, the party adversely affected may file with the Listing
Official a request for review by the Administrator. The
Administrator will determine if the Case Examiner's decision
is correct based upon the record of the removal hearing considered
as a whole. The Administrator then must issue a final written
decision.
V. Increased Use of Discretionary Listing.
We believe that the revisions to the discretionary listing
regulations are only the first step in the improvement of our
contractor listing program as an effective enforcement tool.
The second step, actually using the listing authority, will
gain for us the necessary experience in this area. Note that
fov purposes of the Strategic Planning and Management System,
regions may show recommendations to list as er.forccn.ont actions
tuken in tracking regional progress toward bringing significant
violators into compliance.
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Currently, our lack of experience in this area inhibits
our ability to offer explicit guidance based upon known formulas,
However, we believe that some general points are worth noting.
Listing is a very severe sanction and, therefore, should
usually be reserved for the most adversarial situations. If
such an adversarial situation already involves time consuming
litigation, however, recommending persons employed by EPA
should consider the additional resource requirements associated
with both the listing proceeding and the potential judicial
challenges to the administrative action. When enforcement
litigation is in progress, recommending persons employed by
EPA should also consider whether the listing proceeding will
provide grounds for cpllateral attack against EPA's case, and
whether such attack v*6uld be a benefit or hindrance to successful
prosecution of the underlying judicial litigation.
In some cases, listing may be an effective alternative to
litigation. Note specifically that EPA has the option of using
listing as an enforcement response if a facility fails to
comply after being subject to an administrative or judicial
order. Note further that EPA may bring a listing proceeding
based on present "recurring or continuing" violations and a
prior judicial or administrative judgment even if the prior
action did not address the present violations. Specifically,
EPA should consider listing actions for violating facilities
for which previously concluded enforcement actions have not
stopped the violator from continuing practices constituting a
pattern of chronic noncompliance.
Listing may be especially effective if the value of the
facility's government contracts, grants, and loans exceeds the
cost of compliance. If the value of these assets is less than
the compliance costs, listing probably would not provide adequate
incentive to comply. On the other hand, if the value of such
assets is considerably greater than the cost of compliance, a
listing proceeding could conceivably impede progress toward
resolving the environmental problem because the facility is
more likely to vigorously contest the listing both at the
administrative and Federal court levels. Therefore, we believe
that listing will be most appropriate for "middle ground cases"
for which there is an ongoing parallel action, i.e., ones
where the government contract, grants and loans for the facility
in question exceed compliance costs but not considerably.
Finally, a listing proceeding is likely to be more
efficient, and therefore more effective, if the continuing
or recurring noncompliance involves unambiguous and clearly
applicable clean air or clean water standards. If the standards
are fraught with complications pertaining to the appropriate
compliance test method or procedure, for example, the listing
proceeding is probably ill-suited to handle such issues.
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Prior to filing a recommendation to list, recommending
persons employed by EPA must consult with my office to ensure
that a recommendation to list comports with national policy
and priorities and is otherwise appropriate. We expect that
experience, as usual, will prove to be the best teacher. As
we gain experience and after final promulgation of the revisions,
we will provide further guidance.
Attachment
cc: Assistant Attorney General for Land and Natural Resources
Associate Enforcement Counsels
OECM Office Directors
Regional Counsel I-X —-~
Steve Ramsey, Chief Environmental Enforcement Section, DOJ
Director, Stationary Source Compliance Division ,
Director, Enforcement Division, Office of Water
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ENVIRONMENTAL PROTECTION AGENCY
40 C.F.R. Part 15.
Administration of the Clean Air Act and the Clean Water Act with
Respect to Federal Contracts, Loans, and Grants.
AGENCY: Environmental Protection Agency (EPA)
ACTION? Proposed rule. &53fi-3
SUMMARY: EPA is responsible for implementing several suspension
and debarment programs. This action is to revise 40 C.F.R.
Part IS, the regulation that establishes a special air and water
enforcement-related suspension and debarment program. Commonly
referred to as the "contractor listing program", this program
makes a facility ineligible for contracts, grants, or loans
issued by an Executive Branch agency if the facility has a record
of poor compliance with Federal clean air or clean water standards
EPA is revising 40 C.F.R. Part .15 to ensure that the program
established by this regulation is consistent with existing legal
requirements and is more easily understood.
DATES: Comments. Comments must be received on or before (45 days
from publication in Federal Register).
ADDRESSEES: Comments: Comments should be submitted (in duplicate
if possible) to: Central Docket Section (LE-131), Attention:
Docket Number G-54-01, U.S. Environmental Protection Agenry,
401 M St., S.W., Washington. D.C. 20460.
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Docket Number G-84-01, containing supporting information used in
developing the proposed standard, is available for public inspection
and copying between 8:00 a.m. and 4:00 p.m., Monday through Friday,
at EPA's Central Docket Section, West Tower Lobby, Gallery 1,
Waterside Mall, 401 H St., S.W., Washington, D.C. 20460. A
reasonable fee may be charged for copying.
FOR FURTHER INFORMATION CONTACT: Edmund J. Gorman, Listing Official,
Office of Enforcement and Compliance Monitoring, Environmental
Protection Agency, Room 32191 (LE-130A), 401 M St. S.W.,
4-1$- Wl*
Washington, D.C. 20460. Telephone: (202) 4££"-7SC3.
SUPPLEMENTARY INFORMATION: Section 306 of the Clean Air Act
i
(42 U.S.C. §7401 et seq.) and Section 508 of the Clean Water Act
(33 U.S.C. S1251 et seq.), as implemented by Executive Order
11738 (38 F.R. 25161, September 12, 1973) authorise EPA to
establish procedures for ensuring that Executive Branch agencies
conduct their procurement and assistance programs in a manner
consistent with the President'^"responsibility of ensuring compliance
with the Clean Air Act (CAA) and the Clean Water Act (CWA).
On April 16, 1975, EPA promulgated 40 C.F.R. Part 15 to
provide procedures for ensuring that Executive Branch agencies
conduct their procurement and assistance programs in accordance
with the President's responsibility for ensuring compliance .with
CAA and CWA standards. 40 C.F.R. Part 15 accomplishes this by
establishing the List of Violating Facilities, a list of facilities
which are ineligible for any nonexempt contract, grant, or loan
issued by an Executive Branch agency. 40 C.F.R. Part 15 provides
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procedtfres for placing a facility on this list because of a criminal
conviction under section 113(c)(l) of the CAA or section 309(c)
of the CWA or because of a record of continuing or recurring
noncompliance with CAA or CWA standards, 40 C.F0R. Part 15 also
provides procedures for removing a facility from the list where
there is sufficient indication that the CAA or CWA noncompliance
problems at the facility have been or are being corrected.
The purposes of this revision to 40 C.F.R. Part 15 are:
"»'
«>"• to conform the language of the regulation more closely
with statutory authority.
"- to make even more certain that EPA provides adequate
procedural due process for facilities which are candidates
for placement on the discretionary List of Violating
Facilities. The revision does not provide for a formal
evidentiary hearing. Instead, it provides for fairness
and flexibility through an informal proceeding.
•"• to improve readability and make the regulatory requirements
easier to understand.
-•• to reflect EPA organizational changes made since the
regulation was promulgated.
The> most noteworthy revisions include:
-<• frjklng flutoaat ic the listing of facilities that gave
r:se tr> cr:mrv»l convict icns under section 113(c)(l) CAA
.ind s«ct;on 3n^(c) CWA as required by those statutes,
-•• .idrting as a basis fcr discretionary listing facilities
with continuing or recurring violations a-i—•f-r-6-i-L-i-t-:-O€a^/ ti'*
•J
which have been the subject of enforcement actions under
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sections 113(d), 120, 167, 204, 205, 211, and 303 of the
CAA, and
— stating more explicitly the procedural opportunities
which EPA will afford facilities party to listing or
removal actions.
Executive Order 12291
Under Executive Order 12291, EPA is required to judge whether
a regulation is "major" and therefore subject to the requirement
of a Regulatory Impact Analysis. This is not a major regulation
because it will not entail a major increase in costs or prices
for consumers, individual industries, Federal, State, or local
Government agencies, or geographic regions.
Regulatory Flexibility Act
EPA has determined, pursuant to the Regulatory Flexibility
Act, that this regulation will not have a significant economic
impact on a substantial number of" small entities because the
decision to "list" any facility is made on a case-by-case basis.
/s/ KIH-IA.V D
William D. Ruckleshaus
Administrator
Date
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PART 15—ADMINISTRATION OF THE CLEAN AIR ACT AND THE
CLEAN WATER ACT WITH RESPECT TO CONTRACTS, GRANTS,
AND LOANS
Subpart A—Administrative Matters
Sec.
15.1 Policy and Purpose
15.2 Scope
15.3 Administrative''responsibility
15.4 Definitions
15.5 Exemptions
Subpart B—Procedures for Placing a Facility
on the List of Violating Facilities
15.10 Mandatory listing
15.11 Discretionary listing
15.12 Notice of filing of recommendation to'list and
opportunity to have a-listing proceeding
15.13 Listing proceeding
15.14 Review of the Case Examiner's decision
15.15 Effective date of discretionary listing
15.16 Notice of listing
Subpart C—Procedures for Removing a Facility from
the List of Violating Facilities
15.20 Removal of a mandatory listing
15.21 Removal of a discretionary listing
15.22 Request for removal from
the List of Violating Facilities
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15.23 , Request for removal hearing
t
4
15.24 Removal hearing
15.25 Request for review of the decision of the
Case Examiner
15.26 Effective date of removal
15.27 Notice of removal
Subpart D—Agency Coordination
15.30 Agency responsibilities
15.31 Agency regulations
15.32 Contacting the Assistant Administrator
15,33 Investigation by the Assistant Administrator
prior to awarding a contract, grant, or loan
15.34 Referral by the Assistant Administrator to
*
the Department of Justice
Subpart E—Miscellaneous
15.40 Distribution of the List of Violating Facilities
15.41 Reports
Authority: 42 U.S.C. 5 7401 et_ seq. ; 33 U.S.C. § 1251 e_t sea.;
Executive Order 11738 of September 10, 1973 (38 F.R. 28161).
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SUBPART A—ADMINISTRATIVE MATTERS
5 15.1 " Policy and purpose.
(a) It is the policy of the Federal Government to improve and
enhance environmental quality. Thic regulation is issued to
ensure that each agency in the Executive Branch of the Federal
Government empowered to enter into contracts for the procurement
of goods, materials, or services or to extend Federal assistance
by way of grant, loan, or contract undertakes such procurement
and assistance activities in a manner that will result in effective
enforcement of the Clean Air Act and the Clean Water Act.
(b) This regulation establishes the List of violating Facilities,
procedures for placing a facility on the List of Violating Facilities,
removing a facility from the List of Violating Facilities, and
procedures for ensuring that agencies in the Executive Branch of
the Federal Government undertake their procurement and assistance
activities in a manner that will result in effective enforcement
of the Clean Air Act and the Clean Water Act.
S 15.2 Scope
(a) This regulation applies to all agencies in the Executive
Branch cf the Federal Government which award contracts, grants,
or loans. This regulation also applies to contractors and
subcontractors and to recipients of funds under grants and loans.
The debarirent or suspension that results from a mandatory or
discretionary listing is facility specific and does not apply to
other facilities of the same company.
(b) This regulation only applies to contracts, grants, or loans
<
involving the use of facilities located inside the United SLetet.
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(c) The rights and remedies of the Government hereunder are not
«
exclusive and do not affect any other rights or remedies provided
by law.
5 15.3 Administrative responsibility.
(a) Except for the power to issue rules and regulations* the
Assistant Administrator for Enforcement and Compliance Monitoring
and the General Counsel are delegated authority and assigned
responsibility for carrying out the responsibilities assigned to
the Administrator of the Environmental Protection Agency under
Executive Order 11738.
[(b) The Assistant Administrator and the General Counsel are
authorized to redelegate the authority conferred by this regulation.]
5 15.4 Definitions.
f
Administrator means the Administrator of the United States
Environmental Protection Agency or his or her designee.
Agency means any department, agency, establishment, or
instrumentality in the Executive Branch of the Federal Government,
including corporations wholly owned by the Federal Government
which award contracts, grants, or loans.
Air Act means the Clean Air Act, as amended (42 U.S.C.
5 7401 e£ sec. ).
Air Pollution Control Agency means any agency which is
defined in section 302(b) or section 302(c) of the Air Act. .
Applicant means any person who has applied but has not yet
received a contract, grant, or loan and includes a bidder or
proposer for a contract which is not yet awarded.
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Assj.stant Administrator means the Assistant Administrator
for Enforcement and Compliance Monitoring, United States
Environmental Protection Agency, or his or her successor.
Borrower means any recipient of a loan as defined below.
Case Examiner means an EPA official familiar with pollution
control issues who is designated by the Assistant Administrator
to conduct a listing or removal proceeding and to determine
whether a facility will be placed on the List of Violating
Facilities or removed from such list.
Clean air standards means ar.y enforceable rules,, regulations,
guidelines, standards, limitations, orders, controls, prohibitions,
or other' requirements which are contained in, issued under, or
otherwise adopted pursuant to the Air Act or Executive Order
11738, c,n applicable implementation plan as described in section
110(d) of the Air Act, an approved implementation procedure or
plan under section lll(c) or section lll(d), respectively, of
the Air Act or an approved implementation procedure under section
112(d) of the Air Act.
Clean water standards means any enforceable limitation,
control, condition, prohibition, standard, or other requirement
v.'hich i;; established pursuant to the Water Act or contained in a
permit issued to a discharger by the United States Environmental
Protection Agency, or by a State under an approved program, as
authorized by section 402 of the Water Act, or by a local government
to ensure compliance with pretreatment regulations as required
by section 307 of the Water Act.
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'"ompl iance means compliance with clean air standards or
«
clean Water standards. For the purpose of these regulations,
compliance also shall mean compliance with a schedule or plan
ordered or approved by a court of competent jurisdiction, the
United States Environmental Protection Agency, or an air or
water pollution control agency, in accordance with the requirements
of the Air Act or the Water Act and regulations issued pursuant
thereto.
Contract means any contract or other agreement made with an
Executive Branch agency for the procurement of goods, materials,
or services (including construction), and includes any subcontract
made thereunder.
Contractor means any, person with whom an Executive Branch
agency has entered into, extended, or renewed a contract as
defined above, and includes subcontractors or any person holding
a subcontract.
Facility means any bui-lding,- plant, installation, structure,
mine, vessel or other floating craft, location or site of operations
owned, leased, or supervised by an applicant, contractor, grantee,
or borrower to be used in the performance of a contract, grant,
or loan. Where a location or site of operations contains or
includes more than one building, plant, installation, or structure,
the entire location or site shall be deemed to be a facility,
except where the Assistant Administrator determines that independent
facilities are co-located in one geographic area.
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General Counsel means the General Counsel of the U.S.
Environmental Protection Agency, or his or her designee, and
successor.
Governor means the governor cr principal executive officer
of each State.
Grant means any grant or cooperative agreement awarded by
an Executive Branch agency including any subgrant or subcooperative
agreement awarded thereutider. This includes grants-in-aid,
except vhere such assistance is solely in the form of general
revenue sharing funds, distributed under the State and Local
Fiscal Assistance Act of 1972, 31 U.S.C. S 1221 et. sec.
i
Grantee means any person with whom an Executive Branch
agency has entered into, extended, or renewed a grant, subgrant,
or other assistance agreement defined under "grant" above.
List of Violating Facilities neans a list of facilities
which are ineligible for any agency contract, grant or loan.
Listing Official m> is an "E?A 'of f icial designated by the
Assistant Administrator \.o maintain the List of Violating
Facilit ies.
Listing proceeding means an informal hearing conducted by
the Casie Examiner held to determine whether a facility should be
placed on the List of Violating Facilities.
Loan means an agreement or other arrangement under which
any portion of a business, activity, or program is assisted
under
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Person means any natural person, corporation, partnership,
unincorporated association, State or local government, or any
agency, instrumentality, or subdivision of such a government or
any interstate body.
Recommendation to list means a written request which has
been signed and sent by a recommending person to the Listing
Official asking that EPA place a facility on the List of Violating
Facilities.
Recommending person means a Regional Administrator, the
Associate Enforcement Counsel for Air or the Associate Enforcement
Counsel for Water (or their successors), the Assistant Administrator
for Air and Radiation or the Assistant Administrator for Water
(or their successors), a Governor, or a member of the public.
State means a State, the District of Columbia, the Commonwealth
of Puerto Rico, the Virgin Islands, Guam, American Samoa, the
Commonwealth of the Northern Mariana Islands, or the Trust
Territories of the Pacific-Islands.
Water Act means the Clean Water Act, as amended (33 U.S.C.
5 1251 et_ seq. ).
Water pollution control agency means any agency which is
defined in section 502(1) or section 502(2), 33 U.S.C. S5 13C2
(1), (2), of the Water Act.
S 15.5 Exemptions
(a)(l) Transactions of $100,000 and under. Except as provided
in section 15.5(b) below, contracts, grants, and loans not exceeding
$100,000 are exempt from these regulations. This exemption
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-9-
includes contracts for indefinite quantities as long as the
purchaser has reason to believe that the amount to be ordered in
any year under such an agreement will not exceed $100,000.
(a)(2) Assistance to abate, control, or prevent environmental
pollution. Except as provided in section 15.5(b) below, a contract,
grant, or loan will be exempt from these regulations when the
principal purpose of a contract, grant, or loan is to assist &
facility or facilities to comply with any Federal, State, or
local law, regulation, limitation, guideline, standard, or other
requirement relating to the abatement, control or prevention of
environmental pollution.
(b) The exemptions in section 15.5(a) do not apply where work
under the contract is to be performed at a facility that has
*
been placed on the List of Violating Facilities on the basis of
a criminal conviction under section 113(c)(l) of the Air Act or
section 309(c) of the Water Act, and the person convicted owns,
supervises, or leases the facility.
(c) Authority of Agency Head to Grant Exemptions.
(1) Individual exemptions. Where an Agency head determines that
it is in the paramount interest of the United States to enter
into, renew, or extend a contract, grant, or loan in connection
with any facility that is on the List of Violating Facilities, he
or she may exempt the agreement from the provisions of this
regulation for a period of one year. The Agency head granting
the exemption shall notify the Assistant Administrator of the
exemption as soon before or after granting- the exemption as may
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•• - ;ricticable. The justification for such an exemption, or any
renewal thereof, shall fully describe the purpose of the contract,
grant, or loan and shall show why the paramount interest of the
United States requires the exemption.
(2) Class exemptions. Where an agency head determines that it
is in the paramount interest of the United States for the agency
to enter into, extend, or renew any class of contracts, grants,
or loans, he or she may exempt the class of agency contracts,
grants, or loans from the provisions of this regulation by rule
or regulation after consultation with the Administrator.
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SUBPART B-PROCEDURES FOR PLACING A FACILITY ON THE
LIST OF VIOLATING FACILITIES
§ 15.10 Mandatory listing.
The Listing Official must place a facility on the List of Violating
Facilties if the facility which gave rise to the conviction is
owned, leased, or supervised by any person who has been convicted
of a criminal offense under section 113(c)(l) of the Air Act or
section 309(c) of the Water Act. The mandatory listing is
automatically effective .upon conviction.
' '•! '
5 15.11 Discretionary listing.
(a) The Listing Official must place a facility on the List of
Violating Facilities if there is a final agency action under
section 15.12(d), 15.14(c), or 15.14(d) which determines that
*
there is a record of continuing or recurring noncompliance with
clean air standards or clean water standards at the facility
recommended for listing and tha't:
(1) A federal court has convicted any person under section
113(c)(2) of the Air Act if that person owns, leases, or supervises
a facility recommended for listing;
(2) A state or local court has convicted any person of a criminal
offense on the basis of noncompliance with clean air standards
or clean water standards if that person owns, leases, or supervises
a facility recommended for listing;
(3) A faderal, state, or local court has issued an injunction,
order, judgment, decree, or other form of civil ruling as a
result Df noncompliance with clean air or clean water standards
ct a facility recommended for lifting;
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(4) The facility has violated any administrative order issued under
section 113(a), 113{d), 167, and 303 of the Air Act or section
309(a) of the Water Act has been violated, if the violator owns,
leases, or supervises a facility recommended for listing;
(5) EPA has issued a Notice of Nonconpliance under Section 120 of
the CAA as a result of noncompliance at the facility; or
(6) EPA has filed an enforcement action in court under sections
113(b), 167, 204, 205, or 211 of the Air Act or section 309(b)
of the Water Act due to noncompliance with clean air standards
or clean water standards at the facility recommended for listing.
(b) A recommendation to list from a recommending person initiates
the process for discretionary listing. A recommendation to list
must contain:
(1) The name, address, and telephone number of the person filing
the recommendation;
(2) A description of the facility alleged to be in noncompliance
with clean air standards or clean water standards, including the
name and address of the facility;
(3) A description of the alleged continuing or recurring non-
compliance, including any available data and any other pertinent
information supporting the allegation of ncncompliance; and
(4) A description of the criminal, civil, or administrative
action or conviction under section 15.11(a)(l), (a)(2), (a)(3)»
(c)(4), or (a) (5) which is pertinent to the facility and the
alleged continuing or recurring noncornp].iance.
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(c) Thei Listing Official shall review each recommendation to list
to ensiire it complies with all of the requirements under section
15.1Kb). If there is a deficiency in a recommendation the
Listing Official must return it to the recommending person for
correction. If there is no deficiency in the recommendation
to list;, the Listing Official shall transmit the recommendation
to the Assistant Administrator. The Assistant Administrator, in
his or her discretion, may
(i) decline to proceed, or
(i:L) designate a Case Examiner in accordance with section
15..12U), or
(i:Li) decide to list the facility in accordance with section
15,12(d).
(d) A recommending person may withdraw a recommendation to list
at any time before the conclusion of the listing proceeding.
The recommencing person should withdraw the recommendation to
list if the conditions which gave rise to the recommendation tc
list have been corrected or if the fccility recommended for
listing is on a plan for compliance which has been approved by
either the Assistant Administrator or the recommending person
and which will ensure that the conditioner,) which gave rise to
recommendation to list will be corrected.
§ 15.12 Notice of filing of recommendation to list and opportunity
to have a listing proceeding.
(a) The Listing Official shall send to the facility nenierj in the
recommendation to list written notice that a recommendation that
the facility be pieced on the List of Violating Facilities has
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been filed with the Listing Official and has been transmitted to
t
the Assistant Administrator. Within twenty (20) working days of
the receipt of the notice, any person who owns, leases, or
supervises the facility may request the Assistant Administrator
to designate a Case Examiner to hold a listing proceeding to
determine the propriety of the proposed listing.
(b) If a listing proceeding is requested, the Listing Official
shall schedule a listing proceeding and notify in writing the
recommending person and the person requesting the listing proceeding
of the date and time of the listing proceeding.
(c) The Listing Official shall respond to any requests from the
recommending person and the person requesting the listing proceeding
•
concerning the procedures for discretionary listing.
(d) If there is no timely request for a listing proceeding under
section 15.12(b) above, the Listing Official will place the
facility named in the recommendation to list on the List of Violating
Facilities on the basis of discretionary listing if, upon reviewing
the recommendation to list and any other available information,
the Assistant Administrator determines that there is a record of
continuing or recurring noncompliance with clean air standards
or clean water standards at the facility recommended for listing
and the requisite criminal, civil, or administrative enforcement
action has been taken or criminal conviction has occurred. Such
a determination by the Assistant Administrator constitutes final
agency action.
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-15-
§ 15.13 Listing proceeding.
(a) No listing proceeding for mandatory listing. Mandatory
listing is effective upon conviction and no listing proceeding
will b<5 provided when a facility is listed on the basis of mandatory
listing. For purposes of updating the List of Violating Facilities,
the Associate Enforcement Counsel for Criminal Enforcement shall
notify the Listing Official of the conviction as soon as it
occurs.
(b) Listing proceeding for discretionary listing.
(1) A listing proceeding for discretionary listing shall be
conducted in an informal manner without formal rules of evidence
*
or procedure. The recommending person and the person requesting
the listing proceeding under section 15.12(a) above may be
represented by legal counsel, present oral and written evidence
relevant to the proposed listing/ and, with the approval of the
case examiner, may call, ask questions of, and cross-examine
witnesses, except to the extent any testimony would prematurely
reveal, sensitive enforcement information which the government
may legally withhold or would unduly extend the proceedings irj
light of the usefulness of any additional information likely to
be produced. The Case Examiner may take official notice of
facts, law, and any other information availaole to him or her,
The Case Examiner may also request any party to supplement the
record by submitting additional information,
(2) The listing proceeding shall be transcribed, and EPA. r;hall
make .available a transcribed record of the oi'cccccinc to r.r.y
person, at cost upon request.
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-16-
(3) To demonstrate an adequate basis for listing a facility, the
recommending person must show by a preponderance of the evidence
that there is a record of continuing or recurring noncompliance
at the facility named in the recommendation to list and that the
requisite enforcement action has been taken.
(c) Case Examiner's decision. Not later than thirty (30) working
days after conclusion of the listing proceeding and any
supplementation of the record, the Case Examiner shall issue a
written decision on whether or not to list the facility based on
the record of the listing proceeding and shall file that decision
with the Listing Official.
(d) Notification of Case Examiner's decision. The Listing Official
shall notify in writing the recommending person and the person
who requested the listing proceeding under section 15.12(a) of
the Case Examiner's decision and of the opportunity to request
the General Counsel to review the Case Examiner's decision under
section 15.14.
S 15.14 Reviev,- of the Case Examiner's decision.
(a) Within twenty (20) working days after the Case Examiner's
decision, the party adversely affected may file with the Listing
Official a written request asking the General Counsel to review
the Case Examiner's decision. The request to review the Case
Examiner's decision must contain:
(i) «?. statement of the case and the facts involved in the
rccor-v.cndation to list;
(2) c statement of the issues presented by the recont-or.dat.ion tc
list; and
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-17-
(3) a statement showing why the decision of the Case Examiner is
"^t correct based on the record of the listing proceeding
considered as a whole.
(b) The party adversely affected may raise on review only those
issues raised before the Case Examiner, unless the General Counsel
determines that there is good cause to include consideration of
any new issues.
(c) If the Listing Official receives a timely request for review
of the Case Examiner's decision, the General Counsel shall review
the record of the listing proceeding to determine if the decision
of the Case Examiner is correct based on the record of the listing
proceeding considered as a whole. As soon as practicable after
receiving the request for review, the General Counsel shall
*
issue a final decision in writing which is based on this
determination and explains the basis for the final decision.
The General Counsel's decision shall constitute final agency
action. The General Counsel shall file the decision with the
Listing Official. ••• •
(d) The Case Examiner's decision constitutes a final agency
action for purposes of discretionary listing unless a timely
request for review of the Case Examiner's decision ic filed with
the Listing Official in accordance with section 15.14(2).
5 15.15 Effective date of discretionary listing.
(a) Discretionary listing is effective immediately upon the
issuance of a final agency action filed with the Listing Official
to place the facility recommended for listing on the List of
Violating Facilities, or upon the- failure to file a timely written
rsqucct for a listing proceeding I'.ndcr notion l!3.12(d).
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-18-
*
;L/, Discretionary listing remains effective until a removal
occurs under section 15.26
§ 15.15 Notice of listing.
(a) Mandatory listing. The Listing Official chall send written
notice to the facility which shall state that the facility has
been placed on the List of Violating Facilities on the basis of
mandatory listing and the effective date of such listing.
(b) Discretionary listing. The Listing Official shall send
written notice to the recommending person and any person who
requested a listing proceeding informing them of the effective
date of the discretionary listing. The Listing Official shall
send written notice to the facility if no listing proceeding was
requested.
(c) Federal Register notice. The Listing Official shall publish
the effective date of the placement of the facility on the List
of Violating Facilities in the Federal Register"in accordance
with section 15.40.
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-19-
SUBPART C—PROCEDURES FOR REMOVING A FACILITY
FROM THE LIST 0? VIOLATING FACILITIES
§ 15.20 Removal of a mandatory listing.
Whon the Listing Official has placed a facility on the List
of Violating Facilities. >
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-20-
(b) The Listing Official shall remove a facility from the List of
Violating Facilities at the direction of the Assistant Administrator
if the facility is on a plan for compliance which has been approved
by the Assistant Administrator and which will ensure that the
condition(s) which gave rise to discretionary listing will be
corrected.
§ 15.22 Request for removal from the List of Violating Facilities.
(a) The original recommending person or any person who owns, leases,
or supervises a facility that is on the List of Violating Facilities
nay file with the Listing Official a request to remove the facility
from the List. This request must set forth the proposed basis
for removal from the List under section 15.20 or 15.21.
(b) The Assistant Administrator shall review the request for
removal and shall issue a decision as expeditiously as practicable
after receiving the request as to whether the facility will be
removed from the List of Violating Facilities.
(c) The Listing Official shall send written notice to the person
requesting removal informing that person of the Assistant
Administrator's decision concerning removal and of the opportunity
to request a removal hearing under section 15.23 if the Assistant
Administrator denies the request for removal.
5 15.23 Request for removal hearing.
(a) Within twenty (20) working cays after the Assistant Administrator
Denies £ request for removal frorr. the List of Violating Facilities,
the facility or the original recommencing person r.r.y file with
f.ho Listing Official a written request for a removal hearing
under section 15.24.
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-21-
(b) Ii: a timely request for a removal hearing under section
15.23[a) is not filed, any person who may make a request for
removal under section 15.22(a) may file a new request for removal
under section 15.22(a) if a new basis for removal under section
15.20 or 15.21 arises at a later date.
§ 15.24 Removal hearing.
(a) A removal hearing shall be conducted by a Case Examiner
designated by the Assistant Administrator. The person requesting
the removal hearing must demonstrate at the removal hearing by a
i
preponderance of the evidence that a basis for removal is present.
(1) "he person requesting the removal hearing and the Agency may
be represented by legal counsel, present oral and written evidence
rele/ant to the proposed removal, and, with the approval of the
Case Examiner, call, ask questions of, and confront witnesses to
the extent it is relevant to the issue of removal and to the
extent that any additional information produced will be useful
in light of the additional time such procedures will take.
(2) The removal hearing shall be transcribed and a transcribed
record of the proceeding shall be made available to the owner,
operator, or lessee of the facility or to any person represented
£t 1;he hearing at cost upon request.
(b) The Federal, State, or local authority responsible for the
enforcement of clean air standards or clean water standards with
respect to the listed facility may participate in the removal
hearing.
(c) The Case Examiner's decision concerning removal shall be
based solelv uoon the record in the removal hearinc.
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-23-
The decision shall constitute final agency action.
(c) If a timely request asking the Administrator to review the
Case Examiner's decision under section 15.25(a) is not filed,
the Case Examiner's decision constitutes final agency action at
the expiration of such period.
(d) If the request for removal is denied upon review, any person
who may file a request -for removal under section 15.22(a) may
file a new request for removal under section 15.22(a) if a new
basis for removal under section 15.20 or 15.21 arises at a later
date. The new request shall set forth the new basis claimed for
i
removal.
S 15.26 Effective date of removal.
(a) Mandatory listing. Removal of a facility placed on the List
of Violating Facilities on the basis of mandatory listing shall
be effective immediately upon the certification by the Assistant
Administrator that the conditibn(s) which gave rise to the mandatory
listing under section 15.10 has been corrected, or upon the issuance
of a Zinal agency action filed with the Listing Official to remove
the listed facility from the List of Violating Facilities under
Sections 15.24 or 15.25.
(b) Discretionary listing. Removal of a facility placed on the
List of Violating Facilities on the basis of discretionary listing
shall be effective immediately upon the expiration of one year
under 15.21(a)(3) or upon U>4 the Assistant Administrator's
decision to remove the listed facility based upon a timely written
request for re-oval under section 15.22(a), or upon the issuance
of a final agency action filed with the Listing Official to remove
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-22-
(d) The Listing Official shall send written notice to the person
requesting the removal hearing and the Federal, State, or local
authority responsible for the enforcement of clean aix* standards
or clesin water standards with respect to the listed facility,
informing them of the decision of the Case Examiner and of the
opportunity to request the Administrator to review the Case
Examiner's decision under section 15.25.
S 15.25 Request for review of the decision of the Case Examiner.
(a) Within twenty (20) working days of the date of the Case
Examiner's decision under section 15.24, the party adversely
sffeeted by the Case Examiner's decision may file with the Listing
Official a request for the Administrator to review the Case
Examiner's decision. The, request shall contain:
(1) a statement of the issues presented by the request for removal;
(2) a statement of the case and the facts involved in the request
-~j
for romoval; and
(3) a statement showing why the decision of the Cr.se Examiner is
not correct based upon the record of the removal hearing considered
as a.whole.
(b) Upon receiving a timely request for review of the removal
hearing, the Administrator shall review the record of the removal
hearing to determine if the decision of the Case Examiner is
correct based upon the record of the removal hearing considered
as a whole. As soon as practicable after receiving the request
for review, the Administrator shall issue a final decision in
writing which shall be based on this determination and shall set
fort.i -he reasons for the decision.
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-25-
SUBPART D-AGENCY COORDINATION
5 15.30 Agency responsibilities.
, Each agency shall take appropriate steps to ensure that all
officers and employees whose duties include ensuring that all
agency contracts, grants, and loans are in compliance with
applicable requirements are familiar with the requirements set
forth in Executive Order 11738, this regulation, 48 F.R. 42102
(September 19, 1983), and 49 F.R. 8834 (March 8, 1984).
S 15.31 Agency regulations.
(a) Any agency responsible for promulgating contract, grant, and
loan regulations, shall ensure that its regulations require
every non-exempt .agency contract, grant, and loan and every
subagreement issued thereunder to include the following provisions:
(1) A promise by the contractor, grantee, or borrower that he or
she will not use any facility on the List of Violating Facilities
in the performance of any nonexempt contract, grant, or loan.
(2) A promise by the contractor, grantee, or borrower that he or
she will notify the awarding agency if a facility he or she
intends to use in the performance of the contract, grant, or
loan is on the List of Violating Facilities or has been recommended
to be placed on the List of Violating Facilities.
(3) A promise by the contractor, grantee, or borrower that in
the performance of the contract, grant, or loan, he or she will
comply with all requirements of the Air Act and the Water Act,
including the requirements of section 114 of the Air Act and
section 308 of the Water Act, and all applicable clean air standards
end clean water standards.
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-24-
the listed facility from the List of Violating Facilities under
sections 15.24 or 15.25.
(c) Federal Register notice. The Listing Official shall publish
the effective date of the removal of the facility from the List
of Violating Facilities in the Federal Register in accordance
with section 15.40.
5 15.27 Notice of removal.
• :,f
The Listing Official shall send written notice to the
recommending person and any person who made a timely written
request for removal under section 15.22(a) informing them of the
effective date of the removal of the facility from the List of
Violating Facilities. The Listing Official shall publish the
effective date of the removal in the Federal Register in accordance
with section 15.40.
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S 15.32 Contacting the Assistant Administrator.
(a) Any} agency employee whose duties include ensuring that all
agency contracts, grants, and loans are in compliance with applicable
requirements, shall promptly report to his or her agency head,
or the designee of the agency head, any condition which may
involve noncompliance with clean air standards or clean water
standards at any facility that is being used, or will be used in
an agency contract, grant, or loan. The report shall include at
a minimum the following information:
(1) The name, telephone number, and agency of the employee
discovering the condition.
(2) The name of the facility at which the condition exists.
i
(3) A description of the condition.
(4) The contract, grant, or loan the agency has issued or may
issue, extend, or renew to the facility at which the condition
exists.
(b) The agency head, or his or her designee, shall transmit any
reports made under section'15.32(a) to the Assistant Administrator
as Gccn as practicable, after he or she receives the report. In
response to the report, the Assistant Administrator shall take
any action that is consistent with the policy and purpose of
this regulation.
S 15.33 Investigation by the Assistant Administrator prior to
awarding a contract, grant, or loan.
(a) If the Assistant Administrator is notified under section 15.32(b)//r
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-27-
iw/ that.a condition which may involve noncompliance with clean
air standards or clean water standards exists at a facility that
is or may be used in the performance of any nonexeir.pt agency
contract, grant, cr loan, the Assistant Administrator may, after
consultation with the awarding agency involved, request that the
award, extension, or renewal of the nonexempt contract, grant, or
loan t>e withheld for fifteen (15) working days to determine if a
basis exists for placing the facility on the List of Violating
Facilities under sections' 15.10 and 15.11.
(b) If the Assistant Ac. -.istrator requests that an award,
extension, or renewal of a contract, grant, or loan be withheld
under section 15.33(a), the awarding agency shall comply
with the Assistant Administrator's request unless it determines
that the delay is substantially contrary to the best interests
of the government. The awarding agency shall promptly notify
the Assistant Administrator of any such determination.
(c) At the end of the fifteen (15) day working period, the
Assistant Administrator shall notify the awarding agency and tho
applicant of the results of any investigation undertaken under
section 15.33(a).
S l.fi. 34 Referral by the Assistant Administrator to the Department
of Justice.
The Assistant Administrator msy recommend to the Department
of Justice or other appropriate agency that legal proceedings be
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-28-
brought or other appropriate action be taken whenever the Assistant
Administrator becomes aware of a breach of any provision required
to be included in a contract, grant, or loan under section 15.31.
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-29-
SUBPART E-MISCELLANEOUS
§ 15.40 Distribution of the List of Violating Facilities
(a) Ths List of Violating Facilities shall be transmitted to the
General Services Administration and published in the Federal
Register on or about February 1 and August 1 of each year, and
updatod in the Federal Register as necessary to reflect changes
to the list as they occur. The list shall contain the following
information:
(1) the name of each facility on the List;
(2) the location of the facility;
(3) the basis for the listing;
(4) the effective date of the listing; and
(5) any removal of any facility from the List.
5 1!>.41 Reports.
(a) Agency reports. Each Agency head will report each exemption
granted under §15.5(b) to the Administrator. Reports should be
mace by November 1 c each .year.-and should indicate all exemptions
granted during the p vious fiscal year.
(b) Reports by the A ..-inistrator.
(1) The Administrator shall report annually to the President on
the measures he or she has taken toward implementing the purpose
and intent of section 306 of the Air Act, section 508 of the
Water Act, Executive Order 11738, and this regulation, including
tut not limited to the progress and problems associated with
Siuch implementation.
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-30-
m The Administrator shall notify the President and the Congress
annually of all exemptions granted or in effect under section
15.5 during the preceding year.
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GM-32
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
08 1884
#32
OFFICE OF
ENFORCEMENT AND
COMPLIANCE MON.TOHING
MEMORANDUM
SUBJECT: Implementation of JJandatory Contractor Listing
FROM: Courtney M. Pric
Assistant Administrator for Enforcement
and Compliance Monitoring
TO: Assistant Administrator for Air and Radiation
Assistant Administrator for Water
Associate Enforcement Counsel for Air Enforcement
Associate Enforcement Counsel for Water Enforcement
Associate Enforcement Counsel for Criminal Enforcement
Assistant Attorney General for Land and Natural
Resources
Regional Counsels I-X
Introduction and Purpose
Pursuant to statutory requirements, the proposed revisions-
to 40 CFR Part 15 require that the List of Violating Facilities
("the List") automatically include any facility which gives rise
to a criminal conviction of a person under Section 113(c)(l) of
the Clean Air Act or Section 309(c) of the Clean Water Act.
Any facility on the List is ineligible to receive any non-exempt
Federal government contract, grant, or loan. Removal of a
facility from the List occurs only if I certify that the condition
giving rise to the conviction has been corrected or if a court
reverses or vacates the conviction. This memorandum establishes
the procedure to implement the mandatory portion of the contractor
listing program. V
£/ Guidance on implementation of the discretionary listing
authority issued on July 18, 1984.
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-2-
Procedure for Mandatory Listing
I. A federal district court must enter a guilty verdict or
guilty plea of a person under Section 113(c)(l) of the
Clean Air Act or Section 309(c) of the Clean Water Act.
The convicted person must own, operate, lease, supervise
or have a financial interest in the facility which gave
rise to the conviction. Note that criminal convictions
under Section 113(c)(2) of the Clean Air Act and criminal
convictions entered by a State or local court do not qualify
a facility for mandatory listing.
II. Upon notification of an entry of a guilty verdict or guilty
plea by the clerk of the district court, the Department of
Justice must immediately notify the Associate Enforcement
Counsel for Crimir.-;! Enforcement (LE-134E). This notification
must occur even if the defendant still awaits sentencing,
has moved for a nev trial or a reduced sentence, or has
appealed the conviction.
III. The Associate Enforcement Counsel for Criminal Enforcement
must independently verify that the court has entered the
guilty verdict or guilty plea.
IV. Upon such verification, the Associate Enforcement Counsel
for Criminal Enforcement shall notify EPA's Listing Official '
(LE-130A) in writing, of the name and location of the facility
and of the condition giving rise to the guilty verdict or
guilty plea.
V. The Listing Official shall then update the List by publishing
a notice in the Federal Register, and shall notify the
Associate Enforcement Counsel for Air or Water; the appropriate
Regional Counsel; the Compliance Staff, Grants Administration
Division, Office of Administration and Resource Management;
the General Services Administration, and the facility. A
facility remains on the mandatory List indefinitely until
it establishes a basis for removal.
Procedure for Removal from the Mandatory List
I. Any person who owns, operates, leases, supervises, or has
a financial interest in the listed facility may file with
the Listing Official a request to remove that facility from
the List. The request must establish one of the following
grounds for removal:
A. The condition at the facility that gave rise to the
conviction has been corrected.
2. The conviction (not just the sentence) was reversed or
vacated.
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-3-
II. The Listing Official must transmit the request for removal
to the Assistant Administrator for OECM.
III. The Assistant Administrator for OECM, or her or his tiesignee,
shall review the request for removal and shall consult the
appropriate Regional Counsel to determine whether the
condition at the facility giving rise to the conviction
has been corrected, or if the conviction has been reversed
or vacated.
IV. The Assistant Administrator for OECM shall determine as
expeditiously as practicable whether to remove the facility
from the list.
V. If the Assistant Administrator for OECM decides to remove
the facility from the list, a written notification of
such determination shall be sent to the facility and to
the Listing Official who shall promptly publish a notice
of removal in the Federal Register.
VI. If the Assistant Administrator for OECM decides not to
remove the facility from the List, the Listing Official
shall send written notice of the decision to the person
requesting removal. The notice shall inform the person
owning, operating, leasing, supervising or having a
financial interest in the facility of the opportunity
to request a removal hearing before a Case Examiner
(See 40 CFR Part 15 for the selection and duties of the
Case Examiner).
VII. If the Case Examiner, or the Administrator upon appeal of
the Case Examiner's decision, decides to remove the facility
from the List, the Listing Official shall be notified.
The Listing Official shall then promptly remove the facility
'from the List. If the Case Examiner or the Administrator
upon appeal, decides not to remove the facility from the
list, then the Listing Official shall send written notice
of the decision to the person requesting removal.
It is important to note that any decision regarding the
listing or removal of a facility from the List does not affect
any other action by any government agency against such a facility,
including debarment from government contracting.
I believe these procedures will enable us to conduct the
mandatory listing program in an efficient manner. If you have
any questions, please contact EPA's Listing Official, Allen J.
Danzig, at (FTS) 475-8777.
cc: Stephen Ramsey, DOJ
Belle Davis, GAD/OARM
Judson W. Starr,/DOJ
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GM-33
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I UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
f WASHINGTON, D.C. 20460
5BS4
ANDCOMPUANCZ
MONTTOIUNG
MEMORANDUM
SUBJECT: Guidance for Calculating ths Econoaic Benefit of
Noncoapliance for & Civil Penalty Assessment
f\ _^
PROM; Courtney M. Price \J£jAjU^ *
Assistant Administrator for Enforcement
and Ccapliance Monitoring
TO: Regional Administrators
Associate Enforcement Counsels
OECM Office Directors
I. PURPOSE
This guidance amplifies the material in the Appendix of
GM-22, "Framework for Statute-Specific Approaches to Penalty
Assessment." The Appendix presents a description of how to
calculate the economic benefit of nonconpiiance as part of
developing a civil penalty. A new computer model, BEN, is a
refinement of the methodology for calculating the econccic
benefit of nonconpiiance. •
By refining the aethodc by which we calculate the economic
benefit cf noncompliance, wo will:
1. Respond to th9 probleas that enforcement and nrogrcs
officer identified ccncerr.ir.c; methods for .i-lculctir.g th«
econoaic benefit coapcnent of a civil penalty;
2. Ensure among ihe mwdia progress appropriate consistency
in calculating the economic benefit component cf z civil penalty;
3. Ensure that the occnonic benefit cf noncoaplitnce con-
tinues to be a fairly valued, reasonable component of a :ivil
penalty; end
4. Ensure that the assumptions and data used in BEN to
calculate the econoaic benefit component can be def?nded at
cither an administrative hearing or a judicial proceeding.
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-2-
II. jiCOPE
This guidance describes BEN, the new computer model, in
terms of how this model resolves the identified problems related
to the use of CIVPEN. EPA personnel can use BEN to calculate the
economic benefit a violator gains from delaying capital expendi-
tures for pollution control equipment or from avoiding the costs
of operating and maintaining pollution control equipment*
Exhibit I summarizes BEN.
EPA personnel cannot use BEN to calculate the economic
benefit component of a civil penalty if a violator's action
does not involve a delayed or avoided expenditure. Under
these circumstances, program offices may elect to develop
statuto-specific formulas as provided in GM-22 for calculating
the economic benefit component of a civil penalty. These
formulas would be used to develop civil penalties in response
to actions such as certain TSCA marking/disposal violations or
RCRA reporting violations. The rule of thumb in the general
penalty policy would not be appropriate for these types of
violations.
OFPE is considering the feasibility of developing a second
computer model or rule of thunb formula that could be applied
uniformly to violations that do not involve delayed or avoided
expenditures.
III. NEW CIVIL PENALTY POLICY APPROACH
Regional personnel may use the rule of thumb described in
GM-22 to develop a preliminary estimate of the economic benefit
component of a civil penalty. The rule of thumb is for the
convenience of EPA and is not intended to give a violator a lower
economic: benefit component in a civil penalty. Regional personnel
should consider whether an estimate of economic benefit derived
with the rule of thumb would be lower than an estimate calculated
with BEN. For example, the longer the period of noncocipliance,
the more the rule cf thumb underestimates the economic benefit
of nonccBJpliance.
If EPA proposes and a violator accepts the rule of thunb
calculation, Regional personnel can develop the civil penalty
without further analysis of economic benefits. If a violator
disputes the economic benefit figure calculated under the rule
of thumb, a more sophisticated method to develop the economic
benefit component of the penalty is required.
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-3-
In general, if the estimate under the rule of thumb is
less than $10,000, the economic benefit component is not needed
to develop a civil penalty;1 the other factors in GM-22 still
apply. If the rule of thumb estimate is more than $10,000,
Regional personnel should use BEN to develop an estimate of
the economic benefit component.
IV. PSING BEN TO CALCULATE ECONOMIC BENEFIT OF NONCOMPLIANCE
EPA personnel should use the revised computer model BEN
whenever:
1. the rule of thumb indicates that the
economic benefit of noncompliance is
greater than $10,000; or
2. the violator rejects the rule of thumb
calculation.
BEN uses 13 data variables. At the option of the user,
BEN substitutes standard values for 8 of the 13 entries,, and
the user only provides data for 5 variables. (See Exhibit I.)
BEN also has the capability for EPA personnel to enter
for those 8 variables the actual financial data of a violator.
In appropriate cases, EPA should notify a violator of the
opportunity to submit actual financial data to use in SEN
instead of the 8 standard values. If a violator agrees to
supply financial data, the violator must supply data fcr all
the standard values.
V. ADVANTAGES OF BEN OVER OTHER CALCULATION METHODS
The computer model BEN has advantages over previously
used methods for calculating the economic benefit component
of a civil penalty. BEN does not require financial research
by EPA personnel. The five required variables are information
about capital costs, annual operation and maintenance costs,
and the dates for the period of noncompliance. Further, BEN
has the flexibility to allow a violator who cooperates with
EPA to provide actual financial data that may affect the penalty
calculation.
JL/ Although the general penalty policy cut off point is $10,000,
each program office may establish a cut off point for the
progress's medium-spocific policy.
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-4-
An economic benefit component calculated with BEN can be
defended in an administrative or judicial proceeding on the
grounds that the standard values used in BEN are derived from
standard financial procedures and the violator had an opportu-
nity to provide financial data to help develop the civil penalty.
The use of BEN or statute-specific formulas when appro-
priate gives the Regional Offices flexibility in determining
the economic benefit of nonccmpliance. Regional personnel
hove a consistent method for developing a civil penalty under
several statutes for multiple violations that involve delayed
capital costs and avoided operation and maintenance costs.
BEN is easy for a layman to use. The documentation is
built into the program so that a Regional user always has
updated documentation and can use the program with minimal
training. States are more likely to follow EPA's lead in
pursuing) the economic benefit of noncompliance through civil
penalty assessments because the method available from EPA to
serve as a model does not require extensive financial research.
cc: Regional Enforcement Contacts
Program Compliance Office Directors
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Exhibit I .
BEN
A. Accessed via terminal to EPA's IBM computer in Durham, N.C.
B. Can be run in either of two nodes:
1. Standard mode:
a) Requires 5 inputs:
i. Initial Capital Investment
ii. Annual Operating and Maintenance Expense
iii. First Month of Noncompliance
iv. Compliance Date
v. Penalty Payment Date
b) Relies on realistic standard values for
remaining variables:
i. A set of standard values for private
companies
ii. A set of standard values for munici-
pally-owned or not-for-profit companies
c) Would be used for final calculation of economic
benefit unless the violating firm objected and
supplied all its own financial data
2. Specific mode:
a) Requires 13 inputs
b) Would be used if violating fine supplied data or
if EPA staff researched data
C. Is easy to use
1. Optional on-line documentation will guide inexperienced
users through each step of the model
2. Written documentation will be available by December
1984
D. Is based on modern financial principle:.*
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GM-34
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I UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
* WASHINGTON, D.C. 20460
16(964
Of FICt Of
CNFORCEMENTANO
COMPLIANCE MONITORING
MEMORANDUM
SUBJECT: Policy Against "No Action" Assurances
FROM: Courtney M. Price
Assistant Administrator for Enforcement
and Compliance Monitoring
TO: Assistant Administrators
Regional Administrators
General Counsel
Inspector General
This memorandum reaffirms EPA policy against giving
definitive assurances (written or oral) outside the context of
a formal enforcement proceeding that EPA will not proceed with
an enforcement response for a specific individual violation of
an environmental protection statute, regulation, or other
legal requirement.
"No action" promises may erode the credibility of EPA's
enforcement program by creating real or perceived inequities
in the Agency's treatment of the regulated community. This
credibility is vital as a continuing incentive for regulated
parties to comply with environmental protection requirements.
In addition, any commitment not to enforce a legal
requirement against a particular regulated party may severely
hamper later enforcement efforts against that party, who may
claim good-faith reliance oh that assurance, or against other
parties who claim to be similarly situated.
This policy against definitive no action promises to
parties outside the Agency applies in all contexts, including
assurances requested:
0 both prior to and after a violation has been committed;
0 on the basis that a State or local government is
responding to the violation;
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0 on the basis that revisions to the underlying legal
requirement are being considered;
0 on the basis that the Agency has determined that the
party is not liable or has a valid defense;
0 on the basis that the violation already has been
corrected (or that a party has promised that it will
correct the violation); or
9 on the basis that the violation is not of sufficient
priority to me.rit Agency action.
'••*'.''
The Agency particularly must avoid no action promises
relating either to violations of judicial orders, for which a
court has independent enforcement authority, or to potential
criminal violations, for which prosecutorial discretion rests
with the United States Attorney General.
As a general rule, exceptions to this policy are warranted
only
" where expressly provided by applicable statute or
regulation (e.g., certain upset or bypass situations)
e in extremely unusual cases in which a no action
assurance is clearly neccessary to serve the public
interest (e.g., to allow action to avoid extreme risks
to public health or safety, or to obtain important
information for research purposes) and which no other
mechanism can address adequately.
Of course, any exceptions which EPA grants must be in an areo
in which EPA has discretion not to act under applicable law.
This policy in no way is intended to constrain the way in
which EPA discusses and coordinates enforcement plans with
state or local enforcement authorities consistent with normal
working relationships. To the extent that a statement of EPA's
enforcement intent is necessary to help support or conclude an
effective state enforcement effort, EPA can employ language
such as the following:
*EPA encourages State action to resolve violations of
the Act and supports the actions which (State)
is taking to address the violations at issue. To the extent
that the'state action does not satisfactorily resolve the
violations, EPA nay pursue its own enforcement action."
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I am requesting that any definitive written or oral no
action commitment receive the advance concurrence of my office*
This was a difficult decision to reach in light of the valid
concerns raised in comments on this policy statement; neverthe-
less, we concluded that Headquarters concurrence is important
because the precedential implications of providing no action
commitments can extend beyond a single Region. We will attempt
to consult with the relevant program office and respond to any
formal request for concurrence within 10 working days from the
date we receive the request. Naturally, emergency situations
can be handled orally on an expedited basis.
All instances in which an EPA official gives a no action
promise must be documented in the appropriate case file. The
documentation must include an explanation of the reasons
justifying the no action assurance.
Finally, this policy against no action assurances does not
preclude EPA from fully discussing internally the prosecutorial
merit of individual cases or from exercising the discretion it
has under applicable law to decide when and how to respond or
not respond to a given violation, based on the Agency's normal
enforcement priorities.
cc: Associate Enforcement Counsels
OECM Office Directors
Program Compliance Office Directors
Regional Enforcement Contacts
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GM-35
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. 0 C. 20460
or
MEMORANDUM
SUBJECT; Implementing Nationally Managed or Coordinated
Enforcement Actions: Addendum to Policy Framework
for State/EPA Enforcement Agreements
FROM: Aivin L. Aim
Deputy Administrator
TC: Assistant Administrators
Regional Administrators
Regional Enforcement Contacts
Steering Committee on the State/Federal Enfcrceme
Relationship
Associate Administrator for Regional operations
I am pleased to transmit to you a copy of EFA's policy
statement on Implementing Nationally Managed or Coordinated
Enforcement Actions, as an addendum to the Agency's Policy
Framework for 5tate/E?A Enforcement Agreements, issued on
June 26, 1934.
The policy statement was developed at the request of
Courtney price and myself by an OECM work group with repre-
sentatives from the Headquarters Program Offices and Regions.
The draft policy statement was reviewed by the Steering
Committee on the State/Federal Enforcement Relationship.
This final policy statement reflects the Steering Coirjn it tee's
comments.
I think this policy is an important sedition to our
efforts to build both a more effective national enforcement
program and a strong working relationship with the States.
Coordinated case preparation will have an increasingly
important role in establishing precedent for cur new programs/
in creating a greater deterrent effect when dealing with
numerous small sources and in addressing recurring patterns
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- 2 -
of noncorcpliance within regulated entities. This policy
clarifies not only the circumstances under which nationally
managed or nationally coordinated cases are appropriate, but
most important, it clarifies the roles and relationships
among EPA headquarters, Regions and State or local governments
with delegated programs.
This additional policy guidance, in concert with the
recently completed State/EPA Enforcement Agreements, should
provide a consistent framework for enhancing our joint Federal
and State efforts to achieve a strong and effective national
enforcement presence.
Attachment
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12/2«/«4
EPA POLICY ON IMPLEMENTING NATIONALLY MANAGED OP
COORDINATED ENFORCEMENT ACTIONS
This policy addresses how EPA will handle the small
subset of federal civil enforcement cases, both administrative
and judicial, which are managed or coordinated at the EPA
Headquarters level. The policy was developed to ensure these
actions are identified, developed and concluded consistent
with the principles set forth in the Policy Framework for
State/EPA Enforcement "Agreements." It covers the criteria
and process for deciding what cases might best be managed or
coordinated nationally; the roles and relationships of EPA
Headquarters and regional offices and the States; and protocols
for active and early consultation with the involved States
and Regions.
A. Criteria for Nationally Managed or Coordinated Enforcement
Cases
!*ost enforcement cases are handled at the state, local
or EPA regional level for reasons of efficiency and effectiveness
and in view of the primary role that States and local governments
have in enforcement under most of the major environmental
statutes. The Policy framework identifies several instances
in which direct enforcement actions may be taker, by EPA, which
in most instances will be handled by EPA Regions pursuant tc
the State/EPA Enforcement "Agreements." However, some of
those cases may most appropriately be managed or coordinated
at the national level by F?A Headquarters.
In addition to instances in which en EPA Regicr: requests
Headquarters assistance or lead in an enforcement case, these
"national" cases will usually arise within the context of
three of the criteria for direct EPA action mentioned in the
Policy -Framework:
National Precedent (legal or program precedent): th-e
degree to which the case is one of first impression
in law or the decision is fundamental to establishing
a basic element of the national compliance and
enforcement program. This is .particularly important
for early enforcement cases under a new program or
issues that atfect implementation of the program on
a national baris.
Patterns of violations and Violators; the
degree to which there are significant patterns of
repeat violations at a given facility or type of
source or patterns of violations within multi-facility
regulated entities. The latter is of particular
concern where the nonconpliance is a natter of national
(e.g., corporate) policy or the lack of sound environ-
mental manacenent policies snd practices at a national
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level which can best be remedied through settlement
provisions which affect such national policies and
practices.
Interstate issues (multiple States or Regions): the
degree to which a case may cross regional or state
boundaries and requires a consistent approach.
This is particularly important where there nay be a
potential for interregional transfers of pollution
problems and the case will present such issues when
EPA Regions or States are defining enforcement remedies.
SPA's response to any of these circumstances can range
from increased headquarters oversight and legal or technical
assistance/ to close coordination of State and Regional
enforcement actions, td' direct management of the case by
Headquarters.
"here are essentially two types of "National" cases. A
nationally managed case is one in which EPA Headquarters has
tne responsibility for the legal and/or technical development
and raeinagenent of the case(s) from the time the determination
is mace that the case(s) should be nationally managed ir.
accordance with the criteria and process set forth in this
policy. A nationally coordinated case(s) is one which preserves
responsibility for lead legal and technical development and
management of the cases within the respective EPA regions
and/or state or local governments, This is subject, however,
to the oversight, coordination and management by a lead
Headquarters attorney and/or program staff on issues of
national or programmatic scope to ensure that all of the
esses vithirvthe scope cf the nationally coordinated case are
resolved to achieve the sa~e or compatible results ir. furtherance
cf TPA's national program and enforcement goals.
Soction C below describes mere fully the roles and
relationships of E?.a headquarters and regional and state
personnel, both legal and technical, in either nationally
managed or nationally coordinated cases.
There are several factors to apply to assess whether, i-
addition to the normal Headquarters oversight, a case should
be handled as: (I) nationally managed; or (2) nationally
coordinated. None of these factors may necessarily be sufficient
i.n themselves hut should be viewed as a whole. These factors
will ir elude:
availability or most efficient use cf ?tate or EPA
Regional or Headquarters resources.
ability of the agency to affect the outcome through
alternative means. One example is issuance of
timely policy guidance which would <=rn = bl«/ the States,
local ccvernrr.ents cr ,~?A Pec ions tc
appropriate precedent through independent action.
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- 3 -
favorable venue considerations.
— environmental results which could be achieved through
discrete versus concerted and coordinated action,
such as potential for affecting overall corporate
environmental practices.
location of government legal and technical expertise
at EPA Headquarters or in the Regions, recognizing
that expertise frequently can be tapped and arrangements
be made to make expertise available where needed.
To the extent possible, where cases warrant close national
attention, EPA Headquarters will coordinate rather than
directly manage the case on a national basis thereby enabling
Regions and States to better reflect facility-specific enforcement
considerations.
B. Process for Identifying Nationally-Managed or Coordinated
Cases — Roles and Responsibilities
EPA recognizes the importance of anticipating the need
for nationally managed or coordinated esses to help strengthen
our national enforcement presence; and of widely sharing
information both on patterns of violations and violators and
on legal and program precedent with EPA Regions and States.
To do this:
Headquarters program offices, .n cooperation with the
Officeof Enforcement and Compliance Monitoring should
use the Agency's Strategic planning process to help
identify upcoming enforcement cases of national precedence
and importance. They also should develop and disseminate
to Regions information on anticipated or likely patterns
or sources of violations for specific industries and
types of facilities.
Regional offices are responsible for raising to Headquarters
situations which pose significant legal or program
precedent or those in which patterns of violations are
occurring or which are likely to be generic industry-
wide or company-wide which would make national case
management or coordination particularly effective.
State and local officials are encouraged to raise to EPA
Regional offices situations identified above which would
make national case management or coordination particularly
effective.
Whether a case will be managed or coordinated at the national
level vill be decided by the Assistant Administrator for Enforce-
ment anc Compliance Monitoring after full consultation with the
affected program Assistant Administrators, Regional Administrators
and state or local governments with approved or delegated programs
in whet is intended to be a consensus building process. There
will be a full discussion among all of the parties of all of
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the ramifications for the program and a review of all of the
important criteria involved in the decision. in the event of
a lack of consensus as to whetner the case should be managed
or coordinated at the national level, the AA for OECM shall
make the determination, with an opportunity for a hearing
and fiimely appeal to the Administrator or Deputy Admini-
stracor by the Regional or other EPA Assistant Administrator.
The Regions will be responsible for communicating with
any a.ffected States using mechanisms established in the State/
EPA Enforcement "Agreements/" to raise the possibility of
natimal case management or coordination and to ensure that
timely information on the status of any independent state,
local or regional enforcement actions can and would be factored
irito the decisions regarding: (1) whether to manage the case
nationally; (2) whether to coordinate the case nationally; (3)
what legal and technical assistance might be provided in a State
lead case; and (4) what facilities to include in the action.
C. Case Development -- ?oles and Pesponsabilities
Nationally managed cases are those that are managed out
of EPA Headquarters wit.", a lead headquarters enforcement
attorney and' a designated lead headquarters program contact.
Mctwit.hstandir.g headquarters lead, in most instances, timely
and responsive Regional office legal and technical support
ar.d assistance is expected in developing and manacir.g the
case. In tnese instances, the pec ions will receive credit
for a case referral ,'on a facility basis) for this effort.
The cecisicr. en the extent of Pegicnal office involvement
?,nc case referral credit will be r^ace at the time of decision
that the case should oe nationally managed. Regions which
play a significant role in the development and/or prosecution
of a case will be involved in the decision-making process in
any case settlement proceedings and the Regional Administrator
will h.jve the opportunity to formally concur in ar.y settlement.
Rationally coordinated cases are those that are coordi-
nated out of EPA Headquarters with lead regicnal and/or state
or local attorneys and associated program office staff. The
headquarters attorney assigned to the case(s) and designated
headquarters program office contact have clear respons ioii •• ty
for ensuring national issues involved in the case which
require national coordination are clearly identified and
developed and in coordinating the facility-specific actions
of the regional offices to ensure that the remedies and
policies applied are consistent. This goes beyond the normal
headquarters oversight role. The headquarters officials have
both a facilitator role in coordinating information exchange
and a policy role in influencing the outcome for the identified
issues of national concern.
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- 5 -
Whether a case is nationally managed or nationally
coordinated, as a general rule if SPA is managing a case,
States will be invited to participate fully in case develop-
ment and to formally join in the proceedings if they so
desire by attending meetings and planning sessions. States
will be consulted on settlement decisions but will be asked
to formally concur in the settlement only if they are parties
to the litigation.
On a case-by-case basis, the National Enforcement and
Investigations Center (MEIC) may be asked to play a role in
either type of national case to coordinate evidence gathering,
provide needed consistency in technical case development
and policy, witnesses and chain of custody, and/or to monitor
consent decree compliance.
D. Press Releases and Major Conmui'C&ations
A communications plan should be developed at an early
stage in the process. This should ensure that all of the
participating parties have an opportunity tc communicate
their rcle in the case and its cutcome. Most important, the
communications plan should ensure that the essential message
from the case, e.g., the anticipates precedents , -gets sufficient
puslic attention to serve as a deterrent for potential future
violations .
ose
It is particularly important that the agencies get
maximum benefit from the deterrent effect of these significant
national cases through such mechanisms as:
more detailed press releases to trade publications
i.e., with background information and questions and
answers
development of articles
interviews with press for development of more in-
depth reporting
— press conferences
meetir.ns with public/environmental groups — including
meetings on the settlement of national cases which
have generated intense local or national interest
speeches before industry groups about actions
communications with congressional committees
s imultanecusiy , if possible.
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GM-36
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" UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
' WASHINGTON, DC 20460
OFFICE OF
ENFORCEMENT COUNSEL,
MEMORANDUM
SUBJECT: The Use of Administrative Discovery Devices in the
Development of Cases Assigned to the Office of
Criminal Investigations ^ ^
FROM: Courtney M. Price V^J&V*V/^~V
Assistant Administrator
Enforcement and Compliance Monitoring
TO: Assistant Administrators
Regional Administrators
Regional Counsels
Introduction
Most of the environmental statutes for which the U.S.
Environmental Protection Agency (EPA) has responsibility contain
one or both of the following information-gathering provisions:
(1) previsions which empower EPA to require responses to requests
for information; and (2) provisions conferring upon EPA the
right to enter and inspect .physical premises. This document has
been prepared to provide guidance concerning the use of these
provisions in the investigation of cases assigned to EPA's Office
of Criminal Investigations. This guidance supersedes any previous
EPA document whic:. addresses the issues arising from the use of
administrative discovery devices in the development of a criminal
case.
This guidance was developed through an examination of the
use of administrative discovery devices in cases that have
resulted in criminal prosecutions. Because there is currently
very little case law concerning such provisions in environmental
statutes, a review was made of cases under similar statutory
schemes. The guidance is a rather conservative application of
the broad principles established in these decisions.
The use of administrative discovery devices in parallel
proceedings—that is, instances in which both a criminal investi-
gation and a civil or administrative proceeding concerning the
r.a-r.e circumstances take place simultaneously — ic not addressed in
this document. This issue is addressed in separate guidance on
parallel proceedings.
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The importance of this guidance cannot be over-stated.
Where the use of administrative discovery devices is found to
be improper, the ultimate remedy may be suppression cf evidence
in th,e- subsequent criminal prosecution.
This guidance is strictly advisory in nature. It is not
intended to create or confer any rights, privileges or bene-
fits, This policy is not intended to, does not, and may not be
reliod upon to create any rights, substantive or procedural,
enforceable at law by any party in any matter, civil and criminal.
Any attempts to litigate any portion of this guidance1should be
brought to the attention of the Criminal Enforcement Division,
Office of Enforcement and Compliance Monitoring, EPA Headquarters.
I. USE OF EPA'S INFORMATION REQUEST AUTHORITY
Background
For purposes of tlj'i;S guidance, the term "information request
authority" will be used'to describe these provisions contained in
EPA-adninistered statutes which provide the Agency with the
authority to compel the production cf information. Sections 30S
of the Clean Water Act and 11(e) of the Toxic Substances Control
Act are typical of such provisions. Courts have upheld the use
of such provisions both in cases where the information sought is
relevant to investigations into pending charges and where it is
relevant to investigations into whether charges should issue.I/
Information requests pursuant to these provisions are enforce^
able upon a showing that the information is relevant to a
purpose properly authorized by Congress.2/
The enforcement provisions of environmental statutes contain
both civil and criminal provisions. Therefore, evidence obtained
through the use of such information request authority may subse-
quently be usec in a criminal prosecution. This fact raises
concerns that such summons authority will be used, in some instances,
solely for purposes of gathering evidence for a criminal prosecution;
such a use has been viewed as infringing upon the role of the
grand jury.
Issue
Tc what extent can the information request authority
granted to EPA under the environmental statutes be utilized to
gather evidence of statutory violations in cases under develop-
ment by EPA's Office of Criminal Investigations?
I/ Oklahoma Press Publishing Company v. Wa11ing, 327 U.S.
186 (1946.).
?./ United States v. Morton Salt Company, 338 U.S. 632 (.1950).
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Guidance
cases
until
.
decision to refer a case, however, may not be artificially delayed
solely to pursue further evidence through the use of this'authorit
Where an investigation is being directed by the Justice Departoent
even though no formal referral from EPA has been made, EPA's
information request authority should .not be used a§ an investigative
tool. -This situation, however, should be' distinguished from the
situation where the Justice Department has merely been advised
of an investigation and has not exhibited any control over its
course.
The various environmental statutory provisions which grant
authority to request information from members of the regulated
community also contain limitations on the type of information
which may be obtained through the use of this authority. Care
should be taken to draft any request to conform to these limita-
tions. In addition, it should be noted that a request based on
this statutory authority may only be made by an Agency employee
to whom the authority has been delegated by the Administrator.
Reference should be made to a properly updated EPA Delegations
Manual to ensure that any request is made by an employee with
proper authority. Finally, each such request should contain a
notice indicating that violations of the particular statute nay
be the subject of either civil or criminal .penalties.
Discussion
The starting point for a discussion on the proper use of
information request provisions is a review of instances where
the Courts have found the use to be absolutely improper. The
Supreme Court has made it clear that information requests may not
be used to gather evidence in a criminal investigation once the
case has been referred to the Department of Justice for criminal
prosecution. 3/ 'La, Salle involved the use of an administrative
summons in a tax fraud investigation by a Special Agent of the
IRS Intelligence Division. Although the statute provides both
civil and criminal remedies for violations, the agent testified
that the purpose of his investigation was to uncover any criminal
violations of the IRS code. During the course of his investiga-
tion and prior to referral of the case to the Department of
Justice, the agent issued an administrative summons for records.
The bank challenged the use of the summons as improper claiming
that the summons was issued solely to aid in a criminal
investigation.
y United States v. Le Salle National Bank, '!37 U.S. 296
U97~£";.
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Although the Supreme Court held that the suraracr.s should be
enforced, it used this case as an opportunity to elaborate on the
bounds of such summons authority. An administrative summons
must be used in good faith and for a Ccngressionally authorized
purpose. Use solely to pursue a criminal investigation is not '
good faith. However, a case nay not be considered criminal
until an "institutional decision" is made to prosecute criminally.
The intent of the individual agent is not dispositive of this
issue. Th,is institutional decision generally occurs at the
point of referral to the Department of Justice. However, the
Court made it clear that a delay in submitting a case to the
Department of Justice merely to gather additional evi'dence for
the prosecution through use of administrative discovery devices
would not be tolerated. The Court also indicated the Agency cannot
use this administrative authority merely to become an information
gathering tool for other agencies regardless of the referral status
of the criminal case.
Although the wisdom of the la Salle decision has been ques-
tioned,, the results have been followed in all other cases addressing
this isisue succeeding that decision. Therefore, the "institutional
decision" to prosecute criminally should signal the end to a use
of all administrative discovery devices in any SPA case. As a
matter of policy, no use of administrative discovery devices to
secure evidence should be made once a case has been referred to
the Department of Justice.
A sore difficult issue, within EFA's context, is whether
an "institutional decision" to use cricinal sanctions may occur
at a point before referral to the Department of Justice. It is
clear that merely bringing an allegation of misconduct to the
attention cf the Office of 'Criminal Investigations for investi-
gation does not constitute an "institutional decision" in favor
of criminal prosecution. Many of these investigations will, in
fact, become the basis for administrative or civil sanctions,
where initial allegations cannot be substantiated, or where the
case is otherwise lacking in prosecutcrial merit. Further,
EPA's referral procedure for criminal cases requires review at
Headquarters before a case is referred. The final decision
rests with the Assistant Administrator for Enforcement, and
Compliance Monitoring. Until that point is passed, the Agency
may yet choose to proceed by civil action. Accordingly, this
policy adopts the La Salle holding that an "institutional decision"
occurs a4; the point of criminal referral, not before.
Information request authority may not be used in situations
where th€! Agency is perceived as merely an information gathering
tool for another agency. The Supreme Court in La Salle has made
it clear that where this is the case, evidence obtained may be
suppressed at trial. Of particular concern are those instances
where EPA has beer, requested to assist in an ongoing criminal
.investi^aticr. by the Justice Department. Accordingly, a decision
by SP/. tc participate in such an investigation constitutes an
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-5-
"institutional decision" to proceed criminally that requires
approval by the Assistant Administrator for Enforcement and
Compliince Monitoring, and precludes thereafter any use of
information request authority in that case.
Justice Department involvement in an investigation prior to
referral does net necessarily negate the Agency's a.bility to use
administrative discovery devices. Where the Justice Department
has merely been advised of the investigation and exhibits no
control over it, administrative discovery devices may be used.
However, where the Justice Department attorney has assumed the
role of prosecutor and is directing the investigation, EPA
should refrain from making use of these tools. This will b.e the
case whether the investigation is initiated by EPA or whether
the Justice Department requests assistance with an ongoing
investigation.
It is necessary to remember that the character of the
information request authority does not charge when utilized to
gather evidence ir. cases assigned to EPA's Office of Criminal
Investigations. Any limitations on the use of. this authority.
and the type of information which may be sought continue to
apply. The individual statute and Agency guidance on the use of
such authority should be consulted before information request
authority is utilized.
Additionally, most environmental statutes grant such authority
directly to the Administrator. • The Administrator has delegated
this authority to various Agency employees. Reference should be
made to a properly updated EPA Delegations Manual to ensure
that any request is made by an Agency employee with appropriate
authority.
Finally, each information request cade in a case being
.developed by the Office of "Criminal Investigations should
contain a notice indicating that the statute under which the
request is made contains both civil and criminal sanctions for
violations. Such notice will negate any argument that the
individual receiving the request was misled into believing that
only civil or administrative sanctions could be imposed.
II. USE OF ADMINISTRATIVE INSPECTIONS AND ADMINISTRATIVE SEARCH
WARRANTS
Background
Each of the statutes enforced by EPA provides the Admini-
strator with the authority to conduct inspections to determine,
inter alia, the state of compliance with statutory requirements.
Statutory inspection authority is enforceable, where consent
is withheld, through the use of an administrative search warrant.
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-6-
4The Supreme Court has deternined that the Fourth Amendment
guarantee against unreasonable searches and seizures hss equal
force for searches authorized by such regulatory schemes as for
those necessary to obtain evidence of a crime.j?/ In caking this
determination, however, the Court has else recognized the inherent
differences between criminal searches and regulatory inspections
of cocmercial enterprises. The enforcement of regulatory schemes
such as those created by environmental statutes require regular
inspections. These inspections are liaited i.n scope, and involve
business precises rather than private hones. Therefore, compliance
inspections are considered to pose a lesser threat to expectations
of privacy. To require a showing of probable cause in the tradi-
tional criminal law sense for an administrative warrant would
frustrate the enforcement of these systems.
As a result, the Supreme Court established a new standard
for administrative warr'ants, which can best be termed "administra-
tive probable cause." This standard requires a balancing of
interests. "If a valid public interest justifies the intrusion
contemplated then there is probable cause to issue a suitably
restrictive warrant. "_6/ The issuance of an administrative
warrant can be justified upon a showing that the premises
to be inspected were selected on the basis of a "...general
administrative plan for the enforcement of the [statute in ques-
tion]," or upon specific evidence of an existing violation of
regulatory requirements._?/ The Supreme Court was also willing
to create an exception froc the need for even an administrative
warrant in the case of certain "pervasively regulated" industries
such a,5 mining, firearms and liquor.8/ That exception, however,
is very narrow.
The issues addressed by this guidance arise from the
fact that most enforcement provisions of environmental statutes
contuir. both civil and criminal penalties for violations.
Therefore, most inspections conducted to determine compliance
with a particular statute or regulation may result in the discovery
of evidence subsequently offered in a criminal prosecution.
Because inspections may be conducted pursuant to an administrative
warrant requiring a less demanding showing of probable cause,
there i,s concern that such inspections will be used to circumvent
ths traditional standards for criminal search warrants.
5/ Camera v. Municipal Court. 367 U.S. 523 (1967); See v. City
of Seattle, 387 U.S. 541 (19o7).
_6/ Camera v. Municipal Court, supra at 539 (1967).
y Marshall v. Earlow's Inc. , 436 U.S. 306 (1976).
6/ DOJ^OV^TI v. Dewqv, ^$2 U.S. 5?^ (19£l); golonnac'5 Catering
'Coro.'v. Unitec States, 397 U.S. 72 (1970) and United
StctVs v. risweli , vJo U.S. 311 (1972).
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-7-
Issue
To what extent may administrative search warrants, based on
EPA's statutory inspection authorities, be used to gather evidence
in cases developed by the Office of Criminal Investigations?
Guidance
Administrative inspections may be conducted to gather
evidence of statutory violations until probable cause exists to
believe that a crime has been committed and it is clear that the
predominant purpose of such an inspection is to gather evidence
of a crime. This does not preclude the use of such inspections
to substantiate allegations. Rather, it limits the use of this
administrative discovery device once there is actual evidence of
a crime rising to the level of probable cause and further use of
inspections are for purposes of developing various aspects of
the government's criminal case. Once this point is reached,
entry must be gained only through pure consent (i.e. consent '
gained without the assertion of statutory inspection authority)
or a criminal warrant.
Administrative inspections and warrants should not be used
to gather evidence for a criminal inquiry directed by the Depart-
ment of Justice even though no formal referral of the case has
been made by EPA.
Discussion
Although the La Salle decision (see discussion in previous
section concerning Information Request Authority) deals with the
administrative summons authority of the IRS rather than inspection
authority, the rationale of that case is of value in inspection
situations as well. This position appears to have support in
case law regarding statutory schemes similar to the environmental
statutes. Although most of the cases examined were decided
prior to La Salle, evidence gathered during administrative
inspections has been found to be admissible in criminal trials
only where the inspections were properly conducted prior to the
referral decision by the Agency. Thus, as a starting point, the
guidelines adopted for use of information request authority as a
result of the La Salle decision also apply to administrative
inspections. At a minimum, administrative inspections--either
by consent or under administrative warrants—should not be conducted
once a case has been referred to the Department of Justice with
a recommendation for criminal prosecution. Similarly, if a
criminal investigation is being directed by an attorney from the
Department of Justice, administrative inspections should not bs
conducted to gather evidence for the case even though the case
hcs not yet officially been referred to the Department.
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-8-
'tfhere the institutional decision to prosecute has not yet
been made—i.e., where the case is under development by the
Office of Criminal Investigations prior to the initiation of
the referral process--courts have permitted the use of adminis-
trative inspections within particular parameters. Evidence
gathered during the execution of an administrative warrant say
be admissible during a cricinal trial provided that the inspec-
tion under the warrant was properly limited to the scops of
authority provided by the statute.£/ This has been the case
even though the administrative inspection was conducted as a
result of allegations of criminal nisconduct.JLC)/ However, where
the evidence in question could not be discovered in a properly
limited inspection, these cases require the government to obtain
the informed consent of the facility or a criminal warrant based
on traditional criminal., probable cause, prior to conducting a
search.
Eoth Goldfine and Consolidation Coal were decided prior
to La Salle. These cases each involve the admissibility of
evidence gained during searches conducted pursuant to an adninis
trative warrant based on administrative inspection authority and
administrative probable cause. Each search occurred prior to
referral to the Justice Department for criminal prosecution. In
Gcldfine, the broader of these cases, the evidence was obtained
during an audit by a DEA Compliance Officer. The defendants,
owners of a pharmacy, were not informed at the time of the audit
that their activities were under investigation, The investigation
at that point included reports of large orders cf controlled
substances, surveillance of the pharmacy and arrests of come of
its customers.
Consolidation Coal involved the validity of an inspection
based on an administrative warrant supported by an affidavit
which recited an allegation by an unnamed ex-employee that the
company was systematically evading the respirable coal dust
concentration standards. The company claimed that the criminal
standard cf probable cause should have been used to judge the
affidavit. The company was indicted 16 months after this inspec-
tion for violations of the Coal Mine Health and Safety Act of
1969.
538 F2d 815 (9th Cir.) cert.
9'' United States v. Goldfine,
ceniFcT.sc U.S. 1069 ( 1977).
107 United States v. Consolidation Coal Company, 560 F2d 2U
Toth Cir. 1977) vacated ant remanc'ed 43b U.S. 9^"2 [for further
consideration in lignt of Marshall v. Barlow's I_n_Q» » supra j
jndrrcor.t reinstated 579 F2d 1011 T6th Cir. 1976; cert, denied
^59 "U.S. 1009 (1979).
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-9-
IA these cases, each court concluded that the inspections
were sanctioned by the statutes pursuant to which they were
undertaken. The fact that these inspections were based upon a
suspicion -of criminal misconduct did not erase their regulatory
character. Each statute, like environmental statutes, contained
both civil and criminal sanctions and no final decision had been
made to choose one type of sanction over another. 'The real
issue was the scope of the search. Thus, the courts concluded
that, in order for the evidence to be admissible, the search
must retain the character of an administrative inspection. It
cannot extend beyond the bounds authorized by the statute. This
result has been supported in at least one case since the La Salle
decision.11/
An administrative inspection may not change in character
when it is conducted in support of an investigation assigned to
the Office of Criminal Investigations. The authority granted is
that belonging to any EPA inspector conducting a complisnce
inspection. The person conducting the inspection must have
properly delegated authority. Care should be taken to follow
the Agency procedures for administrative inspections. This
includes such practices as the splitting of samples. Finally,
if a criminal investigator accompanies the inspection team,
credentials will be presented so that the facility is aware of
the participation of the Office of Criminal Investigations.
The next case which has impact on this issue is Michigan v.
Tyler.12/ This case raises the issue of whether a criminal
warren! is required once an investigation has progressed to" the
point where probable cause to obtain such a warrant has been
gained. It does not address the use of administrative inspections
and administrative search warrants in criminal investigations.
It is included here because other courts have referred to this
opinion in cases involving the administrative inspection issue.
Michigan v. Tyler involves the adsissibility of evidence
of arson gained during £ number of warrantless, non-consensual
searches of the burned precises both curing and after th-3 fire.
The Supreme Court concluded that while in the building to put
out the blaze, firefighters nay seize any evidence of arson which
n/ In United States v. Prendergast. 585 F2d 69 (3d Cir. 1978),
the Court considered its decision in light of L?. Salle. It
concluded that no violation of the La Salle standard had occurred
bucausc DEA had net made a commitment to a criminal prosecution
prior to obtaining a warrant. 585 F2d at 71 n.l.
12/ 436 U.S. 1:99 (1976).
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is in plain view. Officials may remain in the building for a
reason^Me period after the fire has been extinguished to
investigate the cause. However, if during the investigation
they discover probable cause to believe that arson was committed
and they wish further entry after the fire has been extinguished
to gather evidence, a warrant upon a showing of traditional
criminal probable cause must be obtained. 13/
The Supreae Court's decision was based on its view of the
privacy expectations of an owner of a burned building. Initially,
the owner's expectation of privacy must give way to a need of
entry by firefighers to fight a blaze. However, once the fire
is extinguished an expectation of privacy returns despite the
condition of the building. From that point on, the Court concluded,
a search warrant is required for further entry onto the premises.
In Ur.ited States v.J'-Lavson, IV the District Court for Maryland
turned to Michigan v. Tyler while reviewing the adnissibility of
evidence gained curing an administrative search conducted by DEA
agents. The Court found that the agent applied for the warrants
at the request of the Assistant United States Attorney after the
Agency had cade an "institutional commitment" to a criminal
prosecution. In -reviewing the case law on use of administrative
warrants, the Court cited Michigan v. Tyler as requiring a criminal
search warrant for entry whenever "the purpose behind the search
shifts from administrative compliance to a quest for evidence to
be used in a criminal prosecution. "1_5/ Clearly, once a case has
been referred tc the Department of Justice for £ criminal prose-
cution, this point has been reached. However, the Lawson Court
left open the question of whether this point can be reached at
an earlier stage in the investigation prior to the institutional
decision to refer the case for criminal prosecution.
In United States v. Jamieson-McKanes Pharmaceuticals,l6/
the Eignth Circuit also reviewed the application of Michigan v.
Tyler. This case concerned regulatory inspections by DEA agents
prior tc referral of the case for prosecution. The Court concluded
that Tvler did net have application to a pervasively-regulated
13/ Michigan v. Tyler, supra at 508.
Jj[/ 50;? F. Supp. 158 (I'D, 1980).
J_5/ Un:.ted States v. Lawson, supra at 165.
16/ 65' F2d 532 (8th Cir. 1981).
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-11-
y
industry such as drug manufacturing.3J/ In a pervasively-regulated
industry, there is a limited expectation of privacy. Therefore,
the rationale for the Tyler decision was inapplicable. The
Court concluded that a criminal warrant was not required despite
the fact that evidence was available prior to the inspection to
indicate that a criminal violation may have occurred. The Court
returned to the rationale of Goldfine and Consolidation Coal and
held that the warrants based on administrative probable cause
were valid in this situation as long as the intrusion was limited -
to the purpose specified in the statute. This result has also
been supported by the Sixth Circuit.18/
The full impact of Michigan v. Tyler on administrative
inspection cases is not yet clear. Although La Salle seems to
limit use of administrative discovery devices in investigations
of criminal misconduct only after an institutional decision to
prosecute is made, Michigan v. Tyler can be read as a limit on
the use of these devices prior to referral, at that point where
probable cause exists to believe a crime has been committed.
Where an investigation focussing on potential criminal violations
has'progressed to a stage where there is probable cause to believe
that a crime has been committed and the predominant purpose for
an inspection is to gather evidence of the crime, administrative
inspection authority should not be utilized. Rather, entry
should be obtained by pure consent (i.e., consent obtained without
the assertion of statutory inspection authority) or by use of a
criminal search warrant obtained under Rule 41 of the Federal
Rules of Criminal Procedure.
Ill- WARRANTLESS INSPECTIONS
Background
The language of the inspection provisions of environmental
statutes can be read to grant authority to conduct inspections
without a warrant where entry is denied. Although the Supreme
17/ The Eighth Circuit in this case determined that the drug
manufacturing industry falls within the exception to a warrant
requirement created in Colonnade Catering Corp. v. United States,
supra and United States v. Eiswell, supra. This is not
necessarily the case with environmental statutes. See discussion
on warrantless inspections, infra.
.!§/ United States v. Acklen, 690 F2d 70 (6th Cir. 1982).
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-12-
Court has sanctioned warrantless inspections for certain
pervasively-regulated industries ,_19/ this has not been the case
for every regulatory program. In Marshall v. Barlow's Inc. , the
Supreme Court held that an OSHA inspector was not entitled to
enter the non-public.portions of a work site unless he received
the owner's consent or possessed a warrant. The Court indicated
that warrantless entry would be upheld only in very rare cases--
pervasively-regulated industries with a long history of goverhcent
regulation or where the government could demonstrate that a
warrant requirement would substantially impair the regulatory
scheae.
Issue
Are warrantless inspections authorized under environmental
statutes where entry is denied following the assertion of statutory
inspection authority?
Guidance and Discussion
At least one Court has indicated that the result of the
Barlow 's decision was equally applicable tc environmental
statutes._2Cy The Court commented that in light of Barlow's
a warrant was required for entry pursuant to the Clean Air Act
absent consent by an authorized individual. The Agency has also
taken this position in guidance to Agency inspectors after the
Barlow's decision.2J/ We will not deviate from the that guidance.
Where consent to inspect is not granted, an administrative warrant
should be sought. This applies to all statutes including the
Federal Insecticide, Fungicide and Hodenticide Act.
.I!/ Donovan v. Dewey, supra (mining facilities), United States
v. Biswell, suora (firearms) , and Colonnade Catering Corp.
v- United States, supra (liquor).
,207 Public Service Company v. EPA, 509 F. Supp. 720 (S.D. Ind. 1961)
21 / One possible exception recognized in Agency guidance is
en inspection conducted pursuant to authority under the Federal
Insecticide, Fungicide and Rodenticide Act (FIFRA). There is
a long history of federal regulation concerning pesticide
aanufacture. The first federal statute in this area was
enacted in 1910. In addition, these regulations are limited
to ore industry rather than applying a set of regulations to
industry across the board. Finally, in an administrative
case decided after Barlow's, a civil penalty was assessed
Egainst the owner of a FIFRA regulated establishment for
refusal to allow a warrantless inspection, N. Jones & Co.
Inc.. I.F.cF. Docket No. II1-121C (July 27, 1978}. Despite
this fact, the Agency has taker, the position that, inspections
under r.IFr.A .should be conducted pursuant tc r. vr.rrant where
ccns-jr.t, is not giver:.
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-13-
IV. APPLICATIONS FOR ADMINISTRATIVE WARRANTS IN CASES ASSIGNED
TO THE OFFICE OF CRIMINAL INVESTIGATIONS ~"
Background
As indicated in the previous section, unless consent is
granted, an administrative warrant will be necessary in order
to gain entry to conduct an administrative inspection under any
of EPA's statutes. The Suprezae Court in Marshall v. Barlow's
Inc. offered guidance on the type of showing necessary to'
justify the issuance of an administrative warrant. Probable
cause to support the issuance of an administrative warrant
nay be based upon a showing either (1) that there is specific
evidence of an existing violation of regulatory requirements
or (2) that the decision to inspect is based on a neutral
inspection scheme._22/ This showing must demonstrate that
the public interest in conducting the inspection outweighs
the invasion of privacy which the inspection may entail.23/
Issues
When should such warrant be obtained? What type of
showing must be made in order to obtain an administrative
search warrant? How should the inspection be characterized?
Guidance
On routine inspections, EPA generally has not sought an
administrative warrant until an inspector has been refused entry.
The leu, however, does not preclude the Agency from seeking
a warrant before entry is 'denied. Where surprise is crucial
to the inspection or prior conduct makes it likely that
Warrantless entry will be refused, a warrant should be sought
prior to inspection.
Neutral inspection schemes should be used as a basis for
administrative warrants only where there is no evidence of an
uxisting violation. Since cases assigned to the Office of
Criminal Investigations will almost invariably involve specific
allegations of misconduct, the neutral inspection scheme rationale
will normally be inapplicable. Once evidence of a potential
violation has been discovered, this evidence should be used as
22 / Neutral inspection schemes are those which are non-discri-
minatcry, such as a scheme which requires the inspection of every
third facility on the list of facilities with NPDES permit.
•£•_$'' >r.E_er_a v« Municipal Court, supra.
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-1D-
the basis for obtaining a warrant. The evidence available should
be described with specificity in the affidavit supporting the •
warrant. For example, if the warrant is sought on the basis of
an employee's complaint, the affidavit should set forth in detail
the substance of the complaint, the circumstances in which the
complziint was provided and the relationship of the complainan.t
to the facility to be inspected. In a-ddition, the application
shoulc' include all corroborative evidence available. The applica-
tion oust also describe the alleged violation. Simply stating
that there are reasonable grounds to believe that some violation
of an environmental statute had occurred will not be sufficient.
Both potential civil ancj criminal violations should be listed.
"••:<'
Finally, the application should also state with specificity
the objects of the search. This should be done with the same-
degree of detail that would be used if applying for a criminal
warrant. However, the scope of the search described must be
limited to the traditional scope of an admini:;' rative inspection.
The objects of the search may not be outside o- that authority.
In addition, where an alleged violation is the basis for a warrant,
the objects of the search must relate to that violation.
The use of administrative discovery devices in investigations
assigned to the Office of Criminal Investigations also raises an
issue regarding the appropriate characterization of the investi-
gation. Because an institutional decision to refer the case for
criminal prosecution has not been cade, the case is not exclusively
criminal in nature. However, care must be taken net to mislead
the individual to believe that criminal charges will not be
contemplated. If the issue is raised, EPA officials should
indicate that environmental statutes contain both criminal and
civil penalties, and that the Agency considers all enforcement
options cper..
Discussion
Recent cases concerning administrative inspections under
OSHA have raised issues concerning the standard of probable
cause required for the issuance of administrative warrants
2nd the scope of an inspection where the warrant is based on a
conplaint rather than a neutral inspection .scheme. The
rationnle used by the courts in these decisions arguably also
has application in the area of inspections under environmental
statutes.
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-15-
Several circuit courts have concluded that where a complaint
alleging a violation is the basis for an administrative warrant,
the information necessary to establish probable cause for such a
warrant will be more extensive than that required for a warrant
based upon a neutral inspection scheme.jNj/ This showing, however,
is still significantly less than that necessary to establish
probable cause for a criminal search warrant. These decisions
are based on the view that questions of reliability of evidence
and probability of violation are not raised when a warrant is
issued pursuant to a neutral inspection scheme since the subject
of the inspection is chosen through the application of neutral
criteria. The magistrate need only ensure that the inspection
comports with the legislative or administrative guidelines con-
cerning such inspections.
Where the inspection is based upon evidence of a violation,
there are no assurances that the target was not chosen for purposes
of harassment. Therefore, these courts require that the affidavit
contain sufficient information to allow the magistrate to make an
independent assessment of the reliability of the claim that a
violation exists. For example, in cases involving employee
complaints, the ideal affidavit would indicate the person who
had received the complaint, the relationship of the complainant
to the target facility—i.e., employee, customer, competitor—the
underlying facts and any steps taken to verify the complaint.25/
If the complaint was made in writing, a copy should be attached.
Although this requirement has not yet been adopted in all
circuits or by the Supreme Court, it may be assumed that such a
requirement may be placed 'on EPA in a number of jurisdictions.
Therefore, affidavits for administrative warrants issued in.
conjunction with a case assigned to the Office of Criminal
Investigations should set forth in detail the substance of the
2*i/ Donovan v. Sarasota Concrete Co., 693 F2d 1061 (llth Cir.
1962); Marshall v. Horn Seed Co., Inc., 6^7 F2d 96 (10th
Cir. 1961);"Burkart Randall Division of Textron Inc. v.
Marshall, 625 F2d 1313 (7th Cir. 19bO;.
25/ Marshall v. Horn Seed Co., Inc. , supra at 103.
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-16-
violation and provide all corroborative evidence available.
The application should also specifically describe the alleged
violation.26/
The scope of an administrative inspection also presents an
issue. As previously noted, such inspections do not lose their'
administrative character simply because their purpose is, in
part, to corroborate an allegation that nay become part of a
crininal prosecution. Any limitations contained in the statutes
apply with equal force and must be observed.
A further issue is raised where inspections are conducted
pursuant to an administrative warrant issued as a result of an
allegation of a violation. The Eleventh Circuit, in an OSHA
case, concluded that where an administrative warrant was obtained
as a result of a complaint regarding a localized condition at
the facility, the search should be limited to that localized
area.2_7/ The thrust of this opinion is that the scope of the
inspection should be limited to what is reasonably related to
the violation which is the basis for the warrant. Although
there are other decisions to the contrary ,_28/ as a matter of
policy such inspections should be limited to those areas which
bear a relationship to the violation alleged.
26/ Weyerhaeuser v. Marshall, 592 F2d 373, 378 (7th Cir. 1979)
In that case the Court concluded that a showing of probable
cause had not been aade where the warrant application contained
the following language:
"2., Or. June 24, 1977,.the Occupational Safety and
Ke;alth Administration' (OSHA) received a written
complaint fron an employee of Weyerhaeuser Company,
a corporation. This complaint alleged, in pertinent
pert, that violations of the Act exist which threaten
physical harn or injury to the employees, and an
inspection by OSHA was requested. Based on the
information in the complaint, OSHA has determined
that there are reasonable grounds to believe that
such violations exist, and desires to make the
inspection required by Section 8(f)(l) of the Act."
592 F2d at 378 n.l.
27/ Donovan v. Sarasota Concrete Co., supra at 1069. The
complaint, dealt with improper maintenance of cement-mixer
trucks. However, OSHA inspectors used the administrative
warrant issued on the basis of this complaint to inspect
the entire facility including the trucks.
2_6/ See, e.g. , Hern Iron Works, Inc. v. Donovan, 670 F2d 836 (9th
Cir. 1955); Ir. re Establishment Inspection of Seaward International
v. Marshall, 5 TO r. Supp. 3^ (V.'.D. Va. I960) aff'd without opinion
~" 1981).
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GM-37
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* UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
. _^_
MAR I 2 1985 •*«"»»«
MEMORANDUM
SUBJECT: The Role of EPA Supervisors During Parallel Proceedings
FROM: Randall M.
Director, Office of Criminal Enforcentent
TO: General Distribution
Attached is a copy of the recently issued guidance
explaining the role of EPA supervisors during parallel civil
and criminal proceedings. All supervisors and staff who may
become involved in matters that have both criminal and civil
enforcement potential should become familiar with the guidelines
set forth in the memorandum.
Although the concepts in the guidance may appear difficult
upon a first reading, it is necessary to have a full understanding
of the issues in order to make an informed decision about whether
the supervisor should remain on the civil side of the case or
the criminal side (or in rare circumstances, on both sides).
Questions concerning the guidance should be directed to
Peter Murtha or myself (FTS 557-7410, 703-557-7410).
Attachment
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
I 2385
OfFlCf OP IMKMCIMOT
ANDCOMnJANCt
MOMTOUNO
MEMORANDUM
SUBJECT: The Role of EPA Supervisors During^Parallel Proceedings
PROM: Courtney M. Price
Assistant AdministrWorfoP Enforcement
and Compliance Monitoring
TO: Assistant Administrators
Office Directors
Regional Administrators
Regional Counsels
Inspector General
Director, NEIC
J. Introduction
The Agency's mission is on occasion best served by the
pursuit of simultaneous civil/administrative enforcement actions
and criminal investigations and prosecutions of the sane party(ies)
and relating to the same essential subject matter, i.e., parallel
proceedings.!/ Parallel proceedings are applicable, for example,
where a person's willful environmental misdeed both merits a
criminal sanction and requires a "cleanup* response. Such
proceedings require special caution by both supervisors and
staff in their use. Failure by Agency personnel to recognize
and understand the unique problems raised by parallel proceedings
could delay or otherwise jeopardize both the civil/administrative
and criminal proceedings. This guidance establishes supervisory
procedures for persons whose responsibilities involve management
of staff who work on both sides of the parallel proceedings.
I/ Supervisors who do not exercise such dual responsibilities
a"re not covered specifically in this document. These individ-
uals, as well as non-supervisory personnel who could be poten-
tially involved in parallel proceedings, should refer to the
memorandum entitled "Policy and Procedures on Parallel Proceed-
ings at the Environmental Protection Agency," issued on
January 23, 1984 ("General Parallel Proceedings Guidance")
(Attachment).
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-2-
This guidance is designed to avoid two primary pitfalls
associated with parallel proceedings. First, for a variety of
reasons, _2/ care must be taken to ensure that each side of parallel
proceedings has a legitimate and independent basis. Second,
safeguards must be employed to guarantee that grand jury proceedings*
and the information developed therein, are devoted exclusively
(except as noted at Section (V)(A), pp. 6-7 note 10; and Section
(V)(D), pp. 9-10, infra) to their sole intended use: prosecution
of criminal cases.
Each supervisor subject to this guidance is responsible
for ensuring that staff are aware of and conform to the procedures
set forth below. Particular care should be taken to note the
evolving nature of these requirements as the criminal matter
proceeds from a mere allegation made to the Agency to an active
grand jury investigation. Supervisors are encouraged to supple-
ment this guidance by developing policies and practices for
individual cases as needed to achieve its objectives.
II. The Supervisory Role Prior to the Active Involvement of
the Department of Justice (DOJ)
Prior to the active involvement of DOJ V *n tne criminal
case, the Agency supervisor generally may continue managing
his/her staff on both sides of the parallel actions.4/ The
degree of permissible involvement by the supervisor Tn the
criminal investigation is not dependent upon the course or
the stage of the civil/administrative action.
2/ See General Parallel Proceedings Guidance at 1-4.
3/ In this context, "DOJ" refers to any United States Attorney's
Office, as well as to DOJ Headquarters, but does not include
the Federal Bureau of Investigation.
_4/ This guidance presumes that ordinarily DOJ would become
actively involved in a case soon after EPA became aware that
there was probable cause to believe that a particular individual
or entity had committed a potentially criminal violation. This
will be the case whether DOJ's involvement is initiated by
informal contacts, e.g., by the case agent from EPA's Office
of Criminal Investigations, or through the formal referral
(continued)
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-3-
At no point may a supervisor request that any personnel
working on the criminal case use any criminal investigative
or discovery tools for the primary purpose of benefitting the
Agoncy's position in the civil/administrative natter or vice
versa. Strictly as a matter of law, information obtained by
th«) criminal and the civil/administrative staffs ordinarily
may be freely exchanged at this stage, assuming that each
proceeding is designed to meet its own distinct and legitimate
goal. (In many cases, however, preserving the secrecy of the
criminal investigation and preventing the disclosure of documents
to the defendant through the liberal civil/administrative
discovery process would militate against the use by the civil/
administrative staff of documents or other information produced
by the criminal investigation team.) Nonetheless, supervisors
may wish to consider.-withdrawing from their case supervision
duties S/ on one side of the parallel proceedings to minimize
the possibility that abuse of either process is alleged later.
Even prior to criminal referral a defendant/respondent in
a civil/administrative proceeding may not be misled into believing
that information he/she/it supplies will not be used in a criminal
proc^eding.^/ Moreover, individuals who are not aware that they
are !:argets*~of the parallel criminal investigation and who give
testimonial evidence at an administrative hearing, a civil trial,
or in the form of interrogatories or depositions, may have a
Fifth Amendment privilege which, arguably, has not been waived.
In such a situation, DOJ will evaluate the matter in a effort
process. Generally, the assignment of a DOJ prosecutor to a
criminal matter at any stage, e.g., to obtain a criminal search
warrant, would constitute "active involvement." In any event,
ordinarily DOJ will be presumed to be "actively involved" no
later than the date of its receipt of the criminal referral
from the Assistant Administrator for Enforcement and Compliance
Monitoring.
_5/ Case supervision, in this context, includes the supervisor
advising the staff about such matters as strategy, investigative
procedures, legal issues and the course of the case development
for a specific case.
J6/ If ':he Agency attempted to use information in a criminal
proceeding that was gained through such misrepresentations, the
defendant could argue that the evidence should be suppressed,
or (in extreme cases) that the indictment should be dismissed,
due to violation of the right to due process-and (in the case
of individuals) the right against self-incrimination. (Corpora-
tions, in contrast to individuals, are not protected by the
Fifth Amendment's self-incrimination clause.) See General
Parallel Proceedings Guidance at 4-6.
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-4-
to determine whether or not it is appropriate to transmit such
evidence to members of the criminal enforcement team.7/ Where
the criminal target has been made aware of the existence or
potential for parallel criminal action, however/ such information
may be freely exchanged.
Staff members working on the parallel civil/administrative
case oust document when and under what circumstances any testi-
monial information from a current or potential criminal individual
target—who has not been made aware of the potential for criminal
enforcement—was obtained before transmitting that information
to a supervisor who has not withdrawn from the criminal action.
Such material should be specially marked to prevent inadvertent
disclosure. This will alert the supervisor to consult with
DOJ prior to reviewing such material or disseminating it to
Agency personnel pursuing the criminal matter.
III. After the Active DOJ Involvement: The Supervisor's
Decision Whether to Withdraw from the Criminal (or the
Civil) Matter
Prior to the commencement of the grand jury, there is no
strict legal bar to an Agency supervisor being a member of the
prosecution team and directing the civil/administrative matter.
Once DOJ begins to direct the day-to-day investigative activities
of the prosecution team, the Agency supervisor who has been
performing case supervision activities on either side of a
parallel investigation or prosecution should re-evaluate his/her
continuing role in the investigations. To avoid any appearance
that one proceeding is being used to impermissibly bolster the
other, it is generally the better practice for a supervisor to
withdraw from one side of the parallel proceeding or the other.
Discretionary withdrawal will reduce the possibility that the
Agency will need to defend its position regarding the conduct
of an investigation or prosecution.
An Agency supervisor who chooses to retain case super-
visory responsibilities and become a part of the prosecution
team will work under the direction of the prosecutor(s) B/ in
designing and conducting the investigation and prosecution.
2/ See General Parallel Proceedings Guidance at 6, 9-10.
j}/ Often, there will be one prosecutor from the Environmental
Crimes Unit of the Land and Natural Resources Division of DOJ
Headquarters and another from the United States Attorney's
Office where the prosecution is being brought, in which case
joint guidance to the prosecution team would be provided.
-------
-5-
A supervisor who has chosen to withdraw from case supervision
duties associated with one side of parallel proceedings is not
precluded from being informed about non-sensitive information
concerning the proceeding from which he/she has withdrawn
necossary for the performance of his/her routine management
functions. Supervisors can know the amount of staff and labora-
tory support required, the need for outside consultants, the
dates and expense of travel, the duration of the investigation,
and the facilities and individuals being investigated except as
precluded by Fed. R. Crim. P. 6(e) (see pp. 6-7, infra), etc.
IV. The Role of the Agency Supervisor in Parallel Proceedings
After the Active Involvement of DOJ in the Criminal Matter
but Prior to the Commencement of a Grand Jury Investigation
A. Peraited Communications and Decision-making
An Agency supervisor may generally be privy to all inform-
ation about both cases (except that supplied by an individual
unaware of a parallel criminal investigation, see Section II,
at 3-1, supra) and may fully participate in all Agency decision-
ma king concerning them. Notwithstanding this rule, it is wise
for a supervisor to consider whether his/her involvement in the
case supervision of both sides of parallel proceedings is truly
desirable, given the possibility that allegations of abuse of
either process could arise.
Where the Agency supervisor is both part of a prosecution
team and involved in the case supervision of the civil/admini-
stration matter, the following rules must be adhered to;
:i. With Respect to the Criminal Investigation. Communi-
cation!; by the supervisor pertaining to the criminal case must
be directed only to members of the prosecution team or to those
Agency or DOJ units devoted exclusively to criminal investigations
and prosecutions, i.e., the Criminal Division of the local
United States Attorneys' Offices, DOJ's Environmental Crimes
Unit, EPA's Office of Criminal Investigations and EPA's Criminal
Enforcement Division.
2. With Respect to the Civil/Administrative Investigation.
Communications by the supervisor pertaining to the civil/admini-
strativ«> matter must be directed only to Headquarters, Regional
program and/or NEIC staff involved in the civil/administrative
matter. Such communications shall be withheld from all Agency
personnel on the prosecution team and those Agency units devoted
exclusively to criminal investigations and prosecutions.
3. Staff Meetings and Documents. Supervisors should hold
separate staff meetings for the personnel working on the respective
sides of parallel proceedings to the extent that the case will
be discussed. Supervisors must not allow distribution of infor-
mation, documents, memoranda or other writings which should be
withheld from respective parts of their staffs.
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-6-
B. Alerting Supervisors to Commencement of Grand Jury
Proceedings
Supervisors directly involved in the management (but not
case supervision) of a criminal matter must be aware of exactly
when a grand jury proceeding is commenced to assure that he/she
will not inadvertently learn about grand jury information.
In situations in which the supervisor is not integrally involved
with the prosecution team and therefore might not automatically
be informed of such event, his/her staff pursuing the criminal
matter should be alerted to immediately so inform (or request
the DOJ prosecutor(s) to so inform) him/her. This notification
must be limited solely to the fact that the grand jury will
investigate the same essential matter being pursued in the
civil/adminstrative proceeding, and must not include what has
transpired in the grand jury.9/
In most cases, once a case is referred to DOJ for investi-
gation or prosecution, a grand jury will be initiated soon
thereafter. Thus, the guidance presented in this section
regarding the supervisor's role during parallel proceedings
usually will quickly be supplanted by the even more stringent
guidance pertaining to the period after the initiation of the
grand jury decribed below.
V. The Role of the Agency Supervisor After the Commencement
of a Grand Jury Investigation
A. Access to Grand Jury Material under Rule 6(e)
An Agency supervisor is not allowed to have access to grand
jury material 10/ unless specifically authorized (see below)
due to the limitations on disclosure found in Rule 6(e) of the
Federal Rules of Criminal Procedure. A limited exception to
9/ Alerting such supervisors to the commencement of the grand
jury is intended solely as a prophylactic measure to prevent
disclosure of priviledged material. Supervisors who have been
so alerted must not inform anyone of the existence of a grand
jury and, if pressed on the matter, should refer the person
requesting the information to the DOJ prosecutor(s).
10/ To prevent unauthorized dissemination of grand jury material,
Tt is necessary to define "grand jury material." The broadest
view of this term would include: all witness testimony, the
names of grand jury witnesses, the subject matter of the grand
(continued)
-------
-7-
t,1e. general rule of nondisclosure, Rule 6(e) (3) (C) (ii), specif!
that only "such government personnel as are deemed necessary
by an attorney for the government [i.e., the DOJ prosecutor(s)
and Agency attorneys that have been designated as Special
Assistant United States Attorneys for particular cases]* to
as.sist in the enforcement of federal criminal law are to be
granted such access (emphasis supplied). Rule 6(e) has two
primary purposes: to preserve grand jury secrecy and to prevent
prosecutorial abuse. Thus, some courts have narrowly construed
this provision to allow only agents and experts actively involved
in the investigation to have access to grand jury material. It
is the policy of DOJ not to place an individual on the so-called
"6(e) list,"H/ allowing access to grand jury material, merely
because thatTndividual supervises a person who is on the
liist.
jury investigation, sununarizations of grand jury testimony,
documents submitted to the grand jury, the direction and focus
of the grand jury investigation, conclusions reached as a
result of the grand jury investigation, and information obtained
as a result of grand jury testimony. See, e.g. , Fund for
Constitutional Government v. National Archives and Records
Service, 656 F.2d 856 (D.C. Cir. 1981).However, documents
which are obtained by means independent of the grand jury or
created for a purpose independent of the grand jury are typically
not within the scope of Rule 6(e). See, e.g., United States
v. Interstate Dress Carriers, Inc., 280 F.2d 52, 54 (2d Cir.
1960). (To be prudent, it is best to check with the DOJ prose-
cutor(s) to ascertain what precisely constitutes "grand jury
material" under the interpretation of a particular federal
district court.) Therefore, documents and records which would
be otherwise available as part of a civil/administrative proceeding
can generally (depending upon the prosecutor's evaluation of
the law of the relevant court) continue to be available to the
civil/administrative staff (and the supervisor if he/she has
withdrawn from the criminal matter) even if the grand jury has
been presented with copies of these same records and documents.
Such "otherwise available" documents could include, for example,
information produced pursuant to an administrative letter audit
or inspection or materials produced by the criminal investigations
team prior to the convening of the grand jury, such as interview
reports, sampling results, audits, etc. (however, see caveat
concerning sharing of criminal and civil information at
Section II, p. 3). Additionally, grand jury material used in
open court or contained in the public court papers in the
criminal case may then be utilized in the civil/administrative
proceeding.
ll/ The DOJ prosecutor(s) are required under Rule 6(e) to prompt.
disclose to the court a list of the names of the government person-
nel assisting in the prosecution to whom grand jury material
has been disclosed.
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-8-
B. Mandatory Withdrawal from the Civil/Administrative
Action by a Supervisor on the 6(e) List
When a supervisor believes that it is necessary to have
access to grand jury material, it may be appropriate for him/
her to join the criminal prosecution team (if he/she has not
already done so). In such a case/ a request together with the
reasons therefor should be made to the DOJ prosecutor{s) for
the supervisor to be placed on the 6(e) list.
After a grand jury has been convened, if a supervisor is
part of the prosecution team then he/she must without exception
withdraw completely and immediately from all responsibilities
involving the parallel civil/administrative action other than
routine management functions.
Note that failure to conform to the nondisclosure require-
ments of Rule 6(e) may lead to a variety of court sanctions
which could have significant adverse effects on the Agency's
criminal case, the individuals involved and the Agency's
entire criminal enforcement program. These potential sanctions
include contempt citations, the removal of the prosecuting
attorney(s) from the case, disclosure of the grand jury material
to the opposing party, and, in extreme cases, dismissal of the
indictment.
c*. Requests for Information by a Supervisor Not on the
6(e) List
It is essential that substantive information about a parallel
criminal case released to a supervisor who is not on the 6(e)
list be within permissible bounds. Where the supervisor
anticipates that he/she will make numerous inquiries regarding
the criminal matter, the supervisor should request routine
briefings by the DOJ prosecutor(s), who would determine what
information may be revealed.
Alternatively, once a grand jury proceeding has begun, all
communications concerning the transfer of information potentially
subject to Rule 6(e) between such a supervisor and his/her
staff who are on the 6(e) list should be made only in writing.12/
12/ The disclosure of management-related information clearly
not within the purview of Rule 6(e) (see discussion at
Section III, p. 5, supra) would not need to be so documented*
If the "in writing" approach is taken, it would be useful for
the supervisor to maintain a log for each such parallel proceeding
indicating, with respect to each such request for information:
the date of the information request, to whom the request was
made, a brief indication of the response to the request, and,
if information was disclosed, the reason it was not privileged.
-------
-9-
Th'i-s procedure allows the staff member responding to the reques
to determine carefully (if necessary, after consultation with
the prosecutor(s)) which material (for example, because of its
pre-grand jury genesis or because of its independent source)
may be properly disclosed. However, this procedure would
probably prove more cumbersome than briefings by the prosecutor(s)
and could have the added cost of possibly creating material
which arguably could be required to be turned over to the
defense under the Brady doctrine.13/
Under rare circumstances, a supervisor might not anticipate
that a question to Agency personnel could elicit grand jury
material. To avoid inadvertent transfer of improper information,
the Agency will consider both the supervisor and the respective
staffs to be responsible for ensuring that privileged information
is not disclosed. A;staff member must decline to respond to a
supervisor's information request which would disclose grand
jury information. Similarly, a supervisor must decline to
respond to a staff member's information request that would
disclose any information revealed by the defendant/respondent
in the civil/administrative proceeding which (as discussed at
Section II, pp. 3-4, supra) might be inappropriate to disclose.
(In either case it would also be appropriate to refrain from
disclosing information and to refer the person requesting the
information to the DOJ prosecutor(s) concerned with the matter.)
The supervisor must rely upon the judgment of the staff member, i
and vice versa, in withholding the requested information when
necessary.
D. Request by Agency Supervisor on the 6(e) List to
Disclose Grand Jury Information to Agency CiviI7
Administrative Personnel
Supervisors on the 6(e) list who believe that there exists
a "particularized need" for grand jury material to be disclosed
to their staff working on a pending (or anticipated) parallel
civil suit may not release, directly request the court to release,
or request their staff to seek the release of, that material.14/
13/ The Brady doctrine, in essence, requires that upon specific
request by a criminal defendant, a prosecutor must disclose
evidence favorable to the accused that is material to guilt or
punishment. Brady v. Maryland, 373 U.S. 83 (1963).
14/ It is DOJ policy that only "attorneys for the government"
may request the disclosure of grand jury material. Moreover,
if a supervisor were to disclose to his/her staff (not on the
6(e) list) the existence of such material so that they might
then seek it, it is probable that such disclosure, in and of
itself, would violate Rule 6(e).
-------
-10-
However, the supervisor may request the DOJ prosecutor(s) to
seek the release of such material. See United States v. Sells
Engineering, Inc., U.S. , 103 S. Ct. 3133, 3168-69 (1963).
DOJ prosecutors who through a grand jury investigation became
aware of information which is unknown to the Agency and for
which the Agency has a "particularized need"—for example*
evidence of a serious public health hazard—nay initiate appro-
priate action through the courts to seek disclosure.IS/
VI. Communications with DOJ
If a supervisor wishes to communicate with DOJ with respect
to a particular investigation or litigation in connection with
the practices set forth herein, but has not yet established a
DOJ contact for that particular matter, he/she should use
generally the following procedures. Headquarters and other
non-Regional supervisors should contact the Office of Criminal
Enforcement {FTS 557-7410) and request the assistance any of
the staff attorneys. Regional supervisors should request the
assistance of the Criminal Enforcement Contact within the
Regional Counsel's Office for his/her Region. These attorneys
will help ensure that necessary contacts with the appropriate
DOJ prosecutor(s) are expeditiously made.
VII. Reservations
The policies and procedures set forth herein, and internal
office procedures adopted pursuant hereto, are not intended* do
not, and may not be relied upon to, create a right or benefit*
substantive or procedural, enforcible at law by a party to
litigation with the United States. The Agency reserves the
right to take any action alleged to be at variance with these
policies and procedures or not in compliance with internal
office procedures that may be adopted pursuant to these materials*
15/ Ordinarily, DOJ should designate the lead EPA attorney on
the pending civil litigation (generally the Regional Attorney
assigned to the case), if one has been established, to receive
such information. However, if no lead attorney has been
established, the information may be transferred to the appro-
priate Regional Counsel.
-------
GM-38
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460 (/
APR 151985
,\ • i
CJp/1/ ' /
' *
OFFICf Of rsFOUrt MF\T
ANDCOMPLUSCI
MOMTOftlVG.
MEMORANDUM
SUBJECT: Remittance of Fin
and Civil Pena
FROM: Courtney M. Pric<
. Assistant Administrator for Enforcement
and Compliance Monitoring (LE-133)
TO: Associate Enforcement Counsels
Director, Office of Compliance Analysis and
Program Operations,
Regional Counsels
This is to inform you of a new Agency remittance procedure
instituted by the EPA Office of the Comptroller. The procedure
applies to payments on all debts owed EPA, including civil
penalties assessed by the Agency.
All EPA orders requiring payment of fines or civil penal-
ties—or letters transmitting those orders—will include language
consistent with the new procedure, which is described below.
EPA has adopted the Department of Treasury's Nationwide
Lockbox System for receipt of payments on debts owed to the
Agency. Under the Lockbox System, debtors are directed to remit
payments to the Post Office Box address used by the designated
EPA lockbox bank. Payments received at that "lockbox" are
deposited immediately by the responsible bank, and the Agency
receives a copy of the remittance and all accompanying documents
within one working day. Users of the system have found that
the lockbox has several benefits: Improved cash management,
increased physical security for the checks, stronger internal
controls, and a reduced administrative burden.
For your information, I have attached a listing that shows,
for each region and for EPA Headquarters, the lockbox address
to which payments of penalties owed the Agency will be sent.
(Remittances for Superfund billings nationwide are sent to a
single lockbox address.)
-------
-2-
Chief Administrative Law Judge Edward Finch is directing
all Agency administrative law judges and hearing clerks to
implement this new procedure.
The new procedure supersedes the requirement in the Consol-
idated Rules of Practice (CROP), 40 CPR $22.31(b), that payment
is to be forwarded directly to the regional hearing clerk.
This paragraph in the CROP will be formally revised in the
near future. Because this revision is procedural only, it nay
be implemented prior to the completion of formal rulemaking.
Under the new procedure, the servicing financial management
offices will contact the appropriate hearing clerk as soon as
they receive notification of a remittance, and will provide
the hearing clerk with a' copy of the check and accompanying
documents. Accordingly, questions concerning the status of a
civil penalty may be directed to either of those offices. In
addition, the headquarters Financial Reports and Analysis
Branch (FTS 382-5131) maintains a computerized record of civil
penalty receivables and collections nationwide.
More detailed procedures for penalty collections are being
developed by EPA's Office of the Comptroller. In the meantime,
any questions concerning the lockbox procedure should be directed
to your financial management office.
Attachment
cc: General Counsel
Edward B. Finch, Chief Administrative Law Judge
Assistant Administrators
Associate Administrators
Regional Administrators
C. Morgan Kinghorn, Comptroller
-------
LOCKBOX DEPOSITORIES
REGION
LOCKBOX BANK
ADDRESS FOR
REMITTING PAYMENT
Region 1
Boston
Region 2 -
New York
Region 3 -
Philadelphia
Region 4 -
Atlanta
Region 5
Chicago
Region 6
Dallas
Region 7 -
Kansas City
Region 8 -
Denver
Mellon Bank
Mellon Bank
Mellon Bank
The Citizens and
Southern National
Bank
The First National
Bank of Chicago
Mellon Bank
Mellon Bank
Mellon Bank
EPA - Region 1
(Regional Hearing Clerk)
P.O. Box 360197M
Pittsburgh, PA 15251
EPA - Region 2
(Regional Hearing Clerk)
P.O. Box 36018BM
Pittsburgh, PA 15251
EPA - Region 3
(Regional Hearing Clerk)
P.O. Box 360515M
Pittsburgh, PA 15251
EPA - Region 4
(Regional Hearing Clerk)
P.O. Box 100142
Atlanta, GA 30384
EPA - Region 5
(Regional Hearing Clerk)
P.O. Box 70753
Chicago, IL 60673
EPA - Region 6
(Regional Hearing Clerk)
P.O. Box 360582M
Pittsburgh, PA 15251
EPA - Region 7
(Regional Hearing Clerk)
P.O. Box 360748M
Pittsburgh, PA 15251
EPA - Region 8
(Regional Hearing Clerk)
P.O. Box 360859M
Pittsburgh, PA 15251
-------
Region 9 -
San Francisco
Region 10 -
Seattle
Headquarters -
Washington, D.C.
All Superfund
Billings
Mellon Bank
Mellon Bank
Mellon Bank
Mellon Bank
EPA - Region 9
(Regional Hearing Clerk)
P.O. Box 360863M
Pittsburgh, PA 15251
EPA - Region 10
(Regional Hearing Clerk)
P.O. Box 360903M
Pittsburgh, PA 15251
EPA - Washington
(Hearing Clerk)
P.O. Box 360277M
Pittsburgh, PA 15251
EPA - Superfund
P.O. Box 371003M
Pittsburgh, PA 15251
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GM-39
-------
t'NITED STATES ENVIRONMENTAL PROTECTION AGENCY
HASHINCTON.D.C. 20460
(»( I S»
-------
-2-
,A primary purpose of OECM review is to ensure that Agency
policies and guidelines are being followed, it is not our
purpose or desire to substitute our judgment for that of the
Region or to "nitpick" the Region's product when it follows
Agency policy. OECM will approve an Agency settlement position
or draft decree that falls within existing, broad policy
boundaries. In the absence of existing policy on a particular
issue, OECM will approve a position that will promote — or
not hinder — the Agency's enforcement efforts in other cases.
The vast majority of Regional recommendations conform to
Agency guidance and are approved. Nevertheless, in the recent
past a number of Regional settlement positions that had already
been communicated to and tentatively agreed upon with the
defendant have been presented to our office, placing OECM and
the Region in a potentially embarrassing position. These cases
are appearing with increasing frequency, and it is clear that
they can interfere with the effectiveness of the Agency's
enforcement effort, and create inconsistent results and
precedents.
Consequently, OECM will not assign any weight to Regional
recommendations that Headquarters should approve a settlement
position made without prior authorization because it already
had been communicated to the defendant. If such a proposed
settlement contravenes Agency policy, if it would establish
bad precedent for future cases, or if it would produce results
inconsistent with those obtained in previously-approved
settlements, it will be returned to the Region for further
negotiations.
cc: Courtney M. Price, Assistant Administrator, OECM
Deputy Regional Administrators
Associate Enforcement Counsels
Regional Water Program Division Directors
Regional Waste Program Division Directors
Regional Air Program Division Directors
Headquarters Program Compliance Office Directors
David Buente, Department of Justice
Linda Fisher, Office of the Administrator
LaCuana Wilcher, Office of the Deputy Administrator
-------
GM-40
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
AY 3 0 1985
wrier OF IVFOHCIMIM
ANDroMPii«\rt
MOMTORISb
MEMORANDUM
SUBJECT: Revised Regional Referral Package Cover Letter
and Data Sheet s\ "*)
FROM: Courtney M. Price \^L*~)—^ l^
Assistant Administrator for Enforcement
and Compliance Monitoring (LE-133)
TO: Regional Administrators
Regional Counsels
Associate Enforcement Counsels
As part of our on-going efforts to improve the civil
judicial case referral process, I have requested my staff to
formulate a standard referral package cover letter and data
sheet (see attached outline). The new cover letter has been
substantially streamlined. Most of the case information will
now be contained in the data sheet. This approach is the
result of discussions held at the Regional Counsel?' meeting
last January in Denver and is designed to aid my s.aff in
tracking referrals. This memorandum supersedes all previously
issued guidance concerning referral package cover letters.
The letter and data sheet with its 11 critical elements
have been designed to facilitate ease of preparation and
to give a very brief capsule description of the case to
the reviewer. In short, once the system is in place, anyone
who reads the letter and data sheet will get an excellent
summary of the case's major elements.
Please put this standard referral cover letter and data
sheet into effect by June 14, 1985. I suggest you implement
this approach by drawing up forms listing these 11 elements.
We have attached a suggested model data sheet. If you have
any Questions please contact Bill Ouinby of the Legal
Enforcement Policy Division at FTS-475-8781.
cc: Program Office Directors
Chief, Environmental Enforcement Section,
Land and Natural Resources Division, DOJ
-------
CONTENTS OF REGIONAL COVER LETTER AND DATA SHEET
FOR REFERRAL PACKAGES
The cover letter itself should be signed by the Regional
Administrator and consist of one short paragraph reouesting EPA
Heac'ouarters to review the attached litigation report and
refer it to the Department of Justice, or in the case of
direct referrals reauesting DOJ to file a civil action.
Attach to this cover letter a very brief description of
the following in a data sheet. Certain items may not be
appropriate in every case.
1. The statute(s) and repulation(s) which are the basis for the
proposed action, including state regulations, if applicable.
2. The name and location of the defendant(s).
3. T.ie violation(s) upon which the action is based.
4. The proposed relief to be souoht, including injunction,
and proposed amount of penalty to be sought at settle-
ment, if applicable.
5. The recent contacts with the defendant(s), including any
previous administrative enforcement actions taken, and
neootiat ions, if any.
6. The sianificant national or precedential legal or factual
issues.
7. Dat.e of inspection, information response, or receipt of
evidence of violation which led to decision to initiate
enforcement proceedings.
8. Date, if applicable, that the technical support documents
froTi the program, or support documents necessary for
preoaration of a referral reach the Regional Counsel's
office.
9. Pate referral is signed by Regional Administrator.
10. Any other aspect of the case which is significant or should
be Mohlighted including any extraordinary resource demands
which the case may reouire.
11. The identity of lead regional legal and technical personnel.
[PLEASE SEE ATTACHED MODEL DATA SHEET]
-------
MODEL DATA SHEET
1. The statute(s) and requlation(s) which are the basis for the
proposed action, including state regulations, if applicable.
2. The name and location of the defendant(s).
3. The violation(s) upon which the action is based.
4. The proposed relief to be sought, including injunction,
and proposed amount of penalty to be sought at settlement,
if applicable.
-------
-2-
*^ata Sheet - Cont.
The recent contacts with the defendant(s), including any
previous administrative enforcement actions taken, and
v*A**«A^{»^«AV*0> 4 £ m w* t t
s.
neootiations, if any
The sinnificant national or precedential leqal or factual
issues.
7. nate of inspection, information response, or receipt of
evidence of violation which led to decision to initiate
enforcement proceed!nns.
P. nate, if applicable, that the technical support documents
from the prooram, or support documents necessary for
preparation of a referral reach the Regional Counsel's
office.
9. Pate referral is sianed by Pegional Adminstrator.
in. Anv other aspect of the case which is significant or should
be hiahliahted including any extraordinary resource demands
which the case may reouire.
11. The identity of lead regional legal and technical personnel
-------
GM - 41, was revised on August 25, 1986. The 1984
version has been replaced with the 1986 version.
Appendix A from the 1986 version is attached to the
policy as part of GM-41. Appendix B, EPA Policy on
Implementing Nationally Managed or Coordinated
Enforcement Actions is already contained in this
Compendium as GM-35. Appendix C, Division of Penalties
with State and Local Governments is already contained
in this Compendium as GM-45.
-------
GM-41
-------
,>tT
f j£Li
\ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
wj WASHINGTON 0 C 20460
AUG 2 5 1986
MEMORANDUM
SUBJECT: Revised Policy Framework for State/EPA Enforcement
Agreements ,
1
PROM: A. James Barnet /
Deputy Administrators/A/
TO: Assistant Administrators
Associate Administrator for Regional Operations
Regional Administrator*
Regional Counsels
Regional Division Directors
Directors, Program Compliance Offices
Regional Enforcement Contacts
I am pleased to transmit to you a copy of the Agency's
revised Policy Framework for State/EPA Enforcement Agreements.
The Policy Framework, originally developed in 1984, along with
program-specific implementing guidance, will continue to serve as
the blueprint for our State/EPA enforcement relationship. The
revised Policy Framework integrates new guidance developed since
its original issuance. It reinforces the Guidance for the FY
1987 Enforcement Agreements Process which 1 transmitted to you on
April 15, 1986 and should serve as your guide for negotiations
and implementation of the Enforcement Agreements.
Although the intent of the revisions was to incorporate new
policy, the process gave the Agency, with the assistance of the
Steering Committee on the State/Federal Enforcement Relationship,
an opportunity to reassess with the States our original approach.
This process has clearly reaffirmed that the basic approaches we
put in place in 1984 for an effective working partnership are
sound and that all parties continue to be committed to its effective
implementation.
The revisions incorporate into the Policy Framework adden.H
developed over the past two years in the areas of oversight of
State civil penalties, involvement of the State Attorneys General
-------
-2-
in the Enforcement Agreements process, and implementation of
nationally managed or coordinated cases. The revisions also
reflect, among other things, some of the points that have been
emphasized in my annual guidances on the Enforcement Agreements
process, the Evaluation Report on Implementation of the Agreements,
and the Agency's Criminal Enforcement and Federal Facilities
Compliance draft strategies.
1 am firmly committed to full and effective implementation
of tht Policy Framework and am relying on your continued personal
attention to this important effort. 1 plan to review the Region's
performance in implementing the revised Policy Framework ami the
program-specific guidance, particularly the "timely and appropriate"
enforcement response criteria, as part of my semi-annual regional
visits.
1 encourage you to share the revised Policy Framework with
your State counterparts.
Attachments
cc: Steering Committee on the State/Federal Enforcement
.Relationship
-------
POLICY FRAMEWORK FOR STATE/EPA
ENFORCEMENT AGREEMENTS
August 1986
(originally issued June 1934)
OFFICE OF ENFORCE.MENT
AND COMPLIANCE MONITORING
-------
POLICY FRAMEWORK FOR STATE/EPA ENFORCEMENT AGREEMENTS1/
Achieving and maintaining a high level of compliance with
environmental laws and regulations is one of the most important
goals of Federal and State environmental agencies, and is an essantial
prerequisite to realizing the benefits of our regulatory programs.
While States and local governments have primary responsibility for
compliance and enforcement actions within delegated or approved
States, EPA retains responsibility for ensuring fair and effective
enforcement of Federal requirements, and a credible national deterrence
to noncompliance." An effective State/Federal partnership is critic*!
to accomplishing these goals, particularly given limited State and
Federal resources. The task is difficult and one of the most sensi-
tive in the EPA/State relationship, often compounded by differences
in perspectives on what is needed to achieve compliance.
To establish an effective partnership in this area, and
implement the State/Federal enforcement relationship envisioned
in the Agency Oversight and Delegation policies, EPA called for
State-specific enforcement agreements to be in place beginning
FY 1985 which will ensure there are: (1) clear oversight criteria,
specified in advance, for EPA to assess good State --or Regional--
compliance and enforcement program performance; (2) clear criteria
for direct Federal enforcement in delegated States with procedures
for advance consultation and notification; and (3) adequate State
reporting to ensure effective oversight.
»
This document is the Agency's policy framework for implementing
an effective State/Federal enforcement relationship through national
program guidance and Regional/State agreements. It is the product
of a Steering Committee effort involving all major national EPA
compliance and enforcement program directors, State Associations,
State officials from e&<"'••; of the media programs, and the National
Governors' Association. EPA anticipates that the relationship, and
the use of. the agreements first established in FY 1985, will evolve
and improve over time. They will be reviewed, and updated where
necessary, on ajj annual basis. The Policy Framework will be subject
to periodic review and refinement. Originally issued on June 26,
1934, the Policy Framework has been updated to reflect additional
guidance d«v«loped since that ti>ne.
The term Enforcement Agreement is used throughout to describe the
document(s), be it an existing grant, SEA, MOU, or separate
Enforcement Agreement, which contains the provisions outline.? i~.
the Policy Framework and related media-specific guidance. (See
p.4 for description of form of agreement.)
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Policy Framework Overview
The Policy Framework applies both to Headquarters program
offices in their development of national guidance and to Regions
in tailoring program guidance to State-specific needs and agreements.
Although enforcement agreements are not required for States which
do not have delegated or approved programs, Regions are encouraged
to apply to these States certain policies anJ provisions where
relavant, particularly advance notification and consultation
protocols. The Policy Framework is divided into six sections, to
address the following key areas:
A. State/Federal Enforcement "Agreements": Form, Scope and
Substance (pages 4-7)
This section sets forth for Regions and States developing
enforcement agreements, the areas that should be discussed,
priorities, and the degree of flexibility that Regions have in
tailoring national guidance to State-specific circumstances,
including the form and scope of agreements.
B. Oversight Criteria and Measures: Defining Good Performance
"i[ pages 8-17)
This section it primarily addressed to EPA's national programs,
tetting forth criteria and measures for defining good performan<
generally applicable to any compliance and enforcement program <
whether administered by EPA or a State. It forms the basis for
EPA oversight of State programs. A key new area that should
receive careful review is the definition of what constitutes
timely and appropriate enforcement response/ Section B, Criterion
05, pages 11-13.
C. Oversight Procedures and Protocols (pages 18-20)
This section sets forth principles for carrying out EPA's
oversight responsibilities, including approach, process and
follow-up.
D. Criteria for Direct Federal Enforcement in Delegated states
Tpages 2J.-25)
This ••etion sets forth the factors EPA will consider before
taking direct enforcement action in a delegated State and
what States may reasonably expect of EPA in this regard
including the types of cases and consideration of whether a
State is taking timely and appropriate enforcement action.
It also establishes principles for how EPA should take enforce-
ment action so that we can be most supportive of strengthening
programs.
E. Advance Notification and Consultation (pages 26-30)
This section sets forth EPA's policy of "no surprises" and
what arrangements must be made with each State to ensure the
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policy is effectively carried out by addressing planned
inspection*, enforcement actions, press releases, .-JiSpute
resolution and assurances that publicly reported performance
data is accurate.
F. State Reporting (pages 31-35)
This section sets forth seven key measures EPA will use, at a
minimum, to manage and oversee performance by Regions and
States. It summarizes State and regional reporting requirements
for: (1) compliance rates; (2) progress in reducing significant
non-compliance: (3) inspection activities; (4) formal adminis-
trative enforcement actions; and (5) judicial actions, at
least on a quarterly basis. It also discusses required
. commitments for inspections and for addressing significant
non-compliance.
In addition, it sets forth State and regional requirements for
recordkeeping and evaluation of key milestones to assess the
timeliness of their enforcement response and penalties imposed
through those actions.
Appendices
Appendix A: Annual priorities and implementing guidance
provides a list of the annual priorities for implementing the-
enforcement agreements and a summary index of what national
program guidance has been or will be issued by programs to
address the areas covered by the Policy Framework for State/EPA
Enforcement Agreements.
Appendix B: Addendum to the Policy Framework on "Implementing
Nationally Managed or Coordinated Enforcement Actions,"
issued January 4, 1985.
Appendix C: Guidance on "Division of Penalties with State
and Local Governments," issued October 30, 1985.
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A. STATE/FEDERAL ENFORCEMENT AGREEMENTS: FORM, SCOPE, AND SUBSTANCE
This section sets forth the form, scop* and substance of the
State/Federal Enforcement Agreements as well as the degree of
flexibility Regions have in tailoring national policy to
States.
1. What Form Should the Agreements Take?
We do not anticipate the need for a new vehicle or document
for. the State/Federal enforcement agreements. Wherever possible,
State/Federal agreements should be set forth in one or more of
a number of existing formats: grant agreements, State/EPA Agreements
Memoranda of Agreement or Understanding or a statement of Regional
Office operating policy. Where there are new documents the
appropriate linkage should be made to grants and SEA's as applicable.
To the extent the areas covered by this Policy Framework translate
into specific output commitments and formal reporting requirements,
they may belong in the grant agreements as specified in national
program grant guidance. Regions should discuss with the States
at an early stage in the planning process their views on both the
form and substance of the agreements. Once the basic agreements.
are in place, Regions should consider most aspects of the written
agreements as multi-year, minimizing the need to renegotiate the
agreements each year. Regions should conduct an annual review
with the States to identify needed revisions and additions to the
agreements to address identified problems or reflect further national
guidance.
2. What is the Scope of the Agreements?
This guidance and the State/EPA agreements cover all
aspects of EPA's civil compliance and enforcement programs,
including those activities involving Federal facilities. The
criminal enforcement program is not included and will be addressed
elsewhere.
Discussions between EPA Regions and States should cover the
minimum area* listed below:
o Overfight Criteria and Measures? Good Performance Defined
--See Section B.
o Oversight Procedures and Protocols — See Section C.
o criteria for Direct EPA Enforcement — See Section D.
o Procedures for Advance Notification and Consultation — See
Section E.
o Reporting Requirements — See Section F.
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However, Regions and States are not expected to duplicate nationa
Program guidance in their agreements — we are not looking for
lengthy documents. Written agreements resulting from these
discussion* could cover topics which are not clearly specified
elsewhere. If not otherwise specified, national policy will apply
and should be so stated in the state agreements. Although not
required for non-delegated or unapproved programs, Regions are
encouraged to apply certain policies and provisions where relevant,
particularly advance notification and consultation protocols.
This Policy Framework and the resulting State/EPA Enforcement
Agroements are intended to enhance enforcement of State and
Federal environmental laws. Each agreement should be careful
to note that nothing in them or this Policy Framework constitutes
or creates a valid defense to regulated parties in violation of
environmental statutes, regulations or permits.
3. Parties to the Agreements and Participants in the Process.
It is important to involve the appropriate State and regional
personnel early in the agreement* process. In the Regions, this
meanti involving the operating level program staff and the Regional
Counuel staff along with top management; and in the States it
mean)! the participation of all the organizational units responsible
for naking enforcement work, e.g., State program staff, those
responsible for oversight of field operations, staff attorneys,
and the State Attorneys General (AG). The State agency should
have the lead in establishing effective relationship* with the
State AG or State legal staff, as appropriate. The Regions
should ensure that there is adequate communication and coordination
with these other participants in the enforcement process. States
are strongly encouraged to commit advance notification and
consultation procedures/protocols between the State agency and
the State AG (or State legal staff, as appropriate) to writing.
The Region should seek to incorporate these written protocols
into the State/EPA Enforcement Agreements (See discussion on
pages 17 ^.;d 26-27).
*
4. What Flexibility do Regions Have?
Region* must be allowed substantial flexibility to tailor
agreements to each State, as the agreements process is intended
to be based upon mutual understandings and expectations. This
flexibility should be exercised within the framework of national
program policy and the Agency's broad objectives. Specifically,
a. Oversight Criteria:
Oversight criteria would generally be provided in national
program guidance but Regions should tailor their general oversight.
to address environmental and other priorities in the Region or
State, and other specific areas of concern that are unique to
an individual State, including any issues raised by the scope
of State enforcement authorities, unique technical problems anJ
available expertise, and areas targeted for improvement.
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In addition, Regions and States should adapt national
timely and appropriate enforcement response criteria to State-
specific circumstances to fit State authorities and procedures
A a 4? ^ 1 1 **t^jM •
as follows:
(i) Timeliness; The national program guidance on key
milestones and timeframes should be applied to all States
with adjustments to accommodate each State's laws and legal
procedures. Such adjustment can be important particularly
where the proposed enforcement action cannot possibly take
place within the proposed timeframes or where a State
chooses to address problems more expeditiously than the
Federal guidelines. The trigger points should be realistic
expectations, but within modest variance from the national
goals. Other adjustments should not be made solely because
a State program consistently takes longer to process these
actions due to constraints other than procedural require-
ments, e.g., resources. However, if this is tNe case the
timeframes should serve as a basis for reviewing impediments
with the State to identify how problems can be overcome and
to explore ways over time for the State program to perform
more efficiently. (See discussion in Section B, p.13)
The timeframes are not intended to be rigid deadlines for
action, but rather are: (1) general targets to strive for
in good program performance; (2) trigger point* that EPA
and States should use to review progress in individual
cases; and (3) presumptions that, if exceeded, EPA may
take direct enforcement action after consideration of all
pertinent factors and consultation with the State. It is
not the Agency's intention to assume the major enforcement
role in a delegated State as a result of these timeframes.
The trigger points should be realistic expectations, but
within modest variance from the national goals. It must
also be realized that in some programs we need experience
with the timeframes to assess how reasonable and workable
they^really are and further, that judgments on what is a
reasonable timetable for action must ultimately be case
specific. For example, complex compliance problems may
require longer-term studies to define or achieve an appro-
priate remedy.
(ii) Appropriate Enforcement Response:
(a) Choice of response; National medium-specific program
guidance applicable to State programs on appropriate
enforcement response should b« followed (See Appendix A).
There is usually sufficient flexibility within such
guidance to allow the exercise of discretion on how best
to apply the policies to individual cnses. The Agency is
making every effort to set forth a consistent national
oolicy on enforcement response for each program. It is
therefore essential that in setting forth clear expectations
with States this guidance not be altered.
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',(b) Definitions of formal enforcement actions; Regions
should reach agreement with States as to how certain St*te
enforcement actions will be reported to and interpreted by
EPA. This should be based upon the essential characteristics
and impact of State enforcement actions, and not merely
upon what the actions are called. National program guidance
setting forth consistent criteria for this purpose should
be followed, pursuant to the principles listed in Section 3,
pages 11-12.
(c) Civil Penalties and Other Sanctions: Program guidance
must also be followed on where a penalty is appropriate.
Regions have- the flexibility to consider other types of state
sanctions that can be used as effectively as cash penalties
to create deterrence, and determine how and when it might be
appropriate to use these sanctions consistent with national
guidance. Region's and States should reach understanding on
documentation to evaluate the State's penalty rationale.
Maximum flexibility in types of documentation will be
allowed to the State.
5. Procedures and Protocols on Notification and Consultation:
Regions and States should have maximum flexibility to fashion
arrangements that are most conducive to a constructive relationship,
following the broad principles outlined in this document.
6. State-Specific Prioritiesi
•
In addition, while of necessity EPA must emphasize commit.~ner.ts
by Stages to address significant noncompliance and major sources
of concern, Regions should be sensitive to the broad concerns of
State Programs including minor sources and the need to be responsive
to citizen complaints. Regions should discuss the State's perspective
on both its own and national priorities, and take into account
State priorities to the extent possible.
7. What Does it Mean to Reach Agreement?
To the txVtent possible, these agreements should reflect mutual
understandings and expectations for the conduct of Federal and
State enforcement programs. At a minimum, EPA Regions must: (1)
be clear and ensure there are "no surprises"; (2) make arrangements
with th* States so that actions taken are constructive and supportive:
and (3) tailor the application of the national program guidance
to the States' programs and authorities. Where mutual agreement
cannot be achieved, clear unilateral statements of policy will
have to suffice, with commitments to try to seek further agreener.ts
over time. Areas where agreements have not been reached should
be clearly identified for senior Agency management attention.
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B. OVERSIGHT CRITERIA AND MEASURES: DEFINING GOOD PERFORMANCE
The first step to achieving strong and effective national
compliance and enforcement programs i» a clear definition of
what constitutes good performance. Because e*ch of EPA's programs
embodies unique requirements and approaches, good performance
must be defined on a program-specific basis. Adjustments also
must be made in applying criteria and measures to the States
and Regions, bas«d upon their environmental problems and
authorities. Nevertheless, there are several basic elements
which will generally be applicable to a good compliance and
enforcement program in any of our medium-specific programs.
The following outlines the criteria and measures that form
the common framework for defining a quality program. The
framework is to serve as a guide to the national programs as
they develop, in cooperation with Regions and States, the
criteria they will use to assess their performance in implementing
national compliance and enforcement programs.
The framework is not intended to be adopted word-for-word
by the programs, nor is there any format implied by this list.
What is important are the concepts. This section addresses
only the elements of a quality program. Issues such as how
oversight should be conducted are addressed in Section C. Each
national program may choose to focus on certain elements of
performance in a given year.
These criteria and measures are intended to apply to the
implementing agency, that is, to an approved or delegated
State or to an EPA Region in the event a program is not
"delegated." Our philosophy is that EPA should be held to
the same standards as we would apply to the States if they
were implementing the program. Portions may also apply to
those non-approved or non-delegated States which are adminis-
tering portions of the programs under cooperative agreements.
CRITERION »1 Clear Identification of and Priorities for
the Regulated Community
A quality compliance and enforcement program is based
upon an inventory of regulated sources which is complete,
accurate and current. The data should in turn be accessible,
preferrably in automated data systems which are accurate, and
up-to-date. The scope of coverage for the inventory should
be appropriately defined by each program as it is probably
not feasible to identify every person or facility subject to
environmental laws and regulations, especially when they are
numerous small sources. Those priorities should be clearly
established in national program guidance and tailored to
State-specific circumstances as appropriate.
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The inventory of sources or other relevant information on
sources should be utilized as a basis for a priority-setting
system established by the administering agency. These priorities
should reflect and balance both national priorities and state-
specific priorities. A quality program uses those priorities
as a basis for program management. National priorities are
generally set forth in EPA's Operating Year Guidance and program-
specific compliance and enforcement strategies. State-specific
priorities should address not only efforts to achieve broad
basod compliance but also should assess the expected environmental
impact of targeting enforcement and compliance monitoring to
specific geographic areas or against certain source types.
Ambient monitoring systems can provide an important point of
departure for priority-setting.
CRITERION »2 Clear and Enforceable Requirements
Requirements established through permits, administrative
orders and consent decrees should clearly define what a
specific source must do by a date certain, in enforceable
terrrM. It is not EPA's intention in this policy framework to
suggest that EPA conduct a top down review of a State or
Regional program's entire regulatory program. However,
area* where provisions cannot be enforced due to lack of
clarity or enforceable conditions should be identified and
corrected.
CRITERION 13 Accurate and Reliable Compliance Monitoring
There are four objectives of compliance monitoring:
reviewing source compliance status to identify
potential violations;
- helping to establish an enforcement presence;
- collecting evidence necessary to support enforcement
'actions regarding identified violations; and
- developing an understanding of compliance patterns
of the regulated community to aid in targeting
activity, establishing compliance/enforcement
priorities, evaluating strategies, and communicating
iffformation to the public.
The two factors in assessing the success of a compliance
monitoring program are coverage and quality.
Coverage; Each program's strategy should reflect a balance
between coverage: (1) for breadth, to substantiate the reli-
ability of compliance statistics and establish an enforcement
presence; and (2) for targeting those sources most likely to
be out of compliance or those violations presenting the most
serious environmental or public health risfc.
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Inspections; Each administering agency should have a
written and reviewable inspection strategy, reviewed and
updated annually* as appropriate: in some programs a
multi-year strategy may be preferable. The strategy
should demonstrate the minimum coverage for reliable
data gathering and compliance assessment set forth in
national program guidance and meet legal requirements
for a "neutral inspection scheme." The strategy should
also address how the inspections will most effectively
reach priority concerns and potential noncompliers including
the use of self-reported data, citizen complaints and
historic compliance patterns. The strategy will be
assessed on whether it embodies the appropriate mix of
categories of inspections, frequency and level of detail.
Inspections should then be carried out in a manner
consistent with the inspection strategy.
Source Self-Monitoring and Reporting; The administering
agency should ensure that minimum national requirements
for source self-monitoring and reporting are imposed
and complied with, either through regulation or permit
condition, pursuant to national guidance as appropriate.
duality? Each program should define minimum standards for
quality assurance of data and data systems, and timely and
complete documentation of results. At a minimum, each program
should have a quality assurance program to insure the integrity
of the compliance monitoring program. This quality assurance
program should address essential lab analysis and chain of
custody issues as appropriate.
Inspections? Inspectors should be able to accurately
document evidence needed to determine the nature and
extent of violations/ particularly the presence of
significant violations. Documentation of inspection
findings should be timely, complete and able to support
subsequent enforcement responses, as appropriate to the
purpose of the inspection. Federal oversight inspections
should corroborate findings. Oversight inspections are
a principal means of evaluating both the quality of an
inspection* program and inspector training.
Source Self-Monitoring; The administering agency should
have a strategy for and implement quality assurance
procedures, with sufficient audits and follow-up action
to ensure the integrity of self-reported data.
CRITERION >4 High or Improving Rates of Continuing Compliance
The long-term goal of all of our compliance and enforcement
programs is to achieve high rates of continuing compliance
across the broad spectrum of the regulated community. Until
that goal is achieved, compliance rates can fluctuate for
several reasons. In assessing how well an administering
agency is meeting the goal of high or improving rates of
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11
compliance, other factors must be assessed in addition to
the overall compliance rate. Improved inspections or inspec-io-
targeting often can result in a temporary decrease in rates
of compliance until newly found violations are corrected and
the regulated community responds to the more vigorous attention
to specific compliance problems. In these ins-tances, a
decrease in the rate of compliance would be a sign of a
healthy compliance and enforcement program. At a minimum,
programs should design mechanisms to track the progress of
all sources out of compliance through major milestones up to
achieving final physical (full) compliance with applicable
regulations and standards.
Program quality must also be assessed in terms of how well
the program is returning significant noncompliers to compliance.
The use of lists of significant violators and specific commit.Tients
to track and resolve significant noncompliance should oe
part of the planning process of the administering agency,
and, between States and Regions. The lists should be developed
in consultation wih the States and continually updated each
fiscal year and sources on it tracked through to final physical
compliance.
CRITERION IS Timely and Appropriate Enforcement Response
Quality enforcement programs ensure that there is timely
and appropriate enforcement response to violations. Expectations"
for what constitutes timely and appropriate action should be
based upon national program guidance, tailored to the procedures
and authorities in a given State and assessed in regard to
particular circumstances surrounding each instance of violation.
National programs must establish benchmarks or milestones
for what constitutes timely and appropriate enforcement
action, forcing progress in enforcement cases toward ultimate
resolution and full physical compliance. This concept is a
key new feature to our compliance and enforcement program
implementation.
In designing oversight criteria for timely enforcement
response, each program will attempt to capture the following
concepts! w
1. A a«t number of days from "detection" of a violation
to an initial response. Each program should clearly
define when the clock starts, that is, how and when
a violation ia "detected."
2. Over a specified period of time, a full range of enforce-
ment tools may be used to try to achieve compliance,
including notices of violation, warning letters, phone
calls, site visits, etc. The adequacy of th««e responses
will be assessed based upon whether they result in
expeditious compliance.
3. A prescribed number of days from initial action within
which a determination should generally be made, that
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12
either compliance has been achieve-! or *-\ administrative
enforcement action has been taken (or a judicial referr*'
has been initiated, as appropriate) that, at a minima.-?.:
• Explicitly requires recipient to take some corrective'
remedial action, or refrain from certain behavior,
to achieve or maintain compliance;
• Explicitly is based on the issuing Agency's deter-
mination that a violation has occurred;
* Requires specific corrective action, or specifies a
desiced result that may b« accomplished however the
recipient chooses, and specifies a timetable for
completion;
* May impose requirements in addition to ones relating
directly to correction (e.g., specific monitoring,
planning or reporting requirements); and
* Contains requirements that are independently enforce-
able without having to prove original violation and
subjects the person to adverse legal consequences
for noncompliance.
4. A specific point at which a determination is made
either that final physical compliance has been achieved")
that the source is in compliance with a milestone in
a prior order, or that escalation to a judicial
enforcement action has been taken if such actions
have not already been initfated.
In developing program-specific guidance, this milestone
may be treated more as a concept than as a fixed timetable,
taking into account the fact that the administrative
* hearing process and the State Attorney General's actions
are not within the direct control of the administering
agency.£/ What is important, is the embodiment of the
•concept of timely follow-up and escalation, in requirements
for tracking and management.
5. Final physical compliance date is firmly established
and required of the facility. Although it i« not
possible for programs to establish any national
tiaeframes, the concept of final physical compliance
by a date certain should be embodied in CPA and State
enforcement actions.
6. Expeditious physical compliance is required. It may
not be possible for programs to define "expeditious"
in terms of set time periods, but some concept of
"expeditious" (i.e., that the schedule will result in
a return to full physical compliance as quickly as
can reasonably be expected) should be embodied in
each program's guidance.
See p. 1", 26-27, regarding the State Agency's responsibilities
"for coordinating with the State Attorney General or other
legal staffs.
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Timeframes established by the national programs for each
of these minimum milestones are principally intended to serve
as trigger points and not as absolute deadlines, unless
specifically defined as such. Whatever timeframes are establishe!
ar« intended to apply only to Federal requirements as adopted
by the States, and do not apply to State statutes and require-
ments that go beyond those required by Federal law. The
timoframes are key milestones to be used to manage the program,
to trigger review of progress in specific cases, and a presumption
of where EPA may take direct enforcement action after consideration
of all pertinent factors and consultation with the State.
Timeframes 'and their use in management will evolve over
time as they will have to reflect different types of problems
that may warrant different treatment. For example, programs
will have to take into account such factors as new types of
violations, the difference between operating and maintenance
violations versus those that require installation of control
equipment, emergency situations which may fall outside the
scope of the normal timeframes for action, etc.
Administering agencies are expected to address the full
range of violations in their enforcement responses considering
the specific factors of the case and the need to maintain a
credible enforcement presence. However/ the new management
approach setting forth desired timeframes for timely action
could have resource implications beyond what is currently
available to or appropriate for the full rang* of sources
and violations. Therefore, as we begin to employ the concept
of timely and appropriate enforcement response, at a minimum,
the focus should be on the greatest problems, i.e., the
significant noncompliers. Over time, and with more experience,
this concept should be phased-in to cover a broader range of
violations. This in no way should constrain the programs'
from applying the conctpts broadly.
The choices of appropriate response are to b« defined
within the constraints of national program guidance and
applied by the administering agency based upon consideration
of what is neeAds (1) in general, to achieve expeditious
correction of the violation, deterrence to future noncompliance
and falrnesji; and (2) in individual circumstances, based upon
the gravity Of the violation, the circumstance* surrounding
the violation, the source's prior record of compliance and
the economic benefits accrued from noncompliance. with
three exceptions, the form of the enforcement response is not
important by itself, as long as it achieves the desired
compliance result. The exceptions generally fall into the
following three categories:
1. If compliance has not been achieved within a certain
timeframe, the enforcement response should meet
minimum requirements, usually associated with at
least the issuance of an administrative order (see
criteria listed above) or judicial referral.
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14
2. Because of the need f> create a strong deterrence
to noncompliance, it is important to assess penalties
in certain cases, and only certain types of enforcement
actions can provide penalties. Each program must
clearly define, as appropriate, the circumstances
under which nothing less than a penalty or equivalent
sanction will be acceptable. (See Criterion 16 below.)
3. In some circumstances, a judicial action or sanction
is usually the only acceptable enforcement tool. Each
program must define these circumstances as appropriate.
For example, a judicial action might be required
where a* compliance schedule for Federal requirements
goes beyond Federal statutory deadline*.
A good program should have adequate legal authority to
achieve the above objectives. Where deficiencies have been
identified, steps should be taken to fill identified gaps.
CRITERION » 6 Appropriate Use of Civil Judicial and Administrative
Penalty and Other Sanction Authorities to Create Deterrence3/
1. Effective Use of Civil Penalty Authorities and Other Sanctions;
Civil penalties and other sanctions play an important role in
an effective enforcement program. Deterrence of noncompliance -
is achieve-] through: 1) a credible likelihood of detecting a
violation, 2) the speed of the enforcement response, and 3) the
likelihood and severity of the sanction. While penalties or
other sanctions are the critical third element in creating
deterrence, they can also contribute to greater equity among
the regulated community by recovering the economic benefit a
violator gains from noncompliance over those who do comply.
Effective State and regional programs should have a clear plan
or strategy for how their civil penalty or other sanction
authorities will be used in the enforcement program. At a
minimum, penalties and/or sanctions should be obtained where
programs have identified that a penalty is appropriate (see
Criterion IS above).
The anticipated use of sanctions should be part of the
State/EPA Enforcement Agreements process, with Regions and
States discussing and establishing how and when the State
generally plans to use penalties or other approaches where
some sanction is required.
J/Excerpts from th« Policy on "Oversight of State Civil Penalties
2/28/86. The focus of the policy is on both civil judicial and
civil administrative penalties, and does not cover criminal
penalties.
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15
EPA generally prefers the use of cash penalties to other
types of sanctions.^/ However, there may be other sanctions
which are preferable to cash penalties in some circumstances.
In particular, States may have a broader range of remedies than
thoise available «t the Federal level. Examples of other sanctions
may be: pipeline severance (UIC), license revocation (FIFRA)
or criminal sanctions including fines and/or incarceration.
National program guidance should clarify in general terms how
the use of other types of sanctions fits into the program's
penalty scheme at the Federal and State levels, e.g.. whether
they are substitutes for or mitigate a cash penalty.£/ m
any case, States- are urged to use cash penalty authorities in
those cases for which a penalty is "appropriate" and/or to use
other sanctions pursuant to these agreements with the Regions.
EPA encourages States to develop civil administrative
penaLty authority in addition to civil judicial penalty authority,
and t.o provide sufficient resources and support for successful
implementation where they do not already have this authority.
In general, a well designed administrative penalty authority
can provide faster and more efficient use of enforcement
resources, when compared to civil judicial authorities. Both
civil judicial and administrative penalty authorities are
important, complementary, and each should be used to greatest
advantage. EPA is similarly seeking to gain administrative
penalty authority for those Federal programs which do not
already have it. To support State efforts to gain additional
penalty authorities, EPA will share information collected on
existing State penalty authorities and on the Federal experience
with the development and use of administrative authorities.
2. Oversight of Penalty Practices:
EPA Headquarters will oversee Regional penalties to
ensure Federal penalty policies are followed. This oversight
will focus both on individual penalty calculations and regional
penalty practices and patterns.
**/In limited circumstances where they meet specified criteria, EPA
and DOJ policies and procedures allow for alternative payments —
such a« beneficial projects which have economic value beyond
the costs of returning to compliance — in mitigation of
their penalty liability.
£/Until program-specific guidance is developed to define the
appropriate use of civil sanctions, the Region and State should
consider whether the sanction is comparable to a cash penalty
in achieving compliance *nd deterring noncompliance. Costs
of returning to compliance will not be considered a penalty.
Criminal authorities, while not clearly comparable to cash
penaltius, can be used as effectively as cash penalties to
create deterrence in certain circumstances.
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EPA will review state penalties in the context of the State's
overall enforcement program not merely on its use of cash penal-les.
While individual cases will be discussed, the program review will
more broadly evaluate how penalties and other sanctions can be
used most effectively. The evaluation will consider whether the
penalties or other sanctions are sought in appropriate cases,
whether the relative amounts of penalties or use of sanctions
reflect increasing severity of the violation, recalcitrance,
recidivism etc., and bear a reasonable relationship to the economi-:
benefit of noncompliance (as applicable) and whether they are
successful in contributing to a high rate of compliance and
deterring noncompliance. EPA may also review the extent to which
State penalties have been upheld and collected.
3.' Development and Use of Civil Penalty Policies;
EPA Regions are required to follow written Agency-wide
and program specific penalty policies and procedures.
EPA encourages States to develop and use their own State
penalty policies or criteria for assessing civil penalties.
The advantages of using a penalty policy include:
leads to improved consistency;
is more defensible in court;
- generally places the Agency in a stronger position to
negotiate with the violator;
improves communication and support within the
administering agency and among the agency officials,
attorneys and judges especially where other organizations
are responsible for imposing the penalty;
when based on recoupment of economic benefit and a
component for seriousness, deters violations based
upon economic considerations while providing some
equity among violators and nonviolators; and
- can be used by judges as a basis for penalty decisions.
EPA encourages States to consider EPA's penalty policies as
they develop their own penalty policies.
4. Consideration of Economic Benefit of Noncompliance;
To remove incentives for noncompliance and establish deterrence,
EPA endeavors, through its civil penalties, to recoup the economic
benefit th« violator gained through noncompliance. EPA encourages
States to consider and to quantify where possible, the economic
benefit of noncompliance where this is applicable. EPA expects
States to make a reasonable effort to calculate economic benefit
and encourages States to attempt to recover this amount in negoti-
ations and litigation. States may use the Agency's computerized
model (known as BES) for calculating that benefit or different
approaches to calculating economic benefit. EPA will provide
technical assistance to States on calculating the economic benefit
of nonco-npliance, and has made the BEN computer model available
to States.
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CRITERION *7 Accurate Recordkeeping and Reporting
A quality program maintains accurate *nd up-to-date files
and record* on source performance and enforcement responses
that are reviewable and accessible. All recordVeeping and
reporting should meet the requirements of the quality assurance
management policy and procedures established by each national
program consistent with the Agency's Monitoring Policy and
Quality Assurance Management System. Reports from States to
Regions, Region* to Headquarters must be timely, complete an<3
accurate to support effective program evaluation and*priority-
setting.
%»
State recordVeeping should include some documented rationale
for the penalties sought to support defensibility in court, enhance
Agency's negotiating posture, and lead to greater consistency.
These records should be in the most convenient format for adminis-
tration of the State's penalty program to avoid new or different
recordfceeping requirements.
CRITERION 18 Sound Overall Program Management
A quality program should have an adequate level, mix and
utilization of resources, qualified and trained staff, and adequate
equipment. The intention here is not to focus on resource and
training issues unless there is poor performance identified
elsewhere in the program. In those instances, these measures
can provide a basis for corrective action by the administering
agency. There may be, however, some circumstances in which
base level of trained staff and equipment can be defined by a
national program where it will be utilized as an indicator of
whether the program is adequate.
Similarly, a good compliance and enforcement program should
have a clear scheme for how the operations of other related
organisations, agencies and levels of government fit into the
progrc.M, especially the State Attorneys General or other appropriate
State Legal organizations. The State Agency should, at a minimum,
ensure that the State AG, internal legal counsel, or other appropriate
government legvl staff are consulted on the enforcement co-nmitments
the State is making to EPA to assure that the level of legal
enforcement support and associated resources needed to accomplish
the agre«d-upon goals are secured. This coordination should
result in timely review of initial referral packages, satisfactory
settlement of cases, as appropriate/ timely filing and prosecution
of casesi, and prompt action where dischargers violate consent
decrees.. (See Section E, p. 26-27).
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C. OVERSIGHT PROCEDURES AND PROTOCOLS
This section addresses how EPA should conduct its oversight
function, its approach, process and follow-up, to build and improve
individual programs and overall national performance. On May 31,
1985, the Agency issued the Policy on Performance-Based Assistance.
which contains guidance on how Regions should oversee assistance
agreements. Both of these policies call for oversight with a
problem-solving orientation with clear identification of actions
needed to correct problems or recognize good performance.
1. Approach
The goal of oversight should be to improve the State (or Regional)
compliance and enforcement program. To accomplish this, oversight
should be tailored to fit State performance and capability. The
context must be the whole State compliance and enforcement program,
although EPA's focus for audit purposes will be on national priority
areas.
So new oversight process is intended here. Existing procedures
such as mid-year reviews, periodic audits and oversight inspections as
established by each program and Region should be used. Administering
agencies should identify strengths and weaknesses of the State and
Federal programs and develop mutual commitments to correct problems.
EPA oversight of State performance should be consistent with
the following principles: -
a. Positive oversight findings should be stressed as well as the
negative ones.
b. Positive steps that can be taken to build the capability of
State programs in problem areas should be emphasized. This
should include providing technical assistance and training —
by EP.A staff to the extent possible.
c. EPA action to correct problems should vary, depending on the
environmental or public health effect of the problem and whether
it reflects a single incident or a general problem with the
State program.
d. The States should be given an opportunity to formally conur.ent
on EPA'i performance. Regions should provide information to
the States that is available on its performance against the
national standards, including their performance on meeting the
"timely and appropriate" criteria, as well as their performance
on commitments to that State.
e. EPA should give States sufficient opportunity to correct i>1er.ti*ie-
problems, and take corrective action pursuant to the criteria for
direct enforcement established in Section D.
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if. EPA should use the oversight process as a moans of trans-
ferring successful regional and State approaches from one
Region or State to the other.
2. Process
Several actions can result in the most constructive review
of the State's programs:
a. To the extent possible, files to be audited will be identified
in advance, with some provision for random review of a perce-i-
of other files if necessary.
b. Experienced personnel should be used to conduct the audit/
review — EPA staff shoul>i be used to the extent possible
• to build relationships and expertise.
c. There should be an exit interview and every opportunity
should be made to discuss, findings, comment on and identify
corrective steps based upon a review draft of the written
report.
d. Opportunity should be made for staffs interacting on
enforcement cases and overseeing State performance to meet
personally rather than rely solely upon formal communications
<-- this applies to both technical and legal staffs.
3. Follow-Up and Consequences of Oversight
»fhen State performance meets or exceeds the criteria and
measures for defining good program performance, EPA should
reward this performance in some of the following ways:
a. reduce the number, level or scope, and/or frequency of
reviews or of some reporting requirements consistent with
statutory or regulatory requirements;
b. rarluce the frequency and number of oversight inspections;
and/or
c. allow the program more flexibility in applying resources
from an almost exclusive focus on national priorities
e.g., Mjor sources, to addressing more priorities of
concern to the State e.g., minor sources.
State performance fails to meet the criteria for good
State performance, EPA may take some of the following actions,
as appropriate:
a. suggest changes in State procedures;
b. suggest changes in the State's use of resources or training of
staff;
c. provide technical assistance;
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d. increase the number of oversight inspections and/or require
submittal of information on remedial activities;
e. provide other workable State models and practices to States
with problems in specific are,*s ami match State staff with
expertise in needed area;
f. if State enforcement action has not been timely and appropriate,
EPA may take direct enforcement action;
g. track problem categories of cases more closely;
h. grant awards could be conditioned by targeting additional
resources to correct identified problems or reduce'] based
on poor performance where such performance is not due to
inadequate resources; and/or
i. consider de-delegation if there is continued poor performance.
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D. CRITERIA FOR DIRECT FEDERAL ENFORCEMENT IS DELEGATED STATES
This section addresses criteria defining circumstances under
which approved State progra-ns might expect direct- Federal enforce-
ment action and how EPA will c*rry out such actions so as to be
most supportive of strengthening State programs.
1. When Might EPA Take Direct Enforcement Action in Approved States?
A clear definition of roles and responsibilities is essential
to an effective partnership, since EPA has parallel enforcement
authority under Its statutes whether or not a State has an approved
or delegated prog'ram. As a matter of policy in delegate.1 or**
approved programs, primary responsibility for action will reside
with State or local governments with EPA talcing action principally
where a State is "unwilling or unable" to take "timely and appropriate"
enforcement action. Many States view it as a failure of their
program if EPA takes an enforcement action. This is not the
approach or view adopted here. There are circumstances in which
EPA may want to support the broad national interest in creating
an effective deterrent to noncompliance beyond what a State may
need to do to achieve compliance in an individual case or to
support its own program.
Because States have primary responsibility and EPA clearly
does not have the resources to take action on or to review in
detail any and all violations, EPA will circumscribe its actions
to the areas listed below and address other issues concerning
State enforcement action in the context of its broader oversight
responsibilities. The following are four types of cases EPA ma/
consider taking -direct enforcement action where we have parallel
legal authority to take enforcement action:
a. State requests EPA action
b. State enforcement response is not timely and appropriate
c. National precedents (legal or program)
d. Violation of EPA order or consent decree
In deciding whether to take direct enforcement in the above
types of cases, EPA will consider the following factors:
• Cases specifically designated as nationally significant
(•.9., significant noncompliers, explicit national or
regional priorities)
- Significant environmental or public health damage or
risk involved
- Significant economic benefit gained by violator
- Interstate issues (multiple States or Regions)
- Repeat patterns of violations and violators
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How. these factors are applied for the various types of cases is
discussed below.
a. State requests EPA action;
The State may request EPA to take the enforcement action for
several reasons including but not limited to: where State authority
is inadequate, interstate issues involving multiple States which
they cannot resolve by themselves, or where State resources or
expertise are inadequate, particularly to address the significant
violation/violators in the State in a timely and appropriate
manner. EPA should honor requests by States for support in
enforcement. EPA will follow its priorities in meeting any such
requests for assistance, considering significance of environmental
or public health damage or risk involved, significant economic
benefit gained by a violator, repeat patterns of violations and
violators. Based on this general guidance, each program office
may develop more specific guidance on the types of violations on
which EPA should focus. Regions and States are strongly encouraged
to plan in advance for any such requests for or areas needing EPA
enforcement assistance during the State/EPA Enforcement Agreements
Process.
b. State Enforcement is not "Timely and Appropriate"
The most critical determinant of whether EPA will take direct
enforcement action in an approved State is whether the State has
or will take timely and appropriate enforcement action as defined
by national program guidance and State/Regional agreements. EPA
will defer to State action if it is "timely and appropriate"
except in very limited circumstances: where a State has requested
EPA action (a, above), there is a national legal or program
precedent which'cannot be addressed through coordinated State/Federal
action (c, below), EPA is enforcing its own enforcement action
(d, below) or the case of a repeat violator, where the State
response is likely to prove ineffective given the pattern of
repeat violations and prior history of the State's success in
addressing past violations.
«
(,i) Untimely State Enforcement Response:
If a State action is untimely, EPA Regions must determine
after advance) notification and consultation with the State whether
the State is moving expeditously to resolve the violation in an
"appropriate)* manner.
(ii) Inappropriate State Action;
EPA may take direct action if the State enforcement action
falls short of that agreed to in advance in the State/EPA Enforce-
ment Agreements as meeting the requirements of a formal enforcement
response (See Section B, page 13) where a formal enforcement
response is required. EPA may also take action if the content of
enforcement action is inappropriate, i.e., if remedies are
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23
clearly inappropriate to correct the violation, if compliance
schedules are unacceptably extended, or if there is no*appropria-»
penalty or other sanction.
(iii) Inappropriate Penalty or other Sanction;
For types of violations identified in national program
guidance as requiring a penalty or equivalent sanction, EPA will
take action to recover a penalty if a State has not assessed a
penalty or other appropriate sanction. EPA generally will not
consider taking direct enforcement action solely for recovery of
additional penalties unless a State penalty is determined to be
grossly deficient after considering all of the circumstances of
the case and the national interest. In making this determination,
EPA will give every consideration to the State's own penalty
authority and any applicable State penalty policy. EPA will
consider whether that State's penalty bears any reasonable relationship
to the seriousness of the violation, the economic benefit gained
by the violator (where applicable) and any other unique factors
in the case. While this policy provides the basis for deciding
whether to take direct Federal action on the basis of an inadequate
penalty, this issue should be discussed in more detail during the
agreements process to address any state-specific circumstances
and procedures established to address generic problems in specific
cases. Where identified in national guidance and agreed to -
between the Region and State, other sanctions will be acceptable
as substitutes or mitigation of penalty amounts in these considerations.
Program-specific national guidance on expectations for State
penalty assessments may be developed 'in consultation with the
States and applied for determining adequacy of penalty amounts
after being applied in practice in EPA Regions. It is the current
expectation of Agency managers that EPA will continue to gain
experience in implementing its own penalty policies before national
programs consider such guidance. Thus, in the near term a determination
that © penalty is "grossly deficient" will remain a judgment call
made on a case-by-case basis.
•
c. National Precedents
This is the smallest category of cases in which EPA may
take direct enforcement action in an approved State, and will
occur rarely in practice. These cases are limited to those of
first impression in law or those fundamental to establishing a
basic elemejnt of the national compliance and enforcement prograr..
This is particularly important for early enforcement cases un'ler
a new program or issues that afftct implementation of the program
on a national basis. Some of these cases may most appropriately
be managed or coordinated at the national level. Additional
guidance on how potential cases will be identified, decisions
made to proceed and involvement of States and Regions in that
process, has been developed as Appendix B to this document.
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d. Violation of EPA order or consent decree;
EPA places a high priority on following through on enforcement
actions until final compliance is achieved. If EPA has taken
administrative, civil or criminal judicial enforcement in a
delegated or approved State, EPA will take any follow up enforcene.it
action on violations of those agreements or orders to preserve
the integrity of Federal enforcement actions.
2• How Should EPA Take Action So At To Better Support Strong
State Programs?"" ~~
Section E describes in some detail the principles and
procedures for advance notification and consultation with States.
These are imperatives for a sound working relationship. In all
of these circumstances, where EPA may overfile a State action on
the basis that it is not timely and appropriate EPA should work
with the State as early as possible in the case, well before
completion of a State action which, if resulting in expeditious
compliance by the facility, would render any subsequent EPA
involvement unconstructive, ineffective or moot. This is parti-
cularly important since it is EPA policy that once a case has
been commenced, EPA generally will not withdraw that case in
light of subsequent or simultaneous State enforcement action.
In particular, Regions also should identify, with their
Statoui, particular areas in which arrangements can or should be
made, in advance, for direct EPA enforcement support where State
authorities are inadequate or compliance has been a continuing
problem.
There are several other approaches identified here for how
EPA can take enforcement action, where it is appropriate, in a
manner which can better support States.
To the maximum extent possible, EPA should make arrangements
with Spates to:
*
a. Take joint State/Federal action — particularly where a
State—is responsibly moving to correct a violation but
lack* the necessary authorities, resources, or national
or interstate perspective appropriate to the case.
b. Use State inepection or other data and witnesses, as
appropriate.
c. Involve States in creative settlements and to participate
in case development — so that the credibility of States
as the primary actor is perceived and realized.
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d. Arrange for division of penalties with state and local
governments"'(to the extent they participate in Fe^eril
enforcement actions, and where permitted by law) -- to
enhance Federal/State cooperation in enforcement.
e. Issue joint press releases and share credit with the
State — to ensure EPA is not in competition with the
State and that EPA action is not erroneously perceived
as a weakness or failure in the State's program.
f. Keep States continually apprised of events and reasons
for Federal actions -- to avoid conflicting actions
and to build a common understanding of goals and
the State and Federal perspectives.
3. How Do the Expectations for "Timely and Appropriate Action"
Apply to EPA in Delegated States?
In delegated States, EPA performs an oversight function,
standing ready to take direct Federal enforcement action based
upon the factors stated above. In its oversight capacity, in
•ost cases, EPA will not obtain real-time data. As indicated in
Section F on State Reporting, EPA will receive quarterly reports
and will supplement these with more frequent informal communi- "
cations on the status of key cases. Therefore, we do not expect
EPA Regions, through their oversight, to be able to take direct
enforcement action following the exact same timeframes as those
that apply to the administering agency. However, when EPA does
determine it is appropriate to take direct Federal action, EPA
staff are expected to adhere to the same timeframes as applicable
to the States starting with the assumption of responsibility for
enforcement action.
D/See Appendix C for Agency Policy on "Division of Penalties
with State and Loc*L Governments," issued October 30, 1985.
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E. A&VAUCE NOTIFICATION AND CONSULTATION
A policy of "no surprises" must be the centerpiece of a.-.y
effort to ensure the productive use of limited Federal and
State resources and an effective "partnership" in achieving
compliance. This principle should be applied to all aspects of
the compliance and enforcement program covering inspections,
enforcement activities, press releases and public information,
and management data summaries upon which State and national
performance are assessed.
In order to-guarantee that there is ample advance notif ica-i--.
and consultation between the proper State and Federal officials,
EPA Regions should confer annually with each State, discuss the
following areas and devise agreements as appropriate. The
agreements should be unique to each State and need not cover
all areas — so long as there is a clear understanding and
discussion of how each area will be addressed.
1. Advance Notification to Affected States of Intended EPA
Inspections and Enforcement Actions
Agreements should identify:
- who should be notified, e.g.
— the head of the program if it involves potential
Federal enforcement; and
— who is notified of proposed/planned Federal inspectio-.s
- how the State will be notified, e.g.
-- the agencies share inspection lists; and
— the agency contact receives a telephone call on a
proposed Federal enforcement case.
- when they will be notified — at what poin^(s) in
the process, e.g.
— when a case is being considered; and/or
' -- when a case is ready to be referred, or notice
order issued.
Some specific provisions need to be made to address the
followingi
a. Advance Notification of State Attorneys General or other
legrl staff of potential EPA enforcement actions7/
While EPA's primary relationship with the State is and
should continue, to b« with the State agency that has
been delegated or been approved to administer the
programs, EPA needs to ensure that all parties in the
In some States there are legal organizations that have direct.
enforcement authority which by-passes the State AG, e.g.,
District Attorneys, internal legal counsel, Governor's
General Counsel. In these instances, this guidance would
apply to these other organizations.
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State affected by a pending EPA enforcement action receive^
appropriate advance notification. In addition, when E?n
negotiates commitments each year with the State to ad.-Jrass
specific significant violators, it is important that ail
the parties affected by these commitments are aware of the
legal enforcement support and associated resources needed"
to accomplish these goals.
As part of the State/EPA Enforcement Agreements process,
the Region should discuss with the State agency their
internal procedures and/or protocols for advance notif icatio.-.
and consultation with the state AO or other legal staff.
The State- agency is responsible for assuring that the State
AG or other legal staff are properly notified and consult-? 1
about planned Federal enforcement actions and/or enforcement
initiatives on an ongoing basis. States are strongly
encouraged to commit advance notification and consultation
procedures/protocols reached between the State agency anJ
the State AG (or State, legal staff, as appropriate) to
writing. The Regions should seek to incorporate these
written protocols into the State/EPA Enforcement Agreements.
The Region should do everything possible to work through
the State agency on the issue of communicating with the
State AG or other legal staff on potential EPA enforcement
actions as well as other matters. However, if the State
agency does not have a workable internal procedure and if
problems persist, the Region, after advance notification
and consultation with the State agency, may make arrangements
for directly communicating with the State AG or other legal
staff.
The Region and State agency should discuss how the outside
legal organizations will be consulted on the commitments the
State is making to EPA on addressing significant violators
each year. These consultations are intended to clarify the
legal enforcement support needed to accomplish these goals.
Tttis is particularly important for those State agencies
dependent upon the State AG or other outside legal organizations
to implement their enforcement program.
State) agencies are also encouraged to notify these organi-
zations of the anticipated timing of the negotiations each
year with EPA on the Enforcement Agreements, grants, and
related documents.
Regions are encouraged to work with their State agencies t.i
iiet up a joint meeting at least annually to which all parties
are invited—the program and legal staffs of both the E?^
Region and the State agency(s), plus U.S. Attorney staff
and State AG staff—to review EPA's enforcement priorities
and recent program guidance.
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b. Federal Facilities
Federal facilities may involve a greater or different
need for coordination, particularly where the Federal
facilities request EPA technical assistance or where EPA
is statutorily required to conduct inspections (e.g.,
under RCRA). The advance notification and consultation
protocols in the State/EPA Enforcement Agreements should
incorporate any of the types of special arrangements
necessary for Federal facilities. The protocols should
also address how the State will be involved in the review
of Federal agency A-106 budget submissions, and include
plans for a joint annual review of patterns of compliance
problems at Federal facilities in the State.
c. Criminal Enforcement
Although the Policy Framework does not apply to the
criminal enforcement program, to improve the coordination
with States on criminal investigations and assist the
States in their criminal enforcement efforts the Regions
should discuss with States any affirmative plans for
cross-referrals and cooperative criminal investigations.
Such discussions should include the Special Agent in
Charge and appropriate program staff familiar with criminal
enforcement.
In cases where other States or jurisdictions may be directly
and materially affected by the violation, i.e., environmental
or public health impacts, EPA's Regional Offices should attempt
to notify a11 of the States that are interested parties or are
affected by the ..enforcement action through the communication
channels established by the State agreements, working through the
appropriate Regional Office. This notification process is parti-
cularly important for hazardous waste cases in which regulatees
often operate across State boundaries.
Protocols for advance notification must be established with
the understanding that each party will respect the other's need
for confidentiality and discretion in regard to the information
being shared, wh"ere it is appropriate. Continuing problems in
this regard will be cause for exceptions to the basic principle
of advance notification.
Many of our statutes or regulations already specify pro-
cedures for advance notification of the State. The State/Federal
agreements are intended to supplement these minimum requirements.
2. Establishment of a Consultative Process
Advance notification is only an essential first step and
should not be construed as the desired end result of these
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State/Federal agreements. The processes established should
be consultative and should be designed to achieve the following:
a. Inspections
Advance notice to States through sharing of lists of
planned Federal inspections should be designed so
that State and Federal agencies can properly coordinate
the scheduling of site inspections and facilitate
joint or multi-media inspections as appropriate.
This should generally be done for all programs whether
or not they are delegated, except for investigative
inspections which would be jeopardized by this process.
b. Enforcement Actions
Federal and State officials must be able to Veep one
another current on the status of enforcement actions
against noncomplying facilities. Regularly scheduled
meetings or conference calls at which active and
proposed cases and inspections are discussed may
achieve these purposes.
3. Sharing Compliance and Enforcement Information
Die Region and State should discuss the need for a process
to share, as much as practicable, inspection results, monitoring
reports, evidence, including testimony, where applicable for
Federal and/or State enforcement proceedings. The Regions
should also establish mechanism* for sharing with the States
copies of reports generated with data submitted by the Regions
and States, including comparative data — other States in the
Region and across Regions.
4. Dispute Resolution
The Region and State should agree in advance on a process
for resolving disputes, especially differences in interpretation
of regulations or program goals as they may affect resolution of
individual instances of noncompliance. As stated in the policy
on Performance-Based Assistance, the purpose in laying out a
process lay which issues can be surfaced quickly up the chain of
command .'In both the Regions and States is to ensure that
significant problems receive the prompt attention of managers
capable of solving these problems expeditiously.
5. Publicizing Enforcement Activities
EPA has made commitments to account publicly for its
complianca and enforcement programs. It is EPA's policy to
publicize all judicial enforcement actions and significant
administrative actions to both encourage compliance and serve
as a deterrent to noncompliance.
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While State philosophies on these matters may v%ry, the
Region and State should discuss opportunities for joint press
releases on enforcement actions and public accounting of'both
State and Federal accomplishments in compliance and enforcement.
Discussions should address how and when this coordination
would take place. Regions should consult with the State on any
enforcement related EPA press release or other media event
which affects the State. To the extent possible, the State
should be given an opportunity to join in the press release or
press conference if it has been involved in the underlying
enforcement action. Further, EPA generated press releases and
public information reports should acknowledge and give credit
to relevant State actions and accomplishments when appropriate.
6« Publicly Reported Performance Data
Regions should discuss with States mechanisms for ensuring
the accuracy of data used to generate monthly, quarterly and/or
annual reports on the status of State and Federal compliance
and enforcement activities. Opportunities should be provided
to verify the accuracy of the data with the States prior to
transmittal to headquarters. Time constraints may be a real
limitation on what can be accomplished, but it is important to
establish appropriate checks and control points if we are to
provide an accurate reflection of our mutual accomplishments.
If there are no data accuracy concerns, these mechanisms may
not be needed.
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F. STATE REPORTING
This section reviews key reporting and recordkeeping
requirements for management data and public reporting on
compliance and enforcement program accomplishments. It also
addresses re Intel reporting considerations such as reporting
frequency and quality assurance.
1 . Overview
A strong and well managed national compliance and enforce-
ment program needs reliable performance information on which
to judge success and identify areas needing management attention.
The following outlines the reporting and recordkeepin«j framework
for monitoring enforcement and compliance program performance.
The information will be used by the Agency's chief executives
to manage EPA operations, and to convey our combined Federal
an
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In addition to these five reporting requirements, the
Agency is introducing two new areas of recordXeeping require-
ments to support general management oversight of the national
enforcement effort: (1) success in neeting new management
milestones for defining timely and appropriate enforcement
action; and (2) the level of penalties assessed and collected.
Records should be maintained by States and Regions for review
during the course of the year and to support an assessment at
the end of the year on how well the agencies have done and
how appropriate performance expectations might best be defined.
2. Reported Measures of Performance
Programs and Regions should ensure the first five measures
of performance are required to be reported on a quarterly
basis:
a. Compliance levels can be measured according to several
different approaches. National program guidance should
describe the approach each has selected as most appropriate
(jiven the characteristics of its program and regulated
community. Each program should, at a minimum, report
Ifull physical compliance rates and also distinguish
where relevant in reporting compliance levels between
final "physical" compliance (compliance with emissions
limits) and "paper" compliance (violation of emissions
limits but following a compliances schedule).
b. Progress in Returning Significant Violations to Compliance:
E
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c* Inspections are conducted for many purposes, including
confirmation of compliance levels. Reporting on
inspections has been a long standing practice. Regions
and States should be asked to provide specific quarterly
commitments and reporting on the number of inspections
to be conducted. Where programs have broken Jown inspection
reporting into different classes to reflect the different
purposes, for example, sampling inspections, "walk-through,"
or records check inspections, this reporting is expected
to continue. Each program, as it draws up its guidance,
should be as clear and specific as possible in defining
the different categories of inspection activity to be
reported.
d1. Formal administrative enforcement actions will be reported
as the critical indicator of the level of administrative
enforcement activity being carried on by environmental
enforcement agencies. It is not our intention to provide
a comprehensive reporting of all actions, both informal
and formal, being taken to secure compliance. At the
same time, it is recognized that there are many different
informal techniques used which succeed in getting sources
to return to compliance. What is sought here is a
telling indicator which will keep reporting as clear
cut and unburdensome as possible*
In preparing its guidance each program should list the
specific actions to be included under this reporting
area. Each program should be guided by the characteristics
of a formal administrative action set forth in Section
B on "Timely and Appropriate Enforcement Action." For
programs without formal administrative authority, such
as Drinking Water, other surrogate measures should be
defined.
e. Judicial Actions is an area where there has been a long
standing practice of Federal reporting with no corresponding
State, data. Commensurate with current reporting practices
within EPA, the number of State civil referrals and
filed ces«,a "ill now be reported. We will also now
include criminal judicial actions. These should be
reported as a separate class and be counted only after
they are filed in court in recognition of their sensitive
nature.
3. Recordkeeping for Performance Measurement
There are two performance areas for which States and
Regions will be asked to retain accessible records and
summary datat (1) timeliness and appropriateness of response
to violations; and (2) penalties. These categories of
information will be considered for future development as
measures for possible inclusion in the Agency's management
and reporting systems.
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34
a. Timeliness and appropriateness of State and Federal
response to violations is the principal subject of
new guidance being developed by each program.
Administering agencies need to ensure that adequate
tracking systems are in place to assess the timeliness
and appropriateness of actions on an ongoing basis.
Implementation of timely and appropriate criteria
should also be closely monitored to ensure that sources
subject to the guidance are properly identified and
made part of the covered universe. The Program offices,
in conduction with the Regions, are expected to report
periodically on both EPA's and the States' performance
in meeting the timely and appropriate criteria and to
periodically reassess the criteria. As programs gain
experience, they should consider whether "timeliness"
should be measured quantitatively as a performance
accountability measure or qualitatively through program
audits.
b. Penalty programs are essential to the effective working
of an environmental enforcement program. Sufficient
documentation needs to be kept to enable the Region
to evaluate whether the State obtained a penalty
where appropriate, the State's rationale for the penalty,
and, where appropriate, a calculation of any economic "
benefit of noncompliance gained by the violator.
Records need to be kept of the number and amount of
penalties issued by State and Federal program offices
regularly assessing penalties, both those assessed and
collected. These records and summary data should be
available for review at the time of annual program
audits and, in the event of information requests by
external groups, on the extent of penalties assessed
at any point in time. Each program office in preparing
its guidance should specifically address the need for
recordkeeping on penalties.
*
4. Future Improvements in Enforcement Management Information
Systems ^
EPA is working to fill the gaps in its current enforcement
management information and is developing a guide to State ami
national program managers in setting priorities for future
design and development work on these systems.
In f.he near term, EPA is exploring ways to use the current
management systems to better reinforce timely and appropriate
enforcement response and follow-through on enforcement actions.
EPA Program Offices, in consultation with Regions and States,
should develop ways to better measure and report on timeliness
of enfor-ement actions. The focus for follow-through will b«
on tracKing compliance with EPA consent decrees and administrative
orders. State follow-through will be part of general regional
oversight.
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35
Other potential enforcement management indicators, such as
the deterrence effects of enforcement, the quality of enforcene.it
actions, an extended compliance picture, and overall environment!
results of enforcement actions, are longer term issues to be
considered After the near-term issues are addressed.
5. Reporting Considerations
There are three areas for special consideration by the
programs as they put together their guidance on reporting
requirements:
a. Quality;assurance and quality control of reported data
13 essential as these are the critical indicators of
program performance which will be used in making program
management decisions of priority, resource levels, and
direction. This information must be as reliable as
possible. Quality assurance and quality control of data
encompasses three types of activities including: (1)
setting up initial reporting procedures; (2) building in
information review and confirmation loops; and (3)
conducting routine audits and reviews of reports and
reporting systems. Each program in preparing its guidance
should describe the safeguards it uses in its reporting,
review and confirmation procedures, and describe the „
audit protocols it will use to ensure the reliability of
enforcement and compliance data.
b. The frequency of formal reporting should be done on a
quarterly basis unless there is a specific performance
problem in a State or compelling program need for more
frequent (e.g., monthly) reporting, which may be necessary
on an interim basis due either to their newness or their
importance. A quarterly reporting frequency is designed
for oversight purposes. It is not designed to provide
for "real time" information, that is, instant access to
information on the status of a case. However, it is
anticipated that formal reporting will be supplemented
with more frequent informal communications, such as
monthly conference calls, between the Regions and states
on the progress of key cases of concern.
c. sM«ral facility compliance data should be reported as
Jpt of each program1 s reporting measures and commitments.
Tfi» Regions may also request States to provide additional
information on Federal facilities compliance status, if
needed, and if mutual agreement can be reached, as part of
the Enforcement Agreements process.
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APPENDIX A; ANNUAL PRIORITIES AND PROGRAM GUIDANC ES
Annual Priorities for Implementing Agreements
FY 1985: Given the enormity of the task in the first year,
3 priorities were established:
* defining expectations for timely and appropriate
enforcement action;
' establishing protocols for advance notification
• and consultation; and
'-reporting State data.
FY 1986; Building on the FY 1985 process, three areas were
emphasized:
* expanding the scope of the agreements process to
cover ail delegable programs;
* adaptitw; national guidance to State-specific
circumstances; and
* ensuring a constructive process for reaching
agreement.
FY 1987; Continuing to refine the approaches and working •
relationships with the States, three areas are
to be emphasized:
" improving the implementation and monitoring of
timely and appropriate enforcement response with
particular emphasis on improving the use of
penalty authorities;
* improving the involvement of State Attorneys
General (or other appropriate legal staff) in
the agreements process; and
* implementing the revised Federal Facilities
Compliance Strategy.
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APPENDIX A
USTING OH IHAMTO) NATIONAL GUIDANCE AFFECriNG STAITi/EPA ENFORCEMENT AGREEMENTS I>*JCESS
Revise*!: 0/14/86
rtjos-cutting National Guidance; * Revised Policy Framework for State/Federal Enfircetiwnt Agreements—reissued 8/O6
* Agency-wide Policy on Perfooninoe-flased Assistance—issued Ijy Admin. S/31/85
Underlining represents guidance still to be issued.
later - NPDES
'National Guidance
:or Oversight of
mOKS Programs
•V 1987."
issued 4/13/86)
inal Regulation-
efinition of
nstances of non-
»iy>liance reported
n QNCR. (8/26/85)
NCR Guidance
issue* 1 3/')6)
aspect ion Strategy
r*l Guidance
issue. 1 4/115)
evised EMS
Manage-
ent System)
issued 3/86)
?DES Federal
malty Policy
issue I 2/11/86)
-.rate-jy for
SSUailCi; Of
inor |M»r*nii -j
2/116)
•-FY 8S InltUtivee on
OcMplianoe Mrmluring fc
EnfbroeMant Oversight."
6/29/84
•"Final Guidance on WS
Grant Program laple-
menbation"
(3/20/84)
•Regs - NIPOMR. 40CFR
Part 141 and 142.
'Of annual Reporting
Requirements - "Guidance
for PWSS Program Report-
ing Requirements"
7/9/84
•"FY's 85-86 Strategy for
Eliminating Persistent
Violations at Oamunity
Hater Systems." Memo
from Paul Baltay 3/18/85.
•Guidance for the Develop-
nent of FY 86 PMSS State
Program Plans and
Enf«»ro»iii»!ut Agreements"
(issue.1 7/3/85)
Air
RCRA
•"Guidance on Timely
& Appropriate"...
for Significant Air
Violators." 6/28/84
•"Timely and Approp.
Enforcement Res|ionse
Guidance" 4/11/86
'National Air Audit
System Guidelines
for FY 1986.
(issued 2/86)
•"Guiilance on Fed-
eral I y-Reportable
Violations." 4/U/86
•inspection Frequency
Guidance (Issued
3/19/85 and
reissued 6/11/86)
•"Final Technical
Guidance on Review
and Use of E*ce«.i
Bnission Reports"
Memo from Bl Reich
to Air Branch Chiefs
—Guidance For
Regional Offices
(issue.1 10/5/04)'
FIFRA
Fed. Fac.
•"Interim National
Criteria for a
Quality Hazardous'
Haste Management
Program umier
RCRA."
(reissued 6/86)
•"RCRA Penalty
Policy" 5/8/84
•FY 1987 "RCRA
Imjplementat ion
Plan"
(reissued 5/19/86)
•"RCRA Briforoement
Response Policy"
(issued 12/21/84)
(to be revised by
12/66)
•"Compliance and
Enforcement
Program Descrip-
tions in Final
Author izat ion
Application and
State Enforoanent
Strategies," man?
frcw Lee ItKJnws l.o
R%s.
(issue.1 6/12/fM)
'Final FY 87
.Enforcement &
Certification
Grant Guidance
(issue 1 4/13/86)
•interpretat i v*»
Rule - FIFRA
State Primacy
Enforce>neiit
Respons ibi I i t ies
4O FR Part 171
1/5/83.
•FF Oam-
plianoe
Strategy
(to be
issued
10/86)
•FF Proy.
Manual
for Inple-
men! ioj
CERCLA
RespTnai-
bilities
of Federal
Agencies
(.Iraft/
B5; to be
issued in
rization)
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Page 2
NPDES
DRINKING WVTER
AIR
RCRA
FIFRA
'Guidance on FY 86 UIC
eftforoamnt Agreements"
IGPQ §40 (issueI 6/2r'
)
•"FY 07 SPMS fc OkAS
Targets for the PW5S
Program" (SMC definition)
(Issued 7/10/86)
'Guidance on FY 87 UIC
Enforcement Agreements
(Draft iaauerl 7/1/86)
*Gui«lance on FY 87 IVSS
Biforcement Agretancnts
(issiieil 8/0/36)
"Guidvice on Use of
AO Authority under
SOWA AmenAnenta
(to be issued pending
legislation)
""Technical
on the Review and
use of Goal Sanpling
and Analysis Data:
EPA-340/1-85-010.
10/30/85 Guidance
for Regional Offices
"Oorapliance
toring & Enforce-
ment lay - form for
recording monthly
compliance «lat>»
from States f»
Regions. '
'Technical i*iforoe«nent
Guidance on dfound
Water Hani tor ing
(Interim Final Aug.
1985)
iance order
Guidance for Ground
Mater Monitoring
(issued Aug. 85)
'Loss of Interim
Status Guidance
(issued Aug. 85)
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GM-42
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
JUL24
OFF1CI Of CNPORCIMENT
AND COMPLIANCE
MONITORING
MEMORANDUM
SUBJECT: Form of Settlement of Civil Judicial Cases
FROM: Courtney M. Price^J^xJZl Ax~t^-*-
Assistant Administrator for Enforcement
and Compliance Monitoring (LE-133)
TO: Regional Counsels
Associate Enforcement Counsels
This memorandum is intended to confirm the Agency's
general policy regarding the form of settlement of civil
judicial enforcement cases. The need for a statement of Agency
policy on the form of settlement recently arose because a case
had been settled without a consent decree, and the defendant
later refused to abide by the terms of the informal settlement.
In order to make sure that the problem does not recur, OECM is
reducing this policy to writing.
Agency policy is that after a complaint is filed, all civil
judicial cases should be settled only (1) by consent decree, or
(2) where appropriate, by a stipulation of dismissal. This
second approach should be utilized only when the settlement
requires payment of a penalty, and the penalty has been paid in
tuil at the time of settlement. In such cases, the continued
jurisdiction provided by a consent decree is not needed or
required. This form of settlement policy is the established
practice of the Department of Justice, and all EPA enforcement
attorneys should continue to abide by it.
Extraordinary and compelling circumstances may arise when
EPA, in consultation with DOJ, might wish to settle a case with-
out the use of a consent decree or a stipulation of dismissal.
If such a situation arises, then the involved Agency attorneys
should obtain my advance concurrence before representing to
the defendants any willingness to settle a case without either
a consent decree or stipulation of dismissal.
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-2-
Regardless of which form of settlement is used, a copy of
the settlement documents should be provided to the Docket Control
Office following my concurrence in the settlement so that the
appropriate data can be entered.
cc: F, Henry Habicht, II
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GM-43
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I UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
f WASHINGTON. D.C. 20460
SEP J6
OFFICE OF
ENFORCEMENT AND
COMPLIANCE MONITORING
MEMORANDUM
SUBJECT: Enforcement Document Release Guidelines
FROM: Courtney M. Price v^^o*-/-^ ( **\.r***—^.
Assistant Administrator for Enforcement
and Compliance Monitoring
TO: Assistant Administrators
General Counsel
Inspector General
Associate Administrators
Regional Administrators
Regional Counsels
Attached are the Agency's new "Enforcement Document Release
Guidelines". These Guidelines will provide Agency-wide consis-
tency in the release of enforcement related documents. At the
same time, they are designed to release as much information as
possible to the public while still satisfying the Agency's
legal obligations and maintaining its enforcement program.
Accordingly, the Guidelines will assist program personnel
and enforcement attorneys in their decisions to withhold or
release enforcement documents requested by the public. As
indicated in the document, most of these decisions will be made
in response to FOIA requests. Nevertheless, it is important to
emphasize that all decisions for the release of any enforcement
document should be made on a case by case basis. If there are
any questions, the case attorney, the Regional Counsel, or an
OECM attorney should be consulted.
Questions regarding these Guidelines, should be addressed
to Bill Quinby of my staff. He may be reached at FTS 475-8781.
cc: Associate Enforcement Counsels
Program Enforcement Office Directors
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
ENFORCEMENT DOCUMENT RELEASE GUIDELINES
-------
Enforcement Document Release Guidelines
Table of Contents
Page
I. Purpose 1
II. Goal 2
III. Scope 2
IV. General Principles 4
V. Releasing General Enforcement Documents 7
A. Enforcement Policy . 7
B. Enforcement Strategic Planning 9
C. Management/Administrative 10
D. Deliberative Support Documents 11
E. Reference Files 12
F.. Documents Containing Attorney-Client
Communications 12
VI. Releasing Case-Specific Documents 13
A. Case Files 13
In General 13
Attorney Work Product/Attorney-Client 16
Settlement Documents 18
Other Documents 19
B. Case Status Reports 21
VII. Conclusion 22
APPENDIX 24
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I. Purpose
The purpose of this memorandum is to provide interpretive
guidelines for releasing EPA enforcement related documents to
the public in situations when the law provides discretion. The
Agency seeks to enhance national consistency in the release of
Agency documents by providing these guidelines to enforcement
attorneys and program personnel. Such consistency will promote
fairness to all public interests and ensure that EPA meets its
legal responsibilities while protecting the effectiveness of the
enforcement program.
This memorandum is intended to provide general guidelines.
The decision to release a particular document may vary, depending
on the type of document, function of the document in the Agency
process, and the status of that process. The memorandum seeks
to articulate the common principles which can be applied to
situations in which release decisions must be made. Each program
office can tailor these guidelines to meet its individual statu-
tory and programmatic needs. If the law provides EPA with the
discretion to release documents, these guidelines will assist
Agency personnel in their case by case determinations.
Agency personnel should always contact the appropriate case
attorney before releasing documents relating to enforcement
activities. Notifying the appropriate enforcement attorney is
important because of the possible impact on potential or pending
enforcement actions and the changing case law related to document
release. All decisions for the release of any enforcement document
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-2-
should be made on a case by case basis, taking into account the
guidelines set out in this memorandum.
II. Goal
The EPA recognizes that an effective enforcement program is
essential to the Agency's overall mission of protecting the
environment. EPA will release as much information as possible to
• tf
the public consistent with satisfying legal obligations while
still maintaining its enforcement program. The Agency will
satisfy all statutory requirements to release or withhold docu-
ments. If the Agency has discretion to release documents, it
should generally release the documents, or portions thereof,
unless such release will interfere with the effectiveness of
its enforcement effort.-
Ill* Scope
The guidelines apply to any type of enforcement document,
and include written information, material recorded on magnetic
tape, material contained in a computer, video tape, film, etc.
These guidelines apply whether or not there has been a specific
request for the document.
Th«> document must be an Agency record. A document is
considered an EPA record if it has some or all of the following
characteristics: it was produced in the context of Agency work;
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-3-
its creation or physical possession arose within established
Agency procedures, and/or it was distributed to others, including
the file. Generally, if a document is within the custody and the
control of the Agency, it is considered an Agency record. Personal
notes, message slips, appointment calendars, etc., of an Agency
staff member may not be an EPA record if they were not circulated
to or used by other EPA employees, were unrelated or only partially
related to EPA activities, or were used only to jog the memory of
the author. Bureau of National^Affairs v. U.S Department of
Justice 742 F.2d 1484 (D.C. Cir. 1984).
Although the focus of the memorandum is on the release of
documents, the import of this guidance pertains to information
contained within documents. In most cases, after EPA determines
that it will withhold certain information, the Agency will make
reasonable efforts to segregate out those portions of documents
which can be released. In addition, the principles in the
guidance are applicable to the release of information during
oral communications with persons outside the Agency.
This guidance does not attempt to address in any detail how
or when EPA will release documents requested under the Federal
Rules of Procedure during civil and criminal litigation. The
release of documents pursuant to discovery proceedings during
litigation will depend on the issues being litigated and the
strategy employed. Any request for documents outside of estab-
lished discovery procedures that relate to potential or pending
civil and criminal litigation should be brought to the attention
of the case attorney.
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-4-
T.iis guidance also does not apply to requests for information
received from Congressional committees or subcommittees. For
guidance on handling such requests, Agency personnel should con-
sult previously issued policy statements which are specific to
Congressional inquiries, Memoranda of Understanding which EPA
has entered into with several committees, and OECM's Congressional
Liaison Officer in coordination with the office of External Affairs
and, when appropriate, with the Office of General Counsel.
IV. General Principles
There are a number of statutes, regulations and rules of pro-
cedure which place constraints on the Agency's discretion in
releasing enforcement documents to the public. These statutes
include: the Administrative Procedure Act, (APA); the Freedom
of Information Act (FOIA) which is included in the APA, and
requires publication and release of certain Agency documents;
the Privacy Act which prohibits release of certain information
pertaining to individuals; and various environmental statutes
which prohibit release of trade secrets and mandate release of
certain pollution data. Other rules of procedure, such as Rule 6
of the Federal Rules of Criminal Procedure, require safeguarding
grand jury material. The EPA has promulgated regulations which
implement FOIA and state Agency policy on how it will use its
discretion to release information in certain cases. These
statutes and regulations are described more fully in the Appendix
(page 24).
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-5-
Congress has required that agencies release all requested
records unless FOIA provides a specific exemption authorizing
the withholding of those records. This guidance is based in large
part on whether specific documents fall within one of the exemp-
tions from mandatory disclosure. If a document fits within
one or more of the exemptions that are discretionary under EPA's
regulations (exemptions t>(2), b(5) and b(7)), the Agency's
decision to release a document should be determined on a case
by case basis. The EPA should consider releasing the document
if no important purpose would be served by withholding it.
Generally/ once EPA releases a document/ it may not later
withhold the document unless the Agency can show: 1) that it was
disclosed under explicitly limited and controlled conditions, and
2) that EPA preserved the rationale for the privilege established
in the exemption. An unauthorized leak of a document does not
necessarily waive an EPA privilege.
On occasion/ a party already engaged in an administrative
enforcement proceeding or litigation with the Agency may use
FOIA to enhance/ replace/ or otherwise modify the discovery
rules. These rules are traditionally available under the
Federal Rules of Civil Procedure, Federal Rules of Criminal
Procedure, discovery rules of other Federal courts and normal
Agency discovery procedures. Whether or not there is an estab-
lished administrative discovery procedure (e.g., the consoli-
dated rules of practice found in 40 C.F.R. Sections 22.01 et
seq.) the Agency may consider withholding documents where a
privilege exists to withhold the document under a FOIA exemption.
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-6-
For example, EPA is able to withhold investigatory records
compiled for law enforcement purposes the release of which would
generally interfere with a prospective or pending enforcement
proceeding under exemption 7(A) of FOIA. Investigatory records
(files) were defined originally by Congress as "related to enforce-
ment of all kinds of laws, labor and securities laws as well as
criminal laws. This would include files prepared in connection
with related Government litigation and adjudicative proceedings."
H.R. Rep. No. 1497, 89th Cong., 2d Sess. 11 (1966). Expressed
another way, the information must be compiled for a demonstrated
law enforcement purpose within the Agency's enforcement authority,
or gathered in the good faith belief that the prospective defendant
might violate or has violated federal law. This is in contrast
to information gathered for routine regulatory purposes or from
customary compliance monitoring. However, an evaluation is still
necessary to determine whether the release of a document will
interfere with an investigation.
Exemption 7 of FOIA contains five additional withholding
privileges for investigatory records which EPA will less fre-
quently encounter in an administrative, civil or criminal
enforcement context. They are documents whose release would
result in at least one of the following five consequences:
7(B) deprive a person of a right to a fair
trial or an impartial adjudication,
7(C) constitute an unwarranted invasion of
personal privacy,
7(D) disclose the identity of a confidential
source,
-------
7(E) disclose investigative techniques and
procedures,
7(F) endanger the life or physical safety of
law enforcement personnel.
EPA will not provide any person with exempt documents the
release of which would harm a case in litigation. Nevertheless,
the Agency must respond to any FOIA request on a case by case
basis. Aqency personnel, including the appropriate attorney,
should first determine whether an exemption applies. If an
exemption does apply, the Agency may withhold the document, or
at its discretion, release it to the requesting party. If an
•
exemption does not apply, EPA must release the document. Under
FOIA, a party's rights are neither enhanced nor diminished by
his or her status as a private litigant. NLRB v. Robbins Tire
and Rubber Co. 437 US 214 (1978).
Various policy memoranda explain the need to segregate and
secure those documents related to criminal investigations and
enforcement activity (e.g., a Memorandum from the Assistant
Administrator dated January 7, 1985, entitled "Functions and
General Operating Procedures for the Criminal Enforcement
Program"). EPA personnel should follow such guidance to prevent
the release of documents related to criminal proceedings. This
Document Release guidance is consistent with existing procedures
and, as a general matter, is applicable to documents related
both to criminal and civil enforcement activity.
V. Releasing General Enforcement Documents
A. Enforcement Policy Document
These documents generally instruct Agency staff on how EPA
will conduct its enforcement activities. Examples include a
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-8-
Memorandum from the Administrator dated September 20, 1982, on
enforcement action against stationary air sources which will
not be in compliance by December 31, 1982, and a Memorandum from
the Assistant Administrator for Air, Noise and Radiation dated
September 15, 1982, on issuing notices of violation under the
Clean Air Act.
EPA will release to the public those documents containing
final enforcement policy. Such documents are signed by at least
a Divison Director or equivalent. This policy is consistent
with the Agency's objective of informing the public about how it
conducts business.
Even if documents contain predecisional or deliberative
information, EPA will not necessarily withhold such documents or
portions of them under FOIA exemption 5. The Agency will withhold
those_documents only if an important purpose would be served by so
doing. An important purpose for withholding might be found where
release would be likely in the future to inhibit honest and frank
communications necessary to effective policy making or might
inaccurately reflect or prematurely reveal the views of the Agency.
Such predecisional documents include draft copies which are often
circulated within the Agency for review and comment, documents
which discuss recommendations and options for the establishment
of enforcement policy, and documents which transmit them if such
documents reveal content. These documents play an integral part
in development of final enforcement policy.
A waiver of this deliberative process privilege can occur,
as in other contexts, if EPA distributes a document outside the
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-9-
Federal government. Nevertheless, if the Agency can show that
the disclosure was limited and controlled, waiver may not apply.
For example, disclosure to a state agency may result in waiver
unless the responsible office has determined that state comment
is important to the Agency decision-making process and has taken
steps to ensure that the state will keep the distributed draft
confidential (e.g., transmittal of the draft with a cover letter
explaining the need for limited distribution, numbering the docu-
ments sequentially, and requesting that all copies be returned to
EPA after s»tate comment).
B. Enforcement Strategic Planning
These documents relate to enforcement initiatives and
strategies which the Agency develops to ensure that sources
comply with environmental statutes and regulations. An example
is a guidance Memorandum from the Assistant Administrator for
Solid Waste and Emergency Response dated June 18, 1982, which
broadly describes fiscal year 1983 RCRA permit and inspection
numbers. Agency personnel should release documents which pertain
to a broad class of sources, but withhold documents which are so
specific that an individual source could use the information to
circumvent EPA enforcement activity.
For example, final Agency documents detailing enforcement
expenditures for compliance inspections during a fiscal year are
documents which EPA should release to the public. On the other
hand, EPA should consider withholding documents, or portions
thereof, specifically detailing the projected inspection of
enforcement targets in various metropolitan areas. These
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-10-
documents are primarily intended for internal use and their re-
lease could enable a source to circumvent environmental statutes
and regulations. This rationale will likely be available only in
the narrow context of detailed regional plans to implement a
specific enforcement effort. If the document is not an investi-
gative record associated with a specific enforcement case, EPA
may be able to apply exemption 2 of FOIA. This exemption relates
''i*
to documents involved with internal agency personnel rules and
practices. The case law has extended the exemption to certain
predominantly internal documents, the release of which would
significantly risk circumvention of agency regulations or statutes.
Crocker v. Bureau of Alcohol, Tobacco and Firearms, 670 F.2d 1051,
1074 (D.C. Cir. 1981). Of course, a regional plan that is in the
form of A recommendation rather than a final agency policy could
also be withheld under exemption 5's deliberative process
privilege*.
C. Management/Administrative
These documents relate to the day-to-day operation and
management of the Agency. An example is a Memorandum from the
Associate Administrator and General Counsel dated November 28,
1983, which explains the requirement for clearance of significant
enforcement pleadings.
Although the Agency has discretion to withhold internal
personnel rules and routine management documents under FOIA
exemption 2, EPA will generally release these documents unless
their release would interfere with Agency operations. The
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-11-
release of most final documents related to routine budget matters
and internal Agency management will not interfere with overall
Agency activities. If the program office responsible for such
operations considers that a release would interfere with Agency
operations, it may withhold the documents under exemption 2 of
FOIA. Instances of interference are rare, and consultation with
the office of General Counsel or Regional Counsel is recommended
in such cases.
EPA can also withhold documents containing preliminary
enforcement budget information if their release would interfere
with the frank exchange of ideas prior to final budget decisions.
These documents may be exempted from disclosure under exemption 5.
D. Deliberative Support Documents
These documents accompany other enforcement documents.' They
include certain transmittal memos, memos containing recommendations,
evaluation of enforcement options, suggestions, analyses, etc.,
related to general enforcement matters.
In most cases, EPA will use its discretion to release doc-
uments which are predecisional intra- and interagency documents,
unless such production would cause harm to the enforcement process.
The rationale for retention includes the protection of open and
frank discussion of enforcement options. The Agency can withhold
the deliberative portions of such requested documents under
exemption 5 of
I/ "Guidance for Assertion of Deliberative Process Privilege"
Issued by the Administrator, October 3, 1984; and memorandum
from acting General Counsel, same subject, issued April 22, 1985..30
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-12-
15. Reference Files
These are materials that enforcement personnel use for
assistance in performing general Agency business. They include
technical files, sample forms, etc. Generally, EPA will make
reference documents available to the public with the exception
of materials which EPA employees own and materials published by
non-federal organizations which already are readily available
from other sources. (See 40 C.F.R. §2.100{b) for definition of
agency record.)
F. Documents Containing Attorney-Client Communications
These documents which are not necessarily case specific
contain communications made in confidence between Agency staff
and attorneys for the purpose of obtaining or providing legal
advice related to EPA matters in which the "client" is authorized
to act.
EPA legal personnel will not disclose, without the client's
consent, communications made in confidence to or from an Agency
attorney for the purpose of obtaining or providing legal advice
related to an EPA matter. EPA may withhold documents containing
such information, if drafted by the client or the attorney. Also
in order to protect the inadvertent disclosure of the client's
confidential factual information it may withhold documents whether
or not the communication is made in the context of litigation.
The documents may be exempted from disclosure under the attorney-
client privilege included in exemption 5. Mead Data Control v.
U.S. Department of the Air Force, 566 F.2d 242 (D.C. Cir. 1971).
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-13-
There are instances when the Agency may choose not to claim
this privilege and therefore will release documents containing
these communications. For example, EPA will release the docu-
ments if the program personnel do not consider the factual
information confidential either at the time it is communicated
or subsequently thereto. If EPA wants to withhold documents,
it should be prepared to demonstrate that the program client
expected confidentiality. Personnel making intra-regional com-
munications between a program office and a Regional Counsel's
office should be sensitive to the fact that the communications
may be confidential and not available for disclosure at a later
date. For example, the document may be stamped "confidential,
not for release under FOIA" thus limiting distribution only to
the EPA personnel who need to know and are authorized to act for
EPA on the particular matter. EPA should release documents in
which the attorney is only stating general Agency policy or if
the advice is later adopted as Agency policy. EPA should consider
release of documents, or portions thereof, containing attorney-
client communications if the release would not harm future frank
exchanges between Agency staff and its attorneys.
VI. Releasing Case-Specific Documents
A. Case Files
In General
Documents in case files contain legal and/or technical
information related to a specific case or party. Case files are
frequently located in a number of offices, including offices
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-14-
that conduct field investigations, perform technical evaluations,
or provide legal assistance.
Case file documents accumulate at these separate offices
during different stages in the enforcement process (e.g., while
EPA is investigating a party, while EPA is initiating an admini-
strative enforcement action, or after EPA issues a formal enforce-
ment document). Whether EPA will release the information may
''>,f
depend on the stage of the enforcement activity. Release is
genercilly appropriate when the party is in compliance with the
law or the compliance status is unknown. Documents containing
technical information related to the party's routine compliance
monitoring or tracking are available to the public or to poten-
tially responsible parties in CERCLA litigation.
Once EPA identifies a potential violation, it may withhold
investigatory documents in order to prevent interference with
any potential or pending enforcement proceeding. In such cases,
EPA should withhold the documents to prevent harm to any potential
enforcement action which may occur by the premature release of
evidence; or information. If EPA wants to withhold the documents,
it has i.he burden of demonstrating the potential harm to an
enforcement proceeding. This decision should be made on a case
by case basis. EPA would be able to withhold these requested
documents under exemption 7(A) of FOIA. NLRB v. Robbins Tire and
Rubber Co., 437 U.S. 214 (1978).
In nany cases, the Agency will use its discretion and release
investigatory data. This policy (with the exception of criminal
investigations) serves the useful purposes of helping a source
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-15-
identify the environmental problem, allowing the source to comment
on the accuracy of EPA factual findings, and informing the public
of the extent of the environmental problem.
In other instances the Agency will consider withholding of
investigatory documents. The .further the Agency proceeds in any
enforcement action or the more data the Agency interprets, the
more reluctant it will be to use its discretion and release
documents without a mutual document exchange with the source.
The Agency will also be reluctant to release investigatory
findings where adequate quality assurance checks have not been
made, and the release of the findings could interfere with the
enforcement activity. Finally, the necessity to protect confi-
dential information, and the greater need to maintain secrecy in
criminal investigations provide valid reasons for the Agency to
retain documents. Agency personnel should always discuss
investigatory documents which relate to enforcement activity
with the case attorney, the Regional Counsel or an OECM attorney
prior to the release decision.
Once an enforcement action is concluded, EPA will be more
willing to release investigatory documents because their release
is less likely to interfere with an enforcement proceeding.
Nevertheless, if their disclosure would interfere with other
similar or related proceedings, reveal the identify of informers,
or if other exemption 7 privileges still apply, EPA may withhold
the documents.
Case files may contain information in documents which a com-
pany considers confidential business information. As discussed
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-16-
in the Appendix, part D, EPA is statutorily prohibited from
releasing confidential business information.
Attorney Work Product And Attorney-Client Materials
Other types of documents which EPA may withhold are those
prepared by, for, or at the request of an attorney in anticipa-
tion of litigation. The courts allow EPA to withhold such
attorney work product documents in order to create a zone of
privacy around the attorney to protect the adversarial process.
Hickman v. Taylor, 329 U.S. 495 (1947). While EPA may withhold
such documents under exemption 5, it may make a discretionary
release of the documents. In such a case, the Agency staff,
including the attorney, would determine on a case by case basis
that the release would not result in harm to the attorney's
ability to operate freely in litigation. In order for EPA to
withhold a document under the attorney work product privilege,
the document must have been prepared at the time when there
was some articulable violation. Litigation need not have been
pending; however, there should be some prospect of litigation,
either administrative or judicial.
Specific types of documents which may be protectable as
attorney work products and which EPA may choose not to release
are:
0 Investigative reports prepared by field
investigators under the general direction
of attorneys to verify further a viola-
tion, and which would be relied upon by a
reviewing attorney;
0 Documents prepared at the request of
technical staff working with attorneys
in anticipation of, or preparing for, an
administrative hearing or litigation;
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-17-
0 Reports prepared by consultants under
direction of attorneys to assist attorneys
in preparation for litigation;
0 Reports from experts prepared under direction
of attorneys which organize and summarize the
evidence for a particular enforcement action;
0 Attorney-prepared factual synopses of, and
opinions on, a particular case;
0 Attorney notes summarizing the facts and
observations on the evidence;
0 Attorney notes of conversations with program
personnel, company representatives, etc.; and,
0 Witness interviews conducted by attorneys or
employees working on their behalf.
Below are examples of documents which may not be protected as
attorney work products, but could be protected as investigatory
records if they meet the requirements of exemption 7:
0 Routine investigatory reports gathered
during regular compliance monitoring; and,
0 Verbatim witness reports and statements.
Whether or not a document is an attorney work product will
depend on a case by case review of the document in the context of
the particular enforcement activity. Even if the attorney work
product privilege does not apply, other exemptions, such as for
investigatory records (exemption 7), may permit the Agency to
withhold the document.
Case files may also contain documents with attorney-client
communications. EPA policy related to attorney-client documents
is discussed above on pages 12 - 13 in the context of general
documents.
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-18-
Settlement Documents
In negotiating a settlement of an enforcement action, EPA
will frequently exchange draft settlement terms with the opposing
party. These terms are often embodied in a draft administrative
or judicial order. The drafts facilitate Agency consideration
of settlement.
The law on whether an agency may withhold settlement docu-
• ;( f
ments under exemption 5 of FOIA is currently unresolved. If
there is the likelihood that non-parties will .request settlement
documents during litigation, the lead counsel should consider
seeking a protective order. Or at the minimum he should seek a
stipulation between parties that they will not release the
settlement documents. Although in this latter case, the stipu-
lation would nc-t negate EPA's obligation to honor a FOIA request,
insofar as it is valid.
In all such settlement situations, even if no protective
order or stipulation exists at the time of a request under FOIA,
EPA may consider withholding such documents under the theory
that review and comments are necessary for intra-agency review
of the settlement (exemption 5). However, before such records
are withheld, consultation with the Office of General Counsel or
Regional Counsel is recommended in view of the unsettled law in
this area, Any transmittal of settlement documents to an opposing
party should explain that the Agency expects that party to keep
the documents confidential. It should also contain language indi-
cating that the limited dissemination is only intended to help the
Agency decide whether the settlement is appropriate.
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-19-
The above guidance is consistent with the Agency goal of
providing for public participation in the litigation settlement
process. If a non-party feels that it needs to protect its
interests in particular litigation, the non-party may seek
intervention in a civil suit. Depending upon the scope of
intervention permitted by the Court, the party-intervenor may
participate in resolving the litigation by reviewing a negotiated
order or even participating in the negotiations. In addition,
the Department of Justice will notify the public in the Federal
Register of any proposed judicial consent decree. The public
will then have the opportunity to comment on the decree before it
becomes final.
Other Documents
Other documents which may be located in case files are law
enforcement documents which discuss unique investigative techni-
ques not generally known outside the government. EPA need not
disclose such documents when they describe specific investigatory
techniques employed to detect violations or report on techniques
for a particular investigation (e.g., a document which lists
those particular facts which a field investigator will examine
during the inspection of a narrow class of sources). EPA should
not disclose such documents if the release of the document could
assist a potential target of investigation in avoiding EPA's
detection of an existing violation. EPA is able to withhold
these requested documents under exemption 7(E) of FOIA.
Document retention should not extend to routine procedures
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-20-
4
already known to the public, such as common scientific tests,
technical reports which discuss indicators of compliance,
and methods for interviewing witnesses.
EPA will generally release to the public enforcement docu-
ments which it issues to sources during formal enforcement
actions (other than pre-final settlement documents). Examples
of such documents include notices of violation under the Clean
Air Act, administrative orders, and pleadings which are filed
with an .administrative hearing of.icer or court. Since the
decision in Cohen v. EPA, 575 F. Supp. 425 (D.D.C. 1983), EPA
has decided to release, except in very limited circumstances,
the names of potentially responsible parties for hazardous waste
site clean-up in response to FOIA requests. EPA will enter the
names into the data base of a computer system and will provide
requesters) with a list of potentially responsible parties who
have received notice letters. (See Memorandum from Gene A.
Lucero, Director of the Office of Waste Programs Enforcement to
Waste Management Division Directors dated December 9, 1983.)
Documents may be in enforcement files which relate to how
EPA should use its enforcement discretion to prosecute a particular
polluter. As a general matter, EPA need not release such documents
if to do so would cause harm to the enforcement process. The
EPA is able to withhold these documents, if predecisional, because
under exemption 5 they would compromise the deliberative process
of the Agency, as attorney work product, and/or as attorney-client
privileged. In addition, they may be withheld if they are investi-
gatory documents, the release of which would interfere with a
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-21-
potential or pending enforcement action (exemption 7(A)). EPA
will release documents containing general enforcement discretion
policy statements, unless it is clear that their release would
interfere with enforcement proceedings and therefore qualify
them as investigatory records.
The need to withhold documents discussing enforcement
discretion may diminish once a final decision is made or a case
is concluded. At that time, in responding to a FOIA request
after final action, the office considering a document release
should assess whether the release of a predecisional delibera-
tive document or an attorney-client communication would hinder
free and frank discussion. The attorney work product privilege
is not necessarily lost if litigation, or the potential for
litigation, no longer exists. FTC v. Grolier, Inc. 103 S.Ct.
2209 (1983). Even in the case of concluded or halted criminal
actions, additional concerns might preclude the release of the
documents. EPA will not release documents if they disclose the
identity of a confidential source, confidential information, or
investigative techniques and procedures, or if this release
would endanger the life or physical safety of law enforcement
personnel. These exemptions under FOIA related to criminal
cases are found in exemptions 7(D), (E) and (F). (See page 6.)
B. Case Status Reports
These are manually created or computerized documents in which
the Agency reports enforcement activities. The documents may be
related to compliance tracking, general enforcement planning, and
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-22-
ongping specific enforcement actions including active cases
against violating sources.
These case status reports serve a number of functions/
including compliance monitoring. The Agency will make available
to the public documents containing information relating to track-
ing various matters related to pollution sources. The EPA will
consider withholding documents (including non-public documents
after a case is referred or filed) once a source is identified
''«'
as violating an environmental standard. Whether the Agency will
release a document after it makes that identification depends on
the degree to which its release will interfere with enforcement
proceedings. For example, the release of a list of suspected
violating sources for which EPA is completing its investigations
might interfere with the normal enforcement process. The EPA is
able to withhold these requested investigatory reports under
exemption 7(A) of FOIA. Other case status reports are used as
litigation planning and management tools. These reports,
whether prepared by attorneys or program personnel working with
the attorneys, might fall within the category of attorney work
product as discussed above.
VII. Conclusion
All determinations for the release of any document must be
made on a case by case basis, in light of applicable legal
authorities and the guidelines discussed in this document.
iSnforcement attorneys are available at headquarters and in all
regional legal offices for additional consultation on these
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matters. Regions are encouraged to establish internal procedures
to ensure that the Regional Counsel is notified of all written
requests for enforcement-related documents.
The policies and procedures set out 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.
Courtney M. Price
Assistant Administrator for
Enforcement and Compliance Monitoring
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APPENDIX
Thore are a number of statutes and regulations which place
constraints on the Agency's discretion to release enforcement
documenl-.s to the public. The statutes listed below expressly
require or prohibit disclosure of records; the regulations
address EPA policy.
Ac Administrative Procedure Act (APA)
The Freedom of Information Act (FOIA) is contained in Section
552 of the APA. 5 U.S.C. S 552. Congress enacted FOIA for the
express purpose of increasing discloe re of agency records. The
first part of FOIA mandates the disclosure of certain agency
documents. An agency is required to publish in the Federal
Register certain enumerated types of material. In addition,
FOIA requires all agencies to index and make available for public
inspection and copying other enumerated types of material. Such
documents include statements of policy and interpretation adopted
by the agency, administrative staff manuals, and instructions to
staff that <:£fect members of the public. Finally, FOIA requires
disclosure, on request, of all reasonably described records,
unless the documents can be classified within one or more of the
nine categories of records that are exempt from the disclosure
requirements. Court decisions have clarified which documents
are properly classified as exempt from mandatory disclosure.
Although FOIA permits the Agency to withhold certain
documents from disclosure, it does not provide guidance on how
the Agency should use its discretion to release "exempt" or
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"privileged" documents. Because FOIA contains an exemption
from release for certain documents it does not automatically
mean EPA should withhold them.
Accordingly, EPA has promulgated regulations which clarify
how the Agency will utilize its discretion to release documents
which it could withhold as exempt under the statute. These
regulations are found in 40 C.F.R. Part 2.
B. The FOIA Regulations
The Agency has determined that it will not release any
document which falls within certain of the exemptions unless it
is so ordered by a federal court or in "exceptional circumstances"
with the approval of the Office of General Counsel or Regional
Counsel. 40 C.F.R. Section 2.119. These documents include those
related to national defense or foreign policy; documents for which
a statute prohibits disclosure; trade secrets; personnel/medical
and related files, release of which would constitute an unwarranted
invasion of personal privacy; reports prepared by, or for, an
Agency responsible for regulating financial institutions; and
geological and geophysical information. On the other hand, the
regulations allow the Agency to utilize its discretion in decid-
ing whether to release requested documents related to internal
personnel practices, intra-agency or interagency memoranda, and
investigatory records. Disclosure of such records is encouraged
if no important purpose would be served by withholding the records.
40 C.F.R. Section 2.119(a)
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C. Privacy Act
Congress enacted the Privacy Act in 1974 to promote govern-
mental respect for the privacy of citizens. 5 U.S.C. § 552a.
Section 3(b) of the Act prohibits agencies/ except in 12 specified
instances, from releasing or disclosing any record maintained in
a system of records pertaining to an individual (other than to
that individual) without prior written consent of the individual.
If EPA must release a document in response to a FOIA request, it
is exempt from the nondisclosure provisions of the Privacy Act.
D. Confidentiality
The environmental statutes which EPA enforces prohibit the
release of documents or information that contain trade secrets
or confidential commercial or financial information. This pro-
hibition is usually located in the individual section of the
statute dealing with EPA investigatory authority, e.g., Section
114 of the Clean Air Act, 42 U.S.C. S 7414; Section 308 of the
Clean Water Act, 33 U.S.C. $ 1318; Section 3007 ,jf the Resource
Conservation and Recovery Act, 42 U.S.C. S 6927; and Section 104
of the Comprehensive Environmental Response, Compensation, and
Liability Act, 42 U.S.C. S 9604. In addition, The Trade Secrets
Act, 18 U.S.C. $ 1905, contains an independent prohibition against
certain release of confidential business information by agencies.
Section 1905 makes it a crime for a federal employee to disclose
such information.
On September 1, 1976, EPA promulgated procedures and substan-
tive rules on how to handle information that may be confidential.
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These regulations at 40 C.F.R. Part 2, Subpart B, establish
basic rules governing the handling of business information.
The regulations at 40 C.F.R. $ 2.204 require that before docu-
ments are released, EPA personnel must determine whether the
documents are confidential, or whether the business asserts a
claim of confidentiality. In general, if there is a claim, the
material cannot be released prior to a review and confidentiality
determination by the appropriate EPA legal office and notice to
the submitter. Agency guidance explaining the procedures for
handling business information under the regulations can be found
in a Memorandum from the Deputy Administrator dated November 6,
1980, and entitled "Disclosure of Business Information under FOIA.
E. Statutes Requiring Disclosure
Many of the environmental statutes EPA enforces generally
require the disclosure of certain information. For example the
Clean Air Act requires that information EPA obtains under Section
114, other than trade secrets, shall be available to the public.
CERCLA has a similar provision in Section 104(e)(2). Where the
environmental statute generally requires disclosure of information
obtained under the investigatory authority, EPA will interpret
this language consistent with FOIA.
F. The Federal Rules of Civil Procedure and Federal Rules
of Criminal Procedure
Although exemption 5 has not been construed to incorporate
every privilege in civil discovery, generally, those documents
which are privileged under Rule 26 of the Federal Rules of Civil
Procedure are documents which the Agency can withhold under FOIA.
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Pederal rules of procedure do not in themselves qualify under
exemption 3 of FOIA, which protects information specifically
exempted from disclosure by statute. However, when Congress
subsequently modifies and enacts a rule of procedure into law
the rule may qualify under the exemption. For example, it has
been held that because Congress altered Rule 6(e) of the Federal
Rules of Criminal Procedure (concerning matters occurring before
a grand jury), that rule satisfies the "statute" requirement of
exemption 3. Therefore, grand jury material in the hands of
Agency personnel can be withheld under FOIA. Other rules require
the release of certain documents to criminal defendants.
G. Bibliography
1. Freedom of Information Case List, U.S. Dept. of
Justice, 1985 Edition;
2. Litigation under the Federal Freedom of Information
Act and Privacy Act/ Adler & Halperin, Center for
National Security Studies (9th Edition, 1983);
3. Federal Information Disclosure 2 Vols. James T.
O'Reilly, McGraw-Hill, 1979 (Supplement Available);
4. Guidebook to the Freedom of Information and Privacy
Acts, Clark Boardman Co., Ltd., 1983.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
OCT 2)335
Oma OF ENFORCEMENT
AKD COMPLIANCE
MONITORING
MEMORANDUM
SUBJECT: Settlement of Enforcement Actions Using Alternative
Dispute Resolution/techniques j\
Tf yl^^^l^
PROM: Courtney M. Price
Assistant Administrator for Enforcement
and Compliance Monitoring
TO: Assistant Administrator for Water
Assistant Administrator for Solid Waste and Emergency
Response
Assistant Administrator for Air and Radiation
Assistant Administrator for Pesticides and Toxic Substances
Regional Administrators
Regional Counsels
I. Purpose
This memorandum identifies obstacles to quick resolution of
our enforcement cases, suggests options for resolving some of
these cases more expeditiously and with better results, advises
you of resources available for such resolution, and solicics
potential cases in which the use of these resources could enhance
your enforcement efforts.
II. Background
A. Identified Problems
Enforcement personnel in the regions and headquarters share
frustration over the pace of some enforcement actions. They
agree that the length and complexity of some of these caset
burden available enforcement resources beyond their prograjunatic
or strategic value. Further, there are a great many smaller
cases, the resolution of which by means of administrative or
judicial litigation is very time consuming.
Obstacles to expeditious resolution of enforcement
actions are strewn throughout the negotiation and litigation
processes. With regard to negotiations, these obstacles include:
a large number of defendants, rendering case
management unwieldy;
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multiple plaintiffs with different agendas;
failure of multiple defendants to establish an
efficiently operating steering committee or
otherwise reach agreement among themselves on
settlement issues in the waste enforcement area;
personality conflicts between opposing negotiators;
inflexible negotiating postures resulting from each
party's overestimation of the strength of its case;
sophisticated technical circumstances surrounding
some cases including uncertainties about technical
remedies, leading to myriad disputes over issues of
fact; and
controversial issues of law and fact.
In addition, there are obstacles inherent to the process
of litigation itself. These include lengthy and complicated
discovery procedures, the failure of a judge to quickly rule
on motions or schedule hearings, and the intense effort which
must be made to educate the trier of fact on both legal and
technical issues.
In an effort to resolve enforcement actions more quickly
but without making legal or policy concessions, the Agency
has begun to examine various alternatives to traditional
methods of negotiation and litigation.
We can make resources available to you and your staff
to rosolve these cases more quickly with quality outcomes.
These; resources involve alternative dispute resolution (ADR)
procedures successfully employed in other litigation situations,
and include the use of experts in ADR and training in ADR
techniques.
3. ADR Mechanisins
;:n addition to negotiation, ADR mechanisms potentially
useful in enforcement cases include mediation, fact-finding,
mini-trials and arbitration.
Mediation is the facilitation of negotiations by a neutral
third~party who has no power to decide the issues. As in
traditional negotiation, the object is for the parties to
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-3-
reach a mutually acceptable agreement. Also as in negotiation*
the parties retain the power to decide the issues, and the
process is informal, voluntary and nonbinding. The difference
is that the parties select an outside facilitator, often with
specialized subject matter expertise, to aid in the process of
negotiation. Mediation can be used to address problems such
as an unwieldy number of defendants or plaintiffs/ a poorly
operating steering committee in the waste enforcement area,
personality conflicts between the opposing negotiators/ or a
number of smaller actions that have been batched together.
Fact-finding involves the investigation by a neutral third-
party/ with specialized subject matter expertise, selected by
the disputants, of issues the parties have specified. The
process is voluntary and may be binding or nonbinding, but if
the parties agree, the material presented by the parties to
the fact finder may be admissible in a subsequent hearing.
The procedures are informal because fact-finding is an investi-
gatory process. The object of this ADR mechanism is to narrow
factual or technical issues in dispute, and usually results in
a report or testimony.
In a mini-trial, the parties present their positions to
representatives of the principals, preferably with authority
to settle the dispute and, in some cases, to a neutral third-
party. The "trial* is preceded by limited discovery and
preparation. The proceeding is an abbreviated hearing with
testimony and cross-examination as the parties agree. Repre-
sentatives of the principals (vice-president of a company and
a Regional Administrator, for example) are the decision-makers
with the neutral advisor acting as referee. The neutral third-
party usually has specialized subject matter expertise in trial
procedures and evidence, and advises the parties regarding
possible court rulings. Immediately after the mini-trial, the
parties re-enter negotiations, sometimes with the aid of the
neutral third-party. This ADR mechanism is useful in narrowing
legal issues in dispute, and in giving parties a more realistic
view of the strength of their respective cases.
Arbitration involves a hearing before a neutral third-party
decision-maker who usually has subject matter expertise. The
parties select the arbitrator, the procedures to be followed,
and the issues to be heard. An arbitration is procedurally let>i
formal than a trial and can be binding or nonbinding. As in
fact-finding, nonbinding arbitration narrows issues in dispute.
Binding arbitration resolves the dispute.
III. Process
We would like to offer Headquarters assistance for appropriate
cases in which you may be interested in using an ADR mechanism.
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-4-
The first step to obtain such assistance is Regional identified
of cases where ADR nay expedite settlement. Headquarters, the
legion and DOJ (if the case has been referred) will discuss the
possibility of using ADR in any case nominated as a candidate.
If one or more ADR techniques look promising, the case will be
discussed with someone familiar with ADR (either in-house or a
consultant) supplied by OECM. If everyone determines the case
ic a good candidate, the litigation team will approach the
defendants with a suggestion for using ADR to resolve the dispute.
If the parties agree, they will design procedures for using a
particular ADR technique for a specified period of time. OECM
will aid in the selection and will cover the cost of any charges
to the Agency for the tine of any outside ADR expert. If the
chosen case is not resolved within the time period specified for
usiing the ADR method, it will continue toward trial.
Please contact Richard Robinson, Director, Legal Enforcenent
Policy Division (FTS 982-2860, LE 130A, E nail Box EPA 2261),
by fat/utter K, 1985, with your cases any comments on this effort,
or ;if you would like nore information about ADR.
Thank you for your attention to this natter..
cc: Administrator
Deputy Administrator
General Counsel
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
OCT300Q5
OFFICE OF ENFORCEMENT
AND COMPLIANCE
MONITORING
MEMORANDUM
SUBJECT: Division of Penalties with State and Local Governments
PROM: Courtney M. Price C^
Assistant Administrator 'for Enforcement
and Compliance Monitoring
TO: Regional Administrators
Associate Enforcement Counsels
Program Enforcement Division Directors
Regional Counsels
This memorandum provides guidance to Agency enforcement
attorneys on the division of civil penalties with state and
local governments, when appropriate. In his "Policy Framework
for State/EPA Enforcement Agreements" of June 26„ 1984, Deputy
Administrator Al Aim stated that the EPA should arrange for
penalties to accrue to states where permitted by law. This
statement generated a number of inquiries from states and from
the Regions. Both the states and the Regions were particularly
interested in what factors EPA would consider in dividing
penalties with state and local governments. In addition, the
issue was raised in two recent cases, U.S. v Jones & Laughlin
(N.D. Ohio) and U.S. v Georgia Pacific Corporation (M.D. La.).
In each case, a state or local governmental entity requested a
significant portion of the involved penalty. Consequently, OECM
and DOJ jointly concluded that this policy was needed.
EPA generally encourages state and local participation in
federal environmental enforcement actions. State and local
entities nay share in civil penalties that result from their
participation, to the extent that penalty division is permitted
by federal, state and local law, and is appropriate under the
circumstances of the individual case. Penalty division advances
federal enforcement goals by:
1) encouraging states to develop and maintain active
enforcement programs, and
2) enhancing federal/state cooperation in environmental
enforcement.
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However, penalty division should be approached cautiously because
of certain inherent concerns, including:
1) increased complexity in negotiations among the
various parties, and the accompanying potential
for federal/state disagreement over penalty
division; and
2) compliance with the Miscellaneous Receipts Act, 31
U.S.C. S3302, which requires that funds properly
payable to the United States must be paid to the U.S.
Treasury. Thus any agreement on the division of
penalties must be completed prior to issuance of and
incorporated into a consent decree.
As in any other court-ordered assessment of penalties under
the statutes administered by EPA, advance coordination and
approval of penalty divisions with the Department of Justice is
required. Similarly, the Department of Justice will not agree
to any penalty divisions without my advance concurrence or that
of my designee. In accordance with current Agency policy,
advance copies of all consent decrees, including those involv-
ing penalty divisions, should be forwarded to the appropriate
Associate Enforcement Counsel for review prior to commencement
of negotiations.
The following factors should be considered in deciding if
penalty division is appropriate:
1) The state or local government must have an indepen-
dent claim under federal or state law that supports
its entitlement to civil penalties. If the entire
basis of the litigation is the federal enforcement
action, then the entire penalty would be due to the
federal government.
2) The state or local government must have the authority
to seek civil penalties. If a state or local govern-
ment is authorized to seek only limited civil
penalties, it is ineligible to share in penalties
beyond its statutory limit.
3) The state or local government must have partici-
pated actively in prosecuting the case. For example,
the state or local government must have filed com-
plaints and pleadings, asserted claims for penalties
and been actively involved in both litigating the
case and any negotiations that took place pursuant
to the enforcement action.
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-3-
4) For contempt actions, the state or local government
must have participated in the underlying action
giving rise to the contempt action, been a signatory
to the underlying consent decree, participated
in the contempt action by filing pleadings asserting
claims for penalties, and been actively involved
in both litigating the case and any negotiations
connected with that proceeding.j/
The penalties should be divided in a proposed consent
decree based on the level of participation and the penalty
assessment authority of the state or locality. Penalty division
may be accomplished more readily if specific tasks are assigned
to particular entities during the course of the litigation.
But in all events, the division should reflect a fair apportion-
ment based on the technical and legal contributions of the
participants, within the limits of each participant's statutory
entitlement to penalties. Penalty division should not take
place until the end of settlement negotiation. The subject
of penalty division is a matter for discussion among the
governmental plaintiffs. It is inappropriate for the defendant
to participate in such discussions.
cc: F. Henry Habicht II, Assistant Attorney General
Land and Natural Resources Division
I/ if the consent decree contains stipulated penalties and
specifies how they are to be divided, the government will
abide by those terms.
-------
GM - 46 The Agency issued an addendum to this policy
on August 4, 1987. That addendum is located in this
section right after the original policy.
«»»
• r . . ' si.* — •"
_, • • a- A; . - 1
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GM-46
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
NOV 2 | !3o5
MEMORANDUM
SUBJECT
FROM:
TO:
Policy on Publicizing Enforcement Activities
Courtney M. Price v^JU-^1—>.
Assistant Administrator for Enforcement
and Compliance Monitoring
''*~}rf-
Jennifer Joy Mansorr^Zt ^^-rt^^-r *~^>7 " (^
Assistant Administrator for/Txt^r/>^V Affairs
Assistant Admirilstfrators
General Counsel
Inspector General
Regional Administrators
Office of Public Affairs
(Headquarters and Regions I-X)
Regional Counsel (I-X)
Attached is the EPA Policy on Publicizing Enforcement
Activities, a joint project of the Office of Enforcement and
Compliance Monitoring and the Office of Public Affairs. The
document establishes EPA policy on informing the public about
Agency enforcement activities. The goal of the policy is to
improve communication with the public and the regulated community
regarding the Agency's enforcement program, and to encourage
compliance with environmental laws through consistent public
outreach among headquarters and regional offices.
To implement this policy, national program ranagers and
public affairs directors should review the policy for the purpose
of preparing program-specific procedures where appropriate.
Further, program managers should consider reviewing the implemen-
tation of this policy in EPA Regional Offices during their regional
program reviews. These follow-up measures should ensure that
publicity of enforcement activities will constitute a key element
of the Agency's program to deter environmental noncompliance.
Attachment
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EPA POLICY ON PUBLICIZING ENFORCEMENT ACTIVITIES
I. PURPOSE
This memorandum establishes EPA policy on informing the
public about Agency enforcement activities. This policy is
intended to improve EPA communication with the public and the
regulated community regarding the goals and activities of the
Agency's enforcement program. Appropriate publication of EPA
enforcement efforts will both encourage compliance and serve as
a deterrent to noncompliance. The policy provides for consistent
public outreach among headquarters and regional offices.
II. STATEMENT OF POLICY
It is the policy of EPA to use the publicity of enforcement
activities as a key element of the Agency's program to deter
noncompliance with environmental laws and regulations. Publicizing
Agency enforcement activities on an active and timely basis informs
both the public and the regulated community about EPA's efforts
to promote compliance.
Press releases should be issued for judicial and administrative
enforcement actions, including settlements and successful rulings,
and other significant enforcement program activities. Purser,
the Agency should consider employing a range of methods of' A
publicity such as press conferences and informal press briefings,
articles, prepared statements, interviews and appearances at
seminars by knowledgeable and authorized representatives of the
Agency to inform the public of these activities. EPA will work
closely with the spates in developing publicity on joint enforcement
activities and in supporting state enforcement efforts.
III. IMPLEMENTATION OF POLICY
A. When to Use Press Releases I/
1• Individual Cases
It is EPA policy to issue press releases when the Agency:
(1) files a judicial action or issues a major administrative
order or complaint (including a notice of proposed contractor
listing and the administrative decision to list); (2) enters
into a major judicial or administrative consent decree or files
a motion to enforce such a decree? or (3) receives a successful
court ruling. In determining whether to issue a press release,
_!/ The term "press release" includes the traditional Agency press
release, press advisories, notes to correspondents and press
statements. The decision on what method should be used in a given
situation must be coordinated with the appropriate public affairs
office(s).
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-2-
EPA personnel will consider: (1) the amount of the proposed
or assessed penalty (e.g., greater than $25,000); (2) the significance
of the relief sought or required in the case, and its public
health or environmental impact; (3) whether the case would
create national or program precedence; and (4) whether unique
relief is sought. However, even enforcement actions that do not
meet these criteria may be appropriate for local publicity in
the area where the violative conduct occurred. Where appropriate,
a single press release may be issued which covers a group or
category of similar violations.
Where possible, press releases should mention the environmental
result dosired or achieve/ by EPA's action. For example, where
EPA determines that a particular enforcement action resulted (or
will result) in an improvement in a stream's water quality, the
press release should note such results. In addition, press
releases must include the penalty agreed to in settlement or
ordered by a court.
Press releases can also be used to build better relationships
with the states, the regulated community, and environmental groups.
To this end, EPA should acknowledge efforts by outside groups to
foster compliance. For example, where a group supports EPA
enforcement efforts by helping to expedite the cleanup of V
Superfund site, EPA may express its support for such initiatives
by issuing a press release, issuing a statement jointly with the
group, or conducting a joint press conference.
*
2 - Major Polici' 2
In addition to publicizing individual enforcement cases, EPA
should publicize major enforcement policy statements and other
enforcement program activities since knowledge of Agency policies
by the regulated community can deter future violations. Such
publicity may include the use of articles and other prepared
statements on enforcement subjects of current interest.
3. Program Performance
Headquarters and reg^ :>nal offices should consider issuing
quarterly and annual reports on Agency enforcement efforts.
Such summaries pres'ent an overview of the Agency's and Regions'
enforcement activities; tiiey will allow the public to view
£PA ' s enforcement program over time, and thus give perspective
to our overall enforcement efforts. The summaries should cover
f.rends and developments i.. Agency enforcement activities, and
may include lists of enforcement actions filed under each statute.
The Office of Enforcement and Compliance Monitoring' s (OECM)
Office of Compliance Analysis and Program Operations, and the
Offices of Regional Counsel will assist the Public Affairs Offices
in this data gathering. Public Affairs Offices can also rely on
t.Te figures contained in the Strategic Planning Management ystem.
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-3-
4. Press Releases and Settlement Agreements
EPA has, on occasion, agreed not to issue a press release
as part of a settlement agreement. EPA should no longer agree
to a settlement which bars a press release or which restricts
the content of a press release. On January 30, 1985, the Deputy
Administrator issued an abbreviated press release policy, which
stated in pertinent part that: "It is against EPA policy to
negotiate the agency's option to issue press releases, or the
substance of press releases, with parties outside of EPA,
particularly those parties involved in settlements, consent
decrees or the regulatory process." This policy will help to
ensure consistency in the preparation of press releases and
equitable treatment of alleged violators.
B. Approval of Press Releases
EPA must ensure that press releases and other publicity
receive high priority in all reviewing offices. By memorandum
dated August 23, 1984, the Office of External Affairs directed
program offices to review and comment on all press releases
within two days after the Office of Public Affairs submits its
draft to the program office; otherwise concurrence is assumed..
This review policy extends to OECM and the Offices of Regional
Counsel for enforcement-related press releases.
C. Coordination « \
1. Enforcement, Program, and Public Affairs Offices
More active ur •> of publicity requires improved coordination
among regional and Headquarters enforcement attorneys, program
offices and public affairs offices. The lead office in an
enforcement case, generally the regional program office in an
administrative action and the Office of Regional Counsel or OECM
in a judicial action, should notify the appropriate Public Affairs
Office at the earliest possible time to discuss overall strategy
for communicating the Agency's action (e.g., prior notice to
state or local officials) and the the timing of a press release.
The lead office should stay in close contact with Public Affairs
as the matter approaches fruition.
2. Regional and Headquarters Offices of Public Affairs
Regional and headquarters Public Affairs Offices should
coordinate in developing press releases both for regionally-based
actions that have national implications and for nationally managed
or coordinated enforcement actions. Whenever possible, both
regional and headquarters offices should send copies of draft
press releases to their counterparts for review and comment.
Both such offices should also send copies of final releases to
their counterparts.
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-4-
3. EPA and DOJ
EPA can further improve the timeliness, and effectiveness
of its press releases regarding judicial actions by coordinating
with DOJ's Office of Public Affairs. When an EPA Office of
Public Affairs decides that a press release in a judicial enforce-
ment Ccise is appropriate, it should notify DOJ or the appropriate
U.S. Attorney's Office to ensure timeliness and consistency in
preparation of press releases. DOJ has been requested to notify
OECM when DOJ intends to issue a release on an EPA-related case.
EPA's Office of Public Affairs will immediately review such
draft releases, and, if necessary to present the Agency's position
or additional information, will prepare an Agency release.
4. EPA and the States
Another important goal of this policy is to encourage
cooperative enforcement publicity initiatives with the states.
The June 26, 1984, "EPA Policy on Implementing the State/Federal
Partnership in Enforcement: State/Federal Enforcement 'Agree-
ments,'" describes key subjects that EPA should discuss with
the states in forming state-EPA Enforcement Agreements. The
section on "Press Releases and Public Information," states that
the "Region and State should discuss opportunities for joint
press releases on enforcement actions and public accounting of
both State and Federal accomplishments in compliance and eiiroftce-
ment." Further, as discussed in the subsequent January 4, 1985,
Agency guidance on "Implementing Nationally Managed or Coordinated
Enforcement Actions," the timing of state and EPA releases
"should be coordinated so that they are released simultaneously."
Accordingly, EPA Public Affairs Offices should consult
with the relevant state agency on an EPA press release or
other media event which affects the State. EPA could offer
the State the option of joining in a press release or a press
conference where the State has been involved in the underlying
enforcement action. Further, EPA-generated press releases and
public information reports should acknowledge and give credit
tc relevant state actions and accomplishments when appropriate.
Finally, it is requested that EPA Public Affairs Offices
j;end the State a copy of the EPA press release on any enforcement
cctivity arising in that state.
D. Distribution of Press Releases
The distribution of EPA press releases is as important as
their timeliness. Press releases may be distributed to the local,
nc.tional, and trade press, and local and network television
stations.
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-5-
1• Local and National Media
EPA must "direct" its press releases to ensure that the
appropriate geographical areas learn about EPA enforcement
activities. To accomplish this goal, the appropriate Public
Affairs Office should send a press release to the media and
interest groups in the affected area, i.e., the local newspaper
and other local publications, television and radio stations, and
citizen groups. The headquarters Public Affairs Office, in con-
junction with the appropriate regional office, will issue press
releases to the national press and major television networks
where an EPA enforcement activity has national implications.
2. Targeted Trade Press and Mailing Lists
The Agency must also disseminate information about enforce-
ment activities to affected industries. Sending a press release
to relevant trade publications and newsletters, particularly for
a significant case, will put other potential violators on
notice that EPA is enforcing against specific conduct in the .
industry. It is also useful to follow up such press releases
with speeches to industry groups and articles in relevant trade
publications, reinforcing the Agency's commitment to complkpnce.
To ensure the appropriate distribution of publicity, we are
requesting each of the regional Public Affairs Offices, in coopera-
tion with the Regional Counsels and regional program offices, to
establish or review and update their mailing lists of print media,
radio and television stations, state and local officials, trade
publications, and business and industry groups for each of the
enforcement programs conducted in the Regions.
E. Use of Publicity Other Than Press Releases
EPA headquarters and regional offices have generally relied
on press releases to disseminate information on enforcement
activities. Other types of enforcement publicity are also
appropriate in certain instances.
1. Press Conferences and Informal Press Briefings
Press conferences can be a useful device for highlighting
an enforcement activity and responding to public concerns in a
specific area. Regional Administrators should consider using
press conferences to announce major enforcement actions and to
elaborate on important simultaneously issued press releases.
Press conferences should also be considered where an existing or
potential public hazard is involved. The regional Public Affairs
Office should always inform the headquarters Public Affairs
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-6-
Office when it decides to hold a press conference to provide an
opportunity for the Administrator's advance knowledge and involve-
ment if necessary.
2. Informal Meetings with Constituent Groups
To further supplement EPA efforts to inform the public and
regulated community, regional offices should meet often with
constituent groups (states, environmental groups, industry, and
the press) to brief these groups on recent enforcement developments
These meetings can be organized by the Public Affairs Offices.
By informing the public, EPA increases public interest in its
enforcement program and thereby encourages compliance.
3. Respond ing./to Inaccurate Statements
EPA should selectively respond to incorrect statements made
about EPA enforcement activities. For example, EPA may want to.
respond to an editorial or other article which inaccurately
characterizes EPA enforcement at a Superfund site with a "letter
to the editor." Where an agency response is deemed to be :
appropriate, it should promptly follow the inaccurate statement.
4. Articles and Prepared Statements
EPA's Public Affairs Offices and the Office of Enforc
and Compliance Monitoring occasionally prepare articles on various
aspects of the Agency's enforcement program. For example, Region
issues a biweekly column to several newspapers in the Region
covering timely enforcement issues such as asbestos in schools.
we encouraae all regional and headquarters offices to prepare
feature articles on enforcement issues. When the regional office
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(i
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. O.C. 20460
-A f987
MEMORANDUM
SUBJECT:
FROM:
TO:
Addendum to GM-46: Policy on Publicizing
Enforcement Activities
Thomas L. Adams, Jr.
Assistant Administrator for Enforcement
and Compliance-Monitoring
Jennifer Joy Wil
Assistant Admi
r tor External Affairs
Assistant Admi/niXttoitors
General Counse.
Inspector General
Regional Administrators
Office of Public Affairs
(Headquarters and Regions I-X)
Regional Counsel (I-X)
I.
ISSUE
Significant differences can exist between civil penalties
proposed at the initiation of enforcement cases and the final
penalties to be paid at the conclusion of such matters. This
memorandum provides guidance on addressing the issue of the
"penalty gap" where the difference between the proposed and
final penalty is appreciable. EPA must avoid any public misper-
ception that EPA is not serious about enforcement when such
differences occur.
II. DISCUSSION
Attached is an "Addendum to the EPA Policy on Publicizing
Enforcement Activities", GM-46, issued November 21, 1985. The
Addendum provides standard text to be included in any press
release announcing the settlement of an enforcement case in
which the penalty amount finally assessed differs appreciably
from the amount proposed.
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-2-
Press releases issued at the filing of cases normally
state the amount of the civil penalty being sought by the
Agency. The proposed penalty may be the maximum statutory
amount allowable under applicable law, or a penalty amount
as calculated by application of an Agency penalty policy whie'h
assigns specific penalties to various violations of law.
When a case is settled, however, the penalty to be paid
by the violator is oftentimes appreciably less than the
penalty sought by the Agency at the initiation of the action.
Memberu of the public may question any difference between
these two amounts, especially persons who are not familiar with
the lavs, regulations, and published policies of the Agency.
The Addendum points out that a number of mitigating factors
can result in a penalty adjustment, and that Congress on occasion
has dictated that EPA take into account such factors in determin-
ing the amount of a civil penalty (e.g., TSCA §16, 15 U.S.C.
2615).
Attachment
-------
ADDENDUM TO EPA POLICY ON PUBLICIZING ENFORCEMENT ACTIVITIES,
GM-46, ISSUED NOVEMBER 21, 1985
I. PURPOSE
This addendum to the EPA Policy on Publicizing Enforcement
Activities, GM-46, issued November 21, 1985, provides standard
text which should be included in EPA press releases which
announce the settlement of an enforcement case in which the
final penalty is appreciably less than the proposed penalty.
The purpose of the text is to preclude any public misper-
ception that EPA is not serious about enforcement when these
appreciable differences occur.
II. BACKGROUND
Congress has directed the Agency in certain instances to
consider specific mitigation factors in assessing a final penalty.
Accordingly, the Agency regularly takes into account such factors
as the gravity of the violation(s), the violator's compliance
history, and its degree of culpability—-in addition to weighing
such litigation concerns as the clarity of the regulatory
requirements and the strength of the government's evidentiary
case--when negotiating a civil penalty amount as part of a
settlement agreement. Guidance for applying mitigating adjust-
ment factors is included in the Agency's published penalty
policies.
III. POLICY
Since it is the policy of EPA to use publicity of enforcement
activities as a Xey element in the Agency's program to promote
compliance and deter violations, public awareness.and accurate
perceptions of the Agency's enforcement activities are extremely
important.
Appreciable differences between civil penalty amounts
proposed at the commencement of enforcement cases and the final
penalty SUBS to be paid at the conclusion of such matters may be
erroneously perceived as evidence that EPA is not serious about
enforcing the Nation's environmental laws. Consequently, such
differences should be explained and accounted for in the Agency's
communications to the public.
It is the policy of EPA that when press releases are issued
to announce the settlement of enforcement cases in which the
settlement penalty figure is appreciably less than the initially
proposed penalty amount, such releases should include standard
text (see Section IV, p.2) to ensure that the general public is
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-2-
adequately informed of the analysis behind the final
penalty amount, and the reasons justifying the penalty
reduction. The release should also describe any environ-
mentally beneficial performance required under the
terms of the settlement which goes beyond actions being
taken simply to come into compliance.
IV. IMPLEMENTATION OF POLICY
When a press release is issued at the settlement of an
enforcement action, any such press release that includes the
announcement of a final penalty assessment which is appreciably
different from the penalty proposed at the outset of the case
should include the following standard text:
"The civil penalty in this action was the
product of negotiation after careful consideration
by the government of the facts constituting the
violation, the gravity of the misconduct, the
strength of the government's case, and established
EPA penalty policies.
[NOTE: Include the following paragraph only in cases
involving environmentally beneficial
performance.]
"In agreeing to this $ penalty, the
government recognizes the contribution to long-term
environmental protection of [briefly summarize here
the environmentally beneficial performance explained
in detail in the body of the release]
fi
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GM-47
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
JAN 2 T 1986
OFFICE OF ENFORCEMENT
AND COMPLIANCE
MONITORING
MEMORANDUM
SUBJECT: A Summary of OECM's Role in the^-Agency ' s Regulatory
Review Process /-<\
FROM: Courtney A.
Assistant Administrator for Enforcement
and Compliance Monitoring
TO: Associate Enforcement Counsels
OECM Office Directors
The purpose of this memorandum is to provide OECM staff
with a description of OECM's role and responsibilities in the
Agency's regulatory review process, and a description of the
Agency's regulatory review process itself. This memorandum
also sets forth procedures for OECM staff to follow in review-
ing and concurring in regulation packages (i.e., Red Border
packages, Consent Calendars, responses to General Accounting
Office (GAO) reports, reports to Congress, etc.).
Under present procedures, the Associate Enforcement
Counsels have the responsibility for developing a timely,
coordinated OECM response to a given regulatory package. The
correspondence control unit (CCU) keeps track of the status
of all regulation packages under OECM review and, where neces-
sary, reminds OECM media divisions of applicable deadlines.
The Director of the Legal Enforcement Policy Division acts as
OECM's Steering Committee Representative to provide OECM's
point of view in general rulemaking procedures and act as a
clearinghouse for Start Action Requests.
The first part of this memorandum outlines OECM's role in
the regulatory review process. The second part sets forth
procedures for OECM staff to follow in reviewing and concurring
in regulation packages. Attached are two appendices. The
first contains three charts diagramming the regulatory review
system. The second is a document which summarizes the Agency's
regulatory development and review process as managed by the
Office of Policy, Planning, and Evaluation (OPPE).
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-2-
Please make sure that each member of your staff receives
a copy of this memorandum. This will allow all of OECM to
operate with a common understanding of the procedures for
reviewing regulation packages. If you have any questions or
comments on these procedures, please contact Arthene Pugh at
475-8->84.
Attachments
-------
OFFICE OF ENFORCEMENT AND COMPLIANCE MONITORING
REGULATORY REVIEW PROCESS
Arthene Pugh
Legal Enforcement Policy
Division
December 11, 1985
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I. OECM's Role in The Agency's Regulation Review Process
Over the past several years, OECM has played an active
role in the Agency's regulation review process especially
during Steering Committee and Red Border reviews. Almost all
proposed regulations including Agency directives, manuals,
responses to GAO reports and some Agency reports to Congress
require the review of OECM staff and the official concurrence
of the Assistant Administrator for the Office of Enforcement
and Compliance Monitoring (AA/OECM).
A. OECM Participation in Steering Committee Meetings
Occasionally, a formal Steering Committee meeting will be
held to discuss an important or controversial regulation package
or other related issues (see Appendix II, page 5 for the role of
the Steering Committee). As OECM's Steering Committee represen-
tative, the Director of OECM's Legal Enforcement Policy Division
(LEPD) may attend as OECM's "official" representative at these
meetings. As a practical matter, however, the Director/LEPD
will inform the appropriate Associate Enforcement Counsel (ABC)
of these meetings, and will rely on the AEC and his staff to
attend and participate in Steering Commitee meetings.
B. OECM Participation in SAR Review
After a Start Action Request (SAR) has been submitted to
the Office of Policy, Planning, and Evaluation (OPPE), OPPE
will circulate to Steering Committee representatives a copy of
the SAR for review and approval, and a work group membership
invitation (see Appendix II, page 3 for a complete explanation
of the SAR). Since the Director/LEPD is OECM's Steering Commit-
tee representative, he will receive the SAR and work group
invitation. The Director/LEPD will forward the SAR review and
work group invitation to the appropriate AEC for approval and
response. The AEC will submit the name(s) of his staff who will
participate in work group meetings, and the AEC will make any
comments on the SAR to the Office of Standards and Regulations
(OSR) in OPPE.
C. OECM Participation in Work Group
The lead office will convene an Agency-wide work group to
develop the regulation. The purposes of the work group are to
identify the issues facing different Agency offices in formulat-
ing the proposed rule and to begin resolving those issues.
OECM's representative in work group activities is responsible
for presenting a consensus OECM position on matters and issues
discussed before the work group.
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-2-
D. OECM's Participation in Steering Committee Review
Steering Committee review is the initial procedure to
prepare the proposed regulation package for consideration and
final concurrence by senior Agency management. The Steering
Committee review determines whether the regulation package is
ready to enter the final interoffice review (Red Border review)
prior to signature by the Administrator. This task is accom-
plished by means of Consent Calendar clearance review. The
Consent Calendar is a review process which gives Steering
Committee representatives the opportunity to provide written
comments on the regulation package without a scheduled meeting.
Consent Calendar packages are reviewed and concurred in by the
appropriate AEC.
E. OECM Participation in Red Border Review
Red Border review normally is the final step in Agency-wide
review of a proposed regulatory action. In this process, the
AA/OECM along with other participating AAs indicate whether they
concur in the regulation package. OPPE will send to OECM the
regulation package for review and comment and will indicate the
established deadline for review. The package will be reviewed
by the appropriate OECM media division and concurred in by the
AEC, where applicable, or the AA/OECM, as appropriate according
to delegations 'as described below.
II. Procedures for Concurrence on Regulation Packages Under
OECM Review
A. Procedures Under The Old System
In the past, LEPD reviewed and maintained a tracking system
for all regulation packages (i.e., Red Border, Consent Calendar,
reports tc Congress, responses to GAO reports, etc.) that
required the signature of the AA/OECM. LEPD maintained this
tracking system to ensure that OECM responded in a timely manner
with established deadlines. Prior to signature by the AA/OECM,
LEPD also reviewed the package to make sure that any enforcement
issues contained in the package were properly addressed and
reviewed by the appropriate OECM media division. After LEPD's
review, the package was forwarded to the AA/OECM for
concurrence.
The Director/LEPD had final sign-off authority on Consent
Calendar packages. These packages were reviewed by the appro-
priate OECM media division, and then forwarded to the Director/
LEPD for signature. However, in rare instances, the AA/OECM
would sign off on Consent Calendar packages if they contained
controversial enforcement issues. Appendix #1 indicates the
review process for regulation packages under this system.
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B. Revisions to Procedures for Reviewing Regulation
Packages
To streamline the review process, in April 1985, the
AA/OECM delegated to the AECs the authority to sign off for
the AA/OECM on regulation review packages that only require a
recommendation of concur (no outstanding enforcement issues)
and concur with comment, if comments were editorial in nature
(e.g. correcting typos or grammar). If the recommended response
was concur with substantive comment or to non-concur, then the
package had to be signed by the AA/OECM. Consent Calendar
packages continued to be signed by the Director/LEPD.
Where AEC sign-off is appropriate, the new procedures
eliminated four steps - 4, 5, 6, and 7- (see Chart II in
Appendix I) in OECM's prior review process. Packages that
required the signature of the AA/OECM continued to be processed
through all of the 8 steps (see Chart #1 in Appendix I).
Consent Calendar packages continued to be processed in the same
fashion.
Soon thereafter LEPD conducted an evaluation of OECM's
review procedures to determine the need for LEPD to continue to
review and track regulation packages. The evaluation revealed
that the OECM media divisions were performing the review,
commenting, and recommendation functions. If any issues had to
be resolved or discussed with the AA/OECM, the appropriate OECM
media division handled the matter. Consequently, in August
1985, the Director/LEPD issued a memorandum which eliminated
LEPD from the tracking and signing off steps in the review
process. This action taken by LEPD has greatly streamlined
OECM's review process as outlined below.
LEPD maintains its role as OECM overseer of the rulemaking
process, primarily in two ways. The Director/LEPD is OECM's
Steering Committee Representative and handles all cross-media
rulemaking matters. Also, by virtue of his position as OECM
Steering Committee Representative, the Director/LEPD receives
a great deal of material relating to specific rulemakings,
including SARs, which are directed to the proper OECM media
division. Twice a year OPPE issues a complete list of all EPA
rulemakings which LEPD sends to the media divisions so the
AECs can ensure that they are actively involved in all rulemak-
ings in which they have an interest.
C. Current Procedures for Concurrence on Regulation
'Packages Under OECM Review
OECM's correspondence control unit (CCU) now has the
responsibility for making sure that OECM responds in a timely
manner to regulation packages under OECM review. The CCU
forwards all regulation packages directly to the appropriate
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-4-
OECM rnsdium division for review and response. The OECM medium
division will review the package and make a determination of
the appropriate action to be taken. If the regulation package
is one in which the response is concur (no comment or outstand-
ing enforcement issues), or concur with comment (if comments
are purely editorial in nature), then the AEC should sign the
clearance sheet for the AA/OECM, and send it back to the CCU
for distribution.
If the package is one in which the response is concur with
substantive comments or non-concur, then the OECM medium divi-
sion should prepare a memorandum from the AA/OECM addressed to
the AA of the the leacl. program office, with a courtesy copy to
the AA/OPPE. The review package and memorandum should be sent
to the CCU for signature by the AA/OECM. (Charts #2 and |3 in
Appendix I outline the stages of review for these packages).
With respect to Consent Calendar packages, the AECs will
have the final concurrence on all Consent Calendar clearance
sheets. The AEC will indicate, by check mark ( ^/) the appro-
priate response, no comments or comments attached, and then
sign his name in the signature block. It the response is
"comments attached," then a memorandum should be prepared, for
the signciture of the appropriate AEC, and addressed to C. Ronald
Smith, Chairman, Steering Committee, OSR/OPPE. After signature,
the package should be returned to CCU for distribution. Although
OPPE permits telephone responses on Consent Calendar packages,
OECM should respond by completing the Consent Calendar clearance
sheet.
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APPENDIX I
Chart fl
Regulation —> CCU > LEPD —
Review (Log-In) (Assign
Regulation Review - Old System
3 45
Package
(Red Border,
GAO Reports
and
Reports to
Congress)
to appropriate
OECM media
division)
-> OECM > LEPt>
Media (Review)
Division
(Review
and action)
> CCO > AEC/OECM —> AA/OECM —> CCU > OPPE
(Log-in) (Concur- (Signa- (Distri-
rence) ture) bution)
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Chart #2
'Regulation Review - New System
Regulation -•
Review
Packages
(Red Border,
Consent
Calendar,
GAO Reports
and Reports
to Congress)
CCU
(Log-i n
and assign
to appropriate
OECM media
division)
OECM
Media
Division
(Review
and
signature)
> CCU
(Distribution)
4
> OPPE
This system is applicable to those packages for which a recommendation is concur (no
comment or outstanding enforcement issues), or concur with comments (comments are
purely editorial in nature). If the response is concur with comment (substantive
comments) or nonconcur, use the system in Chart 13 of this Appendix.
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Chart 13
•Regulation Review - New System
1 234567
Regulation > CCU > OECM > CCU > AEC/OECM > AA/OECM > CCU > OPPE
Review (Log-in Office (Log- (Concur- (Signa- (Distribu-
Packages and assign (Review in) rence) ture) tion)
(Red Border, to appropriate and
GAO Reports OECM division) action)
and Reports
to Congress)
*This system is applicable to those packages for which a recommendation is concur with
substantive comment for which a memorandum is required, or non-concur. If the response
is concur (no comment or outstanding enforcement issues), or concur with comment
(comments are purely editorial in nature) use the system in Chart #2 ot this Appendix.
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APPENDIX II
AGENCY REGULATION REVIEW PROCESS
I. Agency Participants and Their Roles in the Regulation
Review Process
A. Lead Office
The program offices have lead responsibility for initiating
and developing most regulations. The Assistant Administrator
(AA) of the lead office and his/her designee (the project
officer) manage the development of the regulation. The lead
office organizes the Agency-wide work group and notifies desig-
nated office representatives of scheduled work group activities.
The project officer of the lead office chairs the work group
meetings. Milestone schedules for developing the proposed
regulation are established by t)ie lead office. In addition, the
lead office elicits the participation, support and resources of
other Agency offices and the public in developing the proposed
regulation.
B. Primary Participating Offices
1. Program Assistant Administrators
The program Assistant Administrators (AAs) review all of
the proposed rulemakings, including their own specific program
regulations to offer their opinions and expertise on particular
issues. This helps ensure the necessary integration of all of
the Agency's programs. The AAs are represented in all Steering
Committee reviews, and they participate in options selection
reviews and meetings, and in Red Border reviews that are of
interest to them, as explained below.
2. Assistant Administrator for Policy, Planning
and Evaluation
The Assistant Administrator for the Office of Policy,
Planning and Evaluation (AA/OPPE) manages the operation of
the Agency's regulation review process. Within OPPE, the
Office of Standards and Regulations (OSR) performs the task of
coordinating the regulatory review process within the Agency.
The AA/OPPE is also responsible for overseeing the Agency's
compliance with other Federal regulations such as Executive
Order 12291, the Paperwork Reduction Act and the Regulatory
Flexibility Act.
The AA/OPPE directs the Steering Committee process and
participates in each Red Border review. OPPE assigns a lead
analyst to work with each of the Agency's program offices on
their regulations and work groups. The AA/OPPE focuses the
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office's attention on the analytical quality, program inte-
gration, cost-effectiveness, and scientific and statistical
validity of proposed regulatory actions. The AA/OPPE also
provides an independent assessment of the proposed rules for
the Administrator's and the Deputy Administrator's review.
3. Office of General Counsel/Office of Enforcement
and Compliance Monitoring
The Office of General Counsel (OGC) reviews regulatory
action packages to advise the Administrator, Deputy Adminis-
trator, and Assistant Administrators on the legal aspects of each
proposed rulemaking. The Office of Enforcement and Compliance
Monitoring (OECM) reviews regulatory packages to advise the
Administrator, Deputy Administrator and Assistant Administrators
on the enforcement aspects of each proposed rulemaking. The OGC
and OECM lawyers work closely with the lead offices to assist
them in drafting regulations. The General Counsel and OECM are
represented in all Steering Committee reviews and participate in
Red Border reviews.
C. Other Participating Offices
The Assistant Administrators for Enforcement and Compliance
Monitoring, Research and Development, External Affairs, and
Administration and Resources Management have lead office
responsibility for a select number of regulations generated by
their offices. These AAs, as well as a representative tor the
Regional Administrators (RAs), are all represented in Steering
Committee reviews and participate in Red Border review for
regulatory actions that are of interest to them.
11. Procedures for Developing a Regulation
In terms of work products, the process of developing a
regulatory action can be divided into five stages:
3 submission of a start action request;
0 preparation of a development plan;
c establishment of a work group;
6 review and selection of options; and
0 submission of a proposed/final regulatory
decision package.
The procedures for these five stages consist of certain
requirements that the lead program office must satisfy together
with an associated review process.
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A. Start Action Request (SAR)
All proposed regulations must have an approved SAR before
the Agency can begin development of the proposed regulation.
The lead office must submit a SAR to OSR/OPPE for approval by
the AA/OPPE. The SAR is a brief document which describes the
proposed regulatory action, its purpose, and the reason for
initiating the regulatory action including any consequences
which may result if no regulatory action were initiated or
undertaken. The SAR must also justify why Agency time and
resources should be expended for developing the proposed regu-
lation during the time period specified for development. OPPE
and Steering Committee members must review and approve the SAR
within three weeks of its submission.
B. Preparing the Development Plan (DP)
The DP outlines the basic policy and management framework
for developing a proposed regulation. All rulemakings that
are classified as major or significant require a DP. The DP
states the need for the regulatory action, identifies its goals
and objectives, identifies any alternative actions that can be
taken which may be environmentally or administratively accept-
able, and presents a work plan and strategy for developing the
regulation.
After OPPE approves the SAR, the lead office has 60 days
in which to submit the DP to the Steering Committee. The
Steering Committee reviews the DP, usually within a two week
period. If the DP is acceptable, the Steering Committee Chair-
man approves it. In the case of major regulations, the DP must
be approved by the AA/OPPE.
C• Establishing the Work Group
The work group meets shortly after the SAR has been approved
The work group consists of representatives from OPPE, OECM, OGC,
Office of External Affairs, Office of Research and Development
and the RAs who choose to participate in the particular rule-
making. Other AAs or their representatives may participate
when there are issues involved that are of interest to their
particular program.
The work group meets throughout the regulation development
and review process until the decision package is submitted for
Agency-wide review. Full support and participation of the work
group provides a forum tor snaring expertise and knowledge on
the regulation under development, and ensures that all Agency
resources are efficiently and properly allocated.
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D» The Options Selection Process
The options selection process involves the formulation,
refinement and selection of feasible options connected with
one or a series of decision points. The goal of this process
is to narrow the range of acceptable alternatives for the
Administrator's final decision. Work group meetings are held
to discuss the options, select/reject options and refine the
options selected for further development. The options should
be clearly stated and defined in the development plan.
1. Level I Process
There are two types of options selection processes. The
first, Level I Process, applies to major regulatory actions.
The lead office must circulate an options paper to participat-
ing AAs and RAs and the Deputy Administrator 10 days before a
scheduled options review meeting. The options review meeting
is chaired by the Deputy Administrator or the lead program
AA. The participants must agree on which options are to be
retained for further development and consideration and which
are to bo rejected. Results of options meetings are documented
by OPPE which issues a closure memorandum (summary of options
review meeting) that is used by the Deputy Administrator to
resolve any options issues.
2. Level II Process
The second, Level II Process, applies to some major and
significant regulations. For major regulations, the lead pro-
gram AA will make the determination as to which process, Level I
or Level :cI, the regulatory action will follow. Work group
meetings are convened to discuss the options under consideration
for further development. The lead office prepares a summary of
the options considered and those rejected, and submits this
summary along with the decision package to the Steering
Committee and Red Border reviews.
Work group participants and the lead program AA work
together to resolve any differences or decisions on options
issues that should be considered for further development. If
differences or decisions cannot be resolved, the Steering
Committee makes a determination which options should be con-
sidered or,, if it is unable to achieve closure, the Steering
Committee identifies all disagreements and brings them to the
attention of the Deputy Administrator, or the affected program
AA. OPPE documents the results of the meetings and options
selected or rejected, and circulates the closure memo to the
participants and the AA/OPPE for their review.
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-5-
3. Options Selection Paper
With respect to both Level I and Level II processes, the
options selection paper, prepared by the lead office, should
evaluate and analyze the following issues: relevant economic
impacts, reporting and recordkeeping burdens required by the
proposed rulemaking, assesment of impact on other regulatory
programs both within and outside ot the Agency, and resources
required for implementation and enforcement of the regulatory
action.
4. The Decision Package
The lead office prepares the decision package which is
submitted for Steering Committee and Red Border reviews. The
decison package includes a neutral discussion of the major
options including comments from any AAs regarding the options,
a summary of the options considered and rejected and reasons
therefor, a detailed analysis of reporting and recordkeeping
burdens, and a thorough analysis and assessment of the resources
necessary for implementing the proposed rulemaking. The deci-
sion package must be circulated to the work group for review
and comment, and must be approved by the lead program AA before
it is submitted for Steering Committee or Red Border review.
III. Reviewing of Regulatory Actions
A. Steering Committee Review
The Steering Committee decides whether a package is ready
tor Red Border review after resolution ot all issues. The
Steering Committee includes a representative for each of the
AAs and the General Counsel. The representative to the Steering
Committee should:
1. Hold a position at or above an Office Director
level;
2. Hold a position in the immediate office of the AA
or General Counsel, or report directly to the AA
or General Counsel;
3. Have general knowledge and responsibilities
covering the areas ot regulatory issues tor the
program he/she represents.
The Director of OSR chairs the Steering Committee.
All major and significant rules must follow a certain
sequence and a series ot reviews. They must all undergo Steering
Committee review which usually takes two weeks. For major and
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-6-
some significant rules, a meeting of Steering Committee represen-
tatives; must be scheduled,, However, some significant rules
undergo Consent Calendar review in lieu of a Steering Committee
meeting. In such instances, OPPE circulates the package to the
Steering Committee for written comments, normally due within two
weeks.
B. Red Border Review
Red Border review is the formal senior management review
ot all decision packages by the AA/OPPE, the General Counsel and
all applicable AAs and RAs. The normal period for Red Border
review is three weeks. It a reviewing ottice tails to respond
by the established review deadline, it is assumed by OPPE that
the reviewing office concurs without comment, and the package
proceeds on to the next stage.
C. Office of Management and Budget (OMB) Review
Executive Order 12291 requires that all proposed and final
rules (except tnose that OMB has exempted) De sent to OMB tor
review. The AA/OPPE must approve Agency documents for trans-
mittal to OMB tor review. Minor and significant rules are
reviewed within about 10 days. Proposals of major rules and
dratt regulatory impact analysis are subject to a 60-day review
by OMB. Final major rules and final regulatory impact analysis
are subject to a 30 day review.
D. Review by the Administrator and Deputy Administrator
Once the Red Border and OMB reviews are completed, the
package is forwarded to the Administrator and Deputy Admini-
strator for final approval arid signature. A special assistant
to the Administrator and the Deputy Administrator will review
tne regulation package ana make a recommendation to the
Administrator and Deputy Administrator as to the appropriate
action to be taken. Once the Administrator signs the package,
it is returned to OSR/OPPE. This office makes the necessary
arrangements to publish the rule in the Federal Register.
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GM-48
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
JW30GBB
MEMORANDUM
SUBJECT: Model Litigatio
FROM:
TO:
OFFICE OF ENFORCEMENT
AND COMPLIANCE
MONTTOR1NC
ne and Guidance
Richard Mays,
Senior Enforcement Counsel
L"
Associate Enforcement Counsels
Headquarters Program Enforcement Division
Directors
Regional Counsels
Regional Program Division Directors
Attached are the Model Litigation Report Outline and the
Model Litigation Report Guidance. All litigation reports
referred to OECM or the Department of Justice after March 1,
1986r should follow the Outline in regard to format and the
Guidance in regard to content. The purposes of these two
documents are (1) to create a common understanding among Agency
personnel and DOJ attorneys as to what the report needs to
cover and (2) to make the litigation report's form consistent.
These two documents have been prepared by a workgroup consisting
of Jack Winder, OECM-Water; Bill Quinby, OECM-Policy? Mike
Vaccaro, Region III; Robert Schaefer, Region V; and Tom Speicher,
Region VIII. They also reflect extensive review and input from
the Reoions, OECM, and the Environmental Enforcement Section of
the Department of Justice.
While we anticipate that the Model Guidance will be parti-
cularly useful to the less experienced attorney, it will also
serve as a reference for the experienced attorney. The Outline
will be of use to all Agency enforcement personnel as it will
serve as a checklist to determine if all the parts of the pack-
age are complete and in the correct format. By utilizing the
models in preparing litigation referral reports, we will be able
to expedite the referral process.
-------
-2-
If you have any questions regarding these two documents,
please contact Bill Quinby of the Legal Enforcement Policy
Division. He can be reached on FTS 475-8781, his mail code is
LE-130A, and his E-Mail Box is 2261.
cc: Chief, Land and Natural Resources Division, DOJ
-------
OFFICE OF ENFORCEMENT AND COMPLIANCE MONITORING
Model Litigation Report - Outline
Any section of this outline may be addressed in the litigation
report by the entry of "not applicable (N/A)" It the section
is not relevent to the referral, or by "see section * if
the specific information requested in the outline has been
fully supplied in another section. In addition, this outline
is not applicable to $107 CERCLA cost recovery cases; to CERCLA
$106, TSCA $7 or RCRA $7003 cases.
1. Cover Page:
a. Region, Act involved and judicial district.
b. Name and address of defendant.
c. Name and address of facility.
d. Regional contacts (program/legal).
e. Stamp date Region refers report on cover page.
2. Table of Contents.
3. Synopsis of the Case.
4. Statutory Bases of Referral:
a. Applicable statutes; cross-media coordination.
b. Enforcement authority; jurisdiction and venue.
c. Substantive requirements of law.
5. Description of Defendant:
a. Description of facility.
b. State of incorporation of defendant.
c. Agent for service of process.
d. Defendant's legal counsel.
e. Identity of other potential defendants.
6. Description of Violations:
a. Nature of violations.
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-2-
b. Date and manner violations identified.
c. Dates and duration of violations.
d. Pending regulatory changes.
e. Environmental consequences (past, present and future).
7, Enforcement History of Defendant and Pre-referral
Negotiations:
a. Recent contacts with defendant by EPA/Region, (e.g.,
AOs, permits, grants).
b. Pre-referral negotiations.
c. Contacts with defendant by state, local agencies and
citizens, and actions taken.
d. Prior enforcement history of defendant.
R. Iniunctive Relief:
a. Steps to be taken by defendant to achieve compliance.
b. Feasible alternatives.
c. Cost and technology considerations.
9. Penalties:
a. Proposed civil penalty and legal authority.
b. Penalty analysis/calculation.
c. Present financial condition of defendant.
10. Maior Issues:
a. Issues of national or precedential significance.
b. Bankruptcy Petitions.
11. Significance of Referral:
a. Primary justification for referral.
b. Program strategy.
c. Anency priority.
d. Program initiatives outside of stated strategy.
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e. Relation ot reterrai to previous or concurrent cases
or actions.
12. Litigation Strategy:
a. Settlement potential/plan for settlement.
b. Need tor Interrogatories and requests for admissions.
c. Potential for summary judgment.
d. Need for preliminary injunction.
e. Identity of potential witnesses.
f. Elements ot proof and evidence and need for additional
evidentiary support.
g. Anticipated defenses (legal and equitable) and govern-
ment responses.
h. Resource commitments.
i. New evidence.
13. Attachments, where applicable:
a. Index to attachments.
b. Draft complaint.
c. Draft discovery.
d. Draft consent decree.
e. Draft motions.
f. Table of Violations.
g. Documentation of violations.
h. Permits and contracts.
i. Significant correspondence between EPA, defendant
and/or state.
j. Penalty analysis/calculation; BEN printout.
k. Diagram ot tacility.
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-4-
1. Case Plan.
m» Dun and Bradstreet report; SEC Form 10K; Annual Report;
Papers relating to corporate status from Secretary of
State's office; ABEL printouts and legal description
of property, as necessary and if obtainable.
n. Other relevant information.
-------
OFFICE OF ENFORCEMENT AND COMPLIANCE MONITORING
Model Litigation Report - Guidance
Any section of this outline may be addressed in the litigation
report by the entry of "not applicable (N/A)" It the section
is not relevent to the referral, or by *eee section • if
the specific information requested in the outline has been
fully supplied in another section. In addition, this guidance
is not applicable to 5107 CERCLA cost recovery cases; to CERCLA
$106, TSCA $7 or RCRA §7003 cases.
1. Cover Page:
a. Region, Act involved and judicial district.
b. Name and address of defendant.
Include names, addresses and telephone numbers
ot all defendants (corporate/individual).
c. Name and address of facility.
Include names, addresses and telephone numbers
of all facilities subject to the referral. Include
county for venue purposes.
d. Regional contacts (program/legal).
Include names, addresses and telephone numbers of
the regional program-technical and legal contacts who
prepared the report.
e. Stamp date Region refers report on cover page.
2. Table of Contents:
Include headings, all sub-headings and page numbers.
3. Synopsis of the Case:
Limit this synopsis to two pages (double-spaced), when
possible.
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-2-
The synopsis should contain a summary or brief descrip-
tion of (1) the tacts (causes) which led to the violation,
(2) the legal basis of the violation and its environmental
seriousness, and (3) the proposed relief. Indicate need for
expedited filing here.
4. Statutory Bases of Referral: £/
a. Reference all applicable federal statutes by USCA cita-
tion and by section of the Act. State whether coordina-
tion across media has occurred. Discuss reasons for
including or omitting cross media claims.
b. Summarize the enforcement authority and the juris-
diction and venue provisions of applicable statutes.
If there is reason to file the action in a district
other than where the facility is located, note each
available district and indicate the reasons for tiling
there.
c. Present the substantive requirements of the law (federal/
Htate) and applicable regulations and permits. Pertinent
excerpts from federal/state laws and regulations should
I/ Careful cross-media regional review should ensure that all
available causes ot action are included. OECM recognizes that
in some cross-media cases, the initial cause(s) of action may
be ready tor referral, but that a secondary cause ot action
under a different statute may be a low priority matter or
require substantial development before tne case is ready for
referral. Where the secondary cause of action is minor, or
where the case development will take a substantial amount of
time, the case should be referred with the excluded secondary
cause of action clearly identified. However, it the secondary
cause of action is major, or if development will not unreasonably
delay the referral, all such causes ot action should generally
oe referred toaether.
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-3-
be indentified and set forth here or attached to the
report.
5. Description of Defendant:
a. Description of facility.
1) Describe the violating corporation or individual
and the particular facility in question. Note any
relevant corporate or personal interrelationships
or subsidiaries. Indicate it the violator is a
governmental entity. If there is a question as to
whether the corporation has been dissolved or
subsumed into a different entity, ascertain status
ot corporation and attach Dun and Bradstreet report
and corporation papers from Secretary of State's
ottice under section 13 m.
2) Briefly discuss the business of the defendant,
providing details about the facility in question.
When the defendant is a manufacturer, describe
what is produced. Emphasis should be on the
particular process that is causing the problem.
Describe the plant and processes used. Include
legal description of the property under section
13 m., it needed. Reference and attach diagrams
to the litigation report. Photographs and video
tapes ot the source may be helpful in that they
often improve the "show" quality of a case should
it reach court.
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-4-
If defendants Include corporate officers,
discuss tacts indicating participation ot the
corporate officers in the activities resulting
in the violations.
bc State of incorporation of defendant.
Include state of Incorporation and the principal
place of business.
c. Agent for service of process.
Incl-ude name, address and telephone number of agent
for service of process.
d. Defendant's legal counsel.
Include full name, address and telephone number
of legal counsel. It corporate counsel, so state.
e. Identity of other potential defendants.
It it is not immediately clear who should be
named defendants, discuss all potential defendants
including the state, and their relation to other
potential defendants and to their potential liability
tor the violations that give rise to the referral.
Cover all of the facts having a bearing on which
potential defendants should be named and evaluate all
reasonable options.
6. Description of Violations:
a. Nature of violations.
Discuss the types of pollutants being discharged.
Also indicate the sources ot the pollutants, their
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-5-
nature, quantity or size, and the relation to the
statutory, regulatory or permit provisions violated.
b. Date and manner violations identified.
Indicate earliest date when violation became known
to EPA and manner in which it was discovered (e.g.,
inspection, notice from state, etc.).
c. Identify dates and duration of violations, any mitigat-
ing actions by defendant to reduce or correct violations
and any recalcitrance. Include Table of Violations at
section 13 f.
Describe all EPA/State site inspections, sampling
and other investigative activities, the dates ot the
activities and the conclusions drawn. Attach inspec-
tion reports under 13 g.
State present compliance status of the defendant:
in compliance, In violation, unknown.
d. Pending regulatory changes.
Identify pending regulatory changes which do or
may impact the enforcement action, e.g., requests tor
SIP revisions, variance applications, pending revisions
to NPDES permits, pending RCRA permit applications or
challenges to applicable regulations.
e. Environmental consequences (past, present and future).
Indicate briefly what environmental damage, if
measurable, has occurred in the past, is now happening
or will occur in the future if not abated. Include
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-6-
reasonable estimates of total damage to human health and
to the environment as a consequence ot the violations.
Although the seriousness of the violation is not
technically a requirement of proof in enforcement of
certain statutes, it is sometimes relevant to the
assessment ot penalties and equitable relief.
Consider the following factors in assessing the
seriousness of the violation (a) the release ot toxics
or mutagens or carcinogens is more serious than the
release ot so-called conventional pollutants; (b) the
release of large quantities of pollutants is more
significant than the release ot small quantities; (c)
bioaccumulative wastes posing long-term threats are
more serious than biodegradable wastes; (d) the release
of pollutants in an area not attaining primary ambient
air quality standards is more significant than the
release in an area not meeting secondary standards;
(e) the release ot pollutants which directly and demon-
strably affect health or the environment is more serious
than those which have no direct or obvious effect;
(f) ongoing present violations which the government
seeks to stop are more significant than episodic viola-
tions which have ceased, and (g) a violation which
undermines the ability ot the Agency to make sound
regulatory judgments (e.g., the submission of fraudulent
toxicity data in support of a pesticide registration)
is more serious than a single instance of false reporting.
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-7-
7. Enforcement History of Defendant and Pre-referral Negotiations:
Attach copies of relevent documents referenced below,
if available, under section 13 g.
a. Recent contacts with defendant by EPA/Region and
actions taken including administrative actions.
Indicate recent contacts and enforcement actions
taken by EPA/Region, e.g., letters, oral communications,
administrative requests/orders, etc. Include recent
actions in all media and under all statutes. Include
any related or pending administrative enforcement
proceedings e.g., (CAA S120, TSCA $16(a), RCRA §3008,
FIFRA SS13 or 14(a), and MPRSA $105(a) proceeding).
State defendant's responses.
Also indicate recent contacts by/with permits and
grants staff, if any. With regard to grants, indicate
likelihood source will obtain grant, compliance schedule
associated with proposed grants, relationship of grants
to financial capability and any problems in grant his-
tory that may affect injunctive relief or penalties.
b. Pre-referral negotiations.
Include a brief summary of all attempts at negotiating
a settlement prior to referral of the case, including
attempts by state. Fully describe attempts at compromise
and why process failed. Consider use of Alternative
Dispute Resolution (third party neutrals) as method of
resolvinq case.
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-8-
c. Contacts with defendant by state, local agencies and
citizens, and actions taken.
Include recent contacts or actions taken or antici-
pated by state, local agencies and citizens. In par-
ticular discuss history of state involvement including
any state civil or criminal enforcement actions taken
or pending, if state net timely and appropriate criteria,
and it state-anticipates additional enforcement actions.
d. Prior enforcement history of defendant, if available
and practical.
This item relates to all prior actions and results
other than those noted above taken by any governmental
entity against the violator. (Include citizens' suits
or notices ot intent to file.) In some cases compilation
of this history will be impractical. If so, include
only the most recent or most significant actions taken
under any environmental statute.
Injunclive Relief;
a. Steps to be taken by defendant to achieve compliance.
Indicate in general terms what affirmative relief
should be requested. Consider use of an environmental
audit (compliance ana management) as an element ot the
remedy. If a series of acts are required, so state.
Also include basic but not elaborate technical informa-
tion, if available, to support the proposed remedy.
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-9-
Specify technology which will meet regulatory require-
ments, and indicate the tine requirements tor a schedule
of compliance which considers time necessary for design,
contracting, construction and start-up. (This is not
inconsistent with EPA policy of not prescribing specific
compliance technologies. This information may be neces-
sary in court to illustrate what remedy will bring the
source into compliance and/or to demonstrate technical
feasibility if contested by the defendant.) If no
known technology can assure compliance, describe what
in particular EPA expects the source to do, including
plant closure where applicable. Indicate if another
source has adopted the recommended control technology.
b. Feasible alternatives.
Describe alternative remedies if appropriate and
discuss why the primary remedy and/or sanction was
selected. Consider "studies* by defendant as a remedy
*
where a precise course ot action cannot be detined at
time of referral.
c. Cost and technology considerations.
Indicate cost of compliance of the remedy. Base
these costs on the Region's best estimates. Indicate
technological feasibility problems.
Penalties:
a. Proposed civil penalty and legal authority.
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-10-
1) Bottom line and opening negotiation figure.
Include two figures here (1) the proposed bottom
line or the amount for which EPA will agree to settle.
Calculate this figure by use of the appropriate
medium-specific penalty policy (see section b. below.),
and (2) the proposed figure with which EPA will open
any negotiations or settlement talks. This second
figure will be higher than the bottom line figure
but will be related to it.
2) Statutory maximum amount.
Include amount, how calculated and legal author-
ity for the statutory maximum amount.
b. Penalty analysis/calculation.
Include here a brief summary of the penalty analysis
and calculation, including a specific estimate (based on
BEN) of economic benefit of non-compliance. Attach the
actual detailed analysis and calculations using the
appropriate medium-specific penalty policy under sec-
tion 13 j.
c. Present financial condition of defendant.
Indicate known financial condition of defendant,
ability to pay penalties and meet other objectives of
litigation and source of information. ABEL, a computer
model that evaluates a defendant's financial ability to
comply and pay penalties, may be of assistance here.
The model will be available in the spring of 1986.
Include necessary bonding requirements and reasons
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-11-
therefor, if applicable. If there is a question as to
defendant's tinancial capability, include Dun and
Bradstreet report, ABEL computer printouts, SEC Form
10K and Annual Report, if obtainable, under section 13 m.
10. Major Issues:
a. Issues of national or precedential significance.
Indicate it reterral is case ot tirst impression or
has other legal, national or precedential significance.
b. Bankruptcy Petitions.
Describe the status of bankruptcy petition, if any,
including (1) whether Chapter 7, 11 or 13, (2) whether
reorganization plan filed, and (3) bar .date for proof
of claim.
11. Significance of Referral:
a. Primary justification for referral.
If a case does not present obvious "serious" health
ettects or environmental harm, but is compelling for
some other reason, e.g., deterrence of continued,
blatant violations ot the law, this should be indicated.
A defendant with a history of violations is usually more
worthy of attention than a first time offender.
b. Program strategy.
Indicate if the case is part of the national pro-
gram's stated strategy and briety show how it tits
into that strategy. Indicate if violator is in SNC.
c. Agency priority.
Indicate briefly if the violator is of a class listed
in the prc"./ am strategy for priority monitoring, and it
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-12-
the violation is of a class listed in the strategy for
priority case action in fiscal year operating guidance.
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-13-
is. Include present contacts with defendant by
EPA, DOJ or the U.S. Attorney's ottlce.
2) Present negotiating posture and comparison of
this posture with "bottom-line' settlement
figure from section 9 a.
b. Need for interrogatories and requests for admissions.
Indicate need for interrogatories and/or requests
tor admissions. Include potential names and addresses*
if available.
c. Potential for summary judgment.
Indicate it case has potential for summary judgment,
and if so, briefly describe why, and how case can be
prepared for tiling. Include draft motion with support-
ing memorandum and affidavits, if possible. Attach
under section 13 e.
d. Need for preliminary injunction.
Emphasize urgency and reasons tor requesting prelim-
inary injunction and time frame, if applicable.
e. Identity of potential witnesses.
1) Government's case
Indicate witnesses and witness needs both as
to liability and remedy.
Identify all lay witnesses and any already
known expert witnesses by name, address, place of
employment and business phone. Include substance
ot anticipated/actual testimony and it statements
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-14-
are attached or are on file. For expert witnesses
include (1) tield ot expertise and qualifications,
(2) past cases where retained, (3) if under EPA
contract, and (4) if not under EPA contract, which
office/contract will be available to retain the
expert.
Indicate whether any further investigation is
necessary to identify lay witnesses. Indicate any
additional expert witnesses needed beyond those
already known by area ot expertise and testimony
needed and state which office/contract will be
available to retain the experts. In particular,
indicate if expert witnesses will be necessary to
analyze and/or testify in regard to environmental
consequences, technological remedy development or
financial capability.
2) Defendant's case.
Identify all lay or expert defense witnesses
anticipated, including their employment addresses,
expertise and likely content of testimony.
Elements ot proof and evidence and need for additional
evidentiary support.
1) List the necessary elements of proof to establish
the violation under each statute/section involved.
2) Present a detailed, objective, factual analysis
oi the strength or weakness ot all available real,
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-15-
documentary and testimonial evidence corresponding
to each necessary element ot proot set forth in the
above list. New or stale evidence is relevant, as
is the dependability ot testing techniques and legal
status of test methods. Therefore, spell out any
assumptions made as to the quality ot this evidence.
Identify missing facts and holes in data.
3) Identify and indicate location ot all real evidence.
Identify all documentary evidence, and if possible,
attach (or state location of) each item ot documen-
tary evidence under section 13 g. Include a list
ot all ongoing and planned evidence gathering efforts?
e.g., ongoing DMR analysis, new stack tests, CEM data,
or RCRA information request for further inspection.
4) If evidence will be obtained at a later date, state
how and when.
5) If evidence is to be made available by discovery,
suggest discovery plan. Indicate (1) type of
evidence to be developed, (2) person or organization
currently In possession ot evidence, and (3) draft
of initial discovery to be used. Identify areas
where swift action on discovery is needed. To
preserve testimony or records attach initial draft
discovery documents under section 13 c.
g. Anticipated defenses (legal and equitable) and govern-
ment responses.
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-16-
1) Indicate all actual or anticipated legal and
equitable defenses favorable to the defendant, and
briefly set forth the government's response thereto.
For defenses such as governmental estoppel, laches
or attirmative detenses based on Rule 12 ot the
Federal Rules of Civil Procedure, EPA need only
identity the defense and the underlying tacts and
• • tf
merits. The DOJ attorneys will usually be familiar
with the legal issues. On the other hand, EPA
attorneys are usually more familiar with defenses
based on Agency statutes, regulations and policies,
or Agency involvement in matters central to the
case. For these detenses the Region should not
only identify the defenses and underlying facts,
but fully discuss their legal bases and merits.
2) Include all technical data and test results
favorable to the violator both as to prima tacie
case and defenses. Indicate any relevant or
mitigating tactors that may bear adversely on the
government's contentions. Reference defense
witnesses under section 12 e. 2.
h. Resource commitments.
Describe estimated case budget; indicate what
resource commitments both budgetary and personnel will
be reauired and if the Region is prepared to provide
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-17-
them. If not, state where they will be obtained. In-
clude here costs tor experts and additional testing.
i. New evidence.
Update all new evidence and information and forward
it to Headquarters, DOJ and/or the U.S. Attorney, as it
becomes available.
13. Attachments, where applicable:
a. Index to attachments.
List attachments and use tabs if possible for
ease ot reterence.
b. Draft complaint.
Include draft complaint. Headquarters and DOJ
consider the complaint a usetul document, although at
a later date the complaint may change.
c. Dratt discovery.
If discovery is needed, include initial interroga-
tories and request for production, etc., as appropriate
or known.
d. Dratt consent decree.
Unless the case is straightforward, minor or
negotiations have reached a productive stage, inclusion
of a draft consent decree at this point in the case
development would not be practical or advisable. If
attached, indicate the stipulated penalties.
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-18-
Draft motions.
Inclusion of draft notions depends somewhat on the
urgency, complexity and litigation strategy ot the
case. Include when necessary and appropriate.
Table of Violations.
The Table of Violations should specify dates for
each alleged violation, and tor each, the statutory/
regulatory provisions involved.
Documentation of violations.
Include here documentation of violations and
enforcement history of defendant referenced in section
7. Include copies of inspection reports. Also include
here documentary evidence referenced under section 12
f. 3.
Permits end contracts.
Include copies of all applicable permits find con-
tracts.
Significant correspondence between EPA, defendant
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-19-
The settlement figure should briefly discuss how the
bottom line figure was determined, particularly in
regard to any economic benetit contained in this figure.
The proposed opening negotiating position should con-
tain a briet statement why that particular figure is
appropriate. Attach BEN printout.
k. Diagram of facility.
Include any official or unofficial diagram of the
facility, or the actual workings (drawings) ot the
violation. Any diagram, if not misleading or factually
incorrect, will be useful. The diagram need not be to
scale or one made by a professional artist or draftsman..
State if video tapes were made and where located.
1. Case Plan.
Attach a case plan here if prepared by the Region.
m. Dun and Bradstreet report; SEC Form 10K; Annual Report;
Papers relating to corporate status from Secretary of
State's ottice; ABEL printouts and legal description
of property, as necessary and if obtainable.
n. Other relevant information.
This is a catch-all category and includes all
other relevent documents, technical data and information,
etc., which may aid the AECs, DOJ and the U.S. Attorney
in preparation and prosecution of the case. Please list
in the Index to Attachments all such documents included
here.
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GM-49
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j UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
4\»
FEB 31986
OFFICE OF E\FO»ClyfVT
k>DCOMPU*>C! .
MOMTOtl>G
MEMORANDUM
SUBJECT: Implementation of Guidance on Parallel Proceedings
FROM: Terrell E. Hunt, Dlrec.car-rfi^?*^^J^^'^—f
Office of CriminaT~~Enforcement
and Special Litigation
TO: Regional Counsels, Regions I - X
I. Background and Purpose
Policies have been issued within the last two years chat
address the legal issues which arise in parallel proceedings
and suggest procedures for (1) determining to pursue a parallel
proceeding, and (2) establishing appropriate supervisory safe-
guards to insure the integrity of parallel criminal and civil
or administrative proceedings.1
This memorandum briefly reviews the rationale for management
caution in this area and shares with all of you the approach that
has been taken in some instances. We seek to assure consistent
practice-in this area by implementing standard procedures for
making the "finding" to engage in parallel proceedings, and for
documenting the supervisory "wall" established to preserve the in-
tegrity of the respective criminal/civil-administrative processes.
n. Issues that Arise In Parallel Proceedings
The existence of parallel criminal/civil proceedings pro-
vide defense counsel in the criminal case an opportunity to
obtain valuable information that would not otherwise be avail-
able to them, to engage in procedural tactics that may delay or
complicate the prosecution, and to raise affirmative defenses.
These defenses may include an allegations of ab^u'se of the grand
IT
See, "Policy and Procedures on Parallel Proceedings
at the Environmental Protection Agency," Courtney M. Price,
Assistant Administrator, January 23, "1984; "The Role of EPA
Supervisors During Parallel Proceedings", Courtney M. Price,
Assistant Administrator, March 8, 1985.
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-2-
Jury process (Rule 6(e)1)2, Fifth Amendment violations3, and
improperly using civil discovery or administrative means to
obtain information for the criminal case4.
i*
In the absence of clear guidance from the case law in this
area, we seek to take every precaution to minimize the avail-
ability of such tactics and allow a strong response where such
defenses are raised. It is essential that we follow existing
guidance in (1) deciding consciously (and at the policy level) to
engage in a parallel proceeding, in (2) separating the technical
and legal support staffs* on the respective cases, and in (3)
documenting both the decision and the separation of staffs.
The Offices of Regional Counsel execute all criminal and
gi.vil actions and concur in the issuance of all administrative
complaints. ORC can serve as the focal point in identifying
parallel actions and in applying the appropriate procedures.
III. Procedures for Seeking Authorization for Engaging in
Parallel Enforcement Actions
These potential problems in parallel criminal/civil actions
motivated the Assistant Administrator to require Headquarters
review and approval of any parallel proceeding^. The Assistant
Administrator notifies the Regional Administrator after parallel
action has been approved?. In seeking approval to engage in a
parallel enforcement action, the region must identify the
respective actions that are proposed to be taken and set forth
the circumstances requiring parallel action. Typically, the
justification will focus on the following matters:
(A) The nature of the misconduct of the potential defendants
in the crioinal/civil-administrative actions, and the
applicability of the respective remedies to the miscon-
duct of che respective defendants;
(B) The urgency of any environmental and/or health risks
posed by such alleged misconduct, and the best use of
available authorities to respond to such risks; and
(C) The regulatory context within which the violation arises
and the application of enforcement sanctions which will
send the strongest deterrent message to the regulated
community.
^"Policy and Procedures on Parallel Proceedings", Id. at 9,
3ld., at 5.
73T3. , at 9.
13. at 8, 11.
^Tunctions and General Operating Procedures for the
Criminal Enforcement Program." Courtney M. Price, Assistant
Administrator. January 7, 1985, at 7, 8.
7ld. at 3.
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-3-
A good recent example of a. letter requesting a parallel pro-
ceeding and communicating Che rationale therefore was submitted
by Region VIII in the "Eagle-Picher" case. That request, together
with the subsequent approval, is attached as Attachment No. 1.
IV. Procedures for Documenting the Separation of Technical and
Legal Support Staff
One of the primary reasons for the approval of the Assistant
Administrator is the necessity of monitoring the separation of
the technical and legal staffs assigned to the respective cases.
Documents listing the legal and technical staff separation
arrangements should be drafted immediately after the parallel
proceeding is approved by the Assistant Administrator.5 The
documents should include at a minimum:
(A) The identity of the matter;
(B) The date of Assistant Administrator's approval
of the parallel proceeding;
(C) The names of persons who will provide technical or
legal support to each case and their criminal or
civil-administrative designation;
(D) A statement that the list will be revised if
necessary for changes in personnel involved.
An example of the documentation of the technical staff separ-
ation in a Region VI case is attached as Attachment No. 2. The
chart provided by the Region is a good format to follow. A doc-
ument from the Regional Counsel listing the legal staff separation
should also be included as an attachment to the letter. The
Regional Administrator or Deputy Regional Administrator should
sign the document. The document and any revisions should be kept
on file in the Regional Office, with a copy sent to the Assistant
Administrator for filing at Headquarters.
Attachments (2)
cc Deputy Regional Administrators, Regions I -
Too Gallagher, NEIC
David Buente, DOJ
Judson Starr, DOJ/ECU
-------
'u* STATES ENVIRONMENTAL PROTECTION . JENCY ^tacnnent M
REGION Vlll
ONE DENVER PLACE - m inx STREET - SUITE 1300
REF SRC
JUK f • DENVER. COLORADO 10202-2413
MEMORANDUM *UI «* 885
/ . ^ ""*ENFORCEMENT CONFIDENTIAL'
TO: Terrell E. Hunt, Associate Enforcement Counsel for Criminal
Enforcement and Special Litigation
FROM: Robert L. Ouprey,
Hazardous Waste
Thomas A. Spelcher
Regional Counsel
SUBJECT: Request for Concurrence on Initiation of C1v1l Parallel Proceeding,
Eagle-Picher Industries
ISSUE; The Regional Office Intends to file a RCRA administrative
complaint and compliance order requiring Installation of groundwater wells and
site cleanup and seeking penalties. Issuance of this action constitutes a
parallel proceeding as there 1s an on-going criminal Investigation at this
site.
DESCRIPTION OF THE PARALLEL PROCEEDING; Eagle-P1cher Industries, Inc.,
(EPI) has been under criminal investigation since August of 1984. Information
received by EPA indicated that EPI personnel Illegally burled drummed
hazardous waste at the site, located in Colorado Springs, Colorado. We
understand that the U.S. attorney has reviewed the criminal case and that an
indictment is pending a request for immunity.
Routine RCRA compliance inspections conducted in 1983 indicated that the
EPI facility was not in compliance with the hazardous waste regulations.
Significant violations of the regulations were confirmed by samples collected
during the joint criminal and civil investigations that occurred in 1984. The
most significant violations are lack of any groundwater monitoring wells and
spills and leaks of hazardous waste that have resulted in surface and
subsurface soil contamination.
The assistant U.S. attorney assigned to the criminal case has Indicated
that the criminal action deals solely with the one instance of illegal drum
burial. The administrative action the Region proposes to issue deals with
groundwater monitoring violations at four surface impoundments located away
from the drum burial site, as well as spillage/disposal of hazardous waste at
a loading dock and at other sites which are removed from the drum burial
site. The criminal and administrative counts are therefore separate and
distinct, without overlapping subject matter.
NECESSITY OF A PARALLEL PROCEEDING: Significant environmental and
political issues have been identified at the EPI site. The available
information is summarized below and supporting data and facts are included in
the attachments.
-------
Bequest for ttnairrence an Initiation of Civil feralltl Proceeding,
Begle-Picher industries
2
(ID Four hazardous waste ponds, two of which are not lined, are used to
•tore hazardous waste containing cadmium. There are no groundwater
monitoring wells. Refer to attachment A - Draft Complaint, for specific
inforration.
(2) Spilled and discharged hazardous waste has resulted in soil
conftaminaticn.
(3) Contamination of off -site toils, adjacent surface water, and
groundwater is suspected. EPA contractors are now being used to
investigate possible releases fror the site for issuance at a later tire
of « corrective action order.
(4) The company is not financially sound according to an analysis
performed by Region VI II 'a financial analyst. This evaluation is based
on tit»e company's liability resulting fror asbestos litigation and is
detailed in attachment B. Our financial analyst strongly urges that we
proeoed with enforcement action before the corpany seeks protection under
bankruptcy.
(5) The facility was identified in 1984 as a "significant non-oorplier"
because of the major violations of the groundwater monitoring
requirarents. EPA policy dictates that enforcement actions be issued
against significant non-cocpUers as soon as possible. Additionally, the
facility is listed in the Dingell report as 'lacking groundwater* wells
and no enforcement action has been taken.
(6) '.rhe public, news media, and Senator Kramer have all expressed
concern over the significant environmental issues at the site and have
requested that EPA require site clean-up as soon as possible. Refer to
attachment C which includes correspondence and relevant newspaper
articles .
(7) The Region's intention to file an administrative complaint has been
discussed with the assistant U.S. attorney assigned to the criminal
case. He has indicated that the Region may proceed with its intended
course of action and has no objection to the complaint and compliance
order with proposed penalties.
There ire several pertinent issues raised in Qxrtney Price's January 23,
1984, memo en parallel proceedings that have been addressed. Please refer to
attachment D for specific comments.
SUWARY; Significant environmental and political issues irake it
necessary ror EPA to pursue a civil action at the EPI facility. The civil
action has a legitimate purpose and is not being instituted to strengthen the
criminal caas. The criminal investigation at EPT is limited in scops, and the
civil action for cleanup and groundwater monitoring with proposed penalties
will address areas of the site unaffected by the criminal proceeding.
-------
Request for Concurrence on Initiation of Civil Parallel Proceeding,
Btgle-Picher Industries
Page 3
Separate technical and legal staff have been assigned to the civil and
criminal matteca. EPI is aware of the criminal investigation and knows that
civil compliance problems exist at the site. The assistant U.S. attorney
conducting the cririnal case has no objection to the Region proceeding with
the civil action.
If farther information if desired please contact Lorraine Rosa of the
Office of Regional Counsel at PS 564-1473.
RBCPEST PCR ACTION; Region VIII requests concurrence on the initiation
of a civil administrative action which will constitute a parallel proceeding
in this ratter. Do you concur?
YES
Attachments A - D
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UNITED SUTES ENVIRONMENTAL PROTECT,.. * AGENCY
,' WASHINGTON. D.C. 20460
JUL30G65
OWK'l f>r »\>,i«( i\.t
MEMORANDUM
SUBJECT: InlcUcion of Contemporaneous CivLT Administrative
Proceed Ing) Ejgle-Picher In
^
FROM : Ttrr
Offiet of Criminal Enforcement
«nd Special Litigation
TO: Robert L. Duprey, Dirtetor
Hazardous Waste Management Division
Thomas A. Speicher
Regional Counsel
We concur with your request to proceed with an administrative
action against Eagle-Picher Industries which would run contempor-
aneously with the on-going criminal investigation. We agree that
the environmental and health risks at the site and the tenuous
financial status of the firm warrant timely administrative action.
Over the past few weeks, Randy Lutz, Director of the Office
of Criminal Enforcement, has conferred by telephone with Dianne
Shannon about the nature and scope of the proposed administrative
action. Clarity in this natter is important in determining
whether a classical parallel proceeding would result from the
filing of the'adminsitrative case. As we understand it, the
Region has now determined that its administrative case will not
include counts for waste burial which are the sole subject of the
criminal case. Accordingly, the administrative case will not
include any counts which would be included in the indictment,
and is not, strictly speaking, a parallel proceeding.
Our concurrence relies heavily upon your assurance that the
U.S. Attorney conducting the criminal case has no objection to
the civil action. I have discussed the matter with NElC's Ren
Vahl, the agent handling the criminal case, who noted that NE1C/OCI
has supported contemporaneous civil action in this matter since
it was first discussed last December. We strongly endorse your
decision to assign separate technical and legal staff to the
respective criminal and administrative matters.
I appreciate the substantial effort you have made to document
the case and seek our review of the matter.
cc/ Richard H. Mays, OECM
Judson Starr, DOJ/ECU
James L. Prange, Ken Uahl, NE1C/OCI
-------
UNITED STATES ENVIRONMENTAL PROTECTION ACENft
WASHINGTON, D.C. 20440
OCT 17
IM I . , .
4V '
Honorable Dick Whiteington
Regional Administrator, Region VI
D.S. Environmental
Protection Agency
1201 Elm Street
Dallas, Texae 75270
Re: Parallel Civil/Criminal Proceeding Against
Dear Dick:
I ao writing to you in your capacity a* Region 6 Enforce-
ment Contact to enliit your assistance in properly coordinating
A criminal referral against £••••? and three of its
corporate officers was approved by me on September 30, 1985,
and mailed to the Office of the United States Attorney for the
Southern District of Texas in Houston, Texas. Last week, I
approved a concurrent civil referral under the Clean Water Act,
seeking necessary injunctive relief as well as civil penalties
against VHW The decision whether to pursue these remedies
simultaneously or sequentially is an important matter of reg-
ulatory policy and prosecutorial judgment on which the Agency
and Department will consult. At this early stage, however, the
procedures indicated in my January 23, 1984 and March 12, 1985
memoranda concerning "parallel proceedings" by the Agency should
be instituted. I understand'that the region has already taken
steps to implement that guidance for this case. Separation of
staff and supervisory personnel and responsibilities working on
the civil case from those working on the criminal case, should
be effectuated immediately.
I would appreciate your reiterating to the appropriate
Region 6 staff the importance the Agency places upon avoiding
any potentially improper entanglements of the two proceedings.
I further request that an appropriate Region 6 official advise
Terrell E. Hunt, Director, Office of Criminal Enforcement and
Special Litigation, of the specific procedures being implemented
to ensure the separate development and prosecution of these
proceedings.
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-2-
I iffi gratTeful for your assistance In this vary important
natter.
Sincerely yours,
-------
•» \ UNITED IT ATES ENVIRONMENTAL MOTICTION AGENCY
Regional Administrator
vi
iNTKftFlMT TWO iUILOlNC. ItOI tLM STftf CT
DALLAS. Tf XAS 7M70
November 20, 1985
MEMORANDUM
SUBJECT: PiriVUl Proceed1ng^ga1nst
FROM:
TO: Ttrrtll E. Hunt, Director
Office of Criminal Enforcement and
Special Litigation (LE-134P)
In response to Courtney Price's letter of October 17,
1985, I am taking this occasion to advise you of the specific
procedures which have been Implemented by Region VI to ensure
the separate development and prosecution of potential parallel
are aware, the JBIBV criminal referral involves alleged
violations of multiple environmental statutes and Sections of
Title 18 of the United States Code. Although the existing
civil referral contains only water counts, our assumption 1s
that additional RCRA counts will be added at a later date.
Because of the multi-media aspects of this case, support
activity from Region VI could potentially come from four
divisions within the Region •- the Water Management Division,
the Hazardous Waste Management Division, the Environmental
Services Division and the Office of Regional Counsel.
In order to avoid any potentially improper entanglements
of the proceedings, Region VI has identified separate liti-
gation support teams to provide technical and legal assistance
to the prosecution of each case. Additionally, efforts are
currently underway to ensure that all potential participants
in either prosecution effort are aware of all requirements set
forth in memoranda issued by Courtney Price on March 12, 1985,
and January 23, 1984, respectively. I have attached a chart
showing the make-up of the litigation teams. If you have any
further questions regarding this matter, please contact Jim
Neet, Deputy Regional Counsel at FTS 729-9984.
Attachment
-------
Criminal
Civil
Name
Position
Reg. VI Ofc.
Area of
Expertise
SupervIsor
I. Hark Potts Engineer Water Enf. Water Roger llartung
-»
2. Dave Sullivan Env. Sc1. Env.Serv .01 v . RCRA/CERCIA Charley Gazrfa
3. Nary Kale Attorney . Req. Counsel Legal
1. Bruce Hale Engineer Water Inf. Water
?. Harriet Tregnnlng EPS RCRA Enf. RCRA
3. Ralph Corley Attorney Reg. Counsel legal
Barbara Greenfield
*
Jack Ferguson
Rill Taylor
Jim Col 1 Ins
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GM-50
-------
5 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
/ WASHINGTON. D.C. 20460
AIJG281986
OFFICE Of
ENFORCEMENT AND
COMPLIANCE MONITOMINC
MEMORANDUM
SUBJECT: Expanded Civil Judicial Referral Procedures
FROM: Thomas L. Adams, Jr. *
Assistant Administrator for Enforcement
and Compliance Monitoring
TO: Regional Administrators
Program Office Enforcement Division Directors
Purpose
The purpose of this memorandum is to provide guidance
on several issues regarding the procedures by which the Agency
refers civil judicial referrals to the Department of Justice
(DOJ). They are as follows: 1) expansion of the current
direct referral program, 2) pre-referral negotiations, 3) hold
action requests to DOJ for referred cases, and 4) filing proofs
of claim in bankruptcy by regional attorneys.
Expansion of Direct Referral Program
Last summer the Direct Referral Program^/ was expanded to
include, in the second year of operation, all TSCA and FIFRA
I/ As used here the term "direct referral" denotes case
referrals sent directly from the Regional Administrators to
the Assistant Attorney General for Land and Natural Resources
of the Department of Justice, with simultaneous review by OECM
and DOJ. The current DOJ address for direct referrals is:
U.S. Department of Justice, Environmental Enforcement Section,
Box 7415, Ben Franklin Station, Washington, D.C. 20044, or, if
express delivery is used, U.S. Department of Justice, Land
and Natural Resources Division, Environmental Enforcement
Section, Room 1521, 9th. St. and Pennsylvania Ave, N.W.,
Washington, D.C. 20530.
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-2-
collection actions and all non-governmental mobile source tam-
pering and fuels cases. That expansion has been successful in
helping to expedite the judicial referral process. Effective
for cases referred on or after September 2, 1986, OECM with
DOJ encouragement is further expanding the categories of direct
referrals by adding the following 8 classes of cases (see
attached copy of my letter of August 28, 1986, to F. Henry
Habicht, Assistant Attorney General for Land and Natural
Resources):
1. All collection actions in which the relief
requested is solely for unpaid administratively or
judicially assessed penalties under any statute,
except for actions to assess penalties under CERCLA
and cases wh'ere there is little prior experience in
civil judicial enforcement (i.e., the Ocean Dumping
Act, underground injection control regulation under
RCRA/SDWA, Clean Air Act NESHAPs other than vinyl
chloride and asbestos).
2. All actions in which the only relief sought is
contempt for violation of any consent decree or
other enforceable order, and/or to enforce the
terms of any consent decree or other enforceable
order.£/ The preceding types of actions against
governmental entities shall continue to be
referred to OECM.
3. Clean Air Act cases involving asbestos and vinyl
chloride National Emissions Standards for
Hazardous Air Pollutants.
4. All Clean Air Act post-1982 date cases except
those involving steel producers, smelters and
lead sources.£/
5. All Clean Water Act cases involving NPDES permit
violations by industrial dischargers, except those
involving violations relating to or determined by
biological methods or techniques measuring effluent
V.oxicity.
6. All judicial actions alleging interim status vio-
lations under RCRA §3008(a) except cases involving
2_/ All modifications of consent decrees which result from any
action (direct referral) in this paragraph shall continue to
require OECM approval and program office approval, where
appropriate, prior to submission to DOJ for entry by the court,
V OECM approval will also be required when major changes are
made to STPs due to a future change in the related NAAQS.
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-3-
loss of interim status or closure. This authority
will take effect in each Region upon the successful
referral by the Region of two cases in order to
demonstrate the requisite experience. This author-
ity does not include corrective action cases under
3008(h).
7. All RCRA judicial actions seeking penalties only/
except for underground injection control regulation
cases.
8. All actions to enforce final federal orders issued
under RCRA §3008(a). This authority will take effect
in each Region upon the successful referral by the
Region of two cases in order to demonstrate the
requisite experience.
We will add these expansion cases to the 5 classes of cases
currently included in the direct referral program listed below:
1. Cases under Section 1414(b) of the Safe Drinking Water
Act which involve violations of the National Interiir.
Primary Drinking Water Regulations, such as reporting
or monitoring violations or maximum contaminant
violations. (Note: This category does not include
any causes of action under Section 1414{b) established
by the SDWA Amendments of 1986.)
2. The following cases under the Clean Water Act:
a. cases involving discharges without a permit by
industrial dischargers;
b. all cases against minor industrial dischargers;
c. cases involving failure to monitor or report by
industrial dischargers;
d. referrals to collect stipulated penalties from
industrials under consent decrees;
e. referrals to collect administrative spill
penalties under Section 311(j) of the CWA.
3. All stationary source cases under the Clean Air Act
except the following:
a. cases involving the steel industry;
b. cases involving non-ferrous smelters;
c. cases involving NESHAPs;
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-4-
d. post - 1982 date cases.
4. All TSCA & FIFRA collection actions for unpaid
administratively assessed penalties.^/
15. All mobile source tampering and fuels cases (except
governmental entity cases) arising under the Clean
Air Act, sections 203 and 211 respectively.
Attached for your convenience in Appendix A is a list of all
cases now covered under the direct referral program.
OECM will continue to play a substantive role in these
cases, especially in view of the increased size of the Agency's
case load and the need to ensure that our cases reflect the
Agency's priorities. The Regions should continue to send
copies of the case referral reports directly to OECM, and
where appropriate, to the program office for review. OECM and
DOJ will concurrently review these referrals. Within 35 days
of receipt of a copy of the direct referral package, the appro-
priate AEC will comment on the merits of the referral to DOJ
and to the originating regional office. He may ask the
Assistant Administrator of OECM to recommend to DOJ that the
case be further developed before filing or returned to the
regional office. OECM will also continue to oversee the
progress and development of these direct referral cases. It
should be noted that in all direct referral cases, as with
all other enforcement cases, the Regions still must coordinate
settlement terms with Headquarters and submit consent decrees
to OECM for review and approval. (See memorandum of November 28,
1983, entitled, "Implementation of Direct Referrals for Civil
Cases Beginning December 1, 1983" at page 5 (GM-18).) All other
existing policies and procedures regarding direct referrals and
case management will remain in effect.
Pre-referral Negotiations
OECM has concluded that Headquarters should not establish
mandatory requirements for pre-referral negotiations. Never-
theless, use by the Regions of pre-referral negotiations, when
and where appropriate, is to be encouraged by the Regional
Counselso Also note that the Regions should continue to follow
current applicable guidance set forth in Frederick F. Stiehl's
July 30, r.985, memorandum entitled "Preparation of Hazardous
Waste Referrals" wherein pre-referral negotiations for hazard-
ous waste cases are discussed. In addition, refer to the
4/ This class is now included in actions for unpaid administra-
tively or judicially assessed penalties arising under any
statute. See expansion category number 1 above.
-------
-5-
memorandum entitled "Enforcement Settlement Negotiations,"
GM-39, dated May 22, 1985, which requires AEC review of draft
consent decrees before they are sent to the defendant. Draft
consent decrees must be reviewed by an Assistant Chief or
senior lawyer in the DOJ Environmental Enforcement Section
before they are sent to the defendant.
"Hold Action" Requests
With a more decentralized management of the Agency's
enforcement program, greater responsibility is placed on
the regional offices to develop and manage cases, particularly
in the pre-referral stage. The Regions are called upon to
sufficiently investigate, prepare and develop civil cases so
that DOJ can file them without delay. When EPA refers a case,
the referral results in the expenditure of time and resources
by OECM and DOJ. A request from the Region to hold action on
the filing of a case that results from inadequate case prepara-
tion or from the desire to conduct negotiations that could
have been conducted prior to referral severely undercuts our
enforcement efforts and results in inefficient use of valuable
time and resources in the Regions, in OECM and at DOJ.
Therefore, it is OECM policy that hold action requests
should be used pnly for strategic or tactical reasons, such as
where the defendant has made a significant settlement offer
after referral, or where settlement prior to filing will be
advantageous to the government. A hold action request should
be in the form of a memorandum from the Regional Counsel to
the Assistant Administrator for OECM requesting and explaining
its use and the length of delay requested. The Assistant
Administrator, OECM, will determine whether the request is
justified, and if so, will ask DOJ to delay the filing of the
suit for a specified period ot time.
OECM will grant hold action requests only where there is
a clear benefit to the Agency resulting from the delay. In
those cases where there is no reasonable justification for
the requested delay, OECM will ask DOJ to proceed with filing
or consider recommending that the case be withdrawn from DOJ
and possibly will disallow credit for the referral.
Filing Proofs of Claim in Bankruptcy
EPA's judicial bankruptcy docket has grown enormously in
the last two years. OECM and DOJ are very concerned about the
handling of these cases and future bankruptcy matters. The
law in this vital area is not well developed; little favorable
precedent exists on the issues of concern to us. Moreover, we
-------
-6-
must be very careful to avoid risking large resource expendi-
tures in bankruptcy cases where there may be little realistic
chance of obtaining material recoveries, even it we prevail on
legal issues. These concerns make it imperative that bankruptcy
cases be especially well prepared and that management review
time be adequate at both OECM and DOJ prior to filing. See,
e.g., OECM (Draft) Revised Hazardous Waste Bankruptcy Guidance,
May 23, 1986, at 1-4. In the past, numerous cases have been
referred with very little or no lead time for review and with-
out litigation reports. Although we appreciate the difficulties
of obtaining notice that bankruptcy proceedings have been
initiated by a regulated entity, it is still important that
EPA claims be forwarded for OECM review and referral to DOJ
at the earliest possiJble time. These claims will be referred
by the Assistant Administrator, OECM and approved in writing
by the Assistant Attorney General, Land and Natural Resources,
prior to filing.
If you have any questions regarding these procedures,
please contact Jonathan Libber who can be reached at
FTS 475-8777.
Attachments
cc: Administrator
Deputy Administrator
Assistant Administrators
Senior Enforcement Counsel
General Counsel
Associate Enforcement Counsels
Regional Counsels
Regional Enforcement Contacts
Regional Program Division Directors
F. Henry Habicht II, Assistant Attorney General
for Land and Natural Resources, Department of Justice
-------
Appendix A
Categories of Direct Referral Cases As of September 2, 1986
General
1. All collection actions in which the relief
requested is solely for unpaid administratively or
judicially assessed penalties under any statute,
except for actions to assess penalties under CCRCLA
and cases where Lhare is little prior experience in
civil judicial enforcement (i.e., the Ocean Dumping
Act, underground injection control regulation under
RCRA/SDWA, Clean Air Act NESHAPs other than vinyl
chloride and asbestos).
2. All actions in which the only relief sought is con-
tempt for violation of any consent decree or other
enforceable order, and/or to enforce the terms of any
consent decree or other enforceable order.£/ The pre-
ceding types of actions against governmental entities
shall continue to be referred to OECM.
Clean Air Act
1. All stationary source cases under the Clean Air Act
except the following:
a. cases involving the steel industry;
b. cases involving non-ferrous smelters;
c. NESHAPs cases other than asbestos and vinyl
chloride; and
d. lead sources.
2. All mobile source tampering and fuels cases (except
governmental entity cases) arising under the Clean
Air Act, sections 203 and 211 respectively.
I/ All modifications of consent decrees which result from any
action (direct referral) in this paragraph shall continue to
require OECM approval and program office approval, where
appropriate, prior to submission to DOJ for entry by the court,
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-2-
Clean Water Act
1. All cases involving discharges without a permit by
industrial dischargers.
2. All cases against minor industrial dischargers.
3. All cases involving failure to monitor or report by
industrial dischargers.
4. Referrals to collect stipulated penalties from
industrials under consent decrees.
5. Referrals to collect administrative spill
penalties under Section 311(j) of the CWA.
6. All Clean Water Act cases involving NPDES permit
violations by industrial dischargers, except those
involving violations relating to or determined by
biological methods or techniques measuring effluent
toxicity.
Safe Drinking Water Act
Cases under Section 1414(b) of the Safe Drinking Water
Act which involve violations of the National Interim
Primary Drinking Water Regulations, such as reporting
or monitoring violations or maximum contaminant
.violations. (Note: This category does not include
any causes of action under Section 1414(b) established
by the SDWA Amendments of 1986.)
RCRA
1. All judicial actions alleging interim status violations
under RCRA §3008(a) except cases involving loss of
interim status or closure. This authority will take
effect in each Region upon the successful referral by
the Region of two cases in order to demonstrate the
requisite experience. This authority does not include
corrective action cases under 3008(h).
2. All RCRA judicial actions seeking penalties only,
except for underground injection control regulation
f»a co c
cases
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-3-
All actions to enforce final federal orders issued
under RCRA §3008(a). This authority will take effect
in each Region upon the successful referral by the
Region of two cases in order to demonstrate the
requisite experience.
TSCA & FIFRA
All TSCA & FIFRA collection actions for unpaid
administratively assessed penalties.
2/ This class is now included in actions for unpaid administra-
tively or judicially assessed penalties arising under any
statute. See General category number 1 above.
-------
Ti
3 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
/ WASHINGTON, D.C. 20460
OFFCEOF
ENFORCEMENT AND
covpuANCt MOMiTOMtNG
Honorable F. Henry Habicht, II
Assistant Attorney General
Land and Natural Resources Division
U.S. Department of Justice
Washington, D.C. 20530
Re; Direct Referrals
Dear Hank:
During the past year OECM has been holding discussions
with the Headquarters program offices and with the 10 Regional
Counsels on how to improve and expand the direct referral
program, wherein certain cases are referred directly from the
Regional Administrator to your office. Because the program
is working well, the consensus of the Associate Enforcement
Counsels, the program compliance division directors and the
Regional Counsels is to expand the classes of cases subject
to direct referral. We have also consulted with members of
your staff and understand that they acquiesce in this concept
insofar as the classes of cases set forth herein are concerned.
This letter, when signed by you, will serve as an amendment
to our September 29, 1983, agreement which set forth the condi-
tions of the initial direct referral pilot project. It will
also amend the June 15, 1977, Memorandum of Understanding
between our respective Agencies.
The following 8 classes of cases will be added to the
direct referral program:
1. All collection actions in which the relief
requested is solely for unpaid administratively or
judicially assessed penalties under any statute,
except for actions to assess penalties under CERCLA
and cases where there is little prior experience in
civil judicial enforcement (i.e., the Ocean Dumping
Act, underground injection control regulation under
RCRA/SDWA, Clean Air Act NESHAPs other than vinyl
chloride and asbestos).
-------
-2-
2. All actions in which the only relief sought is con-
tempt for violation of any consent decree or other
enforceable order, and/or to enforce the terms of any
consent decree or other enforceable order.}_/ The pre-
ceding types of actions against governmental entities
shall continue to be referred to OECM.
3. Clean Air Act cases involving asbestos and vinyl
chloride National Emissions Standards for Hazardous
Air Pollutants.
4. All Clean Air Act post-1982 date cases except those
involving steel producers, smelters, and lead
sources. £/
5. All Clean Water Act cases involving NPDES permit
violations by industrial dischargers, except those
involving violations relating to or determined by
biological methods or techniques measuring effluent
toxicity.
6. All judicial actions alleging interim status vio-
lations under RCRA $3008(a) except cases involving
loss of interim status or closure. This authority
will take effect in each Region upon the successful
referral by the Region of two cases in order to
demonstrate the requisite experience. This author-
ity does not include corrective action cases under
S3008(h).
7. All RCRA judicial actions seeking penalties only,
except for underground injection control regulation
cases.
8. All actions to enforce final federal orders issued
under RCRA §3008(a). This authority will take effect
in each Region upon the successful referral by the
Region of two cases in order to demonstrate the
requisite experience.
We will add these expansion cases to the 5 classes of cases
currently included in the direct referral program listed below:
I/ All modifications of consent decrees which result from any
action (direct referral) in this paragraph shall continue to
require OECM approval and program office approval, where appro-
priate, prior to submission to DOJ for entry by the court.
2/ OECM approval will also be required when major changes are
made to SIPs due to a future change in the related NAAQS.
-------
-3-
1. Cases under Section 1414(b) of the Safe Drinking Water
Act which involve violations of the National Interim
Primary Drinking Water Regulations, such as reporting
or monitoring violations or maximum contaminant
violations. (Note: This category does not include any
causes of action under section 1414(b) established by
the SDWA Amendments of 1986.)
2. The following cases under the Clean Water Act:
a. cases involving discharges without a permit by
industrial dischargers;
b. all cases against minor industrial dischargers;
c. cases involving failure to monitor or report by
industrial dischargers;
d. referrals to collect stipulated penalties from
industrials under consent decrees;
e. referrals to collect administrative spill
penalties under Section 311(j) of the
3. All stationary source cases under the Clean Air Act
except the following:
a. cases involving the steel industry;
b. cases involving nonferrous smelters;
c. cases involving NESHAPs;
d. post - 1982 date cases.
4. All TSCA & FIFRA collection actions for unpaid
administratively assessed penalties.
5. All mobile source tampering and fuels cases (except
governmental entity cases) arising under the Clean
Air Act, Sections 203 and 211 respectively.
OECM will continue to play a substantive role in these
cases, especially in view of the increased size of the Agency's
case load and the need to ensure that our cases reflect the
Agency's priorities. OECM and DOJ will simultaneously review
these referrals.
Within 35 days of receipt of a copy of the direct referral
package, the appropriate AEC will comment on the merits of the
referral to DOJ and to the originating regional office. He may
ask the Assistant Administrator of OECM to recommend to DOJ
-------
-4-
that the case be further developed before filing or returned to'
the regional office. OECM will also continue to oversee the
progress and development of these direct referral cases and will
continue to approve all judicial settlements on behalf of EPA.
All other agreed-upon conditions and procedures regarding direct
referrals and case management will remain in effect.
In order to allow sufficient time prior to implementation
of the expansion and to make the U.S. Attorneys, the regional
offices and our staffs aware of its provisions, it is agreed
that this agreement shall become effective for cases referred
trom a Region on or after September 2, 1986. I will distribute
a memorandum to the Regions, the Hgadquarters program offices
a.nd within OECM explaining the expansion and how it will be
implemented.
I appreciate your cooperation in arriving at this amendment
to our agreement. If this direct referral case expansion meets
with your approval, please sign in the space provided below and
return a copy of the letter to me for our files.
Sincerely,
Thoraas L. Adams, Jr. V
Assistant Administrator
Approved:
Henry]Habicht, II
Assistant Attorney General
Land and Natural Resources Division
U.S. Department of Justice
cc: Richard H. Mays
Senior Enforcement Counsel
-------
GM-51
-------
1 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
'/ WASHINGTON. D.C. 20460
OCT281986
Office of
ENFORCEMENT AND
COMPLIANtk MONITORING
MEMORANDUM
SUBJECT: Guidance on Calculating After Tax Net Present Value
of Alternative.Payments
FROM: Thomas L. Adams, Jr.
Assistant Administrator for
Enforcement and Compliance Monitoring
TO: Assistant Administrators
Regional Administrators
PURPOSE
This guidance provides a methodology for calculating the
after tax net present value of an environmentally beneficial
project proposed by a violator to mitigate a portion of a civil
penalty. We developed this guidance in reponse to requests from
both the Regions and Headquarters on how to evaluate a project's
real cost to a violator. The Associate Enforcement Counsels,
Regional Enforcement Contacts, Regional Counsels, and the Chief
of the Environmental Enforcement Section at Department of Justice
have reviewed this guidance. In addition, the Tax Litigation
Division of the Internal Revenue Service and the Corporate
Finance Division of the Securities and Exchange Commission
reviewed pertinent language in this document. We hope it will
be useful. The policy on alternative payments is set forth in
the February 16, 1984, uniform civil penalty policy.
BACKGROUND
The 1984 civil penalty policy provides flexibility for EPA
to accept, under specified conditions, a violator's investment in
environmentally beneficial projects to mitigate part of a civil
penalty. The policy allows the use of these alternative payments
as an incentive for settlement. The policy does not contemplate
a dollar-for-dollar reduction in the civil penalty equal to the
cost of an acceptable alternative payment project. Furthermore,
EPA will not accept more than the after tax net present value
-------
-2-
of an alternative payment project. The Agency also can choose
to accept less than that amount. V
EPA must carefully balance the benefits of fostering settle-
ments by approving alternative payment projects against the benefits
of achieving the broadest deterrent impact from enforcement actions.
Allowing these projects to mitigate part of a penalty may reduce
the deterrent effect of an action on the regulated community.
A civil penalty is not tax deductible under 26 U.S.C.
§162(f); therefore, the full amount of the penalty is a
liability to a violator.£/ Conversely, if a violator invests
in an alternative payment project, that investment may be tax
deductible. EPA must u.se the after tax value of a proposed
investment when determining whether and by how much to mitigate
a civil penalty.^/
In addition to considering the tax effects of an alterna-
tive payment project, EPA must evaluate the cost of the project
in terms of its present value. An alternative payment project
usually requires expenditures over time.^/ Therefore, the Agency
also must reduce the after-tax value of the cash flows invested
in an alternative payment project to its net present value at
the date of settlement.
FTProposed alternative payment projects may not be used to
mitigate the entire amount of a civil penalty. The Agency
plans to issue further policy clarifying the use of alter-
native payments in settlement negotiations.
?J A written agreement specifiying the tax implications of the
civil penalty is essential. The agreement should be a legally
binding contract. The agreement should state that the civil
penalty is punitive and deterrent in purpose and is a non-
deductible expense.
_3/ In addition to tax benefits, a firm also can generate
positive, image-enhancing publicity from the project developed
for the alternative payment; however, the penalty policy requires
that any publicity a violator generates about the project must
include a statement that the project is undertaken in settlement
of an enforcement action by EPA or an authorized state.
4/ A dollar today is worth more than a dollar a year from now
for two reasons: 1) if a dollar today is held in a no-interest
checking account, inflation erodes the value of that dollar over
the year; and 2) if a dollar today is invested at a rate higher
than the rate of inflation, that dollar increases in value by
the amount of earnings in excess of the inflation rate.
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-3-
Tne BEN computer model can calculate the atter tax net
present value of a violator's proposed alternative payment.
Appendix A of tne BEN User's Manual provides the procedure tor
calculating after tax net present value of capital investment,
operation and maintenance costs, and one-time costs.
USING BEN TO CALCULATE THE AFTER TAX NET PRESENT VALUE OF
ALTERNATIVE PAYMENTS
To use BEN to calculate after tax net present value of an
alternate payment project, respond to the BEN questions as
follows:
1. Enter the case name (variable 1);
2. For variables 2 through 4, enter the^ .incremental
costs for the alternative payment project of:'
Pollution control equipment;
b. Operation and maintenance;
c. One-time expenditure;
3. Substitute the date of settlement of the enforcement
action tor the first month of non-compliance
(variable 5);
4. Enter the compliance date or completion date of the
alternative investment for variables 6 and 7;
5. Select standard values for variables 8 through 13;^/
6. Select output option 2.
5/ Decreasing the tax rate used in BEN increases the amount of a
civil penalty and also increases the atter-tax cost ot an
alternative investment. Therefore, a violator has an incentive
to provide a lower marginal tax rate tor an alternative payment
project than the one used to calculate the civil penalty.
Both the civil penalty calculation and the alternative payment
calculation must use the same tax rate. The annual inflation
rate and the discount rate should be the same as the rates used
in the civil penalty calculation.
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-4-
Calculation C in output option 2 expresses the after tax
net present value ot the alternative payment on tne date of
settlement, which is the date substituted for the first month
ot noncompliance (variable 5). This tigure is the maximum
amount by which EPA may mitigate a civil penalty. Attachment
A is an example ot a proposed alternative payment project with
the BEN output showing the after tax net present value of the
investment.
If you have any questions about calculating the after tax
net present value ot a proposed alternative payment, call Susan
Gary Watkins of my staff (FTS 475-8786).
Attachment
cc: Regional Counsels
Associate Enforcement Counsels
Compliance Office Directors
-------
ATTACHMENT A
ALTERNATIVE PAYMENT EXAMPLE
Suppose a violator offers
$500,000 in pollution control
provide environmental benefits
meeting legal requirements for
present value in 1986 dollars
period of 20 months is $299,56
alternative payment in this ex
violator must commit to invest
how the BEN model displays the
to invest over the next 20 months
equipment. The equipment will
beyond those that result from
compliance. The after tax net
of a $500,000 investment over a
2. Therefore, the value of the
ample is $299,562, although the
ing $500,000. Exhibit 1 shows
data.
If EPA approves the alternative payment project in the
example, the Agency may propose an adjusted penalty target figure
that is as much as $299,562 less than the initial penalty target
figure.V Other adjustment factors also may reduce the initial
penalty target figure.
The effects of inflation and return on a dollar are smaller
over shorter periods of time. Consequently, the difference
between the after tax net present value of an alternative payment
and the total amount of the alternative payment decreases as the
time between the date of settlement and the date of the final
alternative payment decreases. If the violator in the example
could invest $500,000 in pollution control equipment .in less
than 2 months after settlement, the net present value of the
investment would be $76,742 greater (See Exhibit 2).
For using the BEN model to calculate the after tax net
present value of the proposed alternative payment for this
example the data required are:
1. Case Name: Alternative Payment Example
2. Capital investment: 500000 1986 dollars
3. One-time nondepreciable expenditure: 0
4. Annual O&M expense: 7000 1985 dollars
5. Month of settlement: 4, 1986
6. Compliance date:
7. Penalty payment date:
12, 1987
12, 1987
I/ The Agency is never obligated to mitigate a civil penalty by
the full amount of the after tax net present value of an alter-
native payment project. For example, EPA might mitigate a civil
penalty by only half of the after-tax net present value of the
project.
-------
EXHIBIT 2
OUTPUT OPTIOH 2
ALTERNATIVE PAYMENT EXAMPLE
«-:'ftWtft:24, 1986
~ * .
V f 1* f T ;
PRESENT VALUE COST " OF PURCHASINBr THE:INITIAL
POLLUTION CONTROL gOUIfPlgNT ON T!I'IE flNP
OPERATING IT THROUGHOUT ITS USEFUL LIFE
303688
B. PRESENT VALUE COST OF ON-TIME PURCHASE AND
OPERATION OF INITIAL'POLLUTION CONTROL
EQUIPMENT PLUS ALL FUTURE REPLACEMENTS
379682
PRESENT VALUE COST OF DELAYED PURCHASE AND
OFERATION OP POLLUTION CONTROL EQUIPMENT
PLUS ALL FUTURE REPLACEMENTS *"
1BMB
ECONOMIC BENEFIT OF A 1 MONTH DELAY
AS OF INITIAL DATE OF NONCOMPLIANCE
(EQUALS B MINUS C)
3763O4
3378
AS OF THE PENALTY PAYMENT DATE, 1 MONTHS
=========
->-
v_>_>.> THE ECONOMIC SAVINGS CALCULATION ABOVE <-<-<-<-<-<-
9*. ' '
USER SPECIFIED VALUES
1.
4. .
3.
5.
• »•
7.
CASE NAME" ALTERNATIVE PAYMENT EXAMPLE
ONE 'I ME NONDEPRECIABLE EXPENDITURE • • » O
FIRST MONTH OF NONCOMPLIANCE" M, 1987
PENALTY PAYMENT- DATE- " ' 12, 1987
STANDARD VALUES '' • '' * •;/ '
9.
11.
1*..
13.
INVESTMENT TAX CREDIT RATE . - - - • • 10. OO
ANNUAL INFLATION RATE" ' r .:"''' " 6'°°
'IStJOUNT — rmTt •" — — - - • . . ». »"• ^v
AMOUNT OF LOW INTEREST .FINANCING* --: ;;"';" » 0
7.
r.
-------
EXHIBIT 1
OPTION 2
ALTERNATIVE PAYMENT EXAMPLE
APRIL 16, J1986
A. PRESENT VALUE COST OF PURCHASING THE INITIAL
PHI I I IT TDM PfHMTRnt F'nilTPMP'MT DM TIME AND
OPERATING IT THROUGHOUT ITS USEFUL LIFE
B. PRESENT VALUE COST OF ON-TIME PURCHASE AND
ClPFRATTflN IIP INITIAL POLLUTION CONTROL
EQUIPMENT F>LUS ALL FUTURE KEPLACEME.NfS
PRESENT VALUE COST OF DELAYED PURCHASE AND
OPERATION GIF POLLUTION CONTROL EQUIPMENT
PLUS ALL FUTURE REPLACEMENTS
ECONOMIC DE'NEFIT OF A 20 MUNIH L^.Lf
AS OF INITIAL DATE OF NONCOMPLI AtJCE
(EQUALS B MINUS C)
58620
.UJ£,
.FIT DF A 20 MONTH DELAY
n2 Of I'SL : t.:4ALTY PAYMENT DATE, 20 MONTHS
AFTER THE INITIAL DATE OF NONCOMPLIANCE
77252
THE ECONOMIC SAVINGS CALCULATION ABOVE
USED THE FOLLOWING VARIABLES;
USER 'SPECIFIED VALUES-
:l>-
4!."
s.
6.
7-
CASE NAME- ALTERNATIVE PAYMENT EXAMPLE
INJTJAL CAPITAL INVESTMENT * *
ONE-TIME NONDEPRECIABLE EXPENDITURE -
ANNUAL O&M EXPENSE- *
FIRST MONTH OF NONCOMPLIANCE-
COMPLIANCE f>ATE»
PENALTY PAYMENT DATE? ..'_•.-
5000OO
*
7OOO
4,
12.
. .*2,
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-------
GM52
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
MEMORANDUM
SUBJECT: Final EPA Policy on the Inclusion of Environmental
Auditing Provisions in Enforcement Settlements
FROM: Thomas L. Adams, Jr.
Assistant Administrator for Enforcement
and Compliance Monitoring
TO: Addressees
On July 17, 1986, this Office circulated a draft EPA
Policy on the Inclusion of Environmental Auditing Provisions
in Enforcement Settlements. I am pleased to report that Agency
comments were almost uniformly supportive of the draft as
written. Attached please find a final version of the policy,
including summaries of the known auditing settlements that
Agency personnel have achieved to date and several model audit
provisions that Agency negotiators may use as a starting point
in fashioning settlements that address the circumstances of
each case.
I believe that the inclusion of environmental auditing
provisions in selected settlements offers EPA the ability
to accomplish more effectively its primary mission, namely,
to secure environmental compliance. Accordingly, I would
like to renew last July's call for EPA's Offices of Regional
Counsel and program enforcement offices to consider including
audit provisions in settlements where the underlying cases
meet the criteria of the attached policy statement.
Inquiries con ^rning this policy should be directed to
Neil Stoloff, Legaj. Enforcement Policy Branch, FTS 475-8777,
E-Mail box 2261, LE-130A • Thank you for your consideration of
this important matter.
Attachments
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-2-
Addresseeu:
Assistant Administrators
Associate Administrator for Regional Operations
General Counsel
Associate Enforcement Counsels
Director, Office of Criminal Enforcement and Special Litigation
Director, Office of Compliance Analysis and Program Operations
Headquarters Compliance Program Division Directors
Director, NEIC
Regional Administrators, Regions I-X
Regional Counsels, Regions I-X
Regional Compliance Program Division Directors, Regions I-X
Principal Regional Enforcement Contacts, Regions I-X
Enforcement Policy Workgroup
cc: Administrator
Deputy Administrator
John Ulfelder
David Buente, Department of Justice (DOJ)
Nancy Firestone, DOJ
-------
THE POLICIES AND PROCEDURES ESTABLISHED IN THIS DOCUMENT ARE
INTENDED SOLELY AS GUIDANCE FOR 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.
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EPA POLICY ON THE INCLUSION OF ENVIRONMENTAL AUDITING
PROVISIONS IN ENFORCEMENT SETTLEMENTS
I. Purpose
The purpose of this document is to provide Agency enforce-
ment personnel with general criteria for and guidance on selecting
judicial and administrative enforcement cases in which EPA will
seek to include environmental auditing provisions among the
terms of any settlement. This document supplements the "Guidance
for Drafting Judicial Consent Decrees."!/
II. Background
On July 9, 1986, EPA announced its environmental auditing
policy statement (Attachment A) which encourages the regulated
community's use of environmental auditing to help achieve and
maintain compliance with environmental laws and regulations.2/
That policy states that "EPA may propose environmental auditing
provisions in consent decrees and in other settlement negotiations
where auditing could provide a remedy for identified problems
and reduce the likelihood of similar problems recurring in the
future."3/
In recent years, Agency negotiators have achieved numerous
settlements that require regulated entities to audit their
operations. (Attachment B is a representative sample of the
auditing settlements that the Agency has achieved to date.)
These innovative settlements have been highly successful in
enabling the Agency to accomplish more effectively its primary
mission, namely, to secure environmental compliance. Indeed,
auditing provisions in enforcement settlements have provided
several important benefits to the Agency by enhancing its
ability to:
8 Address compliance at an entire facility or at all
facilities owned or operated by a party, rather than
just the violations discovered during inspections;
and identify and correct violations that may have gone
undetected (and uncorrected) otherwise.
9 Focus the attention of a r> Dilated party's top-level
management on environmental compliance; produce corporate
policies and procedures that enable a party to achieve
and maintain compliance; and help a party to manage
pollution control affirmatively over time instead of
reacting to crises.
0 Provide a quality assurance check by verifying that
existing environmental management practices are in
place, functioning and adequate.
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-2-
III. Statement of Policy
It is the policy of EPA to settle its judicial and admin-
istrative enforcement cases only where violators can assure the
Agency that their noncompliance will be (or has been) corrected.4/
In some cases, such assurances may, in part, take the form of ~~
a party's commitment to conduct an environmental audit of 'its
operations. While this would not replace tho need for correction
oi: the specific noncompliance that prompted an enforcement
action, EPA nonetheless considers auditing an appropriate part
of a settlement where heightened management attention could
lower the potential for noncompliance to recur. For that
reason, and as stated in the Agency's published policy,
"[environmental auditing provisions are most likely to be
proposed in settlement negotiations when:
0 A pattern of violations can be attributed, at least in
part, to the absence or poor functioning of an environ-
mental management system; or
8 The type or nature of violations indicates a likelihood
that similar noncompliance problems may exist or occur
elsewhere in the facility or at other facilities operated
by the regulated entity. "j>/
This policy is particularly applicable in cases involving
tho owner or operator of extensive or multiple facilities,
whore inadequate environmental management practices are likely
to extend throughout those facilities.(5/ Nevertheless, even
small, single-facility operations may face the types of compliance
problems that make an audit requirement an appropriate part of
a settlement.
The environmental statutes provide EPA broad authority to
compel regulated entities to collect and analyze compliance-
related information.7/ Given this statutory authority, and
the equitable grounds for imposing a requirement to audit
under the circumstances outlined in this policy statement,
such a requirement may be imposed as a condition of settlement
or, in the absence of a party's willingness to audit voluntarily,
sought f: n a court or administrative tribunal.
EPA encourages state and local regulatory agencies that
have independent jurisdiction over regulated entities to consider
applying this policy to their own enforcement activities, in
ordsr to advance the consistent and effective use of environ-
mental auditing.8/
a. Scope of the Audit Requirement
In those cases where it may be appropriate to propose an
environmental audit as part of the remedy, negotiators must
decide which type(s) of audit to propose in negotiations. This
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-3-
determination will turn on the nature and extent of the environ-
mental management problem, which could range from a specific
management gap at a single facility 9/ to systematic, widespread,
multi-facility, multi-media environmental violations. U)/ In
most cases, either (or both) of the following two types of
environmental audits should be considered:
1. Compliance Audit; An independent assessment of the
current status of a party's compliance with applicable statutory
and regulatory requirements. This approach always entails a
requirement that effective measures be taken to remedy uncovered
compliance problems and is most effective when coupled with a
requirement that the root causes of noncompliance also be
remedied.ll/
2. Management Audit; An independent evaluation of a
party's environmental compliance policies, practices, and
controls. Such evaluation may encompass the need for:
(1) a formal corporate environmental compliance policy, and
procedures for implementation of that policy; (2) educational
and training programs for employees; (3) equipment purchase,
operation and maintenance programs; (4) environmental compliance
officer programs (or other organizational structures relevant
to compliance); (5) budgeting and planning systems for environ-
mental compliance; (6) monitoring, recordkeeping and reporting
systems; (7) in-plant and community emergency plans; (8) internal
communications and control systems; and (9) hazard identifica-
tion and risk assessment.12/
Whether to seek a compliance audit, a management audit, ot
both will depend upon the unique circumstances of each case. A
compliance audit usually will be appropriate where the violations
uncovered by Agency inspections raise the likelihood that
environmental noncompliance exists elsewhere within a party's
operations. A management audit should be sought where it
appears that a major contributing factor to noncompliance is
inadequate (or nonexistent) managerial attention to environmental
policies, procedures or staffing. 1_3/ Both types of audits
should be sought where both current noncompliance and shortcomings
in a party's environmental management practices need to be
addressed.14/
In cases where EPA negotiators determine that an acceptable
settlement should include an audit provision, the attached
model provisions 15/ may be used as a starting point in fashion-
ing a settlement tailored to the specific circumstances of each
case. The model provisions are based on settlements addressing
a broad range of circumstances that give rise to audits.
3. Elements of Effective Audit Programs. Most environ-
mental audits conducted pursuant to enforcement settlements
should, at a minimum, meet the standards provided in "Elements
of Effective Environmental Auditing Programs," the Appendix to
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-4-
the Agency's published policy on auditing. Those elements
include:
0 Explicit top management support for environmental auditing
and commitment to follow-up on audit findings.
0 An environmental audit team separate from and independent
of the persons and activities to be audited.
0 Adequate team staffing and auditor training.
0 Explicit audit program objectives, scope, resources
and frequency.
0 A process which collects, analyzes, interprets and docu-
ments information sufficient to achieve audit objectives.
0 A process which includes specific procedures to promptly
prepare candid, clear and appropriate written reports •
on audit findings, corrective actions, and schedules
for implementation.
* A process which includes quality assurance procedures
to ensure the accuracy and thoroughness of environmental
audits. 16_/ '
Agency negotiators may consult EPA's program and enforcement
of::ices and the National Enforcement Investigations Center,
which can provide technical advice to negotiators in fashioning
auditing provisions that meet the needs of both the party and
th« regulatory program(s) to which it is subject. Additional
information on environmental auditing practices can be found in
various published materials.17/
»
A settlement's audit requirements may end after the party
merits the agreed-upon schedule for implementing them. Neverthe-
less, the Agency expects that most audit programs established
through settlements will continue beyond the life of the settle-
ment. After the settlement expires, the success of those
programs may be monitored indirectly through the routine inspec-
tion process.
b. Agency Oversight of the Audit Process
In most cases, resource and policy constraints will pre-
clude a high level of Agency participation in the audit process.
Several successful audit settlements indicate that the benefits
of auditing may be realized simply by obtaining a party's
corrmitment to audit its operations for environmental compliance
or management problems (or both), remedy any problems uncovered,
and certify to the Agency that it has done SO.1J3/ Other recent
Agency settlements, also successful, have entailed full disclosure
of the auditor's report of findings regarding noncompliance,
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-5-
and even access to the company records which the auditors
examined.19/ Audit settlements that require either self-
certificatTon or full disclosure of audit results may require
a party to submit to the Agency an environmental management
or compliance plan (or both) that addresses identified problems,
to be implemented on an enforceable schedule.20/
These approaches require the Agency neither to devote
significant resources to oversight of the audit process nor to
depart from its traditional means of enforcing the terms of
consent decrees and agreements. Although it may—and will—
evaluate audit proposals in terms of the elements described
in §111.a.3. above, in all but the most extreme cases 21/
the Agency will not specify the details of a party's internal
management systems. Rather, an independent audit represents
one step a violator can take toward assuring the Agency that
compliance will be achieved and maintained.22/
Considerations such as the seriousness of the compliance
problems to be addressed by an audit provision, a party's
overall compliance history, and resource availability will
dictate the extent to which the Agency monitors the audit
process in particular cases. Thus, it will usually be approp-
riate to withhold approval of an audit plan for a party with
an extensive history of noncompliance unless the plan requires:
0 Use of an independent third-party auditor not affiliated
with the audited entity;
0 Adherence to detailed audit protocols; and
8 More extensive Agency role in identifying corrective
action.23/
c. Agency Requests for Audit-Related Documents
The various environmental statutes provide EPA with broad
authority to gain access to documents and information necessary
to determine whether a regulated party is complying with the
requirements of a settlement.2^/ Notwithstanding such statutory
authority, Agency negotiators should expressly reserve EPA's
right to review audit-related documents.25/
d. Stipulated Penalties for Audit-Discovered Violations
Settlements which require a party to report to EPA audit-
discovered violations may include stipulations regarding the
amount of penalties for violations that are susceptible to
prediction and are promptly remedied, with the parties reserving
their respective rights and liabilities for other violations.26/
This policy does not authorize reductions of penalty amounts
below those that would otherwise be dictated by applicable
penalty policies, which take into account the circumstances
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-6-
surrounding violations in guiding the calculation of appropriate
penalty amounts. It is therefore important that stipulated
penalties only apply to those classes of violations whose
surrounding circumstances may be reasonably anticipated. The
application of stipulated penalties to violations discovered
during an audit is consistent with Agency policy.27/
e. Effect of Auditing on Agency Inspection and Enforcement
1. Inspections
The Agency's published policy on auditing states that
"EPA will not promise to forgo inspections, reduce enforcement
responses, or offer other such incentives in exchange for
implementation of environmental auditing or other sound environ-
mental practice. Indeed, a credible enforcement program provides
a £>trong incentive for regulated entities to audit."28/
Consistent with stated Agency policy, the inclusion of
audit provisions in settlements will not affect Agency inspec-
tion and enforcement prerogatives. On the contrary, a party's
incentive to accept auditing requirements as part of a settlement
steims from the Agency's policy to inspect and enforce rigorously
against known violators who fail to assure the Agency that
they are taking steps to remedy their noncompliance. Auditing
settlements should explicitly provide that Agency (and State)
inspection and enforcement prerogatives, and a party's liability
for violations other than those cited in the underlying enforce-
ment action (or subject to stipulated penalties), are unaffected
by the settlement.29/
2. Civil Penalty Adjustments
Several audit settlements achieved to date have mitigated
penalties to reflect a party's agreement to audit. In view of
EPA's position that auditing fosters environmental compliance,
EPA negotiators may treat a commitment to audit as a demonstra-
tion of the violator's honest and genuine efforts to remedy
noncompliance. This may be taken into account when calculating
the dollar amount of a civil penalty.30/ In no case will a
party's agreement to aud result in a penalty amount lower
than the economic benefit of noncompliance.
For judicial settlements wnere penalties are proposed to'
be nitigated in view of audit provisions, negotiators should
coordinate with the Department of Justice (DOJ) to ensure
consistency with applicable DOJ settlement policies.
3. Confidentiality
EPA does not view as confidential per se audit-related
documents submitted to the Agency pursuant to enforcement
settlements. Such documents may, however, contain confidential
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-7-
business information (CBI). Auditing provisions should indicate
that EPA will treat such information in the same manner that
all other CBI is treated.31_/ Where appropriate, negotiators
may consider defining in advance which categories of audit
information will qualify for CBI treatment.32/ Such determina-
tions shall be concurred in by the Office of General Counsel,
in accordance with 40 CFR Part 2.
The Freedom of Information Act (FOIA) may provide additional
bases for protecting privileged information from disclosure.33/
However, determinations under FOIA are within the sole discretion
of the Agency and therefore are not an appropriate subject of
negotiation.
IV. Coordination of Multi-Facility Auditing Settlements
When negotiating with a party over facilities located in
more than one EPA region, Agency personnel should consult with
affected regions and states to ensure that pending or planned
enforcement actions in other regions will not be affected by
the terms of an audit settlement. This may be done directly
(e.g., pursuant to existing State/EPA Enforcement Agreements)
or with the assistance of OECM's Legal Enforcement Policy
Branch (LEPB), which will serve as a clearinghouse for infor-
mation on auditing in an enforcement context (contact: Neil
Stoloff, LEPB, FTS 475-8777, LE-130A, E-Mail Box EPA 2261).
In most cases, however, auditing settlements that embrace
facilities in more than one region will affect neither the
Agency's inspection and enforcement prerogatives nor a party's
liability for violations other than those which gave rise to
the underlying enforcement action.^4/ Accordingly, inter-office
consultation in most cases will be necessary only for informa-
tional purposes. Some multi-facility settlements will fall
within the scope of the guidance document, "Implementing
Nationally Managed or Coordinated Enforcement Actions."35/
Such settlements should be conducted in accordance with that
document and the memorandum, "Implementing the State/Federal
Partnership in Enforcement: State/Federal Enforcement 'Agree-
ment s."'3£/
Attachments
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-8-
FOOTNOTES
L. EPA General Enforcement Policy No. GM-17, October 19, 1983.
2. 51 Fed. Reg. 25004 (1986).
3. 51 Fed. Reg. 25007 (1986).
4. See "Working Principles Underlying EPA's National Compliance/
Enforcement Programs," at 7 (EPA General Enforcement Policy
No. GM 24, November 22, 1983).
5.. 51 Fed. Reg. 25007 (1986).
6. See, e.g., , Owens-Corning Fiberglas Corp., Attachment B,
p. 1; and Attachments D-F.
7. See, e.g., the Clean Air Act (CAA) §§113 and 114, the Clean
Water Act, (CWA) §§308 and 309, and the Resource Conservation
and Recovery Act (RCRA) §§3007 and 3008.
8. See 51 Fed. Reg. 25008 (1986).
9. See, e.g., BASF Systems Corp., Attachment B, p. 3.
10. See Attachment F.
11. See Attachment C.
12. See Attachment D.
13. See Chemical Waste Management, Inc., Vicke.ry, Ohio and
Kettleman Hills, California facilities, Attachment B, pp. 1
and 2 respectively; and Attachment 0.
14. See Attachments E and F.
15. Attachments C-G.
16. See 51 Fed. Reg. 25009 (1986).
17. See, e.g., "Current Practices in Environmental Auditing,"
EPA Report No. EPA-230-09-83-006, February 1984; "Annotated
Bibliography on Environmental Auditing," September 1935,
both available from EPA's Office of Policy, Planning and
Evaluation, Regulatory Reform Staff, PM-223, FTS 382-2685.
18. See, e^.g., Crompton and Knowles Corp., Attachment B, p. 1;
and Attachments C-E).
19. See, e.g., Chemical Waste Management, Inc., Vickery, Ohio
and Kettleman Hills, California facilities, Attachment B,
pp. 1 and 2 respectively; and Attachment E.
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-9-
20. See, e.g., United States v. Georgia Pacific Corp., Attachment
B, p. 2; Attachment D, §"8.3; and Attachment F, §§6(1) and 9.
21. See, e.g., Attachment G.
22. See, e.g., Potlatch Corp., Attachment B, p. 1; and Attach-
ment C.
23. See Attachment F.
24. See, e.g., CAA §114, CWA §308, RCRA §3007, CERCLA §103,
the Toxic Substances Control Act §8, and the Federal Insec-
ticide, Fungicide and Rodenticide Act §8.
25. See, e.g., Attachment F, §IV, "Access to Documents."
26. See Attachment F, §§22, 23, 24, 34, and Appendix 2.
27. See "Guidance for Drafting Judicial Consent Decrees," at 22
(EPA General Enforcement Policy No. GM-17, October 19, 1983).
28. 51 Fed. Reg. 25007 (1986).
29.. See Attachment C, §A.3; Attachment D, §B; Attachment E,
"§CT3; and Attachment F, §34.
30. See 51 Fed. Reg. 25007 (1986); EPA's Framework for Statute-
Specific Approaches to Penalty Assessments, General Enforce-
ment Policy No. GM-22, at p. 19; and applicable medium-
specific penalty policies, e. g., TSCA Settlement with
Conditions, November 15, 1983.
31. See "Guidance for Drafting Judicial Consent Decrees," at 28
(EPA General Enforcement Policy No. GM-17, October 19, 1983).
32. See Attachment F, §§5(2), 14, and 15.
33. See, e.g., 5 U.S.C. §552(b)(4), which encompasses voluntarily
submitted information the disclosure of which would impair
a Government interest such as EPA's interests in the settle-
ment of cases and in ensuring compliance with statutes
under its authority.
34. See Attachment F, §25.b.
35. General Enforcement Policy No. GM-35, January 4, 1985.
36. General Enforcement Policy No. GM-41, June 26, 1984.
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-10-
SUMMARY OF ATTACHMENTS
ATTACHMENT A; Environmental Auditing Policy Statement,
51 Fed. Reg. 25004, July 9, 1986.
ATTACHMENT B: Representative Sample of Environmental Auditing
Settlements Achieved to Date, revised 10/9/86.
Attachment C; Model Environmental compliance audit provision,
with requirement for certification of compliance.
Attachment D; Model Environmental management audit provision,
with requirement for submission of plan for improvement of
environmental management practices, to be completed on an
enforceable schedule.
Attachment E; Model Environmental compliance and management
audit provision, with all audit results submitted to EPA, all
Acjency enforcement prerogatives reserved.
Attachment F; Model Environmental compliance and management
audit provision, with extensive Agency oversight, audit results
disclosed, stipulated penalties applied to most prospective
violations, and all Agency enforcement prerogatives reserved
for other violations. [Most appropriate for party with an
extensive history of noncompliance.]
Attachment G: Model Emergency environmental management reorgan-
ization provision. [Appropriate for cases where a party's
environmental management practices are wholly inadequate and
action is necessary without waiting for the results of an
audit.]
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Attachment A
Wednesday
July 9, 1986
e 'S
Part IV
Environmental
Protection Agency
Environmental Auditing Policy Statement;
Notice
-------
25004
Federal Register / Vol. 51. No. 131 / Wednesday. July 9. 1986 / Notices
^"^^«_^^__^^__P«^HMM^MM
ENVIRONMENTAL PROTECTION
i E-fRL-3046-«]
Environmental Auditing Policy
Statement
AGENCY: Environmental Protection
Agency (EPA).
ACTION: Finil policy statement.
SUMMARY: I:: is EPA policy to encourage
;he use of environmental acditirg by
regulated entities to help achieve and
maintain compliance with
er.vironmen al laws and regulations, as
well as tc help identify and correct
unrrgulated environmental hazards.
EPA first published this policy as
'.-.terim guidance on November 8, 1985
;0 FR 46504 . Based on commends
received regarding (he interim guidance.
'.;•.ve!op. implement and upgrade
-r.viror.mentel auditing programs;
• Discussej when the Agency may or
.T iv not request audit reports;
"xplains how EPA's inspection and
.rcement ;ictivities may respond to
regulated entities' efforts to assure
ci?.Tip!iance through auditing;
• Endorses environmental auditing at
"•.••: not create any defense to. or
. -'-.e.-wise iirr.it. the responsibility of any
• >"-iated entity to comply with
;:?!icable regu.atory requirements.
5f2:es arc encouraged to adopt these
.T.ilar and equally effective policies
der to advance the use of
r.^-.rcr.nen'.al auditing or. a consistent.
r.Htionwide basis.
DATES: This f.nal policy statement i
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Federal Register / Vol. 51. No. 131 / Wednesday. July 9. 1986 / Notices
25005
provide technical assistance for
environmental compliance.
Requests for Reports
EPA received 12 comments regarding
Agency requests for environmental audit
reports, far more than on any other topic
in the policy statement. One commenter
felt that EPA struck an appropriate
balance between respecting the need for
self-evaluation with some measure of
privacy, and allowing the Agency
enough flexibility of inquiry to
accomplish future statutory missions.
However, most commenters expressed
concern that the interim guidance did
not go far enough to assuage corporate
fears that EPA will use audit reports for
environmental compliance "witch
hunts." Several commenters suggested
additional specific assurances regarding
the circumstances under which EPA will
request such reports.
One commenter recommended that
EPA request audit reports only "when
the Agency can show the information it
needs to perform its statutory mission
cannot be obtained from the monitoring.
compliance or other data that is
otherwise reportable and/or accessible
to EPA. or where the Government deems
an audit report material to a criminal
investigation." EPA accepts this
recommendation in part. The Agency
believes it would not be in the best
interest of human health and the
environment to commit to making a
"showing" of a compelling information
need before ever requesting an audit
report While EPA may normally be
willing to do so. the Agency cannot rule
out in advance all circumstances in
which such a showing may not be
possible. However, it would be helpful
to further clarify that a request for an
audit report or a portion of a report
normally will be made when needed
infoimation is not available by
alternative means. Therefore. EPA has
revised Section UI.A., paragraph two
and added the phrase: "and usually
made where the information needed
cannot be obtained from monitoring.
reporting or other data otherwise
available to the Agency."
Another commenter suggested that
(except in the case of criminal
investigations] EPA should iLuit
requests for audit documents to specific
questions. By including the phrase " j?
relevant portions of a report" in Section
III.A., EPA meant to emphasize it would
not request an entire audit document
when only a relevant portion would
suffice. Likewise. EPA fully intends not
to request even a portion of a report if
needed information or data can be
otherwise obtained. To further clarify
this point EPA has added the phrase.
"most likely focused on particular
information needs rather than the entire
report" to the second sentence of
paragraph two. Section III.A.
Incorporating the two comments above,
the first two sentences in paragraph two
of final Section III A. now read: "EPA's
authority to request an audit report, or
relevant portions thereof, will be
exercised on a case-by-case basis where
the Agency determines it is needed to
accomplish a statutory mission or the
Government deems it to be material to a
criminal investigation. EPA expects such
requests to be limited, most likely
focused on particular information needs
rather than the entire report and usually
made where the information needed
cannot be obtained from monitoring,
reporting or other data otherwise
available to the Agency."
Other commenters recommended that
EPA not request audit reports under any
circumstances, that requests be
"restricted to only those legally
required." that requests be limited to
criminal investigations, or that requests
be made only when EPA has reason to
believe "that the audit programs or
reports are being used to conceal
evidence of environmental non-
compliance or otherwise being used in
bad faith." EPA appreciates concern*
underlying all of these comments and
has considered each carefully. However.
the Agency believes that these
recommendations do not strike the
appropriate balance between retaining
the flexibility to accomplish EPA's
statutory missions in future, unforeseen
circumstances, and acknowledging
regulated entities' need to self-evaluate
environmental performance with some
measure of privacy. Indeed, based on
prime informal comments, the small
number of formal comments received.
and the even smaller number of adverse
comments. EPA believes the final policy
statement should remain largely
unchanged from the interim version.
Elements ofEffectire Environmental
Auditing
Three commenters expressed
concerns regarding the seven general
elements EPA outlined in the Appendix
to the interim guidance.
One commenter noted that were EPA
to further expand or more fully detail
such elements, programs not specifically
fulfilling each element would then be
judged inadequate. EPA agrees that
presenting highly specific and
prescriptive auditing elements could be
counter-productive by not taking into
account numerous factors which vary
extensively from one organization to
another, but which may still result in
effective auditing programs.
Accordingly. EPA does not plan to
expand or more fully detail these
auditing elements.
Another commenter asserted that
states and localities should be cautioned
not to consider EPA's auditing elements
as mandatory steps. The Agency is fully
aware of this concern and in the interim
guidance noted its strong opinion that
"regulatory agencies should not attempt
to prescribe the precise form and
structure of regulated entities'
environmental management or auditing
programs." While EPA cannot require
state or local regulators to adopt this or
similar policies, the Agency does
strongly encourage them to do so. both
in the interim and final policies.
A final commenter thought the
Appendix too specifically prescribed
what should and what should not be
included in an auditing program. Other
commenters. on the other hand, viewed
the elements described as very general
in nature. EPA agrees with these other
commenters. The elements are in no
way binding. Moreover, EPA believes
that most mature, effective
environmental auditing programs do
incorporate each of these general
elements in some form, and considers
them useful yardsticks for those
considering adopting or upgrading audit
programs. For these reasons EPA has
not revised the Appendix in today's
final policy statement
Other Comments
Other significant comments addressed
EPA inspection priorities for. and
enforcement responses to. organizations
with environmental auditing programs.
One commenter. stressing that audit
programs are internal management
tools, took exception to the phrase in the
second paragraph of section III.B.I. of
the interim guidance which states that
environmental audits can 'complement'
regulatory oversight By using the word
'complement' in this context. EPA does
not intend to imply that audit reports
must be obtained by the Agency in order
to supplement regulatory inspections.
'Complement' is used in a broad sense
of being in addition to inspections and
providing something (i.e., self-
assessment) which otherwise would be
lacking. To clarify this point EPA has
added the phrase "by providing self-
assessment to assure compliance" after
"environmental audits may complement
inspections" in this paragraph.
The same commenter also expressed
concern that as EPA sets inspection
priorities, a company having an audit
program could appear to be a 'poor
performer' due to complete and sccurat.
reporting when measured against a
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25006
Federal Register / Vol. 51. No. 131 / Wednesday, July 9. 1986 / Notices
company which reports something less
than required by law. EPA agrees that it
'• '-nportant to communicate th:!s fact to
icy and state personnel, and will do
bv,. However, the Agency does not
believe a change in the policy statement
is necessary.
A further comment suggested EPA
should commit to lake auditing
programs into account when assessing
jl! enforcement actions. Howevur. in
order to maintain enforcement flexibility
under varied circumstances, the Agency
cannot prorrise reduced enforcement
responses to violations at all audited
facilities when other factors may be
overriding. Therefore the policy
statement continues to state that EPA
niny exercise; its decretion to consider
Auditing programs as evidence of honest
md genuine efforts to assure
compliance, which would then be taken
:.-to account n fashioning enforcement
responses to violations.
A final corr mentor suggested the
phrase "e.xpe ditiously correct
environmental problems" not be tsed in
the eifurccmo'nt context since it implied
EPA would use an entity's record of
i.sr-pctir.g nor regulated matters when
ijvdluatir.g reguldiory violations. EPA
did not intend for such an inference to
he made. EPA intended the term
ironmenu 1 problems" to refer to the
Hying circumstances which
e'. untLally lead up to the violations. To
i.l.infy this poi.it. EPA is revising the
first tun sentences of the paragraph to
•Ahirh th:s comment refers by changing
"L—%.;ronmer.ta problems" to "violations
ar.il underlying environmental
p.-v'jlpms" in the first sentence and to
•:r.d-?r!ying e.-.vironmental problems" in
ihp second sentence.
(n j sep.irjte development EPA is
preparing nn updiite of its January 1984
(•'•\lerct Fcc:::t:cs Compliance Strategy.
•A?.-ch is -pferenced in section III. C. of
•he u'.idi'.ir.j policy. The Strategy should
He crT.f.c'.ea and available on request
!'.•-> m EPA's Office of Federal Activities
!.it
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Federal Register / Vol. 51. No. 131 / Wednesday. July 9. 1986 / Notices
25007
performance of the facility lies with top
management, which therefore has a
strong incentive to use reasonable
means, such as environmental auditing.
to secure reliable information of facility
compliance status.
EPA does not intend to dictate or
interfere with the environmental
management practices of private or
public organizations. Nor does EPA
intend !o mandate auditing (though in
certain instances EPA may seek to
include provisions for environmental
auditing as part of settlement
agreements, as noted below). Because
environmental auditing systems have
been widely adopted on a voluntary
basis in the past, and because audit
quality depends to a large degree upon
genuine management commitment to the
program and its objectives, auditing
should remain a voluntary activity.
111. EPA Policy on Specific
Environmental Auditing Issues
A. Agency Requests for Audit Reports
EPA has broad statutory authority to
request relevant information on the
environmental compliance status of
regulated entities. However. EPA
believes routine Agency requests for
audit reports * could inhibit auditing in
the long run. decreasing both the
quantity and quality of audits
conducted. Therefore, as a matter of
policy, EPA will not routinely request
environmental audit reports.
EPA's authority to request an audit
report, or relevant portions thereof, will
be exercised on a case-by-case basis
where the Agency determines it is
needed to accomplish a statutory
mission, or where the Government
deems it to be material to a criminal
investigation. EPA expects such
requests to be limited, most likely
focused on particular information needs
rather than the entire report, and usually
made where the information needed
cannot be obtained from monitoring.
reporting or other data otherwise
available to the Agency. Examples
would likely include situations where:
audits are conducted under consent
decrees or other settlement agreements;
a company has placed its management
practices ai issue by raibiug ihem as a
defense: or state of mind or intent are a
relevant element of inquiry, such as
during a criminal investigation. This list
' An "environmental audit report" it • written
report which candidly and thoroughly presents
findings from i review, conducted is part of an
environmental audit as described in section 11.A., of
facility environmental performance and practices.
An audit report is not a.substitute for compliance
monitoring reports or other reports or records which
may be required by EPA or other regulatory
agencies.
is illustrative rather than exhaustive,
since there doubtless will be other
situations, not subject to prediction, in
which audit reports rather than
information may be required.
EPA acknowledges regulated entities'
need to self-evaluate environmental
performance with some measure of
privacy and encourages such activity.
However, audit reports may not shield
monitoring, compliance, or other
information that would otherwise be
reportable and/or accessible to EPA.
even if there is no explicit 'requirement
to generate that data.4 Thus, this policy
does not alter regulated entities' existing
or future obligations to monitor, record
or report information required under
environmental statutes, regulations or
permits, or to allow EPA access to that
information. Nor does this policy alter
EPA's authority to request and receive
any relevant information—including that
contained in audit reports—under
various environmental statutes (e.g..
Clean Water Act section 308. Clean Air
Act sections 114 and 208) or in other
administrative or judicial proceedings
Regulated entities also should be
aware that certain audit findings may by
law have to be reported to government
agencies. However, in addition to any
such requirements. EPA encourages
regulated entities to notify appropriate
State or Federal officials of findings
which suggest significant environmental
or public health risks, even when not
specifically required to do so.
B. EPA Response to Environmental
A uditing
1. General Policy
EPA will not promise to forgo
inspections, reduce enforcement
responses, or offer other such incentives
in exchange for implementation of
environmental auditing or other sound
environmental management practices.
Indeed, a credible enforcement program
provides a strong incentive for regulated
entities to audit.
Regulatory agencies have an
obligation to assess source compliance
status independently and cannot
eliminate inspections for particular firms
or classes of firms. Although
environmental audits may complement
inspections by providing self-
assessment to assure compliance, they
are in no way a substitute for regulatory
oversight. Moreover, certain statutes
(e.g. RCRA) and Agency policies
establish minimum facility inspection
frequencies to which EPA will adhere.
However. EPA will continue to
address environmental problems on a
priority basis and will consequent!;.
inspect facilities with poor
environmental records and practice?
more frequently. Since effective
environmental auditing helps
management identify and prompt:.
correct actual or potential problems
audited facilities' environmental
performance should improve. Thi^
while EPA inspections of self-audr.f •.
facilities will continue, to the exi.r.i ::.
compliance performance is conjldtv..
in setting inspection priorities, facis:'. • •
with a good compliance history may h
subject to fewer inspections.
In fashioning enforcement response-
to violations. EPA policy is to lake int.
account, on a case-by-case basis, the
honest and genuine efforts of rpp'ilattr
entities to avoid and promptly corrcc1
violations and underlying environme.-'
problems. When regulated entities ta^
reasonable precautions to avoid
noncompliance. expecitiously corrtr
underlying environmental problerr.s
discovered through audits or other
means, and implement measures to
prevent their recurrence. EPA may -
exercise its discretion to consider such
actions as honest and genuine efforts tr.
assure compliance. Such consideration
applies particularly when a regulate':
entity promptly reports violations or
compliance data which otherwise wr-rt%
not required to be recorded or reports J
to EPA.
2. Audit Provisions as Remedies in
Enforcement Actions
EPA ma^ propose environmental -
auditing provisions in consent decrees
and in other settlement negotiation!!
where auditing could provide a rerr.edy
for identified problems and reduce the
likelihood of similar problems recurring
in the future.4 Environmental auditing
provisions are most likely to be
proposed in settlement negotiations
where:
• A pattern of violations can be
attributed, at leas: in part, to the
absence or poor functioning of an
environmental management system: or
• The type or nature of violations
indicates a likelihood that similar
noncompliance problems may exist o:
occur elsewhere in the facility or at
other facilities operated by the regulate(
entity.
• See. for example. "Duties to Report or Disclose
Information on the Environmental Aspects of
Business Activities." Environmental Law Institute
report to EPA. final report September IMS.
• EPA is developing guidance for use by Agency
negotiator* in structunnp appropriate environment
audit provisions for consent decrees and other
settlement negotiations.
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23008
Federal Register /• Vol. 51. No. 131 / Wednesday. July 9. 1986 / Notices
Through this consent decree approach
other means. EPA may consider
hov •- encourage effective auditing by
pi: cm-mid sewage treatment works
(PC . .,'s). POTWs often have
compliance problems related to
•ipera'.ion and maintenance procedures
•A hich can be addressed effectively
rhrouijh the use of environmental
.r;ti:::.".g. Under its National Municipal
I'-jlicy EPA already is requiring many
POTU's !o develop composite correction
yi.i.ns !c identify and correct compliance
C. Environmeiital Auditing at Federal
r-iCiHties
KPA encourages all federal agencies
Mibject to environmental laws and
••"Tilations to nstitute environmental
•editing systems to help ensure the;
iJequacy of internal systems to achieve,
riiintain and monitor compliance.
F'..".v;ronmental auditing at federal
facilities can b>. an effective supplement
to EPA and stale inspections. Such
federal facility environmental audit
programs should be structured to
promptly identify environmental
problems and expenditiously develop
schedules Tor re- medial action.
To the extent feasible. EPA will
provide technical assistance to help
ft"-1 ' agencies design and initiate
HL .-ograms. Where appropriate. EPA
'.vi 1 1 enter into agreements with other
fancies to clar.fy the respective roles.
responsibilities md commitments of
• •.«rh dvency in conducting and
r-xpondins; to federal facility
>"~.\ .'nrrr.pntal audits.
U'i;h respect to inspections of self-
..::;J:!eci facilities (see section III.B.l
i!'i:ve) and requests for audit reportu
•.<*e section \ll.A above). EPA generally
••-.ill respond to environmental audit:! by
;V:->ral facilities in the same manner as
i: Jo'is for uth"pip.j wi:h the spirit and intent of
r\ecutive Order 12086 and the EPA
f^'Jercl Facilities Compliance Strategy
i January 1984. update forthcoming in
Lite 1986). Federal agencies should,
hc/wever. be aware that the Freedom of
Information Act will govern any
disclosure of aud.t reports or audit-
venerated ;nforrrution requested from
f.'Jsral dsenries by the public.
'.Vhen federal agencies discover
•ii'-ir.ificant violations through an
.•nv.ronmental audit. EPA encourages
rr.Hm to submit th» related audit findings
.inJ remedial action plans expediriouiily
to the applicable EPA regional office
;.' 'sponsibie a>urpa of effective,
mature audit programs can help those
starting audit programs, especially
federal agencies and smaller businesses.
These elements also indicate the
attributes of auditing EPA generally
considers important to ensure program
effectiveness. Regulatory agencies may
use these elements in negotiating
environmental auditing provisions for
consent decrees. Finally, these elements
can help guide .states and localities
considering auditing initiatives.
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Federal Register / Vol. 51. No. 131 / Wednesday. July 9. 1986 / Notices
25009
An effective environmental auditing
system will likely include the following
general elements:
I. Explicit top management support for
environmental auditing and
commitment to follow-up on audit
findings. Management support may be
demonstrated by a written policy
articulating upper management support
for the auditing program, and for
compliance with all pertinent
requirements, including corporate
policies and permit requirements as well
as federal, state and local statutes and
regulations.
Management support for the auditing
program also should be demonstrated
by an explicit written commitment to
follow-up on audit findings to correct
identified problems and prevent their
recurrence.
II. An environmental auditing function
independent of audited activities. The
status or organizational locus of
environmental auditors should be
sufficient to ensure objective and
unobstructed inquiry, observation and
testing. Auditor objectivity should not
be impaired by personal relationships.
financial or other conflicts of interest.
interference with free inquiry or
judgment, or fear of potential
retribution.
III. Adequate team staffing and
auditor training. Environmental auditors
should possess or have ready access to
the knowledge, skills, and disciplines
needed to accomplish audit objectives
Each individual auditor should comply
with the company's professional
standards of conduct. Auditors, whether
full-time or part-time, should maintain
their technical and analytical
competence through continuing
education and training.
IV. Explicit audit program objectives.
scope, resources and frequency. At a
minimum, audit objectives should
include assessing compliance with
applicable environmental laws and
evaluating the adequacy of internal
compliance policies, procedures, and
personrv 'raining programs to ensure
continue- Compliance.
Audits should be based on a process
wliij. provides auditors: all corporate
policies, permits, and federal, state, and
local regulations pertinent to the facility:
and checklists or protocols addressing
specific features that should be
evaluated by auditors.
Explicit written audit procedures
generally should be used for planning
audits, establishing audit scope.
examining and evaluating audit findings.
communicating audit results, and
following-up.
V. A process which collects, analyzes.
interprets and documents information
sufficient to achieve audit objectives.
Information should be collected before
and during an onsite visit regarding
environmental compliance!;),
environmental management
effectiveness^), and other matters (3)
related to audit objectives and scope.
This information should be sufficient.
reliable, relevant and useful to provide a
sound basis for audit findings and
recommendations.
a. Sufficient information is factual.
adequate and convincing so that a
prudent, informed person would be
likely to reach the same conclusions as
the auditor.
b. Reliable information is the best
attainable through use of appropriate
audit techniques.
c. Relevcr.t information supports audit
findings and recommendations and is
consistent with the objectives for the
audit.
d. Useful information helps the
organization meet its goals.
The audit process should include a
periodic renew of the reliability and
integrity of this information and the
means used to identify, measure.
classify and report it. Audit procedures.
including the testing and sampling
techniques employed, should be selected
in advance, to the extent practical, and
expanded or altered if circumstances
warrant. The process of collecting.
analyzing, interpreting, and
documenting information should provide
reasonable assurance that audit
objectivity is maintained and audit goals
are met.
VI. A process which includes specific
procedures to promptly prepare candid.
clear and appropriate written reports on
audit findings, corrective actions, and
schedules for implementation.
Procedures should be in place to ensure
that such information is communicated
to managers, including facility and
corporate management, who can
evaluate the information and ensure
correction of identified problems.
Procedures also should be in place for
determining what internal findings are
reportable to state or federal agencies.
VII. A process which includes quality
assurance procedures to assure the
accuracy and thoroughness of
environmental audits. Quality assurance
may be accomplished through
supervision, independent internal
reviews, external reviews, or a
combination of these approaches.
Footnote* to Appendix
(7) A comprehensive assessment of
compliance with federal environmental
regulations requires an analysis of facility
performance against numerous
environmental statutes and implementing
regulations. These statutes include:
Resource Conservation and Recovery- Ac*
Federal Water Pollution Control Act
Clean Air Act
Hazardous Materials Transportation Act
Toxic Substances Control Act
Comprehensive Environmental Response.
Compensation and Liability Act
Safe Drinking Water Ac:
Federal Insecticide. Funcicide and
Rodenticide Act
Marine Protection. Research and Sanctuaries
Act
Uranium Mill Tailings Rad:u!:on Control Ai'
In addition, state and local anvernmtr.: *tr
likely to have their own environmental iaw»
Many states have been dtlrgaieu author:--. •»
administer federal programs Many local
governments' building, fire, safety and htal:'.
codes also have environmental rpquirent-rv*
relevant to an audit evaluation.
(2) An environmental audit could go «•-.
beyond the type of compliance asses?—*•?.•
normally conducted during regulator
inspections, for example, by evaluatr.;:
policies and pracfces regardless cf wi:r!~. •
they are part of the environment..; «v«tcn i--
the operating and maintenance prored;::i-«
Specifically, audits can evaluate the f \:-n: •<.
\\hir.h systems or procedures:
1. Develop organizational environment:;!
policies which: a. implement regulator;.
requirements: b. provide management
guidance for environmental hazard? noi
specifically addressed in reguiav.o:.*
2. Train and motivate facility person.-.?! to
work in an environmentally-accepiaUi'
manner and to understand and comply *:-h
government regulations and the en:-'\ *
environmental policy:
3. Communicate relevant env.ron.Tien:«:
developments expeditiously lu fari!:!> a.*..:
other personnel:
4. Communicate effectively -v.-ih
government and the public regardirc SK- .:.-•
environmental incidents:
5. Require third parties working for w-.th c,:
on behalf of the organization to foii'^v :!»
environmental procedures:
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23010 Federal Register / Vol. 51. No. 131 / Wednesday. July 9, 1986 / Notices
t). Make proficient personnel available at
.ill lime* to carry out envirenmestoi*
(rf illy emergency) procedures:
irpnrale environmental protection
ir.i'j ..itten operating procedures: .
4. Apply best management practice* and
'Perati-.g procMtlures. including "good
'>• 'list-keeping" techniques:
•' Institute preventive and currectivi
•':.!' Vi'njnr.e systems to minimize actual and
.••••'.•"•i::l rnvimnmental harm:
:n l:niize beat dvailuble process and
. .:•.!:•.;! technologies:
'. '. l'si> most-effective Sdir.pling and
••, •.:-.,:< r:rvj 'echniques. test method*.
••• .".;kf*ping systems or reporting protocols
• ' ••• '-ii rv.mimum leg^l requirpmeRts):
' J L\.ii:J lie causes behind any serious
,-.\ ir::- )' -liurrs to a\oid recurrence:
i.l r\oloi; soi.rce reduction. rec>cle jnd
•..*•• pi,iiMit;.il wherever practical; imi 'inrertainties.
Jr.. ISO COOC 15*0- 40- M
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Attachment B
Revised 10/17/86
A REPRESENTATIVE SAMPLE OF
ENVIRONMENTAL AUDITING SETTLEMENTS ACHIEVED TO DATE*
REGION Hi
Crompton and Knowles Corporation, Consent Agreement and Final
Order (CAFO), II TSCA-PCB-82-0108, 1/28/86. Compliance audit
of 28 facilities, covering TSCA PCB requirements, with certifica-
tion of compliance. EPA attorney: Randye Stein, FTS 264-8157.
REGION V:
BASF Wyandotte Corporation, CAFO, TSCA-V-C-410, 4/25/86.
In settlement of a premanufacture notification action under TSCA,
BASF agreed to conduct an audit (actually called a "review") of
all chemicals subject to TSCA §5 inventory requirements that
are produced, imported or used by 13 BASF facilities. BASF also
agreed to certify that (1) all chemicals manufactured by or
imported/purchased from its parent or an affiliate company are
listed on the TSCA Chemical Substances Inventory; and (2) to the
best of its knowledge, all chemicals purchased from unrelated
parties are listed on the TSCA inventory. EPA attorney: Art
Smith, FTS 886-4253.
Chemical Waste Management, Inc. (Vickery, Ohio facility), CAFO,
TSCA-V-C-307, RCRA-V-85R-019, 4/5/85. Management audit covering
all RCRA and TSCA requirements. Audit also addresses personnel
training, spill response, operations and maintenance, interim
stabilization, and quality control and assurance. EPA attorneys:
Rodger Field, FTS 886-6726; Michael Walker, FTS 475-8697.
Detroit Metropolitan (Wayne County Airport), CAFO, TSCA-V-C-468,
7/30/86.PCB compliance audit of all facilities with certification
of compliance and submission of inventory of each facility which
specifies general location and quantity of all PCBs and PCB items
subject to the requirements of 40 CFR Part 761. EPA attorney:
Dorothy Attermayer, FTS 886-6776.
Michigan Department of Mental Health, CAFO, TSCA-V-C-231, 1/4/85.
PCB compliance audit of all facilities, with certification of
compliance. EPA attorney: Michael Walker, FTS 475-8697.
Michigan Dei 'tment of Corrections, CAFO, TSCA-V-C-187, 10/9/83.
PCB compliance audit of all facilities, with certification of
compliance. EPA attorney: Michael Walker, FTS 475-8697.
Owens-Corning Fiberglas Corporation, CAFO, TSCA-V-C-101, 6/8/84.
PCB compliance audit of 63 facilities, with certification of
compliance. EPA attorney: Michael Walker, FTS 475-8697.
* Note: Some of the settlements identified herein may not fall
within the strict definition of "environmental auditing" but
contain requirements sufficiently similar to auditing to
warrant their inclusion.
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-2-
Potlatch Corporation, CAFO, TSCA-V-C-137, 8/31/83. PCS compliance
audit of all facilities, with certification of compliance. EPA
attorney: David Sims, FTS 353-2094.
Ren Plastics, an operating unit of Ciba-Geigy Corp. (E. Lansing,
Michigan), CAFO, TSCA-V-C-411, 2/12/86. CAFO requires review of
the chemicals manufactured by Ciba-Geigy plants with certification
tha-:. all chemicals are on the TSCA inventory. Respondent also
agreed to conduct an environmental seminar for plant personnel
with a section on TSCA compliance; respondent intends to continue
refining its employee training program. EPA attorney: Dorothy
Attormeyer, FTS 886-6776.
REGION VI:
USA v. Georgia-Pacific Corporation, Nos. 84-457-B and 85-136-B
(D.LA., entered 2/6/86).Clean Air Act Consent Decree requires
implementation of compliance plan produced by presettlement
audit, covering CAA National Emissions Standard for vinyl chloride.
EPA attorney: Elliott Gilberg, FTS 382-2864.
REGION IX:
Chemical Waste Management, Inc. (Kettleman Hills, California
facility), CAFO, RCRA-0984-0037, TSCA-09-84-0009, 11/7/85.
Management audit covering all RCRA and TSCA requirements. Audit
also addresses personnel training, spill response, operations and
maintenance, interim stabilization, and quality control and
assurance. EPA attorneys: Bill Wick, FTS 454-8039; Keith Onsdorff,
FTS 1)82-3072 .
REGION X:
Allstate Insurance Company, CAFO, X83-09-09-2614, 5/25/84. PCB
audit of 140 buildings nationwide, formulation of PCB inspection
plan and guidelines to be distributed to facility managers, and
follow-up training conferences and review of program implementation.
EPA attorney: Ted Rogowski, FTS 399-1185.
Bonneville Power Administration, Memorandum of Agreement with
EPA, 2/20/85.MOA provides for: (1) training of personnel
conducting TSCA inspections, CERCLA preliminary assessments, and
sit<» investigations; (2) conduct of environmental audits covering
TSCA ;?CB requirements; (3) testing and evaluation of facilities
to determine status of compliance with TSCA and to assess threatened
or actual release of "hazardous substances" as defined by CERCLA;
and (4) remedial actions to be taken based upon risk assessment
that utilizes criteria and information in the National Contingency
Plan. EPA attorney: Ted Rogowski, FTS 399-1185.
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-3-
Chem Security Systems/ Inc. (Arlington, OR), CAFOs, TSCA 1085-
07-42-2615P, 12/26/85; and RCRA 1085-06-08-3008P, 12/2/85.
Four compliance audits (performed quarterly over a one-year period),
covering all RCRA requirements and PCB requirements under TSCA.
EPA attorney: Barbara Lither, FTS 399-1222.
Crown Zellerbach Corporation, CAFO, X83-06-08-2614, 11/30/83.
Settlement provides for refinement of existing corporate-wide
compliance program for TSCA PCB requirements, including certification
of compliance. EPA attorneys Ted Rogowski, FTS 399-1185.
Roseburg Lumber Company, CAFO, X83-05-02-2614, 1/10/85. Settlement
provides for development of a training program and manual describing
PCB compliance requirements and procedures; and a program to bring
12 facilities into full compliance with TSCA PCB requirements
within one year of settlement. EPA attorney: Ted Rogowski,
FTS 399-1185.
Washington State University, CAFO, X83-05-02-2614, 5/30/84.
Settlement provides for development of guidance manual for employees
regarding proper handling of PCBs, followed by training sessions
to ensure employees' familiarity with PCB compliance procedures.
EPA attorney: Ted Rogowski, FTS 399-1185.
HEADQUARTERS:
American Petrofina Company of Texas, Nos. 1217 and 1293, 9/5/85.
Consolidated Clean Air Act Settlement Agreement requires institu-
tion of annual visitation program by Respondent to verify the
existence of proper unleaded gasoline handling procedures at all
branded gasoline retail outlets. EPA attorneys: Rich Kozlowski,
FTS 382-2633; Rich Ackerman, FTS 382-4410.
Ashland Oil, Inc. (Catlettsburg, KY refinery), No. •
(E.D. Kentucky, entered ). Clean Water Act consent
decree requires the performance of a "Wastewater Treatment System
Engineering Study" by an independent party and the implementation
of those recommendations agreed upon by the parties. Settlement
also mandates the commencement of a "Best Management Practices
Study" in order to minimize potential significant releases;
includes the developr nt of a toxicity testing and control plan
and establishes a stipulated penalty schedule for daily and
monthly violations of effluent limits contained in Defendant's
NPDES permit. EPA attorney: Joseph Moran, FTS 473-8185.
BASF Systems Corporation, CAFO, TSCA-85-H-04, 5/28/86.
Environmental management audit and development of procedures for
handling chemical substances imported from BASF's German parent
corporation. BASF will pay a stipulated penalty of $10,000 per
"safe" chemical not listed on the TSCA Chemical Inventory. EPA
will apply the TSCA PMN penalty policy to violations for unregis-
tered "bad" chemicals discovered in the "review" process. EPA
attorney: Michael Walker, FTS 475-8697.
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-4-
Chapman Chem. Co., et al., FIFRA 529, et al. , Filed 9/30"/85.
The industry parties to the settlement agreement agreed to imple-
ment and participate in a voluntary Consumer Awareness Program
to provide users of treated wood products with use, handling,
and precautionary information. The focus of the program is a
Consumer Information Sheet which contains language approved by
the Agency. Industry agreed to conduct an audit of the program
within a year after settlement and to submit the results of
the audit to EPA within 30 days of its completion. EPA attorney:
Cara Jablon, FTS 382-2940.
Chemical Waste Management, Inc. (Emelle, Alabama facility), CAFO,
TSCA-84-H-03,12/19/84.Management audit covering all RCRA and
TSCA requirements. Audit.also addresses personnel training,
spill response, operation's and maintenance, interim stabilization,
and quality control and assurance. EPA attorneys: Keith Onsdorff,
FTS 382-3072; Alex Varela, FTS 475-8690; Arthur Ray, FTS 382-3050.
Conoco Inc. and Kayo Oil Company, CAA (211)-449, 520, 596, 709,
and 710,8/31/83. Settlement Agreement requires (or confirms):
(1) revision of Conoco's Jobber Franchise Agreement to include
provision for unleaded gasoline sampling on a quarterly basis at
each Conoco Jobber retail outlet; (2) all drivers of Conoco
company cars to certify that no tampering has occurred which
would allow the introduction of leaded gasoline into a vehicle
requiring unleaded gasoline; (3) posting of public information
notices designed to inform Kayo customers of problems related to
fuel switching; and (4) training to inform Kayo employees of
EPA unleaded fuels regulations. EPA attorneys: Rich Kozlowski,
FTS 382-2633; Rich Ackerman, FTS 382-4410.
Department of Defense, Federal Facility Compliance Agreement,
12/30/83.Agreement covers all DoD facilities where PCBs are
stored for disposal; establishes compliance plan designed to
achieve and maintain compliance with all applicable PCB storage
and disposal requirements. EPA attorney: Deeohn Ferris,
FTS 475-8690.
Diamond Shamrock Corporation, CAFO, TSCA-85-H-03, 7/15/85.
Compliance audit of 43 facilities, covering all TSCA requirements.
EPA attorneys: Deeohn Ferris, FTS 475-8690; Bob Pittman, FTS
475-8690.
General Electric Co. (Waterford, NY facility), No. 84-CV-681
(N.D.N.Y., entered ). Clean Water Act consent decree
requires the implementation of an engineering study to insure
compliance with Defendant's N/SPDES permit. Settlement also
requires monthly progress reports to be submitted to EPA with
provisions for stipulated civil penalties for discharge violations,
EPA attorney: Joseph Moran, FTS 475-8185.
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Mac Oil Company d/b/a Circle Oil, No. FOSD-1908, 5/21/85. Clean
Air Act Settlement Agreement requires: (1) institution of an
unleaded gasoline sampling and testing program at all facilities
receiving unleaded gasoline from Respondent; (2) inspections of
the gasoline pumps at all facilities to which Respondent delivers
gasoline to determine compliance with nozzle/ label and warning
sign requirements; and (3) maintenance of a company unleaded
gasoline policy that informs all employees, agents and common
carriers of gasoline handling and compartment labeling procedures.
EPA attorney: Dean Uhler, FTS 382-2947.
National Convenience Stores, Inc. d/b/a Stop "n Go, Nos. FOSD-1140
and FOSD-1404,8/16/84.Consolidated Settlement Agreement requires:
(1) institution of a program for compliance with EPA unleaded fuels
regulations at all retail gasoline outlets that Respondent operates
under any name, including periodic verification that nozzle require-
ments are met; and (2) submission to EPA of a Certificate of Compliance.
EPA attorney: Rich Kozlowski, FTS 382-2633.
Phillips Petroleum Company, Consolidated Clean Air Act Settlement
Agreement,3/11/85.Settlement requires Phillips to: (1) estab-
lish, implement and maintain a program for unleaded gasoline
quality assurance among its branded marketers and retailers;
(2) conduct a threephase program of sampling unleaded gasoline at
all branded retail outlets in the United States; (3) conduct annual
inspections of ten percent of its branded retail outlets in the
United States for compliance with EPA unleaded gasoline regula-
tions; (4) at the time of contract renewal, review with its
marketers and retailers their contractual obligations pertaining
to the sale, handling, and distribution of unleaded gasoline; and
(5) conduct a review of its Unleaded Gasoline Quality Assurance
Program after the first year of operation and submit a written
report to EPA assessing the program's effectiveness in improving
the quality of unleaded gasoline and reducing the potential or
actual number of violations of the regulatory limits for lead.
EPA attorney: Rich Kozlowski, FTS 382-2633.
R.I. Marketing, Inc., No. FOSD-1611, 10/5/84. Clean Air Act
Settlement Agreement requires institution of a fuel switching
preventative action program, at each of approximately 200 retail
outlets, designed to prevent leaded gasoline from being introduced
into vehicles requiring unle ""^d fuel. EPA attorney: Rich
Kozlowski, FTS 382-2633.
Savoca's Service Center, Inc., No. FOSD-2101, 10/17/85. Clean Air
Act Settlement Agreement requires institution of a fuel switching
preventative action program, at all retail outlets, designed to
prevent leaded gasoline from being introduced into vehicles
requiring unleaded fuel. EPA attorney: Rich Kozlowski, FTS
382-2633.
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Union Carbide Corporation, CAFO, TSCA-85-H-06, 2/26/86. Settlement
provides for development of a training program emphasizing pre-
manufacture notification requirements under TSCA, followed by
a test program to monitor responses for compliance with TSCA.
EPA attorney: Alex Varela, FTS 475-8690.
United American Fuels, Inc., No. FOSD-1578, 12/18/84. Clean Air
Act Settlement Agreement requires implementation of a fuel additive
quality control and testing program. EPA attorney: Rich Kozlowski,
FTS 382-2633.
USA v. Parma, Ohio, No. C-85-208, (N.D. Ohio, February 28, 1985).
Gleam Air Act Consent.Judgment requires Defendant to: (1) replace
catalytic converters that had been removed illegally; (2) inspect
(periodically for two years) all city vehicles for tampering with
emission controls; (3) tune-up and test (periodically for two
years) all city vehicles for emissions; (4) report all tampering
found to EPA and take appropriate remedial measures; (5) train
mechanics in compliance with EPA standards; (6) distribute pamph-
lets discussing tampering and fuel switching to all households in
Parma, Ohio; and (7) display for one year posters cautioning
against tampering and fuel switching. EPA attorney: Debra
Rosenberg, FTS 382-2649.
USA v. State of Maine, No. 84-0152-B (D. Maine, November 19, 1985)
Clean Air Act Consent Decree requires State to (1) inspect all
Main<» Forest Service vehicles for tampering with emission control
devices, and correct deficiencies; (2) inspect each gasoline
fuel:.ng facility owned or operated by the Maine Department of
Conservation for compliance with label, notice and nozzle size
requirements, and correct deficiencies; (3) publicize to Maine
Fores:t Service personnel and the public the importance of comply-
ing with mobile source requirements; and (4) implement fully the
catalytic converter and inlet restrictor inspection program
mandated by State law, and audit at least 90 percent of licensed
inspection facilities to verify compliance. EPA attorney:
Richard Friedman, FTS 382-2940.
Note: The settlements identified herein relating to mobile source
enforcement under the Clean Air Act are representative of approxi-
mate 1 y 200 such settlements that have been achieved to date.-
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Attachment C
MODEL ENVIRONMENTAL COMPLIANCE AUDIT PROVISION FOR CONSENT
"DECREES OR AGREEMENTS"
A.I. Defendant/Respondent shall, within sixty days after
the effective date of this Decree/Agreement [and where a contin-
uing audit requirement is appropriate, add: and not less often
than annually thereafter for a five-year period], audit the
status of [applicable statutory] compliance at the [site of
facility(ies)] and take prompt remedial action against all
violations found.
A.2. Defendant/Respondent .shall, within sixty days after
completion of the compliance audit required by paragraph I/
submit to EPA's [name of EPA office overseeing compliance with
Decree/Agreement] a certification that, to the best of its
knowledge, Defendant/Respondent is in compliance with all
[applicable statutory and regulatory] requirements or has
developed a schedule for achieving compliance subject to EPA
approval.
A.3. Nothing in this Decree/Agreement shall preclude EPA
from instituting enforcement actions against Defendant/Respon-
dent for any violations of [applicable statutory and regulatory]
requirements which are not cited within the Complaint giving
rise to this Decree/Agreement.
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Attachment D
MODEL ENVIRONMENTAL MANAGEMENT AUDIT PROVISION FOR CONSENT
DECREES OR AGREEMENTS
B.I. Defendant/Respondent shall propose to EPA's [name of
EPA office overseeing compliance with Decree/Agreement] by
written submittal to [name of Agency contact] within thirty (30)
days of the effective date of this Decree/Agreement, the scope
of work for the services of a [third party or internal] auditor
who shall be expert in environmental auditing, environmental
management systems and [applicable statutory program(s)] management
operations. Such auditor shall be independent of and in no way
responsible to production management. This scope of work and
auditor shall be agreed upon by EPA and Defendant/Respondent in
writing, prior to the auditor's commencing the performance of
the professional services more fully set forth below. The
auditor will be retained and the scope of work will be designed
to review and make recommendations regarding the improvement of
Defendant's/Respondent's environmental compliance and management
policies, practices, and systems at the [site of facility(ies)]
and in the Defendant's/Respondent's corporate offices having
responsibility for supervision of compliance activities at such
facility(ies).
2. Within one hundred twenty (120) days after agreement
upon the scope of work and the auditor, the auditor shall
submit a written Environmental Audit Report to the Defendant/
Respondent. This Report shall:
a. Identify and describe the existing facility
environmental management operations and the corporate offices
responsible for overall company-wide environmental compliance
and management systems, policies and prevailing practices as
they affect [applicable statutory and regulatory] compliance
at the [site of facility(ies)].
b. Evaluate such operations and systems, practices
and policies and identify and describe fully the perceived
weaknesses in such operations and systems, practices and policies
by comparing them, to the extent practicable, to:
i. their ability to promote compliance with
[applicable statutory and regulatory] reqi irements;
ii. the existing practices, programs and policies
of other [applicable industry] corporations operating within
the continental United States, including consideration of the
available literature and consultant's experience pertinent to
regulatory compliance programs, practices and policies currently
operative in the [applicable industry] in the continental
United States;
iii. the history of [facility] operations in terms
of the facility's(ies') compliance programs, compliance record
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and environmental management practices over the previous five
years [or longer if necessary or relevant].
The auditor shall apply its expertise and judgment
i:o the foregoing information, using such factors as the auditor
believes to be relevant and appropriate, which factors shall
be stated in the report.
c. Based on the evaluation required in paragraphs
2.a. and b. above, the auditor shall identify and describe
fully with supporting rationales the perceived areas, if any,
where Defendant's/Respondent's environmental management systems,
practices and policies may be improved as they affect the
[facility(ies)] regarding [applicable statutory] compliance
obligations, listing specific options for any improvements at
the [facility{ies)] in the following areas:
i. environmental compliance program management
operation, staffing, education and experience requirements.
ii. compliance management budget, lines of authority
to Defendant's/Respondent's corporate offices responsible for
overall company-wide environmental compliance and management
systems, policies, and practices, and relationship to the
operating facility(ies) manager.
iii. personnel training for individual employee
compliance obligations and [applicable medium-specific
activities].
iv. Operations and Maintenance (O&M) procedures for
[applicable medium-specific pollution control] equipment.
v. evaluation of [applicable industry] operations
and pollution control equipment in terms of adequacy'of
design and compatibility with [applicable medium-specific
substances] being passed through such equipment.
vi. quality and thoroughness of implementation of
all waste and wastewater [or other pollutant source] analysis
plans for both ir-:oming and outgoing waste [or other pollutant]
streams, whether -^rectly discharged, emitted, released to the
ambient environment, or conveyed off-site in bulk shipments.
vii. preparation of Quality Assurance and
Quality Control programs for sampling and analysis and
for environmental testing procedures, including [facility(ies)]
laboratories and contract laboratories for [facility(ies)].
viii. preparation of records needed to provide the
[facility(ies)] management with an adequate data base to accurat'
determine compliance with all applicable statutory and regulatory
requirements, with particular attention to waste [or other
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^
pollutant] generation (including quantity and chemical composi-
tion), movements, treatment, and ultimate disposition by location
of waste [or other pollutant] source, handling, points and final
disposition. This evaluation shall encompass proposals for
state-of-the-art data management systems providing timely
access to all of the above records to be maintained, by an
onsite computer.
ix. preparation of self-monitoring reports required
to be filed with the State and EPA.
x. preparation and review of Incident Reports
evaluating causes of [applicable medium-specific pollution
control] equipment malfunctions, improper [applicable medium-
specific substances] handling, or breakdowns, with specific
recommendations for corrective steps and preventive O&M, along
with procedures for reporting these recommendations to corporate
headquarters.
3. Within 30 days after Defendant's/Respondent's receipt
of the Audit Report, Defendant/Respondent shall submit to EPA
that portion of the Audit Report which contains the recommenda-
tions of the auditor, together with a report of Defendant's/
Respondent's good faith evaluation of each option it has selected
for adoption and the reasons for rejecting other options. The
report by Defendant/Respondent shall set forth the specific
actions the company shall take and a schedule, not to exceed
sixty (60) days [or longer if necessary] from the date that EPA
receives and evaluates the schedule, for implementation of the
recommendations adopted by Defendant/Respondent.
4. Any failure by Defendant/Respondent to meet the schedule
for implementing the audit program set forth in this Decree/
Agreement shall result in stipulated penalties of [$_, ] (in
addition to whatever sanctions the court/ALJ may impose for
contempt), payable by Defendant/Respondent to the U.S. Treasury,
for each day such schedule is not met.
B. Nothing in this Decree/Agreement shall preclude EPA from
instituting enforcement actions against Defendant/Respondent
for any violations of [applicable statutory and r« nulatory]
requirements which are not cited within the Complaint giving
rise to this Decree/Agreement.
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A Note Concerning Application of the Model Provisions
Attachments C-G represent model provisions for the
incorporation of environmental auditing requirements within
enforcement settlements. These models are based upon medium-
specific settlements and necessarily reflect the circumstances
surrounding those settlements. Accordingly, Agency negotiators
should not hesitate to alter them as necessary to meet the
needs of a particular case. An attempt has been made to
fashion the models in such a manner that they can be used
in any enforcement settlement; however, some language has
been retained which applies to only one or two EPA programs.
Even where specific language is found to be inapposite, the
general headings under which such language is found should
provide helpful guidance to Agency personnel in identifying
the categories of issues which a particular type of auditing
settlement should address.
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Attachment E
MODEL ENVIRONMENTAL COMPLIANCE AND MANAGEMENT AUDIT PROVISION
FOR CONSENT DECREES AND AGREEMENTS
C.I. Defendant/Respondent shall conduct environmental
audits of its facility(ies) [of appropriate frequency and
duration] in accordance with the Audit Workplan attached hereto
as Exhibit B [company specific; not included]. The first such
audit shall commence on or about three months from the effective
date of this Decree/Agreement. Each of the audits shall be
completed in accordance with the schedule set forth in the
Audit Workplan.
2. The performance standard of each such audit is to
complete a detailed and professional investigation as set forth
in the Audit Workplan of the facility's recordkeeping practices
and environmental management operations during the [applicable
period]. In accordance with the Audit Workplan, the following
audit reports shall be prepared and submitted, with copies of
supporting documentation, to EPA within thirty days following
the initiation of each such audit:
a. A report on all [pollutants] whose locations (as
reported in the facility records) differ from their observed
physical location or whose physical locations cannot be corrob-
orated by existing records kept at the facility.
b. A report of all quantity variations (of 10% or more
by volume or weight, or any variation in piece count) between
[pollutants] received and [pollutants] disposed of at the
facility.
c. A report on Defendant's/Respondent's activities at
the facility in terms of whether or not they comply wj.th the
procedures required under the [Pollutant] Analysis Plan for
[pollutant] acceptance. Defendant/Respondent shall include
with this report the results of a minimum of three laboratory
(including Defendant's/Respondent's laboratory) analyses of
blind standards (i.e., pre-analyzed samples whose concentrations
are unknown to the laboratories participating in the audit) to
be provided by the audit team to evaluate .Defendant's/Respondent's
ability to quantify representative hazardous constituents in
various media.
d. A report of any observed deviations from Defendant's/
Respondent's written operating procedures, including documentation
on any untimely response to the repair and/or replacement of
deteriorating or malfunctioning [pollutant] containers, structures,
or equipment.
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-2-
e. Recommendations as to potential significant improve-
ments and/or modifications which should be made to Defendant's/
Respondent's operating procedures to achieve compliance with
[applicable statutory and regulatory] requirements.
3. Nothing in this Decree/Agreement shall preclude EPA
from instituting enforcement actions against Defendant/Respondent
for any violations of [applicable statutory and regulatory]
requirements which are not cited within the Complaint giving
rise to this Decree/Agreement.
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Appendix 1
DEFENDANT'S/RESPONDENT'S FACILITIES
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
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Attachment F
MODEL ENVIRONMENTAL COMPLIANCE AND MANAGEMENT AUDIT* PROVISION
FOR CONSENT DECREES AND AGREEMENTS*
TABLE OF CONTENTS
. Page
I. PRELIMINARY STATEMENT
Purposes of Consent Decree/Agreement 1
II. DEFINITIONS 1
III. GENERAL AUDIT PROCEDURES
Preliminary Matters
Scope of Work 6
Establishment of Trust 6
Selection of Audit Firm 7
Audit Seminar 7
Observation of EPA Protocols 7
Review of Work Plan 7
Facilities to be Audited 8
IV. FACILITY COMPLIANCE AUDITS
Records to be Examined 9
Records Relevant to Compliance
with RCRA 9
Records Relevant to Compliance
with TSCA 9
Records to be Examined by the
Audit Firm 9
Access to Documents 10
* This provision is only appropriate for a party with an exten-
sive history of noncompliance. It requires a high level of
Agency oversight. Based on a draft settlement document, the
provision reflects a pro-Agency bias and thus is more suscep-
tible than other model provisions to the give and take of
the negotiation process. While the provision only addresses
requirements under RCRA and TSCA, audit provisions under
other statutes may be crafted by using as a framework the
headings contained in this provision.
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TABLE OF CONTENTS (Continued)
Page
Public Access to Records 10
Assertion of Confidential Business
Information Claims 10
Tentative Observance of CBI Claims 11
Preservation of Records 11
'•4f
Examination of Groundwater Monitoring
Information 11
Audit Schedule/Agency Access to
Defendant's Facilities 11
Facility Audit Reports 11
Correction of Violations/Submission of
Compliance Plans 12
V. PENALTIES AND CORRECTIVE ACTION
For Missed Audit Deadlines 12
For Violations of RCRA/TSCA
Payment of Penalties 12
Unlisted Violations 13
Uncorrected or New
Violations 13
VI. RESERVATION OF RIGHTS
Reservation of States' and Local Govern-
ments' Right to Inspect 13
Reservation of Agency's Right
to Relief 14
VII. MANAGEMENT SYSTEMS AUDIT
Corporate Management Systems Report 14
Corporate Management Report and Plan 14
11
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TABLE OF CONTENTS (Continued)
Page
VIII. MISCELLANEOUS TERMS
Submission of Reports 14
Effective Date of Decree/Agreement 15
Notice 15
Modification 15
Dispute Resolution 15
Continuing Jurisdiction of the District
Court/Administrative Law Judge 15
Relation to RCRA Permitting Process 15
Violations Not Covered by RCRA or TSCA.... 16
Continuing Audit Requirement 16
DEFENDANT ' S/RESPONDENT ' S FACILITIES Appendix 1
PENALTY SCHEDULE Appendix 2
CORPORATE MANAGEMENT SYSTEMS REPORT
PROTOCOL Appendix 3
ill
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1. Purposes of Consent Decree/Agreement. In order to
achieve the mutual goal of ensuring full compliance with applicabj.
environmental laws, regulations, and permits by Defendant's/
Respondent's active facilities in an efficient and coordinated
manner, Defendant/Respondent and EPA hereby enter into a Consent
Decree/Agreement under which:
(L) independent auditors to be retained by EPA and
paid for by Defendant/Respondent shall, subject to EPA
oversight, audit each facility and report to both
parties on their assessment of Defendant's/Respondent's
compliance with RCRA and TSCA and their implementing
permits, rules and regulations;
(2) the independent auditors shall perform an analysis
of Defendant's/Respondent's environmental management
systems, practices and policies, as they affect inter-
facility and intra-facility transactions (as defined
in Paragraphs 5(11) and 5(12) of this Decree/Agreement);
(3) Defendant/Respondent shall pay penalties for
violations of the aforementioned statutes, permits,
rules and regulations according to the Penalty Schedule
set forth as Appendix 2 to this Decree/Agreement; and
. (4) EPA shall accept the penalties provided in Appendix
2 as full and complete settlement and satisfaction of
any of its civil claims for violations detected by
the audit firm (with certain exceptions as set forth
in Paragraphs 23, 24, and 25 of this Decree/Agreement)
TERMS OF SETTLEMENT
DEFINITIONS
5. Whenever the following terms are used in this Decree/
Agreement, the definitions specified herein shall apply:
(1) Compliance Report and Plan; A document to be
submitted by Defendant/Respondent to EPA, pursuant tc
Paragraph 19 of this Decree/Agreement, which:
(a) describes in full detail every corrective
action taken in response to a Facility
Audit Report;
(b) in the case of violations which are not
corrected within 60 days of submittal of
the Facility Audit Report, describes every
action to be taken in response to any
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-2-
violations or findings in the Facility
Audit Report; and
(c) certifies under oath the accuracy of
information contained in the Compliance
Report and Plan.
(2) Confidential Business Information (CBI)
(a) Information/Documents Determined Not to Be
Entitled to CBI Protection. It is agreed
between the parties that portions of docu-
ments containing the following information
shall not be eligible for CBI treatment:
(i) The fact that any chemical waste was
disposed of at any Defendant/Respondent
facility.
(ii) The location of disposal of any chemical
waste at any Defendant/Respondent facility.
(iii) Any information contained or referred
to in any manifest for any chemical
waste disposed of at any Defendant/
Respondent facility.
(iv) The identity and quantity of any chemical
waste disposed of at any Defendant/Respondent
facility.
(v) Any monitoring data or analysis of
monitoring data pertaining to disposal
activities at any Defendant/Respondent
facility/ including monitoring data
from any well/ whether or not installed
pursuant to 40 C.F.R. Part 265, Subpart
F, or 40 C.F.R. Part 254, Subpart F
(RCRA Groundwater Monitoring Requirements).
(iv) Any permit applications submitted to
EPA or to any state pursuant to federal
or state statute or regulation.
(vii) Any information regarding planned im-
provements in the treatment, storage or
disposal of chemical wastes at any
Defendant/Respondent facility.
(viii) Any hydrogeologic or geologic data.
(ix) Any groundwater monitoring data.
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(x) Any contingency plans, closure plans,
or post-closure plans.
(xi) Any waste analysis plans.
(xii) Any training and/or inspection manuals
and schedules.
(xiii) Any point source discharge or receiving
water monitoring data.
(b) The status of information not listed in Section
(a) above shall be determined in accordance with
40 CFR Part. ,2, which provides for CBI treatment of
information where:
(i) Defendant/Respondent has taken reasonable
measures through the issuance and
observance of companywide policies and
procedures to protect the confidentiality
of the information, and that it intends
to continue to take such measures;
(ii) The information is not, and has not been,
reasonably obtainable without Defendant's
Respondent's consent by other persons
(other than governmental bodies which
are bound by and observing Defendant's/
Respondent's claims of CBI as to that
information) by use of legitimate means
(other than discovery based on a showing
of special need in a judicial or quasi-
judicial proceeding);
i
(iii) Disclosure of the information is likely
to cause substantial harm to Defendant's/
Respondent's competitive position.
(3) Corporate Management Report and Plan; A document
submitted by Defendant/Respondent to EPA, pursuant to
Paragraph 27 of this Decree/Agreement, describing in
full detail what actions Defendant/Respondent has
taken or will take to implement the findings of the
Corporate Management Systems Report.
(4) Corporate Management Systems Report; A fully
integrated separate report prepared pursuant to the
Corporate Management Systems Report Protocol set
forth in Appendix 3 of this Decree/Agreement and
submitted by Defendant/Respondent to EPA pursuant
to Paragraph 26 of this Decree/Agreement.
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(5) Corrective Action; Any action taken by Defendant/
Respondent in order to come into compliance with any
federal, state or local statutory or regulatory
requirement for the treatment, storage, or disposal
of any Hazardous Substance.
(6) Facility Audit Reports; Reports to be submitted
by the Audit Firm to EPA, pursuant to Paragraph 19
of this Decree/Agreement, which;
(a) describe in detail the procedures followed
in the facility audit, the facility itself,
the regulatory history of the facility,
and the facility's current compliance
status;
(b) describe in detail each violation detected
during the audit;
(c) provide any other information which, in
the judgment of the Audit Firm, merits
Agency review;
(d) for each violation reported, provide the
relevant statutory or regulatory section;
the particular area of the facility where
the violation was found (if appropriate);
the dates during which the violation
occurred or existed (if it can reasonably
be determined); and any other relevant or
appropriate information.
(7) Hazardous Substances; Those materials meeting
the definition contained in the Comprehensive
Environmental Response, Compensation, and Liability
Act ("CERCLA"), 42 U.S.C. §§9601 et se£., §9601(14).
(8) Hazardous Wastes; Those materials meeting the
definition contained in 42 U.S.C. §6903(5) and the
regulations promulgated at 40 C.F.R. Part 261.
(9) Independent Audit Firm ("Audit Firm"); A firm
selected by EPA, pursuant to Paragraph 6 of this
Decree/Agreement, for the purpose of performing the
Facility Compliance and Management Systems Audits
described herein. For the purpose of this Decree/
Agreement, the Independent Audit Firm must exercise
the same independent judgment that a Certified Public
Accounting firm would be expected to exercise in
auditing a publicly held corporation. In addition,
the Independent Audit Firm must;
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(a) not own stock in Defendant/Respondent
or any parent, subsidiary, or affiliated
corporation;
(b) have no history of participation in any
previous contractual agreement with
Defendant/Respondent or any parent, subsidiary,
or affiliated corporation; and
(c) have no other direct financial stake in
the outcome of the Facility Compliance or
Management Systems Audits outlined in
this Decree/Agreement.
I! 10) Inter-facility Transactions; Any letters,
contracts, memoranda, or other communications between
two or more offices or facilities owned or operated
by Defendant/Respondent.
(11) Intra-facility Transactions; Any letters,
contracts, memoranda, or other communications between
two or more locations or offices at a single Defendant/
Respondent Facility.
(12) Manifest; The shipping document EPA form
8700-22 and, if necessary, EPA form 8700-22A (as
required by 40 C.F.R. Part 262) or equivalent.
(13) New Violation; Any statutory or regulatory
violation not reported in the Facility Inspection
Report.
(14) Plaintiff; The United States of America, for
the Administrator of the United States Environmental
Protection Agency (collectively, "the Agency" or
"EPA").
(15) Records; Any Defendant/Respondent or consultant
report, document, writing, photograph, tape recording
or other electronic means of data collection and
retention which bears upon Defendant's/Respondent's
compliance with EPA, state and local rules and regulations
(16) Facility; Any facility which treats, stores, or
disposes of hazardous waste as those terms are defined
at 42 U.S.C. §§6903(3), 6903(33), and 6903(34).
(17) Uncorrected Violation; Any violation reported
in a Facility Inspection Report which remains
uncorrected for 60 days or more after the completion
and submission of the Facility Inspection Report
pursuant to Paragraph 19 of this Decree/Agreement.
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GENERAL AUDIT PROCEDURES
6. Preliminary Matters
(!) Scope of Work
(a) Defendant/Respondent shall submit to the Agency
within thirty (30) days of the effective date of this
Decree/Agreement the Scope of Work for audits of the
Defendant/Respondent facilities listed in Appendix
1 for RCRA and TSCA violations. EPA shall have
thirty (30) days from the date of receipt of this
Scope of Work and proposed Audit Firm to submit to
Defendant/Respondent in writing any proposed modifi-
cations in the scope of work.
(b) Defendant/Respondent shall have fifteen (15)
days from the date of receipt of EPA's proposed modifi-
cations within which to submit in writing its comments
upon those proposed modifications.
(b) Within ten (10) days of receipt of Defendant's/
Respondent's comments, the Agency shall issue its
final decision as to the Scope of Work, which shall
be binding upon Defendant/Respondent.
(2) Establishment of Trust
(a) Within thirty (30) days of the date of this
Decree/Agreement, Defendant/Respondent shall establish
an irrevocable trust fund ("Trust"), the form and
text of which shall be approved by EPA. If no fund
is approved by EPA within thirty (30) days of the
date of this Decree/Agreement, a form supplied by EPA
shall be used. The Trustee shall be a bank'selected
by Defendant/Respondent, which must be approved by EPA.
(b) The Administrator of EPA shall have special
power of appointment (and the only power of appoint-
ment) over all income and all assets of the Trust.
That powez may be exercised only to make appointments
of funds i.. accordance with this Decree/Agreement.
If, at the conclusion of all tasks set forth in this
Decree/Agreement, there remains trust Income or
assets which have not been appointed by exercise of
such special power, then all such remaining unappointed
assets shall be delivered forthwith to Defendant/
Respondent. Defendant/Respondent shall fund the
Trust by placing $ ^_^^ in the hands of the
Trustee within forty-five (45) days after the date of
this Decree/Agreement.
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(3) Selection of Audit Firm
(a) Within forty-five (45) days after the date of
this Decree/Agreement, EPA shall notify Defendant/
Respondent of its selection of a proposed Audit Firm.
Defendant/Respondent shall have fifteen (15) days from
the date of receipt of EPA's proposed Audit Firm to
accept, reject, or comment upon this selection.
Reasons for which Defendant/Respondent may reject the
proposed Audit Firm are limited to lack of sufficient
national reputation; inexperience in performing
environmental compliance and management audits;
inadequate staffing levels; and failure to qualify as
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-8-
Work Plan shall include the auditing protocols to be
used by the Audit Firm; a schedule for conducting
facility audits and completion of all other tasks
set forth in the Scope of Work; and the names and
resumes of those Audit Firm employees who will be
primarily responsible for performance of the tasks
set forth in the Scope of Work. The proposed Work
Plan shall not specify the order of audits or otherwise
provide Defendant/Respondent with advance notice of
specific audits.
(2) EPA and Defendant/Respondent shall have 30 days
.from the date of receipt of the-proposed Work Plan to
submit in writing any proposed revisions to the proposed
Work Plan.
(3) The Audit Firm shall have fifteen (15) days from
the date of receipt of these revisions within which
to submit in writing its comments on these proposed
revisions.
(4) Within ten (10) days of receipt of the Audit
Firm's comments, EPA shall issue its final decision
as to the work plan, which shall be binding on both
Defendant/Respondent and the Audit Firm.
(5) The provisions of this Paragraph shall also be
set forth as provisions of the contract between
Defendant/Respondent and the Audit Firm for the
performance of the subject audits.
10. Facilities to be Audited. The Audit Firm shall,
subject to the provisions set forth herein, conduct comprehensive
RCRA/TSCA Compliance Audits (see Paragraphs 11 through 25) and
a Management Systems Audit (see Paragraphs 26 and 27) of the
facilities listed in Appendix 1 of this Decree/Agreement.
The designation of RCRA/TSCA as the primary areas of a.udits
shall not prohibit the Audit Firm from auditing and reporting
violations of any other environmental statutes or regulations
should those violations come to the attention of the Audit Firm
audit team during the inspe tions. Notice of individual
facility audits shall be provided to NEIC at least thirty (30)
days prior to scheduled visits. Advance notice of individual
facility inspections shall not be provided to Defendant/Respondent
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-9-
FACILITY COMPLIANCE AUDITS
Review of Records
11. Records to be Examined.
&. Records Relevant to Compliance with RCRA.
Facility audits may include a review of any facility
record of Defendant/Respondent or its predecessors
from November 1980. Other records pre-dating
November 1980 which bear on the facility's compliance
after November 1980 may also be examined, but
only to the extent that they are necessary to
render judgment regarding any event occurring
after November 1980.
br Records Relevant to Compliance with TSCA.
Facility audits may include a review of any facility
record of Defendant/Respondent or its' predecessors
from April 1978 which is relevant to compliance
with TSCA and its implementing regulations.
Other records pre-dating April 1978 which bear on
the facility's compliance after April 1978 may
also be examined, but only to the extent that they
are necessary to render judgment regarding any
event occurring after April 1978.
c. Records to be Examined by the Audit Firm. Records
to be examined include but are not limited to:
(1) all records required by federal, state or
local law to be maintained by Defendant/Respondent.
(2) facility operating records, including but not
limited to waste profile sheets, containing waste
pre-acceptance data, receiving logs, analytical
verification data, waste tracking data for intra-
facility movement of received wastes or wastes
generated on-site, waste storage data, waste
treatment data, and data reflecting the disposition
of received wastes.
(3) corporate and facility guidelines, policies
and internal operating rules pertaining to facility
operations, inspections, personnel training, and
recordkeeping procedures.
(4) corporate guidelines, policies and internal
operating rules pertaining to emergency response,
site closure, and postclosure activities.
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(5) applications, licenses, permits and approvals
(including state permits and approvals), RCRA opera-
tion plans, or other regulatory documents pertaining
to on-site activities at the facility.
(6) environmental monitoring plans for the facility.
(7) waste treatability studies.
(8) PCB operations plans, letters of approval,
pumping logs, and records pertaining to the processing
or handling of transformers, capacitors, and/or
any other PCB articles, items and containers.
(9) manifests for wastes entering or leaving any
Defendant/Respondent facility.
(10) records of use, maintenance and decommissioning
of vehicles used on-site and/or off-site for the
transportation of RCRA/TSCA wastes to, from, and
within any Defendant/Respondent facility.
(11) vehicle washing records.
(12) any effluent data, including data on any direct
discharge to surface water or any discharge to a
publicly owned treatment facility, which Defendant/
Respondent is required to keep pursuant to any
federal, state, or local permit or regulation.
12. Access to Documents. The Audit Firm and representatives
of the Agency, including contractors, shall have full, unfettered
access to all documents bearing upon compliance with -RCRA or TSCA
kept at each facility or at Defendant's/Respondent's corporate
headquarters, regardless of whether these records are deemed
by Defendant/Respondent to constitute CBI or deemed by the
Audit Firm to indicate or support a violation. The Defendant/
Respondent shall retain and make available to EPA copies of
any Defendant/Respondent document(s) examined by the Audit Firm
which indicate or support any viola !on detected during the
audit program. The Audit Firm shall prepare and provide to EPA
a full and complete index of all document? tha*-. it examines to
ensure that the Defendant/Respondent retains these records for
subsequent EPA inspection.
13. Public Access to Records. Each document submitted
by Defendant/Respondent to the Audit Firm or EPA pursuant to
this Decree/Agreement shall be subject to public inspection
unless it is determined by EPA (following a claim made by Defendant/
Respondent) to be CBI in accordance with Paragraphs 5(2) and
14 of this Decree/Agreement.
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14, Assertion of Confidential Business Information Claims.
a. Defendant/Respondent recognizes that EPA will
treat as TSCA CBI only that information claimed confidential
which EPA. uses for purposes related to TSCA.
b. Claims that information is CBI shall be made on
or before the date on which such information is provided to
the Audit Firm or EPA.
15. Tentative Observance of CBI Claims. Any information
claimed by Defendant/Respondent and asserted to meet the criteria
set forth in Paragraph 5(2) will be treated by EPA as confidential
in accordance with 40 C.F.R. §§2.201 through 2.215 and any
relevant special confidentiality regulations at 40 C.F.R. §§2.301
et seg. pending any final determination that the information is
not CBI.
16. Preservation of Records. Defendant/Respondent shall
preserve all Records examined by the Audit Firm for three years
after submission of its Corporate Management Report and Plan to
EPA (See Paragraph 27 below). Nothing in this provision shall
authorize destruction of any document required by law or regula-
tion to be preserved for any period of time in excess of three
years.
17. Examination of Groundwater Monitoring Information.
The Audit Firm shall be required to examine and submit to EPA
groundwater monitoring plans and data for each Defendant/Respon-
dent facility listed in Appendix 1 of this Decree/Agreement.
18. Audit Schedule/Agency Access to Defendant's/
Respondent's Facilities. All audits by the Audit Firm of the
sites listed in Appendix 1 of this Decree/Agreement shall be
completed within 180 days of EPA approval of the Work Plan as
described in Paragraph 9 above. Representatives of the Agency,
including contractors, may accompany audit teams from the
Audit Firm on site audits performed by the Audit Firm and
oversee he performance of the audits by the audit teams for
t.he purpose of ensuring that the audit procedures and protocols
required by the contract are followed.
19. Facility Audit Reports. As each separate facility
audit is completed, the Audit Firm shall, no later than 30
days thereafter, simultaneously submit to Defendant/Respondent
and the Agency a copy of a Facility Audit Report as defined in
Paragraph 5(7). The failure of the Facility Audit Report to
include all of the required information for any violation
specified in the report shall not be grounds for avoidance of
any penalty which is payable under the Penalty Schedule set
forth in Appendix 2. The Agency shall not be bound by any
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-12-
determination of the Audit Firm indicating that Defendant/
Respondent is in compliance with any applicable statutory or
regulatory requirement.
20. Correction of Violations/Submission of Compliance Plans.
In addition to paying the penalties set forth in the Penalty
Schedule below, Defendant/Respondent shall:
(1) correct any violation indicated within a Facility
Audit Report as soon as is physically possible.
(2) No later than 60 days after it has received an
individual Facility Audit Report, submit to the Agency
a Compliance Report and Plan.
The Agency shall not be bound by any Defendant/Respondent
determination that it has achieved compliance, that the compliance
was physically impossible to achieve, or that the times for correc-
tive actions proposed by Defendant/Respondent to achieve compliance
are reasonable. All corrective actions mandated by this Decree/
Agreement shall be undertaken in accordance with applicable
federal, state and local law.
PENALTIES AND CORRECTIVE ACTION
21. For. Missed Audit Deadlines. Defendant/Respondent shall
pay the following stipulated penalties for any failure by Defendant/
Respondent to comply with any time requirement set forth in this
Decree/Agreement:
Period of Failure to Comply Penalty per Day of Delay
1st day through 14th day $ 5,000.00
15th day through 44th day $10,000.00
45th day and beyond $15,OOOsOO
For Violations of RCRA/TSCA
22. Payment of Penalties. For every violation of RCRA
or TSCA reported in each Facility Audit Report, Defendant/
Respondent shall pay a penalty based on the nenalty Schedule
provided as Appendix 2 of this Decree/Agreement. The listing
of the violation in a Facility Audit Report shall be conclusive
and binding on Defendant/Respondent, and the amount set forth in
the Penalty Schedule shall be due and payable by certified check
to the "Treasurer of the United States." The check shall be
remitted to:
[appropriate EPA lockbox address]
within 30 days of receipt of the applicable Facility Inspection
Report. Penalties shall accrue from the date the violation is
determined to have begun to the date such violation is corrected
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-13-
or abated. Subject to the rights reserved in Paragraph 25
below, EPA will not take further enforcement action on those
violations for which penalties are paid and corrective action
taken in compliance with this Decree/Agreement.
23. Unlisted Violations. In the event that the audit
firm reports statutory or regulatory violations other than those
listed in Appendix 2, Defendant/Respondent shall correct such
violations as soon as is physically possible. In addition, the
parties will, for a period of 60 days following receipt of the
Facility Audit Report in which such unlisted violations are
contained,, attempt to settle by negotiation the appropriate
remedy and penalties Defendant/Respondent shall pay for such
unlisted violations. In such negotiations, the parties will
compare each unlisted violation to the most similar listed
violation, if possible. In the event of failure of the parties
to achieve settlement of unlisted violations within 60 days/
EPA shall be free to take any enforcement measure authorized
by law.
24. Uncorrected or New Violations. Beginning on the date
EPA receives a Facility Audit Report, Defendant/Respondent
shall have sixty (60) days to correct violations cited therein.
For any previously reported violation discovered to be uncorrecte
at the end of such sixty (60)-day-period, Defendant/Respondent
shall pay a civil penalty of $25,000 per day for each day of
continued noncompliance unless, within sixty (60) days,
Defendant/Respondent has notified the Agency in accordance
with Paragraph 20 that compliance is physically impossible and
has obtained a final decision from the Agency verifying such
physical impossibility. If, during the audit period or during
the first post-audit inspection, the Agency discovers violations
which were not reported to the Agency by the Audit Firm, for
j.uch violations Defendant/Respondent shall pay a civil penalty
eis set forth in the Penalty Schedule (Appendix 2). In addition,
t.he Agency reserves the right to initiate civil or criminal
action (or both) with regard to any previously reported and
uncorrected violation and any violation not previously reported.
25. Reserv tion of Rights.
a° Reservation of States' and Local Governments'
Right to Inspect Defendant's/Respondent's Facilities
Nothing in this Decree/Agreement shall limit the
authority of EPA or any state or local government
to enter and inspect any Defendant/Respondent
facility.
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b. Reservation of Agency's Right to Seek Relief.
Except as provided in Sections 21 through
24 above, nothing in this Decree/Agreement shall
be construed to limit the ability of the United
States to take any enforcement action authorized
by law.
MANAGEMENT SYSTEMS AUDIT
26. Corporate Management Systems Report. No later than
60 days after the last Facility Audit Report is submitted to
Defendant/Respondent and EPA, the Audit Firm shall submit to
Defendant/Respondent and EPA a Corporate Management Systems
Report as defined in Paragraph 5(4) of this Decree/Agreement.
27. Corporate Management Report and Plan. No later than
90 days after it has received the Corporate Management Systems
Report, Defendant/Respondent shall submit to the Agency its own
Corporate Management Report and Plan describing in full detail
what actions it has taken or will take to implement the findings
of the Corporate Management Systems Report.
MISCELLANEOUS TERMS
28. Submission of Reports. Any reports produced by the
Audit Firm, including Facility Audit Reports and the Corporate
Management Systems Report, shall be submitted simultaneously
to EPA and Defendant/Respondent. The Audit Firm shall not
share draft copies of such reports with Defendant/Respondent
unless such drafts are simultaneously submitted to EPA. The
requirements of this Paragraph shall be set forth as .a requirement
in the contract between Defendant/Respondent and the Audit Firm
for the performance of the audits described herein.
29. Effective Date of Decree/Agreement. This Decree/
Agreement shall be considered binding and in full effect upon
approval by the Federal district court judge/administrative
law judge to whom this matter has been assigned.
30. Notice. AH submissions and notices required by this
Order shall be sent to the following address(es):
[insert address(es) of EPA office(s) overseeing Decree/Agreement]
31. Modification. This Decree/Agreement may be modified
upon written approval of all parties hereto, and concurrence of
the Federal District Court Judge/administrative law judge
assigned to this matter.
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32. Dispute Resolution.
(1) The parties recognize that a dispute may arise
between Defendant/Respondent and EPA regarding plans,
proposals or implementation schedules required to be
submitted, regarding tasks required to be performed
by Defendant/Respondent pursuant to the terms and
provisions of this Decree/Agreement, or regarding
whether Defendant/Respondent has incurred liability
to pay stipulated penalties under Paragraphs 19
through 24. If such a dispute arises, the parties
will endeavor to settle it by good faith negotiations
among themselves. If the parties cannot resolve the
issue within a reasonable time, not to exceed thirty
(30) calendar days, the position of EPA shall prevail
unless Defendant/Respondent files a petition with the
court/administrative law judge setting forth the
matter in dispute. The filing of a petition asking
the court/administrative law judge to resolve a
dispute shall not extend or postpone Defendant's/
Respondent's obligations under this Decree/Agreement
with respect to the disputed issue.
(2) In presenting any matter in dispute to the court/
administrative law judge, Defendant/Respondent shall
have the burden of proving that EPA's interpretation
of the requirements of this Decree/Agreement are arbi-
trary, capricious, or otherwise not in accordance with
the law.
33. Continuing Jurisdiction of the District Court/Adminis-
trative Law~Judqe.The district court/administrativeforum in
which this Decree/Agreement is entered shall retain jurisdiction
until all obligations set forth herein are satisfied..
34. Relation to RCRA Permitting Process. Notwithstanding
any other provision of this Decree/Agreement, EPA hereby reserves
all of its rights, powers and authorities pursuant to the
provisions of 42 U.S.C. §§6901 e_t seq. (RCRA) governing permits
for facilities, and the regulations promulgated thereunder.
35. Violations Not Covered by RCRA or TSCA. No stipulated
penalty or other remedy agreed to shall cover or apply to
nDn-RCRA, noa-TSCA violations. The parties shall be left to
their respective rights, liabilities and defenses with regard
to these matters.
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36. Continuing Audit Requirement. For the five-year-period
beginning on the date that Defendant/Respondent submits to the
Agency the Corporate Management Report and Plan required by
Paragraph VII. 27. of this Decree/Agreement, Defendant/Respondent
shall conduct comprehensive audits not less often than annually
of the compliance of its facilities with [applicable statutory
and regulatory requirements]. After the initial audit by a
third party consultant (as required by this Decree/Agreement),
such audits may be conducted by such a consultant or by an
independent audit staff of the company not responsible to
production management. Reports of the results of such audits
shall be furnished to the [appropriate corporate environmental
official and plant manager]. Within thirty (30) days after
completion of each final annual audit report, Defendant/Respondent
shall submit to EPA a report of incidents of noncompliance
identified by the audit and steps that will be taken to correct
any continuing noncompliance and prevent future incidents of
noncompliance.
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Appendix 2
PENALTY SCHEDULE
RCRA Violation
I. Groundwater Monitoring
40 C.F.R. §§ 264.91 and
265.91
II. Unsaturated Zone Monitoring
40 C.F.R. §§ 264.97 through
264.100 and 265.92 through
265.94
III. Waste Analysis Plans:
Content and Implementation
40 C.F.R. §§ 264.13(a) and (b),
and 265.13(a) and (b)
IV. Bulk Liauids in Landfill
40 C.F.R. §§ 264.314(a)
and 265.314(a)
V. Containerized Liquids
Disposal in Landfill
40 C.F.R. §§ 264.314(b)
and 265.314(b)
VI. Waste Tracking within
TSD facility
40 C.F.R. 5 264.222
VII. Maintensnce of Minimum
Freeboard level for
Surface Impoundment
40 C.F.P. § 264.226(c)
VIII. Ignitable/Reactive
Disposal in Landfill
40 C.F.R. §§ 264.312
and 265.312
IX. Land Disposal (direct
application to unlined
surface soils) of non-
biodegradesble wsstes
40 C.F.R. §§ 264.272(a)
and 265.272(a)
Penalty
$22,500.00
per missed sampling event
$22,500.00
per missed sampling event
$25,000.00
$22,500
per day of occurrence
$22,500.00
per day of occurrence
$25,500.00
$6,500.00 ,
per freeboard violation
$9,500.00
per cell, per day.
$22,500.00
per day
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RCRA Violation
X. Trial test of waste
compatibility prior
to discharge into
surface impoundment
40 C.F.R. § 265.225
XI. Trial test of waste
solidification process
prior to landfill
40 C.F.R. §265.402
• '.t f
XII. Failure to control wind
dispersal of land treatment
waste disposal zones
40 C..F.R. §§ 264.272(e)
and :>65.273(f)
XIII. Incompatible wastes placed
into surface impoundment
40 C.F.R. §§ 264.230
and 265.230
XIV. Unauthorized expansion of
TSD facility during
Interim status
40 C.F.R. §270.72
XV. Closure of Units w/o
demonstration of
compliance with facility
closure plan
40 C.1T.R. §§ 264.113
and 2(55.113
XVI. Inadequate closure/
post-closure inspec-
tion/maintenance plans
40 C.F.R. §§ 264.112
and 265.112
XVII.. Absence of post-closure
groundwater monitoring
program
40 C.F.R. §§ 264.117(a)(1)
and §265.117(a)(2)
Penalty
$22,500.00
per day of event
$22,500,00
per day
$22,500.00
per unit
$22,500.00
per day
$20,000.00
per day or as
needed to recapture
all profits gained
$25,000.00
per unit
$15,000.00 per unit
$22,500.00 per day
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RCRA Violation
XVIII. Failure to update closure/
post closure plan cost
estimates
40 C.F.R. §§ 264.144(c)
and 265.114(c)
XIX. No schedule included
for closure activities
40 C.F.R. §§ 264.112(a)
and 265.112(a)
XX. Inadequate Part A
Applications, absence
of identified operating
units
40 C.F.R. §270.13
XXI. Inadequate Part B
Application
40 C.F.R. §270.14
XXII. Absence of complete
facility Inspection
Plan, units omitted
40 C.F.R. §§ 264.15(b)
and 265.15{b)
XXIII. Failure to record
on facility inspections
reports repairs or
remedial measures taken
40 C.F.R. §§ 264.15(b)
and 265.15(d)
XXIV. Failure to inspect
freeboard levels
of surface impoundments
40 C.F.R. §§ 264.226(b),
(c) and 265.226(a)
XXV. Operating Record
Omissions failure
complete grid maps
of landfilled lifts
of waste
40 C.F.R. §§ 264.309
and 265.309
Penalty
$3,000.00 per day
$6,500.00 per plan
milestone omitted
$9,500.00 per unit
not properly identified
$9,500.00 per unit
not properly identified
$2,250.00 .
per unit emitted,
per day
$2,250.00
per omission
$2,250.00
per occurrence
$2,250.00
per omission
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RCRA Violation
XXVI. Failure to record on-site
generated hazardous wastes
i.,e. truck washing facility
40 C.F.R. § 262.4Kb)
XXVII. No training provided
to employee assigned to
do waste analyses
40 C.F.R. §§ 264.16
and 265.16
XXVIII. No analyses performed
on materials added to
on-site waste piles
40 C.F.R. § 265.252
xxix. Records not provided
to Agency
within 48 hours of reauest.
40 C.F.R. §§ 264.74
and 265.74
XXX. Fence not installed
around all operating
areas of TSD facility
40 C.F.R. §§ 264.14
and 265.14
XXXI. Emergency Contingency
Plan Inadequacies
40 C.F.R. §§ 264.52
and 265.52
XXXII. Failure to Meet
Financial Responsibility
Requirements
40 C.F.R. Part 264, Subpt. H
and Part 265, Subpt. H
Penalty
$9,500.00
per unrecorded event
$3,000.00
per untrained
employee
$22,500.00
per event
$6,500.00 per day
of delay
$1,000.00
S2,225.00
per component
deficiency
$25,000.00
per day of delay
TSCA Violation
Penalty
XXXIII. Improper Disposal of PCBs
40 C.F.R. §§ 761.60 (a)-(d)
—1,100 or more gallons
or 750 or more cubic
feet of PCB contaminated
material.
$25,000.00 per day/
per violation
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TSCA Violation
—220-1,000 gallons or
150-750 cubic feet of
PCB contaminated
material
—less than 220 gallons or
150 cubic feet of PCB
contaminated material
XXXIV. Failure to Dispose of PCBs
by Jan. 1, 1984.
40 C.F.R. § 761.65(a)
—1,100 or more gallons
or 750 or more cubic
feet of PCB contaminated
material.
—220-1,100 gallons or
150-750 cubic feet of
PCB contaminated
material.
—less than 220 gallons or
150 cubic feet of PCB
contaminated material.
XXXV. Failure to Dispose of PCBs
within one year of removal
from service.
40 C.F.R. § 761.65(a)
--1,100 or more gallons
or 750 or more cubic
feet of PCB contaminated
material.
—220-1,100 gallons or
150-750 cubic feet of
PCB contaminated
material.
—less than 220 gallons or
150 cubic feet of PCB
contaminated material.
XXXVI. Improper Processing of PCBs
40 C.F.R. § 761.20U)
Penalty
$17,000.00 per day,
per violation
$5,000.00 per day,
per violation
$25,000.00 per day,
per violation
$17,000.00 per day,
per violation
$5,000.00 per day,
per violation
$25,000.00 per day,
per violation
$17,000.00 per day,
per violation
$5,000.00 per day,
per violation
$20,000.00 per day,
per violation
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TSCA Violation
XXXVII. Improper Distribution of
PCBs (sale) in commerce.
40 C.F.R. S 761.20(a)
XXXVIII. Improper treatment and
testing of waste oils.
40 C.F.R. §§ 761.60(g) (2)(i)
and ( ii)
XXXIX. Improper Use of .PCBs
40 C.F.R. § 761:'20(a)
XXXX. Improper use of PCBs
{road oiling; dust
control; sealants)
40 C.F.R. § 761.20(d)
Improper use of PCBs
- Transformers
40 C.F.R. § 761.30(a)
- Capacitors
40 C.F.R. § 761.30(1)
- Heat transfer systems
40 C.F.R. § 761.30(d)
XXXXII. PC3 Storage Violations
- 40 C.F.R. § 761.65(b)
(facility criteria)
- 40 C.F.R. § 761.65(c) (7) (ii)
(spill plan development)
- 40 C.F.R. § 761.65(c) (8)
(management of liquids
in storage)
XXXXIII. Recordkeeping Violations
(storage for disposal)
40 C.F.R. § 761.180(a)
XXXIV, Recordkeeping violations
(disposal facilities)
Incinerators
40 C.F.R. § 761.180(c)
Chemical waste landfills
40 C.F.R. § 761.180(d)
Penalty
$20/000.00 per day/
per violation
$25/000.00 per day/
per violation
$25,000.00 per day,
per violation
$25,000.00 per day,
per violation
$20,000.00 per day,
per violation
$15,000.00 per day,
per violation
$10,000.00 per
per violation
$15,000.00 per day/
per violation
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xxxxv.
TSCA Violation
Marking Violations
40 C.F.R. § 761.40(a)
Penalty
$15,000.00 per day,
per violation
XXXXVI. Failure to Date PCB Items
placed into storage
40 C.F.R. § 761.180(a)
$5,000.00 per day,
per violation
XXXXVII. Violation of any condition
of a PCB chemical waste
landfill (40 C.F.R. § 761.75)
or incinerator (40 C.F.R.
§ 761.70) application approval.
$25,000.00 per day,
per violation
XXXXVIII. Failure to decontaminate
PCB container, tanker
trucks, etc.
40 C.F.R. § 761.79
$25,000.00 per day,
per violation
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Appendix 3
CORPORATE MANAGEMENT SYSTEMS REPORT PROTOCOL
The Corporate Management Systems Report shall:
(1) Identify and describe the existing facility waste manage-
ment operations and the Environmental Management Department's
systems, policies and prevailing practices as they affect
Dafendant1s/Respondent's corporate compliance with RCRA and
TSCA.
(2) Evaluate such operations/ systems, practices, and policies
and identify and describe fully the perceived weaknesses in
such operations, systems, practices, and policies by comparing
them, to the extent practicable, to the existing practices,
programs and policies of other RCRA and TSCA waste management
corporations operating within the continental United States and
to generally accepted corporate management practices.
(3) Based on the evaluation required in paragraphs (1) and (2)
above, the consultant shall identify and describe fully with
supporting rationales the perceived areas, if any, where Defen-
dant's/Respondent's inter- and intra-facility waste management
operations and corporate to operating level environmental
management systems, practices and policies may be improved.
The Corporate Management Systems Report shall list specific
options for improvements in the following areas:
(a) Corporate data management practices pertaining
to the following items:
i. compliance budgets;
ii. staffing;
training;
auditing;
v. incident reporting, including but not limited to
manifest exception reports and any unpermitted
disposal, release, or discharge;
vi. quality assurance cest reporting;
vii. quality control reporting;
viii. generator waste profile reports, facility pre-
acceptance reports, and acceptance analysis as
these items compare to each facility's stated
basis for accepting or rejecting individual
waste loads; and
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.Lx. facility mass balance records reflecting the
internal disposition of all wastes received
for final disposal.
(b) Corporate data evaluation practices, capabilities
and policies pertaining to reports to and from compliance
officers, internal and external environmental audits, regulatory
agency notices of violation and all other compliance data
documents which when evaluated may lead to changes in TSD
operating procedures or directives by corporate management to
modify any individual or multi-facility TSD facility operating
procedures.
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Attachment G
MODEL EMERGENCY ENVIRONMENTAL MANAGEMENT REORGANIZATION PROVISION
FOR CONSENT DECREES OR AGREEMENTS
E.I. The objective of this provision is to provide a manage-
ment structure at the corporate headquarters level that will
ensure that comprehensive environmental policies and procedures
are developed by top management and fully implemented company-wide
at all facilities.
2. Defendant/Respondent shall propose to EPA's [name of
EPA office overseeing compliance with Decree/Agreement] by
written submittal to [name of Agency contact] within thirty
(30)'days of the effective date of this Decree/Agreement, a
plan for reorganization of the corporate management structure
with respect to environmental affairs. This reorganization
proposal shall be agreed upon by EPA and Defendant/Respondent
in writing/ prior to implementation of the reorganization.
a. The management plan shall provide for the creation of
a new position of Director, Environmental Affairs [or other
appropriate title] to exercise the responsibilities set forth
herein. The Director, Environmental Affairs shall report
directly to [a corporate Vice President or other appropriate
top management official not directly responsible for manufacturing/
production activities]. The position shall at all times be
filled by an experienced executive with a background in [approp-
riate industrial field] and in environmental management and
compliance.
b. It shall be the responsibility of the Director,
Environmental Affairs to develop appropriate corporate environ-
mental policies and procedures and to oversee their implementation
at all company facilities to ensure compliance with applicable
Federal, State and local environmental statutes and regulations.
In the development of such policies and procedures, the recom-
mendations of the environmental audit conducted at the [facility]
by an outside consultant as described herein shall be given
full consideration.
c. Defendant/Respondent shall also establish such addi-
tional technical and support positions reporting directly to
the Direct _, Environmental Affairs as are necessary to meet
the objective of this provision. Neither the Director nor
staff shall be assigned additional responsibilities not related
to environmental compliance. Defendant/Respondent shall provide
adequate budgetary support to the environmental staff.
3. Within ninety (90) days of EPA's approval of the environ-
mental management plan, the company shall appoint the Director,
Environmental Affairs and appropriately qualified staff.
4. Within two hundred seventy (270) days of EPA's approval of
the environmental management plan, the Director, Environmental
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-2-
Affairs shall complete development and begin the implementation
of appropriate corporate environmental policies and procedures
to meet the objective of this provision.
5. within eighteen (18) months of the effective date of
this Decree/Agreement, Defendant/Respondent shall fully implement
the corporate environmental policies and procedures at all
company facilities. This shall include any necessary organiza-
tional or personnel changes at the individual facility level.
6. Recognizing the corporate responsibility to maintain
compliance with all applicable environmental statutes and
regulations, Defendant/Respondent agrees to maintain a permanent
corporate environmental management staff. The organization,
makeup and functions of this staff may be modified from time
to time as dictated by changes in corporate facilities or
operations or the requirements of environmental statutes and
reaulations.
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GM-53
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY / r
WASHINGTON, D.C. 20460 4" $3
NOV 26 BBS ANDCOMPUANCE
OFFICE OF ENFORCEMENT
IDCOMPLIANC
MONITORING
MEMORANDUM
SUBJECT: Guidance on Implementing the Discretionary Contractor
Listing Program
Vi
FROM: Thomas L. Adams, Jr.
Assistant Administrator for Enforcement
and Compliance Monitoring
TO: Assistant Administrator for Air and Radiation
Assistant Administrator for Water
General Counsel
Inspector General
Regional Administrators, Regions 1-X
Regional Counsels, Regions I-X
I. Purpose
This document establishes Agency policy and procedures for
implementing the discretionary contractor listing program in EPA
enforcement proceedings. It should be read in conjunction with
the final revisions to the contractor listing regulations (40 CFR
Part 15, 50 FR 36188, September 5, 1985), and the guidance document,
"Implementation of Mandatory Contractor Listing" (General Enforce-
ment Policy No. GM-32, August 8, 1984). The procedures-to be
followed in all contractor listing actions are contained in the
rule and are summarized in an Appendix to this document. This
policy applies only to discretionary listing proceedings and super-
sedes the "Guidance for Implementing EPA's Contractor Listing
Authority" (General Enforcement Policy No. GM-31, July 18, 1984).
The revisions tc *he contractor listing regulations, together
with this guidance document and other management initiatives, should
-encourage greater use of the Agency's listing authority and should
expedite the process for listing a facility.
II. Background
The Clean Air Act (CAA), Section 306, and the Clean Water Act
(CWA), Section 508, as implemented by Executive Order 11738, authorize
EPA to prohibit facilities from obtaining federal government contracts.
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grantu or loans (including subcontracts, subgrants and subloans),
as a consequence of criminal or civil violations of the CAA or CWA.
Commonly called "contractor listing," this progs-am provides EPA
with an effective administrative tool to obtain compliance with
the CAA and CWA where administrative or judicial action against a
facility has failed to do so.
On July 31, 1984, EPA proposed revisions to the contractor
listing regulations (40 CFR Part 15 (49 FR 30628)) to simplify and
clarify the procedural opportunities which EPA will provide to
parties to listing or removal actions and to provide for mandatory
(i.e., automatic) listing of facilities which give rise to criminal
convictions under Section 113(c)(l) of the CAA or Section 309(c)
of the CWA. Final rules were promulgated on September 5, 1985
(50 FR 36188).
III. Appropriate Cases for Discretionary Listing Recommendations
In numerous cases, initiation of a listing action has
proved to be effective in achieving more expeditious compliance
and case settlements. While regional offices should consider
making contractor listing recommendations in every case where
the criteria of 40 CFR Part 15 are met, listing is a tool to
be used in conjunction with other enforcement actions. (See IV.
Standard of Proof in Listing Proceedings, page 4.) The circumstanc«l
surrounding each case will dictate whether a listing action should
be initiated. In particular, use of listing may be appropriate in
the following cases:
A. Violations of Consent Decrees
Regional offices should strongly consider making listing
recommendations for all cases of noncompliance with consent decrees
under th« CAA or CWA. The recommendation should be prepared at
the earliest possible time after the Region learns of noncompliance
with the decree, but no later than the filing of a motion to enforce
the decree. Initiation of the listing action should be supplementary
to, and not in lieu of, a motion to enforce the decree. Where a
consent decree covers CAA or CWA violations as well as violations
of other environmental statutes, such as the Resource Conservation
and Recovery Act (RCRA) or the Toxic Substances Control Act (TSCA)
(where EPA does not have contractor listing authority), a listing
recommendation also should be considered.
B. Continuing or Recurring Violations Following
Filed Civil Judicial Actions
Whero EPA has filed a civil judicial enforcement action, the
Regional Office should initiate a listing action at the earliest
possible time after it determines that: (1) noncompliance is
ongoing, (2) the defendant is not making good faith efforts to
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comply, and (3J an expeditious settlement does not appear likely.
For example, a" defendant may make a firm settlement offer that is
far below the economic savings it realized from its noncompliance,
making settlement unlikely.
Similarly, where EPA initiates a multi-media civil enforcement
action against violations under the CAA or CWA and other environ-
mental statutes (such as RCRA or TSCA), and continuing water or
air compliance problems exist without good faith corrective efforts,
the Region should consider bringing a listing action. Therefore,
it is important that all CAA and CWA counts be included in a multi-
media enforcement action.
C. Violations of Administrative Orders
Where noncompliance continues after an administrative order
has been issued under the CAA or CWA, and the Regional Office
determines that the facility is not making sufficient efforts to
come into compliance, a listing recommendation should be considered.
Initiation of a listing action generally should not be in lieu.of
filing a civil judicial action to enforce the administrative order,
but should support the civil action. The Regional Office should
consider initiating a listing action at the same time that it
files the civil judicial action.
D. Multi-Facility Noncompliance within a Single Company
Contractor listing can be an effective tool to address a
pattern of noncompliance within a single company. Where continuing
or recurring CAA or CWA violations occur at two or more facilities
within the same company, and EPA previously has taken an enforcement
action against each, the Regional Office should consider making
listing recommendations in all such cases.
While each facility's continuing or recurring noncompliance
must be proved separately (i.e., one may not use one violation from
branch facility A and one violation from branch facility B to
constitute the minimum two violations required), one listing recom-
mendation describing noncompliance at two or more facilities may be
submitted to the Assistant Administrator for the Office of Enforce-
ment and Compliance Monitoring (OECM). A joint listing proceeding
may be held concerning all facilities. Joint consideration of two
or more facilities' violati i will require fewer Agency resources
than listing each facility separately. It will also discourage
companies from switching government contracts from a listed facility
to another facility without taking steps to correct the violations
which gave rise to the listing.
To accomplish this, the Regional Office, with headquarters
staff support, should review the EPA enforcement docket to see if
a potential listing candidate has committed CAA or CWA violations
at other company facilities. Note that a company's facilities may
be known by the parent company name or by the names of company
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subsidiariea. -Regional offices may obtain information on
other company-'facilities from Charlene Swibas, Chief, Information
Services Section, NEIC (FTS 776-3219), who will search EPA's
Facility Index System which lists this information for all EPA
regions, or provide a Dunn and Bradstreet report containing this
information.
The Region may also request data on administrative orders
issued against a company under the headquarters Permit Compliance
System (for CWA violations) and the Compliance Data System (for
CAA violations). In some cases EPA has issued administrative
orders and filed civil enforcement actions against company facil-
itieo which are located in more than one region. Such multi-regional
inquiries may be coordinated with the Headquarters participating
attorney and the Agency's Listing Official.
E. Other Circumstances Where Listing is Appropriate
The regulation provides two other situations where listing may
be appropriate. First, EPA can list a facility after it has issued
a Notice of Noncompliance under Section 120 of the CAA. The threat
of listing in combination with noncompliance penalties can impose a
sufficiently severe economic cost on a facility to encourage efforts
to achieve both compliance and quicker settlements. Second, Regional
Offices may recommend listing when a state or local court convicts
any person who owns, operates, or leases a facility of a criminal^
offense on the basis of noncompliance with the CAA or the CWA.
They also may recommend listing when a state or local court has
issued an injunction, order, judgement, decree (including consent
decrees), or other civil ruling as a result of noncompliance with
the CAA or CWA.
IV. Standard of Proof in Listing Proceedings
It will be the responsibility of the Office of Regional
Counsel to represent the Agency at any listing proceeding (where
one is requested by the affected facility). According to 40 CFR
Section 15.13(e), "[t]o demonstrate an adequate basis for listing
a facility, the record must show by a preponderance of the evidence
that there is a record of continuing or recurring non-compliance
at the facility named in the recommendation to list and that the
requisite enforcement action has been taken."
"Requisite enforcement action" can be established by reference
to an issued administrative or court order, or a filed civil judicial
action,, "Continuing or recurring" violations are understood to
mean two or more violations of any standard at a facility, which
violations either occur or continue to exist over a period of time.
Such a violation occurs even when different standards are violated
and time has elapsed between violations. Thus, in a listing
ing, it is not necessary to prove all violations of CAA or CWA
standards alleged in the underlying enforcement action. Nonethel
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the regional attorney must carefully review the sufficiency of the
evidence and evaluate anticipated defenses.
V. Fairness Concerns in EPA Use of Contractor Listing
It is the intent of this guidance document to encourage the
use of the Agency's contractor listing authority in appropriate
cases. However, it must be recognized that listing is a severe
sanction. Before making a recommendation in any case, the Regional
Office should determine that the continuing or recurring noncompli-
ance involves clearly applicable CAA or CWA standards. Likewise,
Agency enforcement personnel must be careful in using listing
terminology during discussions with defendants. During settlement
negotiations, for example, it is certainly proper for EPA to advise
a defendant of the range of available EPA enforcement authorities,
including contractor listing. However, EPA personnel must distin-
guish between a listing recommendation (made by a "recommending
person," usually the Regional Administrator, to the Assistant
Administrator for OECM), a notice of proposed listing by the Agency
to the affected facility (which is sent by the Listing Official
after a preliminary decision to proceed is made by the Assistant
Administrator for OECM), and a final decision to list which is made
either by an Agency Case Examiner at the end of a listing proceeding,
or by the Assistant Administrator for OECM if no listing proceeding
is requested. Where appropriate, EPA personnel should explain that
the Regional Administrator's listing recommendation does not consti-
tute a final Agency decision to list.
VI. Press Releases on Contractor Listing Actions
EPA will use press releases and other publicity to inform
existing and potential violators of the CAA and the CWA that EPA
will use its contractor listing authority in appropriate situations.
The November 21, 1985, "Policy on Publicizing Enforcement Activities"
(GM-46), states that "[i]t is EPA policy to issue preas releases when
the Agency: (1) files a judicial action or issues a major adminis-
trative order or complaint (including a notice of proposed contractor
listing and the administrative decision to list)...." As discussed
in that policy, the press release should be distributed to both the
local media in the area of the violative conduct and the trade
press of the affected industry.
VII. Coordination with the Departm^nc of Justice
To ensure that information presented during a listing proceeding
will hot compromise the litigation posture of any pending legal
action against a party, EPA will coordinate with the Department of
Justice (DOJ) before a recommendation to list is made to the Assis-
tant Administrator for OECM. If the recommending party is an EPA
regional office official, he or she shall coordinate with the
appropriate DOJ attorney before a recommendation is submitted to
the Listing Official. He or she shall also provide the DOJ attor-
ney's comments to the Listing Official as part of the recommendation
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package. If the recommending party is not an EPA official, the
Listing Official shall coordinate with the EPA Office of Regional
Counsel and the appropriate DOJ attorney before a recommendation
to list i8 presented to the Assistant Administrator for OECM.
VIII. Applicability of Contractor Listing to Municipalities
Municipalities are subject to listing under appropriate cir-
cumstances. State and local governments and other municipal bodies
are specifically identified by 40 CFR §15.4 as "persons" whose
facilities may be listed. The standards for recommending that a
municipal facility be listed are the same as those for listing
other facilities. Listing may not be the most effective enforce-
ment tool in many municipal cases because often the only federal
funds received by a municipal facility are grant funds to abate or
control pollution, which are exempted from the listing sanction by
40 CFR §15.5. However, listing still should be considered in cases
where a municipal facility receives nonexempt funds or where the
principles underlying the listing authority otherwise would be.
furthered by a recommendation to list.
IX. Uae of Listing in Administrative Orders
Enforcement offices may wish to inform violating facilities
early in the enforcement process of the possibility of being listel
Many facilities do not know about the listing sanction; such know!
edge may provide additional impetus for a facility to take steps
to come into compliance. For example, some EPA regions notify
facilities whose violations make them potential candidates for
listing of this possibility in the cover letter which accompanies
an administrative order requiring them to take action to correct
their noncompliance.
X. Obtaining Information Concerning Government^ Contracts
Held by a Facility Under Consideration for Listing
After an EPA recommending person, usually the Regional
Administrator, has submitted a listing recommendation to the
Listing Official, the regional office attorney handling the
case may require the facility to provide a list of all federal
contract*, grants, and loans (including subcontracts, sub-
grants, ar, subloans). To insure that such a requirement is
not imposed prematurely, the regional office attorney should
require this information from a facility only after advising
the Listing Official of his or her intention to do so. Requiring
this information from the facility is not a prerequisite for
listing a facility.
Requiring this information from a facility may be accom-
plished by telephone or through a letter similar to the models
provided in Attachments D and E. Attachment D is a model letter
requesting information from a facility which is violating an
administrative order issued under the authority of the Clean
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Water Act for .violating its National Pollutant Discharge Elimination
System (NPDES)" permit. Attachment E is a letter to a facility
which EPA and the Department of Justice have filed a civil suit
against for violating the Clean Air Act. Regional office attorneys
may elect to have such a request letter serve as notification to
the facility that EPA is considering instituting a listing action,
or they may wish to inform the facility before sending such a
letter. Which approach is taken will depend on the regional office
attorney's judgment of the notification's effects on the overall
case against the facility.
XI. Headquarters Assistance in Preparing and Processing
Listing Recommendations
In order to encourage the use of the contractor listing author-
ity in appropriate cases, OECM staff have been directed to assist
regional offices in preparing listing recommendations. Attached
are model listing recommendations indicating the level of detail
and support that should be provided with recommendations. (See
Attachments A, B, and C for model listing recommendations.) Where
a listing recommendation is sufficient, the Assistant Administrator
for OECM will decide whether to proceed with the listing action
under Section 15.11(c) (i.e., by directing the Listing Official to
issue a notice of proposed listing to the affected facility) within
two weeks after receiving the recommendation. Questions concerning
contractor listing may be directed to the Agency Listing Official,
Cynthia Psoras, LE-130A, FTS 475-8785, E-Mail Sox EPA2261.
Attachments
cc: John Ulfelder
Senior Enforcement Counsel
Associate Enforcement Counsel for Air
Associate Enforcement Counsel for Water
Director, Office of Water Enforcement and Permits
Director, Stationary Source Compliance Division
Director, Office of Compliance Analysis and Program Operations
Director, NEIC
Director, Water Management Division (Regions I-X)
Director, Air Management Division (Regions I, III, V and IX)
Director, Air and Waste Management Division (Regions II and VI)
Director, Air, Pesticides and Toxics M< nagement Division
(Region IV)
Director, Air and Toxics Division (Regions VII, VIII and X)
David Buente, Department of Justice (DOJ)
Nancy Firestone, DOJ
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Appendix
The Listing program and Final Revisions to 40 CFR Part 15
A. Mandatory Listing
If a violation at a facility gives rise to a criminal con-
viction under Section 113(c)(l) of the CAA or Section 309(c) of
the CWA, listing of the facility is mandatory (and effective upon
conviction under 40 CFR Section 15.10). As soon as a conviction
occurs, the Director of the Office of Criminal Enforcement,
within the Office of Enforcement and Compliance Monitoring (OECM),
must verify the conviction and notify the Listing Official. The
Listing Official sends written notification to the facility and
to the Federal Register. Both documents must state the basis for
and the effective date of the mandatory listing.
Removal from the mandatory list may occur only if: (1) the
Assistant Administrator certifies that the facility has corrected
the condition that gave rise to the criminal conviction under
Section 113(c)(l) of the CAA or Section 309(c) of the CWA, or (2)
a court has overturned the criminal conviction. The August 8,
1984, memorandum, "Implementation of Mandatory Contractor Listing,"
(GM-32) discusses the procedures for mandatory listing in more detail
B. Discretionary Listing
1. Basis for Discretionary Listing
The following enforcement actions may serve as a basis for
discretionary listing if there is also a record of continuing or
recurring noncompliance at a facility:
a. A federal court finds any person guilty under Section
113(c)(2) of the CAA, if that person owns, leases,
or supervises the facility.
b. A state or local court convicts any person of a
criminal offense on the basis of noncompliance with
clean, air or clean water standards if that person
owns, leases, or supervises the facility.
c. A federal, state, or local court issres an injunction,
order, judgment, decree (including c< jent decrees)
or other form of civil ruling as a result of non
compliance with the CWA or CWA at the facility.
d. The facility is the recipient of a Notice of
Noncompliance under Section 120 of the CAA.
e. The facility has violated an administrative order
under:
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• CAA Section 113(a)
:a CAA Section 113(d)
* CAA Section 167
0 CAA Section 303
9 CWA Section 309(a)
f. The facility is the subject of a district court
civil enforcement action under:
0 CAA Section 113(b)
* CAA Section 167
8 CAA Section 204
* CAA Section 205
* CAA Section 211
0 CWA ..Section 309(b)
?.. The Discretionary Listing Process
a. Listing Recommendation and Notice of Proposed Listing
The discretionary listing process begins when a "recommending
person" files a listing recommendation with the Listing official.
Recommending persons may include any member of the public, Regional
Administrators, the Assistant Administrator for Air and Radiation,
the Assistant Administrator for Water, the Associate Enforcement
Counsel for Air, the Associate Enforcement Counsel for Water, and
the Governor of any State. The recommendation to list: (1) state
the name, address, and telephone number of the recommending person;
(2) identifies the facility to be listed, and provides its street
address and mailing address; and (3) describes the alleged continuing
or recurring noncompliance, and the requisite enforcement action
(see 40 CFR Section 15.11(b)). The recommendation to list should
describe the history of violations in detail, including the specific
statutory, regulatory, or permit requirements violated. In addition,
regional offices may include as attachments to the listing recommen-
dation documents prepared for other purposes, such as complaints,
litigation reports, and other explanatory material which describes
the nature of the violations. (See Attachments for model listing
recommendations.)
Tho Listing Official must determine whether the recommendation
meets the requirements of Action IS.ll(b). If the recommendation
is sufficient and the Assistant Administrator for OECM decides to
proceed under Section 15.11(c), the listing official will contact
the regional office to ensure that it still wishes to proceed. If
the decision is made to proceed, the listing official provides notice
of the proposed listing to the owner or operator of the affected
facility and provides the owner or operator of the facility 30
days to request a listing proceeding. A listing proceeding is
not a formal hearing; rather, it is an informal administrative
proceeding presided over by an Agency Case Examiner. If the facil-
ity's owner or operator requests a listing proceeding, the Listing
Official must schedule it and notify the recommending person and
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the owner or operator of the date, time, and location of
the proceeding./ The Assistant Administrator designates a
Case Examiner to preside over the listing over the listing
proceeding.^/
b. Listing Proceeding
The Federal Rules of Civil Procedure and Evidence are not
used during listing proceedings. The Agency and the facility may
be represented by counsel and may present relevant oral and written
evidence. With the approval of the Case Examiner, either party
may call, examine, and cross-examine witnesses. The Case Examiner
may refuse to permit cross-examination to the extent it would:
(1) prematurely reveal sensitive enforcement information which the
government may legally withhold, or (2) unduly extend the proceedings
in light of the usefulness of any additional information likely to
be produced (see Section 15.13(b)). A transcript of the proceeding
along with any other evidence admitted in the proceeding constitutes
the record. The Agency must prove each element of a discretionary
listing by a preponderance of the evidence (see Section 15.13(c)).
The Case Examiner must issue a written decision within 30
calendar days after the proceeding. The party adversely affected
may appeal the decision to the General Counsel. The appeal, which
is filed with the Listing Official, must contain a statement of:
(1) the case and the facts involved, (2) the issues, and (3)
why the decision of the Case Examiner is not correct based on
the record of the proceeding considered as a whole. The General
Counsel must issue a final decision, in writing, as soon as
practicable after reviewing the record. The Listing Official
then must send written notice of the decision to the recommending
person and to the facility, and must publish the effective date
of the listing in the Federal Register if the General Counsel
upholds the Case Examiner's decision to list.
c. Removal from the List of Violating Facilities'
Removal from the List of Violating Facilities can occur in
any of the following circumstances:
1. Upon reversal or other modification of the
criminal conviction decree, order, judgment, or
other civil ruling or finding which formed the
basis for the discretionary listing, where the
reversal or modification removes the basis tor the
listing;
I/ If the owner or operator of the facility does not make a timely
request for a listing proceeding, the Assistant Administrator will
determine whether to list the facility based upon the recommendation
to list and any other available information.
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2. If the Assistant Administrator for OECM
determines that the facility has corrected the
condition(s) which gave rise to the listing;
3. Automatically if, after the facility has
remained on the discretionary list for one year
on the basis of Section 15.11(a)(4) or Section
15.11(a)(5) and a basis for listing under Sections
15.11(a)(l), (2), or (3) does not exist; or
4. If the Assistant Administrator for OECM has
approved a plan for compliance which ensures
correction of the condition(s) which gave rise to
the discretionary listing.
The original recommending person or the owner or operator of
the facility may request removal from the list. The Assistant
Administrator for OECM then must review the request and issue a
decision as soon as possible. The Listing Official then must
transmit the decision to the person requesting removal.
If the Assistant Administrator for OECM denies a request for
removal/ the requesting person may file a written request for a
removal proceeding to be conducted by a Case Examiner designated
by the Assistant Administrator. The Federal Rules of Civil
Procedure and Evidence are not used during a removal proceeding.
The Case Examiner's written decision must be based solely on the
record of the removal proceeding.
Within 30 calendar days after the date of the Case Examiner's
decision, the owner or operator of the facility may file with the
Listing Official a request for review by the Administrator. The
Administrator will determine if the Case Examiner's decision is
correct based upon the record of the removal proceeding considered
as a whole. The Administrator then must issue a final written
decision.
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Attachment A
MODEL LISTING RECOMMENDATION
BASED ON ADMINISTRATIVE ENFORCEMENT ACTION
DATE: 10701/86
SUBJECT: Recommendation to List Violating Facility
FROM: Regional Administrator, Region XI
TO: Cynthia Psoras
Listing Official
Legal Enforcement Policy Division (LE-130A)
The purpose of this memorandum is to recommend that
the [name of facility and type of operations conducted at
the facility] owned and operated by John Doe at [street
address, city and state] be placed on the EPA List of
Violating Facilities because of violations of clean air
standards. Information concerning the recurring violations
and the history of action taken thus far by the Agency is
set forth below. Copies of pertinent supporting materials
are attached. [Attach technical documents describing the
violation, the administrative order, and other documents
describing the enforcement action taken.]
This plant is subject to the New Source Performance
Standards (NSPS) for Asphalt Concrete Plants. 40 CFR Part
60, Subpart I (1986).
On July 5, 1985, the Region XI Director, Air Management
Division, notified [owner and operator] that on the basis
of performance tests conducted December 19, 1984, the
facility was in violation of 40 CFR 60.92(a)(l), in that
it was discharging gases into the atmosphere, and those
gases contained 256.5 milligrams of particulate matter per dry
standard cubic meter (0.114 grain per dry standard cubic foot)
The allowable discharge of particulate matter into the
atmosphere is 90 milligrams per dry standard cubic meter
(0.04 grain per dry standard cubic foot).
On August 14, 1985, the Region XI Regional Administrator
issued an Administrative Order pursuant to Section 113(a)(3)
of the Clean Air Act. That order required, in part, that
[name of facility] operate its [specific portion of the
plant or processes causing the violations] in compliance
with the NSPS for Asphalt Concrete Planls, 40 CFR Part 60,
Subpart I, and to conduct performance tests for emissions
of particulate matter within sixty days following the
effective date of the Administrative Order.
Performance tests were completed on September 1, 1985,
and the particulate emissions were 373.5 milligrams per dry
standard cubic meter (0.166 grain per dry standard cubic
foot). Thus, [name of facility] is not in compliance, and has
violated the Administrative Order. Further, the violation
-------
of' the NSPS has been a continuing violation in that the
particulate:" emissions have been greater than the permissible
limits since the December 19, 1985, test date.
The recommending person for this listing recommendation
is Regional Administrator, Region XI, EPA, Government
Office Building, City, 51st State; her telephone number is
(FTS) 123-4567.
This action is authorized under discretionary listing,
40 CFP 15.11(a)(4) (1986). It meets the regulations' two
requirements that: there is "continuing or recurring
ncmcompliance with clean air standards ... at the facility
recommended for listing" and that the facility has violated
an administrative order issued under Section 113(a) of
the Clean Air Act. '
If you have any questions, please contact Attorney, at
(FTS) 123-4568, or Engineer, at (FTS) 123-4569.
Attachments
[technical documents, Administrative Order,
documents describing the previous enforcement actions taken]
-------
Attachment B
MODEL LISTING RECOMMENDATION
BASED ON JUDICIAL ENFORCEMENT ACTION
MEMORANDUM
SUBJECT: Recommendation for Listing
FROM: Regional Administrator, EPA Region 12
TO: Cynthia Psoras
Listing Official
Legal Enforcement Policy Division, LE-130A
This is a recommendation that the [facility name and
address] be placed on the EPA List of Violating Facilities,
pursuant to Section 306 of the Clean Air Act, Executive
Order 11738, 40 CFR Part 15, and the October 1986 guidance
from the Assistant Administrator for Enforcement and Compliance
Monitoring. This action is authorized under 40 CFR 15.11(a)(6)
(1986). This recommendation is based on violations alleged
in the civil action currently being pursued against [facility
name] in the United States District Court for the Fifty
Second State. [Facility name] operates four coal-fired
boilers (boilers nos. 2-5) at the [facility] without adequate
air pollution control equipment.
As indicated in the attached counterclaim, motion for partial
summary judgment, and affidavits, [facility name] has been
in violation of the Federal New Source Performance Standards
(NSPS) for particulate emissions since startup of the boilers,
more than five years ago. The United States issued a notice
of violation to [facility name] regarding mass emission
violations at the [facility name] boilers nos. 2-5 on May 30,
1981. [Facility name] has not substantially modified the
particulate emission control system for these four bpilers
since that time. Particulate stack testing conducted as
recently as January 1986 shows continuing violations of
the boilers. The complaint, attached to this memo, was
filed by defendant on June 15, 1985. The United States
then filed a counterclaim on August 1, 1985. The Government's
Motion for Partial Summary Judgment as to liability, filed on or
about December 12, 1985, was granted in part on April 8,
1986, wherein the court denied [facility name's] claim that
the four boilers were not covered by NSPS. The remainder
of the Motion, requesting judgment on the counterclaim for
enforcement, is pending before the court.
The [facility name] plant is located in [City and State]
which is a secondary nonattainment area for Total Suspended
Particulates.
The attached affidavits contain summaries of mass violations
at the [facility name's] boilers nos. 2-5. All data summarized
-------
were obtained from stack tests performed on the [facility name]
boilers by th'e [owner and operator corporation] and stack
testa performed by a consultant retained by the [owner and
operator corporation].
Based on the information contained above and in the
attachments to this recommendation/ I request that the
Assistant Administrator for Enforcement and Compliance Monitoring
find that there is adequate evidence of continuing or recurring
violations of Clean Air Act standards at the [facility name]
and place this facility on the EPA List of Violating Facilities
pursuant to the procedures set forth in 40 CFR Part 15.
For further information please contact Attorney on
(FTS) 987-654 or Technical Specialist (FTS) 987-655.
(Signed)
Regional Administrator
Attachments
[technical documents, consultant's report, documents describing
the judicial enforcement action]
-------
Attachment C
ATTACHMENT TO MODEL LISTING RECOMMENDATION
BASED ON JUDICIAL ENFORCEMENT ACTION
MEMORANDUM
SUBJECT: Attachment to Recommendation for Listing
FROM: Regional Administrator, EPA Region 12
TO: Cynthia Psoras
Listing Official
Legal Enforcement Policy Division (LE-103-A)
Description of Violations
•
The four coal-fired boilers at [facility name] are
subject to 40 CFR part 60, Subpart D, "Standards of
Performance for Fossil-Fuel-Fired Steam Generators for
which Construction is Commenced after August 17, 1971," and
40 CFR part 60, Subpart A, "General Provisions," which are
applicable to all categories of sources for which New Source
Performance Standards (NSPS) have been promulgated.
Subpart D includes emission limits for particulate
matter, opacity, sulfur dioxide and nitrogen oxides (40 CFR
§60.42). It also requires installation, calibration,
maintenance and operation of continuous emission monitoring ("CEM")
systems for opacity, sulfur dioxide and nitrogen oxides (40
CFR §45(a)). Each of the facility's boilers nos. 2, 3, 4, and
5 is subject to these emission limitations and CEM requirements.
When [owner and operator] constructed the facility's boilers
2-5 between 1978 and 1980, it equipped each of the boilers
with a double alkali venturi scrubber for combined control
of sulfur dioxide and particulate matter. These scrubbers suc-
cessfully control sulfur dioxide emissions but they have
never achieved the Subpart D particulate emission limit, 40
CFR §60.42(a)(1). [Owner and operator] also equipped the
boilers with continuous monitoring systems for opacity, sulfur
dioxide and oxygen (it was exempt from the NOX CEM requirement,
pursuant to 40 CFR §60.45(b)(3)). The sulfur dioxide
monitoring aystern has never operated properly.
Subpart A includes requirements related to operation
and maintenance of CEM systems (40 CFR §60.13); notification
and recordkeeping (40 CFR §60.7) and performance testing
(40 CFR §60.8k). Under 40 CFR §60.13, all CEM systems
installed under applicable subparts must:
a. be installed and operational prior to conducting
performance tests (emissions tests) - §60.13(b);
b. Undergo a performance evaluation (monitor
-------
certification test) during or within 30 days of
the" performance tests - §60.13(c);
c. undergo regular calibration and maintenance -
§60.13(d)(l).
[Facility name] violated all these provisions. It
nev«r performed a monitor performance evaluation on, and
has never operated and maintained, its sulfur dioxide GEM
system.
Under 40 CFR §60.7, owners and operators of NSPS sources
must:
• *( ^
a. Notify EPA of the anticipated date of initial
start-up of an affected facility postmarked not
less than 30 days prior to such date -.§60.7(a)(2);
b. Notify EPA of the actual date of initial
start-up postmarked within 15 days of such date
§60.7(a)(3);
c. Submit quarterly reports of "excess emissions"
(emissions exceeding applicable emission limits)
as measured by continuous monitoring systems
- §60.7(c).
[Facility name] failed to notify EPA of the anticipated
or actual start-up of boilers 4 and 5. [Facility name] has
never submitted any excess emissions reports to EPA.
Under 40 CFR §60.8, owners/operators are required to
conduct performance tests of affected facilities not later
than 180 days after initial start-up. [Facility name]
violaf.ed this provision with respect to boilers 4 and 5.
Jit is [facility name's] customary practice to operate
one or more of the boilers during the winter heating season.
The steam'that is generated is used for space heating and
production. The boilers are not operated, or are operated
using only natural gas as fuel, in the wanner months. E -h
heating teaaon since the NOV was issued (in August 1980),
boilers 2 and 3 have been regularly operated. Each day a
boiler is operated, particulate emissions from that boiler
exceed the limit, and violations of the GEM regulations
occur because the sulfur dioxide GEN remains inoperative.
This winter, [facility name] has informed us that they will not
operate the boilers using coal for fuel and will only use natural
gas. However, they have made no commitment to permanently
cease operating the boilers using coal.
-------
The Motion for Summary Judgment
On September 25, 1985, the District Court for the
Central District of the Fifty Second State ruled on EPA's
motiion for partial summary judgment with respect to the
Agency's counterclaim for enforcement. EPA's motion dealt
only with the alleged violations of the subpart D particulate
emissions limit. It did not deal with the monitoring,
notification and reporting violations. EPA introduced
into evidence six stack tests conducted on boilers nos. 2-5,
all of which showed the tested boiler to be exceeding the
limit. The court ruled that on the six days on which
those tests occurred, [facility name] violated the subpart
D particulate standard. Enclosed is a copy of the transcript
of the September 26, 1985, hearing on the Motion for Summary
Judgment. Judge X ruled from the bench following oral
argument by the parties. See pages 21-25. The judge
stated that he would issue a written order, but he has not
done so yet. We will furnish you with a copy upon receipt.
An evidentiary hearing is scheduled for March 1, 1985,
to establish days of violation other than the six stack
test days.
(signed)
Regional Administrator
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Attachment D
MODEL LETTER TO A FACILITY VIOLATING THE
CLEAN WATER ACT REQUESTING A LIST OF ITS
FEDERAL CONTRACTS, GRANTS, AND LOANS
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
Mr. John Smith
President
XYZ Corporation
1000 Corporate Lane
Fifty Second State 12345
Dear Mr. Smith:
The XYZ Corporation was issued National Pollutant
Discharge Elimination System (NPDES) permit number FS0100524
by the Regional Administrator of EPA, Region XI, pursuant to
Title 33, United States Code, Section 1342. This permit
authorizes the discharge of pollutants into the Blue River
in accordance with the effluent limitations, monitoring
requirements, and other provisions of the permit. On May 6,
1986, EPA issued Administrative Order #86-1570 to the XYZ
Corporation pursuant to the authority granted under Title
33, United States Code, Section 1319(a)(3) for exceeding the
effluent limitations for biochemical oxygen demand and total
suspended solids. As discussed in our letter to you of July
6, 1986 you are currently in violation of this Administrative
Order.
Under the provisions of Title 33, United States Code,
Section 1368(a), a facility owned, leased, or supervised by a
"person" (defined to include a corporation such as XYZ Corpora-
tion) who commits "continuing or recurring" violations of the
Clean Water Act may be placed on a "List of Violating Facilities"
and prohibited from receiving Federal contracts, grants and
loans. Th« prohibition under Title 33, United States Code,
Section 1368(a) is implemented by the Environmental Protection
Agency (EPA) under regulations promulgated at Title 40 of
the Code of Federal Regulations Part 15, entitled "Adminis-
tra ;on of The Clean Air Act and Federal Water Pollution
Control Act with Respect to Federal Contracts, Grants, or
Loans." These regulations state that a facility may be
placed on the "List of Violating "Facilities" for a violation
of an administrative order under Title 33, United States
Code, Section 1319(a).
Under Title 33, United States Code, Section 1318, EPA
has authority to require the owner or operator of any point
source to make such reports and to provide such other infor-
mation as are deemed reasonably necessary to carry out the
-------
-2-
objectives of the Clean Water Act, Title 33, United States
Code,, Section 1251 et seg.
Accordingly, for the purposes of implementing Title 33,
United States Code, Section 1368(a), EPA hereby invokes its
authority under Title 33, United States Code, Section 1318,
and requires XYZ Corporation, as the owner and operator of a
point source, identified in NPDES permit number FS0100524, ,
to provide the information specified below no later than 15
calendar days from receipt of this letter. The submittal
should be addressed to:
Regional Attorney
Office of Regional Counsel
U.S. Environmental Protection Agency
Region XI
Information to be Submitted to EPA
1. Identify, by contract number, contracting agency and con-
tract date, all Federal contracts held by the facility for
the procurement of personal property or nonpersonal services,
for which XYZ Corporation is either the prime contractor or
subcontractor.
2. Identify, by grant number, granting agency, and grant date,
all Federal grants received by the facility, including grants-in-
aid, for which XYZ. Corporation is either the grantee (prime
recipient of a grant) or a subgrantee (the holder of an
agreement or an arrangement under which any portion of the
activity or program is being assisted under the grant).
3. Identify, by loan number, lending agency, and loan date,
all Federal loans for which XYZ Corporation is a borrower
or subborrower.
4. Identify, by bid number, agency and date, all bids submit-
ted by XYZ Corporation for future Federal contracts or
subcontracts.
5. Identify, by grant application number, agency and date, all
grant applications submitted by XYZ Corporation for any
future Federal grant or subgrant.
6. Identify, by loan application number, agency and date, all
loan applications submitted by XYZ Corporation for future
Federal loans or subloans.
7. Identify, by percentage estimate, the extent to which
XYZ Corporation's business is connected, in any degree, to
Federal contracts, grants and loans.
-------
-3-
8. Identify the effect, if any, of the prohibition of Title
33, United States Code, Section 1368(a), upon the business of
XYZ Corporation.
This inquiry does not constitute an official notification
that XYZ Corportion is under consideration for placement on
the "List of Violating Facilities." If deemed appropriate,
such a notice will be initiated by the Listing Official,
Office of Enforcement and Compliance Monitoring, EPA.
Under Title 33, United States Code, Section 1318(b), XYZ
Corporation may assert a business confidentiality claim
with respect to part or all of the information submitted to
EPA in the manner described at 40 C.F.R. § 2.203(b). Information
covered by such a claim will be disclosed by EPA only to the
extent, and by means of the procedures set forth in 40 C.F.R.
Part 2, Subpart B. If no such claim accompanies the information
when it is submitted to EPA, it may be made available to the
public by EPA without further notice to XYZ Corporation.
Care should be taken in ensuring that the response to this
letter is complete and accurate because Title 33, United
States Code, Section 1319(c)(2) provides criminal penalties
for knowingly or willfully submitting false information to
EPA in any report required by the Clean Water Act. In addition,
Title 18, United States Code, Section 1001 provides criminal
penalties for knowingly or willfully submitting false
information to a federal official.
This information request is not subject to the approval
requirements of the Paperwork Reduction Act of 1980, Title 44
United States Code, Sections 3501 e_t seq.
Should you have any questions, please contact me at (123)
456-7890.
Sincerely yours,
Regional Attorney
Region XI
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Attachment
MODEL LETTER TO A FACILITY VIOLATING THE
CLEAN AIR ACT REQUESTING A LIST OF ITS
FEDERAL CONTRACTS, GRANTS, AND LOANS
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
Mr. John Smith
President
ABC Corporation
1000 Corporate Lane
Fifty Third State 12345
Dear Mr. Smith:
On May 5, 1986, in the Southern District of the Fifty
Third State, the Department of Justice instituted a civil
suit against the ABC Corporation for continuing and recurring
violations of Title 42, United States Code, Section 7413(b).
Title 40 of the Code of Federal Regulations, Part 15,
entitled "Administration of The Clean Air Act and Federal
Water Pollution Control Act with Respect to Federal Contracts,
Grants, or Loans," promulgated pursuant to Title 42, United
States Code, Section 7606(a) and Executive Order 11738 (38 FR
25161, September 12, 1973) authorize EPA to establish a "List
of Violating Facilities." Facilities on this List are prohibited
from receiving Federal contracts, grants, and loans. A facility
who commits "continuing or recurring" violations of the
Clean Air Act may be placed on the List. These regulations
state that a facility may be placed on the List after EPA,
through the Department of Justice, has filed a civil enforce-
ment action in federal court under Title 42, United States Code,
Section 7413(b).
Under Title 42, United States Code, Section 7414(a), EPA
has authority to require the owner or operator of any emission
source to make such reports and to provide such other infor-
mation as are deemed reasonably necessary to carry out the
objectives of the Clean Air Act, Title 42, United States
Code, Section 7401 < *. seq.
Accordingly, for the purposes of implementing Title 42,
United States Code, Section 7606(a), EPA hereby invokes its
authority under Title 42, United States Code, Section 7414,
and requires ABC Corporation as the owner and operator of a
emission source, to provide the information specified below
no later than 15 calendar days from receipt of this letter.
-------
-2-
The submittal should be addressed to:
Regional Attorney
Office of Regional Counsel
U.S. Environmental Protection Agency
Region XI
Information to be Submitted to EPA
1. Identify, by contract number, contracting agency and con-
tract date, all Federal contracts held by this facility for
the procurement of personal property or nonpersonal services,
for which ABC Corporation is either the prime contractor or
subcontractor.
' •('
2. identify, by grant number, granting agency, and grant date,
all Federal grants received by this facility, including
grant£!-in-aid, for which ABC Corporation is either the grantee
(prime recipient of a grant) or a subgrantee (the holder of
an agreement or an arrangement under which any portion of
the activity or program is being assisted under the grant).
3. Identify, by loan number, lending agency, and loan date,
all Federal loans for which ABC Corporation is a borrower
or subborrower.
4. Identify, by bid number, agency and date, all bids subnit-
ted by ABC Corporation for future Federal contracts or
subcontracts.
5. Identify, by grant application number, agency and date, all
grant applications submitted by ABC Corporation for any
future Federal grant or subgrant.
i
6. Identify, by loan application number, agency and date, all
loan applications submitted by ABC Corporation for future
Federal, loans or sub loans.
7. Identify, by percentage estimate, the extent to which
ABC Corporation's business is connected, in any degree, to
Federal contracts, grants and loans.
8. Identify the effect, if any, of the prohibition of Title
42, United States Code, Section 76CO\a), upon the business of
ABC Corporation.
This inquiry does not constitute an official notification
that ABC Corportion is under consideration for placement on the
"List of Violating Facilities." If deemed appropriate, such
a notice will be initiated by the Listing Official, Office
of Enforcement and Compliance Monitoring, EPA.
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-3-
Under Title 42, United States Code, Section 7414(c), ABC
Corporation may assert a business confidentiality claim with
respect to part or all of the information submitted to EPA in the
manner described at 40 C.F.R. § 2.203(b). Information covered
by such a claim will be disclosed by EPA only to the extent, and
by means of the procedures set forth in 40 C.F.R. Part 2,
Subpart B. If no such claim accompanies the information when
it is submitted to EPA, it may be made available to the public
by EPA without further notice to ABC Corporation.
Care should be taken in ensuring that the response to this
letter is complete and accurate because Title 42, United
States Code, Section 7413(c)(2) provides criminal penalties
for knowingly submitting false information to EPA in any
report required by the Clean Air Act. In addition, Title
18, United States Code, Section 1001 provides criminal penalties
for knowingly or willfully submitting false information to
a federal official.
This information request is not subject to the approval
requirements of the Paperwork Reduction Act of 1980, Title 44
United States Code, Sections 3501 e_t seq.
Should you have any questions, please contact me at (123)
456-7890.
Sincerely yours,
Regional Attorney
Region XI
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GM-54
-------
%
*
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C 20460
NOV 1 2 B66 ANDCOMfLU>CE
OFFICE OF ENFORCEMENT
.DCOMflU.NC
MONITORING
MEMORANDUM
SUBJECT: Referral Letters for Forwarding Judicial Referrals
and Consent Decrees to the Department of Justice
FROM: Thomas L. Adams, Jr.
Assistant Administrator
TO: All OECM Attorneys
During the past few weeks I have had an opportunity to
review numerous civil judicial referral packages. The
referral letters prepared for my signature are carefully arid
accurately drafted and reflect high quality work by OECM
attorneys. However, some of the information currently
included in our referral letters is unnecessary inasmuch as
the Department of Justice already has access to this infor-
mation through other channels. Also, there are certain
inconsistencies in the formats used by each division which
should be addressed.
This memorandum and the attached Model Civil Referral
Letter and Model Letter Recommending Approval of Settlement
are intended to help standardize and streamline the
preparation of referral letters by OECM staff attorneys.
Beginning December 1, 1986, referral letters sent to me for
signature should follow the formats shown in thes,e model
letters.
Please note that both model letters indicate that the
Region is responsible for sending a litigation report to the
Environmental Enforcement Section of DOJ. Nevertheless, we
should continue the current practice of contacting DOJ on
an informa1 basis to assure that ^hey have received this
report.
Also, please note that the only attorney names which
should appear in the body of the referral letter are those of
the OECM and Regional staff attorneys assigned to the case.
If you have any questions regarding this memorandum
please call Julie Becker at 382-4137.
Attachments
-------
MODEL CIVIL JUDICIAL REFERRAL LETTER
Date
Honorable F. Henry Habicht II
Assistant Attorney General
U.S. Department of Justice
Land and Natural Resources Division
Washington, D.C. 20530
Re: [facility name and location]
Dear Mr. Habicht:"
I am referring the above-referenced matter to the
Department of Justice for civil action. This matter, which
was referred to us by our Region office, is [brief
description of matter, e.g., "a Clean Water Act case for
NPDES permit violations by a POTW."]
A copy of the litigation report has been forwarded to
the Environmental Enforcement Section of the Lands and
Natural Resources Division. [Discussion of any unresolved
issues or issues or facts warranting special attention.]
Once this matter is transmitted to the U.S. Attorney's
Office, please have your staff send copies of your trans-
mittal to the EPA Regional and Headquarters participating
attorneys identified below. Please also have them advise
the U.S. Attorney's Office to inform the EPA participating
attorneys when this action is filed.
The Agency's participating attorneys are:
[Name, address and phone number of Regional attorney]
[Name, address and phone .number of Headquart
-------
MODEL CIVIL JUDICIAL REFERRAL LETTER (contd.J
-2-
cc t Regional Administrator
Regional Counsel
Division Director for the appropriate Headquarters
program office
David Buente, Chief
Environmental Enforcement Section
Department of Justice
-------
MODEL LETTER RECOMMENDING APPROVAL OF SETTLEMENT
Date
Honorable F. Henry Habicht II
Assistant Attorney General
Land and Natural Resources Division
U.S. Department of Justice
Washington, D.C. 20530
Re: [facility/case name, location, docket number]
Dear Mr. Habicht:
I am referring the above-referenced (complaint and]
consent decree to- Department of Justice for your signature
and filing in the appropriate U.S. District Court. This
matter, which was referred to us by our Region office,
is [brief description of matter, e.g., "a Clean Water Act
case for NPDES permit violations by a POTW."]
[If this is a new referral: "A copy of the litigation
report has been forwarded by the Region to the Environmental
Enforcement Section of the Land and Natural Resources
Division."] [Brief discussion of any unresolved issues or
issues or facts warranting special attention.]
Once this [matter/consent decree] is transmitted to the
U.S. Attorney's Office, please have your staff send copies
of your transmittal to the EPA Regional-and Headquarters
participating attorneys identified below. Please also have
them advise the U.S. Attorney's Office to inform the EPA
participating attorneys when the decree is lodged.
The Agency's participating attorneys are:
[Name, address and phone number of Regional attorney]
[Name, address and phone number of Headquarters
attorney]
Sincerely yours,
Thomas L. Adams, Jr.
Assistant Administrator
Enclosure(s)
-------
MODEL LETTER RECOMMENDING APPROVAL OF SETTLEMENT (contd.)
-2-
cc» Regional Administrator
Regional Counsel
Division Director for the appropriate Headquarters
program office
David Buente, Chief
Environmental Enforcement Section
Department of Justice
For CERCLA §107 cases only:
Ivery Jacobs
Financial Management Specialist
EPA Headquarters
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GM-55
-------
/ " *
* 3!Z2 * UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
\ ^' WASHINGTON. D C 20460
DEC I 2 1986
MEMORANDUM
SUBJECT: Media Relations on Matters Pertaining to EPA's
Criminal Enforcement Program
FROM:
Thomas L. Adams, Jr.
Assistant Administrator
for Enforcement and Compliance Monitoring v
I/it****** ""^
for External Affairs
Jennifer Joy W
Assistant Adminis
TO:
Regional Administrators
Deputy Regional Administrators
Assistant Administrators
Regional Counsels
Director, National Enforcement Investigations
Center (NEIC)
Director, Office of Public Affairs
Assistant Director for Criminal Investigations (NEIC)
Regional Press Officers
Regional Media Criminal Enforcement Contacts
All SAICs and RAICs, Office of Criminal Investigations
Office of Regional Counsel Criminal Enforcement
Contacts
I. INTRODUCTION
A significant amount of media attention is being received
by the Agency's developing criminal enforcement program. This
memorandum, which is based to a significant extent on.'current
Justice Department media information guidelines, 28 C.F.R. § 50.2
(attached), establishes Agency-wide guidance for response to
Tiedia inquiries on active and freshly concluded criminal cases. I/
I/ The Agency's general media policy on enforcement activities
(see memorandum entitled "Policy on Pu licizing Enforcement
Activities," from Courtney M. Price anu Jennifer Joy Manson,
dated November 21, 1985 (general media policy)) does not specifi-
cally consider the unique problems which may be encountered in a
criminal enforcement setting. Accordingly, the Agency's media
policy in criminal enforcement matters will be derived solely
from this specific criminal enforcement guidance, except for the
distribution of media materials (see Section III of this memorandum,
infra at 9).
-------
eet ef UM DeearaiMflt *<
ta« M crttUmal tee*
(ft) GefisraJ, <1) The ftVftlUbuity to
ntwi medlft of Information in criminal
and dtti cuts' to ft matter which has
become increasingly ft fUbjsrt of eon*
cern IB tht adaintotrstloti of fouet.
Tht purpose «f UUi gateBnt to to
formulate ipeafle ffUMefaes for the
release of such information b _
o«l of (ht Department of JbBttos.
(3) While the release of information
/or tin purpose of influencing a trial
is. of course, always improper. there
an valid reason* (or •»**««>§ available
to the pubue information about the
administration of the law. The task of
striking a fair balance between the
prouctioo of Individuals accused of
ertme or Involved IB etvll pronMiiinsj
with tht Government and pubUe un-
derstandings of the problems of oath
trolling crime tad administering gov-
ernment depends largely on the exer-
eiM of aound judgment by thoM re-
sponsible for administering tht law
and by representatives of tht
and othtr media.
(3) inasmuch as tht Department of
Juitlce has generally fulfilled IU re-
sponsibilities with awareness and un-
derstanding of the eompeUnc needs in
this are*, thin statement, to a consid-
enble extent, reflects and f firms Mm
the lUnd&rdfl to which repmenuuvei
of the Department have adhered In
the put. Non«theie«. it wtu be help-
ful la eafluria* uniformity of practice
to Mt forth the following fuldeUaei
for all ptfMaael of tht Department of
Junlet.
(4) BeeauM of the difficulty and im-
portance of the question* thej raiae. it
u felt that aome portion! of the mtt>
ten covered by thl* lUtemeat, iuch at
the authorization ta make available
Federal conviction record* and a 4e-
•crtpUon of luemj Mixed at the time of
arrest, chould be the lubjeet of eon-
tinulnc review and ooulderatloa by
the Department on the OMII of experi-
ence and fufietlooi from thott
within and ouuide the Department.
(b) Quidtliiut to criminal aeftoiu.
( 1 ) Theae fuldellnee thall apply to tat
releaae of infonnaUon to news media
from the time a penoa I* the wbject
of a criminal tavettlfUlea untfl any
proceeding reeuiun< from tuea aa *•
veatlcaUon QJJ btta Itialneieil b?
trial or otherwlM.
(3) At no Urn* ah*Jl panned at toe
Department of JuflttaB tantth toy
natement or laJforauttoa fc » tht pur*
pott of laflutooac tbt on it of •
defendant'! trial, nor ab*U ptnonnel
of tht Departm«nt fumiih any «uu-
ment or tnformmtloa which could rea-
sonably be expected to bt «*«•»» IMI.
ed by mean* of public communication.
if iuch a tuument or in/ormatlofl
may retuonably bt expected to la/lu-
enot tht outcome of a pir^'M or
future trtaL
(3) Pereonnel of tht Department of
Juftict. subject to iptelfte UmlUtioai
tmpottd by law or court rule or order.
may male public the following in/or-
(I) Tht defendant1! tvame. aft. real.
dance, employment, marital ttatua,
and atmllar backcround information.
(U) Tht lunttane* or text of tht
chant, such ae a complalat. Indict-
ment, or Information.
(ill) The Identity of the lavestlf&tint
and/or arreaUnx ateney tnd tht
lenfth or scope of an invtetlfttlon.
.
situations la which It will limit the re-
lease of information which would not
be prejudicial under the particular cir-
cumstances. If a representative of the
Department believes that in the inter-
est of the fair administration of Justice
»ad tht law enforcement process in-
formation beyond these guidelines
should bt released, in a particular
ease, he shall request the permission
of tht Attorney General or the
Deputy Attorney General to do so.
(o Ontfsftns! (o civil actions. Per-
sonnel of tbt Department of Justice
associated with a civil action shall not
during Its investigation or litigation
make or participate la making an ex-
trajudldal statement, other than a
quotation from or reference to public
records, which a reasonable penoa
would expect to bt disseminated by
u««j»f of public communication if
there to a reasonable likelihood thai
MCB dissemination will interfere with
a fair trial and which relates to:
(1) Oldeaot regarding the occur-
rence or traosadion involved.
(3) The character, credibility, or
criminal records of a party, witness, or
prospective witness.
O) The performance or
any examinations or tests or uul
al or failure of a party to sue
such*
<4) An opinion as to the merit* 01
the claims or defense* of a psrty.
except a* required by law or adminis-
trative rule.
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-2-
In developing this guidance, the Agency has been aware of
its responsibility to provide accurate information to the public
on Agency activities while at the same time respecting the rights
of individuals .and organizations facing criminal investigations
and prosecutions. This guidance strives to outline the fullest
range of information — consistent with a prudent approach
guaranteeing constitutional rights and safeguarding Agency
investigations — which may be disclosed.
Accurate reporting of charges brought and convictions obtained
in EPA criminal cases is an important component of the deterrent
effect that such cases are expected to have upon unlawful conduct.
On the other hand, great care must be taken to ensure that the
reputations of targets are not unfairly prejudiced and that the
right to a fair trial is respected. Further, the Agency maintains
a strong interest in ensuring that its criminal investigations
are neither compromised nor impeded and that its Special Agents
are not endangered by the disclosure of confidential or otherwise
nondisclosable information.
II • MEDIA RELATIONS DURING ACTIVE INVESTIGATIONS
A. General Guidelines
On occasion, EPA personnel will encounter members of the
media during the pursuit of active investigative operations,
for example, during the execution of a criminal search warrant.
Agency personnel should not obstruct or prevent representatives
of the media from conducting their professional activities,
so long as these activities are lawful and do not improperly
interfere with the carrying out of investigative functions by
the Agency. A brief statement may be provided by the appropriate
Special Agent-in-Charge (SAIC), Resident Agent-in-Charge (RAIC),
lead Special Agent or public affairs officer (after clearance
with the SAIC, RAIC or lead Special Agent) concerning the nature
of the investigative activity, e.g., "The Agency is involved in
the execution of a search warrant." Beyond a simple, statement
confirming investigative activity witnessed by the public, no
further comments should be made ordinarily by any Agency personnel.
Inquiries beyond these limited statements should be referred to
either the local United States Attorney's Office (if a prosecutor
has been assigned) or to the Environmental Crimes Unit (ECU)
(FTS 633-2490) of the Department of Justice (collectively referred
to as "DOJ") for any further comment.
Prior to an investigative event which is likely to generate
publicity (or, in instances where pre-event secrecy must be
maintained, as soon thereafter as is practicable), the SAIC or
RAIC of the investigating field or resident office of the National
Enforcement Investigations Center's (NEIC) Office of Criminal
Investigations (OCI) should notify the Office of Regional Counsel
(ORC). SAICs and RAICs will be responsible also for ensuring
that throughout the course of the criminal investigation the ORC
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-3-
staff attorney assigned to the case and the Office of Criminal
Enforcement (OCE) staff attorney assigned to the Region are
supplied with copies of relevant documents containing public
information, which are likely to be necessary to respond to media
inquiries, for example, applications for search warrants. (Of
course, documents which are under court seal may not be distributed
to Office of Public Affairs (OPA) or Headquarters Press Office
(HPO) personnel.)
When it is advisable to notify the public of apparent health
or environmental hazards which are also the subject of a criminal
investigation, HPO or regional OPA personnel or designated
spokespersons are authorized to provide the necessary information
or to tell the public./that it will be notified if a health threat
arises. These statements must, however, avoid discussion of any
related criminal inquiry or of the source of the information
(e.g., a disgruntled employee) where an informant may be involved.
They should also be cleared routinely with the appropriate SAIC
or RAIC and DOJ to insure that information is released in a
manner that does not adversely affect the criminal inquiry.
The media may on occasion make requests under the Freedom of
Information Act (FOIA), 5 U.S.C. $ 552, which relate directly or
indirectly to a criminal investigation. It is usually the primary
responsibility of the criminal contact person for the program to
which the FOIA request has been directed to alert the appropriate
SAIC/RAIC of the request. It is essential that any responses to
such requests be made only after the concurrence of the SAIC/RAIC
and the appropriate ORC attorney (or, if no ORC attorney has been
assigned, the ORC criminal enforcement contact) or the appropriate
OCE attorney. Failure to follow this procedure may inadvertently
signal the existence of a confidential criminal investigation or
might otherwise provide information which could compromise the case.
Moreover, certain information gathered by EPA under its
statutory powers -- in contrast to material gathered under a
criminal search, warrant -- appears likely to be subject to
mandatory disclosure upon request, including a media inquiry.
The Office of General Counsel (OGC) has stated that it intends
to issue a guidance document indicating what the Agency would be
required to release under these various provisions. For now,
if a request is made for information which is arguably subject
to release) under such a provision, and concerns a target of a
criminal investigate (as well as the same basic sut ~ct matter
as the investigation), no release of information may be made
without the consent of the SAIC or RAIC and the appropriate ORC
or OCE attorney (with the consultation of DOJ as appropriate).
The decision whether to release such material will be reached on
a case-by-case basis, pending the incorporation of the OGC guidance
into OECM policy.
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-4-
EPA personnel will at no time encourage or assist the media
in photographing or televising an accused person, any aspect of
an active investigation, or any facility involved in an Agency
investigation. Moreover, the Agency will not ordinarily make
available photographs of an accused. Information which is
authorized to be disclosed to the media should be provided equally
to all members of the media, subject to any limitations imposed
by law or court order.
Finally, any conflicts among Agency personnel as to when or
what information may be disclosed to the public must be resolved
at the Headquarters level, after Headquarters' consultation with
DOJ and the Assistant Director for Criminal Investigations of
NEIC. The Office of Criminal Enforcement and the Headquarters
Press Office should be contacted as soon as possible.
B. Inquiries Concerning Particular Criminal Targets
Before the Lodging of Formal Charges
The existence of any criminal investigation being conducted
within the Agency must never be acknowledged or commented upon.
To acknowledge even the existence of an investigation might
prejudice the rights of an individual or compromise an investi-
gation. When asked, Agency personnel must respond: "It is
Agency policy to neither confirm nor deny the existence of a
criminal investigation.". Of course, to be effective, this
response must be utilized habitually even when it is known
that no criminal investigation is planned or under way. In
the event that this response proves insufficient to quell a
particular inquirer, Agency personnel may direct the inquirer
to the appropriate SAIC or RAIC (who will generally be much
more accustomed to handling persistent inquirers), but under no
circumstances may acknowledge tne existence or nonexistence of
an investigation or provide any information related to it.
Where a representative of another organization or agency
nas acknowledged the existence of or commented upon a'criminal
investigation, and has publicly stated that EPA is conducting
an investigation, it might be necessary to make, in some rare
circumstances, a very limited response in order to prevent
further unwarranted damage to the investigation and/or the
privacy or reputation of the individual(s) involved and preserve
the credibility of the Agency. However, such exceptions will oe
made only on a case-by-case basis, and must be approve in
advance by the Office of Criminal Enforcement in consultation
with, the Assistant Director for Criminal Investigations of.
NEIC.
At any time after a DOJ prosecutor has been assigned or
the case has been referred to DOJ, EPA personnel will not respond
to media inquiries or volunteer comments on the case, whether
oral or written, for attribution or not, without the prior express
approval of DOJ, until the case is concluded absolutely.
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-5-
C. Media- Inquiries and Media Releases After Formal Charges
.Are Filed ' a—
Subsequent to lodging of formal charges (i.e., via indict-
ment, information or criminal complaint), and until the absolute
conclusion of the case j2/, EPA personnel will not respond
to media inquiries on a case without the prior approval of DOJ.
Accordingly, such media inquiries will normally be forwarded to
the lead prosecutor — either with the local office of the
United States Attorney or the ECU -- assigned to the case.
Comments by DOJ will be consistent with its media guidelines
found at 28 C.F.R. S 50.2.
To the extent that the Agency wishes to issue a DOJ-
authorized media release V at cne ti»« formal charges are made
or at the occurrence of oTher critical events in the prosecution,
CPA will honor DOJ policy and not issue a release without the
prior approval of, DOJ. See United States Attorney's Manual,
Title 1-5.570. DOJ diligently will endeavor to revise, reject
or otherwise comment on such proposed media release as soon as
possible or within two work days of its receipt at DOJ. In any
evant, consistent with DOJ guidelines, disclosure of only the
following information will be permitted under Agency policy: 1)
information from (or copies of) public documents (e.g., the
indictment, court pleadings filed, etc.) or 2} incontrovertible
facts — which have been verified by the drafter(s) of the
media statement or the person(s) providing the information directj
to the media -- relating to the following subjects:
(1) The defendant's name, age, residence, employment,
and (with the approval of the SAIC/RAIC) similar background
information;
(2) The identity of the investigating and/or arresting
agency(ies) and (with the approval of the SAIC/RAIC) the
length and/or scope of an investigation (provided no inform-
ation released could implicate a person not charged,
particularly where an investigation continues after charging
some but not all targets); and
2/ see Section II (D)(3> of ^is memorandum, infra.
3/ The terra "media release" as used herein includes, among ether
things: 1) Traditional Media Release (Written statement; maximum
three pages; can involve more than one "story"; usually has quotes
from EPA personnel); 2) No.te to Correspondents (Short statement;
usually a few paragraphs; gives the basic facts); and 3) Press
Advisory (Written statement; contains several (3 or 4) "stories"
in ona release issued at end of week).
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-6-
T3) The time and place of arrest.
Even. th« release of this limited information needs to be evaluated
in the context of whether, due to unique circumstances, it could
arguably prejudice the defendant's right to a fair trial.
D. When Media Releases Should Be Issued
The Agency has a strong interest in informing the public and
the regulated community about its successful criminal enforcement
efforts. Such information will serve to promote awareness of and
respect for environmental laws, as well as to deter potential
violators from engaging in criminal activity. 4/
Several threshold issues must be determined prior to preparing
a media release. First, a decision must be made whether or not
a particular criminal enforcement activity warrants a media release,
and, if so, whether it should be national or regional in scope.
Second, agreement must be reached regarding the form the media
release is to take. (See note 3, supra).
In order to maximize the value of such publicity, while
carefully safeguarding the rights of the accused, the following
general considerations -- which are keyed to the stage of the
criminal proceedings — should serve as guides on a case-by-
case basis:
1. Filing of charges. Two major concerns will make the
issuance of an Agency media release at this stage rare: 1) the
extreme sensitivity of commenting on criminal cases prior to
trial and 2) the difficulty in providing timely information to
trie media posed by Rule 6(e) of the Federal Rules of Criminal
Procedures Si/. However, the Agency should routinely encourage
and support the issuance of a media release by DOJ. Appropriate
OCI and OCE (or ORC) representatives should request that OOJ
4/ Significant enforcement events may require or benefit from
communications activities other than media releases, such as
notifications to Congressional delegations, states and environ-
mental and industry groups. When considering the announcement
of an event/ the criminal enforcement program should notify the
Assistant Administrator Cor External Affairs, whose office wil
assist in developing a communications strategy.
V Rule 6(e) bars absolutely the dissemination of grand jury
material to any person not specifically authorized under court
rule. Usually (among Agency personnel) only the Special Agent
assigned to the case and (perhaps) the assigned ORC and/or OCE
attorney and/or the cruef Agency technical expert would be so
authorized. Thus, Rule 6(e) would, as a practical matter,
prohibit the circulation o£ a draft media release prior to the
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-7-
allow EPA *ffl_opportunity to comment on such (and any other EPA
criminal-anforceraent related) DOJ media releases. In cases of
unusual national significance (e.g., a precedent-setting prosecution
or one of unique programmatic significance) the Agency'will consider
is.-juing its own DOJ-approved media release, particularly when
DOJ does not intend to issue its own media release.
2. Criminal conviction. Cases resulting in a criminal
conviction, either through guilty verdict after trial or by the
entering of a guilty plea by the defendant, should ordinarily be
considered candidates for a traditional national media release.
Araong the factors which might militate in favor of such release
arc whether the case involves: 1) a felony conviction (either
for an environmental viola1: .on or an offense under Title 18 of
the United States Co4e (e.g., knowing false statements to a
federal agency, 18 U.S.C. S 1001)), 2) multiple misdemeanors
which could result in incarceration for more than 1 year, 3) an
issue of legal or programmatic significance (e.g.; the national
asbestos enforcement strategy), 4) nationally recognizable defend-
ants, 5) significant harm or potential harm to the public health
or environment, 6) a conviction of a high-level corporate manager
(other than of a small business) or 7) a conviction obtained
after trial. (The issuance of a national media release does not
preclude the issuance of a regional release as well; however,
both releases would need to be approved by DOJ and care must be
exercised to ensure the consistency of the releases.) This list
of factors is merely illustrative; the decision whether or not
to issue a national release must be made on a case-by-case basis.
Less nationally significant cases resulting in convictions
may still be of interest regionally or to trade publications and
thua would be appropriately handled by a regional media release
and/or Headquarters press advisory or by a phone call to the
general media or trade press. Regions are free to develop their
own procedures for the issuance of regional media releases tailored
to their unique circumstances, but they must provide 'for the
critical roles to be played by OCI and DOJ as outlined- in this
guidance. It would appear to be good practice that all such
regional releases be approved within EPA by both the appropriate
SAIC/RAIC and the ORC criminal enforcement contact.
At tills stage of the proceeding, because the case is still
open, DOJ approval of the media release is mandatory.
Footnote J5/ continued?
time the indictment was actually handed down, thus making the
drafting, reviewing and approving activities necessary to the
issuance of a media release very difficult on a timely basis.
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-8-
3. Sentencing.
Criminal cases resulting in sentences which include the
following would be typically strong candidates Cor a traditional
national media release: 1) (other than de minimus) incarceration,
2) significant fines relative to the criminal conduct, 3) unusual
or significant "clean-up" or restitution provisions, 4) use of
tae Alternative Fines Act (so long as application of this law to
environmental crimes remains novel); or 5) provisions which other-
wise highlight a successful prosecution. As with convictions,
many cases which are not of great national significance would
nonetheless merit a regional or limited Headquarters media
release. Cases where the penalties imposed are insignificant or
disproportionately minor compared witn the crime committed should
be carefully analyzed to determine whether soliciting publicity
might harm the Agency's enforcement strategies.
Even after sentencing has been completed, a case is not
necessarily over. As to one or more defendants, motions for a
new trial may be pending, appeals may yet be noted or may be
pending, and after an unsuccessful appeal the case may yet come
before the Supreme Court. After sentencing, DOJ regards a case
as open until all possible avenues of appeal are either exhausted
or the time allowed for noting such appeals has expired. Therefore,
until tnere is no possiointy wnatsoever of a new trial, the
case is not considered absolutely concluded and closed, and DOJ
approval ot a media release is still required.
III. PROCEDURES FOR PREPARING A NATIONAL MEDIA RELEASE
Atter tne decision to issue a national media release has
been made, the following general procedures will be utilized in
preparing it:
1. OCE will-ordinarily have notified the Headquarters Press
Ottice in advance of the upcoming significant event and will ensure
that HPO has a copy of all public documents that it may desire. £/
2. The staff OCE attorney assigned to the case will inform
HPO of the occurrence of the significant event (e.g., a guilty plea
was ent«r«d on a particular date) and will provide additional
information requested by HPO or will supply HPO with the necessary
contact person. (It may be mutually decided by OCE and ORC that
the ORC staff attorney should have the lead on the national media
release. If so, the ORC attorney will be responsible for all of
6/ In the event the Agency's criminal enforcement program wishes
To issue a media release at the time of an indictment, it will
notify the HPO of its desire and supply the necessary information
and documents as soon as possible after the indictment.
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-9-
the OCE functions listed in these general procedures for preparing
a media release and for keeping OCE informed as to its status.)
3. HPO will have the lead responsibility for preparing the
actual media action. The OCE (or ORC) attorney will assist in
ths drafting of the media release as requested by HPO.
4. HPO is responsible for coordination with the regional
OPA and for obtaining a concurrence from OCE (and ORC, where
applicable). (OCE concurrence will be required even where the
ORC attorney has the lead.) The OCE (or ORC) attorney will be
responsible for consulting with the appropriate SAIC/RAIC or lead
Special Agent and with DOJ prior to providing a concurrence. HPO
may issue press advisories regarding convictions and sentencing
based upon OCE non-confidential "Weekly Highlight" material, pro-
viding it obtains the prior concurrence of OCE (which in turn will
consult with OCI "and DOJ), which ordinarily will be given quickly.
5. Distribution of media material will be accomplished by
HPO as indicated in the general media policy.
In order to be effective it is essential that a media release
be issued as contemporaneously as possible with the event it is
publicizing. Therefore, it is critical that Agency personnel
involved in the particular criminal enforcement proceeding provide
HPO (and/or the regional OPA) with all necessary information, as
well as review and concurrence, on an expedited basis.
IV. MEDIA INQUIRIES ON THE CRIMINAL ENFORCEMENT PROGRAM
GENERALLY
The Agency encourages good media relations and accurate
media coverage of the Agency's criminal enforcement program
generally, as in all other aspects of the Agency's activities.
To ensure the accuracy of responses to media inquiries, and to
protect against inadvertent prejudice to the rights of defen-
dants in active cases, these inquiries will be directed to the
Headquarters Press Office (FTS 382-4355; E-Mail Box EPA 1704),
the Director of the Office of Criminal Enforcement (FTS 475-9660;
E-Mail Box EPA 2261), or to the Assistant Director for Criminal
Investigations, at the National Enforcement Investigations Center
in Denv«r {FTS 776-3215; E-Mail Box EPA 2390).
V. RESERVATIONS
The policies and procedures set forth herein, and internal
office procedures adopted pursuant hereto, are not intended to,
do not, and may not be relied upon to, create a right or benefit,
substantive or procedural, enforceable at law by a party to
litigation with the United States. The Agency reserves the
right to take any action alleged to be at variance with these
policies and procedures or not in compliance with internal office
procedures that may be adopted pursuant to these materials.
-------
-10-
Attachment
cc: Director, Environmental Crimes Unit, Department of Justice
Associate General Counsel; Grants/ Contracts and General
Law Division
Jonathan Cannon, Office of General Counsel
-------
- 57, was revised on June 20, 1988. The 1987 version
has been replaced with the 1988 version.
-------
GM-56
-------
| UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
>< WASHINGTON. O.C. 20460
DEC I 6 !986 L
MEMORANDUM
SUBJECT: Guidance on Determining a Violator's
Ability to Pay a Civil Penalty
\
FROM: Thomas L. Adams, Jr.
Assistant Adminstrator for
Enforcement and Compliance Monitoring
TO: Assistant Administrators
Regional Administrators
I. PURPOSE
This guidance amplifies the discussion in the Uniform
Civil Penalty Policy on how to adjust a penalty target figure
when a violator claims paying a civil penalty would cause
extreme financial hardship. This guidance was developed to
meet the commitment made in the Uniform Civil Penalty Policy
issued February 16, 1984, and in response to Regional Office
requests for amplification of the "Framework for Statute-
Specific Approaches to Penalty Assessments" (GM-22).
!!• APPLICABILITY
This guidance applies to the calculation of civil
penalties under medium-specific policies issued in accordance
with the Uniform Civil Penalty Policy that EPA imposes on:
1. For-profit publicly or closely held entities; and
2. Por-profit entities owned by not-for-profit entities.
This guidance does not apply to:
1. The calculation of civil penalties that EPA imposes
on municipalities and other not-for-profit entities; or
2. A violator who files for bankruptcy or is in bankruptcy
proceedings after EPA initiates the enforcement action.
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III. SCOPE
This guidance only gives a general evaluation of the
financial health of a violator and the possible effects of
paying a civil penalty for the purpose of settlement
negotiations. It describes when to apply the ability to pay
factor and provides a methodology for applying the factor
using a computer program, ABEL.
The guidance does not prescribe the amount by which EPA
may reduce a civil penalty if the ability to pay factor is
applied. The methodology in this guidance will not calculate
a specific dollar amount that a violator can afford in civil
penalties nor does it provide a way to predict whether paying
a certain amount for a civil penalty will cause an already
financially troubled firm to go out of business.
For an ability to pay analysis, EPA needs specific financial
information from a violator (see section V). EPA includes the
financial data in a litigation report only when the data are
requested by the Department of Justice or offered by the violator,
IV. THE ABILITY TO PAY FACTOR
Under the Uniform Civil Penalty Policy, EPA may consider
using the ability to pay factor to adjust a civil penalty
when the assessment of a civil penalty may result in extreme
financial hardship. Financial hardship cannot be expressed
in absolute terms. Any limitation on a violator's ability
to pay depends on how soon the payments must be made and
what the violator has to give up to make the payments. A
violator has several options for paying a civil penalty:
1. Use cash on hand;
2. Sell assets;
3. Increase debt by commercial borrowing;
4. Increase equity by selling stock;
5. Apply toward a civil oenalty for a period of time
what wo-^vl otherwise be dis trio ted as profit; or
6. Use internally-generated future cash flows by deferring
or eliminating some planned future investments.
Each of these options will affect a for-profit violator's
operations to some degree. EPA must decide whether to adjust
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-3-
a proposed penalty amount and by how much, taking into account
the gravity of the violation and other criteria in medium-
specific guidance.
V. INFORMATION TO DETERMINE ABILITY TO PAY
If ability to pay is at issue, EPA may request from a
violator any financial information the Agency needs to evaluate
the violator's claim of extreme financial hardship. A violator
who raises the issue has the burden of providing information
to demonstrate extreme financial hardship.
Financial information to request from for-profit entities
may include the most recent three to five years of:
1. Tax returns;
2. Balance sheets;
3. Income statements;
4. Statements of changes in financial position;
5. Statements of operations;
6. Retained earnings statements;
7. Loan applications, financing agreements,
security agreements;
8. Annual reports; or
9. Business services, such as Compustat, Dun and
Bradstreet, or Value Line.
Tax returns are the most complete and in the most consis-
tent form for analysis. Tax returns also provide financial
information in a format for direct input into ABEL. Annual
reports art the most difficult to analyze and may require
the assistance of a financial analyst.
When reque; Ing information informally or through
interrogatories or discovery, E?A shc_~J ask for three to
five years of tax returns along with all other financial
information that a violator regularly maintains as business
records. If a violator refuses to give EPA the information
to evaluate the violator's ability to pay, EPA should seek
the full calculated penalty amount under the assumption that
the violator can pay.
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VI. CONFIDENTIALITY OF FINANCIAL INFORMATION
A violator can claim confidentiality for financial
information submitted to EPA. In accordance with the regu-
lations on confidential business information, 40 CFR 2.203,
EPA must give notice to a violator that the violator may
assert a business confidentiality claim. EPA's notice must
contain the information required in 40 CFR 2.203. The notice
must include a statement that if the violator submits financial
information without a confidentiality claim, EPA may release
the information without further notice to the violator.
The violator can make a claim of confidentiality for
financial information in a cover letter accompanying the
information. Information in published annual reports would
not be entitled to confidential treatment.
VII< APPLYING THE ABILITY TO PAY FACTOR
Under the terms of a consent decree, a violator pays a
civil penalty in addition to making any capital investment
necessary to come into compliance. EPA considers the costs
of attaining compliance when applying the ability to pay factor
to a civil penalty calculation.
EPA determines whether to apply the ability to pay
factor using a four-step process:
1. Determine, if-possible, whether a violator plans to
claim extreme financial hardship;
2. Determine whether criteria in the Uniform Civil
Penalty Policy and medium-specific guidance require consideration
of ability to pay;
3. Evaluate the overall financial health of a violator's
operations by analyzing financial information provided by a
violator or from other sources, such as business services; and
4. Project the probabilities of a violator having future
internally-generated cash flows to evaluate hov paying a proposed
civil penalty may affect * violator's financial Decisions.
VIII. FINANCIAL COMPUTER PROGRAM
EPA's computer program, ABEL, assists in evaluating the
financial health of for-profit entities, based on the estimated
strength of internally-generated cash flows. ABEL uses financial
information on a violator to evaluate the overall financial
health of a violator (step 3 above). The program uses standard
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-5-
financial ra±ios to evaluate a violator's ability to borrow
money and pay current and long-term operating expenses.
ABEL also projects the probable availability of
future internally-generated cash flows to evaluate some of a
violator's options for paying a civil penalty (step 4 above).
EPA is developing a user's manual to provide self instruction
in the use of ABEL in addition to the documentation and help
aids in the computer program.
Exhibit 1 is a hypothetical use of ABEL to evaluate a
violator's financial health. If the ABEL analysis indicates
that a violator may not be able to finance a civil penalty
with internally-generated cash flows, EPA should check all
available financial information for other possible sources
of cash flows for paying a civil penalty.
For example, in corporate tax returns, item 26 of
Schedule A (cost of goods sold) sets forth deductions for
entertaining, advertising, and professional dues. Schedule E
shows the compensation of officers. In Schedule L (balance
sheets), item 8 sets forth investments that may include
certificates of deposit or money market funds. These types
of assets and expenses do not directly affect operations and
may vary considerably from year to year without adversely
affecting the violator's operations. Because a civil penalty
should be viewed as a one-time expense, these kinds of assets
and expenses could be sources of cash for a civil penalty.
Using the sources of financial information from the example
above, liquid assets such as certificates of deposit and
money market funds could be used to pay a penalty. Expenses
for advertising, entertaining, or professional dues could be
reduced for a short period to pay a civil penalty. A corporate
officer might even be willing to take less compensation for
a short period. A combination of options like these may
produce enough cash flow to pay a civil penalty without
causing the violator extreme financial hardship in meeting
operating expenses.
Attachment
-------
EXHIBIT 1
Assumption that Violator is Financially Healthy
Assume that EPA has calculated an economic benefit for
Company X of $140,000 and a gravity component of $110,000 for
a total proposed penalty of $250,000. EPA presents the
proposed penalty after several negotiation sessions, and the
CEO for Company X then claims that the company cannot afford
to pay that much. In support of the claim, the CEO produces
accounting statements showing that the firm paid no income
taxes for the previous three years and had less than $100,000
in net income for those years.
EPA requests tax returns and other financial information
for the most recent three years of Company X. EPA enters the
tax return information in ABEL and receives the output in
Attachment A. The Phase 1 analysis from ABEL is not dispositive
of the issue, so EPA performs a Phase 2 analysis.
The Phase 2 analysis indicates that Company X can finance
a civil penalty of $250,000 from internally-generated cash flows,
even after planning for $400,000 in pollution control investments
and $50,000 for annual O&M expenses. The table in Phase 2
shows a 99 percent probability that Company X will have future
cash flows with a net present value of $370,061 available to
pay a civil penalty.
Assumption that Violator Is Not Financially Healthy
Assume again that EPA has calculated a total penalty amount
of $250,000. Company Z claims extreme financial hardship. If
the ABEL analysis indicates that Company Z would have little
probability of generating $250,000 in cash flows during the
next five years, EPA would go back to the financial data
supplied by the violator and look for items that may indicate
a source of cash, including loans outstanding to corporate
officers, entertainment expense deductions, company cars or
airplanes, amount of compensation for corporate officers,
compensation for relatives of corporate officers who ,do not
have clearly defined duties.
If the ABEL Phase 1 analysis indicates that Company Z
may have additional debt capacity (debt/equity ratio), EPA
would look in the tax returns for the amount of long term
debt the violator is carrying and analyze any loan applications
the violator submitted in response to I^A's request for
financial information. Frequently, firms can borrow addition;-. 1
money for operations and free up cash flow to pay civil
penalties.
Even a firm on the verge of bankruptcy may choose to
settle an enforcement action with a civil penalty provision in
the consent decree. EPA should always seek some civil penalty.
ABEL and other financial analysis provide a range of penalty
amounts for the purpose of settlement negotiations.
-------
ATTACHMENT A
... ...... ^ t ...
DATA- FOR ABEL EXAMPLE - ' •
ANALYSIS DATE: NOVEMBER 24, 1986
DEBT EQUITY RATIOS
1983 0.38 A RATIO LESS THAN 1.3 INDICATES THE FIRM
MAY HAVE ADDITIONAL DEBT CAPACITY •
1984 2.91 A RATIO GREATER THAN 1.3 INDICATES • ' -
THE FIRM MAY HAVE DIFFICULTY BORROHINQ
1983 .. 1.39 A RATIO GREATER THAN 1.3 INDICATES
THE FIRM MAY HAVE DIFFICULTY BORROWING .
PLEASE ENTER A. CARRIAGE RETURN TO CONTINUE
CURRENT RATIOS ' |
1983 1.10 A RATIO LESS THAN 2.0 MAY INDICATE |
LIQUIDITY PROBLEMS- ' •
\
1TC4 1.20 A RATIO LESS THAN 2.0 MAY INDICATE I
LIQUIDITY PROBLEMS • . j
4
1933 1.03 A RATIO LESS THAN 2.0 MAY INDICATE
LIQUIDITY .PROBLEMS
RLEASE ENTER A CARRIAGE RETURN TO CONTINUE
3EAVER'S RATIOS
<
19S3 0.22 A RATIO GREATER THAN 0.20 INDICATES •
HEALTHY SOLVENCY J
1984 0.20 A RATIO BETWEEN 0.10 AND 0.20 ig J
INDETERMINATE ' j
I
1933 0.30 A RATIO GREATER THAN 0.20 INDICATES (
HEALTHY SOLVENCY j
PLEASE ENTER A CARRIAGE RETURN TO CONTINUE !
TIMES INTEREST EARNED j
1903 1.02 A RATIO LESS THAN 2.0 MAY INDICATE |
SOLVENCY PROBLEMS • »
1784 1.64 A RATIO LESS THAN 2.0 MAY INDICATE
SOLVENCY PROBLEMS
1983 1.30 A RATIO LESS THAN 2.0 MAY INDICATE
SOLVE!1."I Y proSLlMS
PLEASE ENTER A CAFRIA3E RETURN TO CONTINUE
-------
ABEL INTERPRETS THE OVERALL RESULTS OF THE FINANCIAL
RATIOS AS FOLLOWS! - *
ALTHOUGH THE FIRM MAY FACE CURRENT CASH tOR LIQUIDITY*
CONSTRAINTS, ITS LONG-TERM PROSPECTS ARE GOOD AND IT SHOULD
BE ABLE TO FINANCE PENALTIES AND INVESTMENTS. A PHASE
TWO ANALYSIS IS RECOMMENDED.
ABEL NOTES THAT THE FIRM'S MOST RECENT DEBT- EQUITY
RATIO IS SUBSTANTIALLY -BETTER .THAN ITS HISTORIC AVERAGE.
AE'EL NOTES THAT THE FIRM'S MOST RECENT fiis INTEREST
EARNED IS SUBSTANTIALLY POORER THAN ITS HISTORIC AVERAGE.
DO YOU WISH TO CONTINUE WITH T! IE PHASE TWO ANALYSIS
(V OR N).T / . . -.v^.;.. .. . .. * «• >...-. - ; ... •
" " '
DO YOU WISH TO ANALYZE A CIVIL PENALTY (P> OR A NEW
PLtA'jE INPUT THE INITIAL PROPOSED SETTLEMENT PENALTY
AMOUNT IN CURRENT DOLLARS (Z.G., 300O) ; IF THERE IS NO TASCC-E2
PENALTY, ENTER 0.
250000
EEFCFVE PROCEED ING WITH THE CIVIL PENALTY ANALYSIS,
ABIIL WILL REGUIKE CERTAIN ADDITIONAL INFORMATICN r.'EGAR
AN/ INVESTMENTS WHICH MAY £:£ REQUIRED IN Cr.'D'Ir;: f.jR 7KE FIRM
TO ACHIEVE COMPLIANCE.
ENTER THE DEPRECIABLE CAPITAL COST OF THE NEW INVES™1-:4^ .
(E.G., 1000.00); IF THERE IS NO NEW INVESTMENT, ENTER n
200000
PLEASE ENTER WHAT YEAR DOLLARS THIS 15 £
-------
ENTER ANY UQN-uEP^Er.I-r'.E, BUT TAX
i-EliUCTIBLS CQ5T3 ASSOCIATED WITH THE NEW INVESTMENT.
IF THERE 13 NO COST THAT MEETS THIS REQUIREMENT
PLEASE ENTER 0.
100000
PLEASE ENTER WHAT YEAR DOLLARS THIS'IS EXPRESSED IN
(E.G., 19Q4)
1983 -. r
ENTER THE ANNUAL DIM COST OF THE NEW INVESTMENT'.
IF THERE IS NO 0*.M COST, ENTER O
50000
PI-EASE ENTER .WHAT YEAR DOLLARS THIS IS EXPRESSED IN
(E.G., 1984)
1985
THE FOLLOWING STANDARD VALUES ARE USED IN THIS SECTION OF
HoEL:
1. REINVESTMENT RATE • 0.0
2. NOMINAL DISCOUNT RATE =» 13. 69V.
3. INFLATION RATE • 4.417. ..
4. MARGINAL INCOME TAX RATE =30.007.
5. INVESTMENT TAX CREDIT -10.00X
DO YOU WISH TO HAVE THESE ITEMS EXPLAINED (Y OR M) ">
N
DO YOU WISH TO CHANGE ANY OF THESE INPUTS (Y OR N)?
' ASfL IS READY" TO PROVIDE"ODTPOT; YOU HAVE "THE CHOICE
OF THREE OUTPUT OPTIONS:
I. PRINT ONLY THE POSSIBILITY OF THE PRESENT VALUE
OF THE FIRM'S FIVE YEAR PROJECTED CASH FLOW EXCEEDING
EITHER AN INITIAL PROPOSED SETTLEMENT PENALTY. OR A P-EQUIRED
.INVESTMENT.
2. PRINT A TABLE SHOWING THE NET AVAILABLE CASH FLOW
WITH AN ANALYSIS OF THE TABLE.
3. PRINT A DETAILED TABLE SHOWING THE COMPONENTS' OF THE
FIRM'S CASH FLOWS. THIS OPTION MAY BE HELPFUL TO' FINANCIAL
ANALYSTS BUT IS NOT RECOMMENDED FOR MOST USERS.
PLEASE ENTER YCUR CHOICE Cl,2 OR 3).
2
-------
THERE IS A 99.9 % CHANCE THAT THE FIRM
CAN FINANCE THE PROPOSED SETTLEMENT PENALTY QF
* • 230000.OOBASED-ON THE STRENGTH OF INTERNALLY
GENERATED CASH FLOWS FOR THE NEXT FIVE YEARS THE
ANALYSIS AT THIS POINT DOES NOT DEMONSTRATE
CONCLUSIVELY THE FIRM'S ABILITY TO PAY THE PROPOSED
PENALTY. TO MAKE A DETERMINATION, ONE MUST LOOK AT
THE FIRM'S OTHER OPTIONS, INCLUDING INCREASING EQUITY.
SELLING ASSETS, OR LEVERAGING UNLEVERED ASSETS.
ABEL IS READY TO BEGIN OUTPUT. IF YOU WISH, PLEASE
POSITION YOUR PRINTER TO THE START OF A NEW PAGE. PLEASE
ENTER A CARRIAGE RETURN TO CONTINUE
DATA FOR ABEL EXAMPLE
ANALYSIS DATE: NOVEMBER 24, 1986
NET PRESENT VALUE EQUIVALENT
PROBABILITY AVAILABLE ANNUAL CHARGE
I
50.0 716944.31 280891.31
60.0 679230.25 266115.37
70.0 , 633832.69 . 250280.OO
30.0 591423.31 231713.^2
90.0 525833.SO 206013.06
95.0 471726.Si 184317.36
99.0 370061.81 144996.37
THE HOOVE DATA ARE PRESENTED IN CURRENT-YEAR DOLLARS
r-LLASE ENTER A. CARRIAGE RETURN TO CONTINUE
THIS TABLE SHOWS THE PROBABILITY THAT THE VIOLATOR
CAN FINANCE CIVIL PENALTIES OF A GIVEN AMOUNT. FOR EXAMPLE,
THERE IS A 93.00 */. CHANCE OF FINANCING A LUMP
SUM PENALTY' OF UP TO * 471726.56 BASED ON THE STRENGTHS
OF PROJECTED INTERNALLY GENERATED CASH FLOWS. THIS IS
EQUIVALENT TO ALLOWING THE FIRM TO MAK.C TH^EE EQUAL ANNUAL
PAYMENTS OF * 134817.56. THE ANALYSIS AT THIS POINT DOES
NOT DEMONSTRATE CONCLUSIVELY THE FIRM'S ABILITY TO PAY
THE PROPOSED PENALTY.- TO MAKE A DETERMINATION, ONE MUST
LOOK AT THE- FIRM'S OTHER OPTIONS, INCLUDING INCREASING
EQUITY, SELLING ASSETS, OR'LEVERAGING UNLEVERED ASSETS.
DO YOU WISH TO PERFORM THE PHASE TWO ANALYSIS FOR
r:
-------
GM-57
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. O.C. 20460
* o
ernet e»
TMI AOMIMIflTHATQM
MEMORANDUM
SUBJECT: Guidance for the PY 1989 State/EPA
Enforcement Agreements Process
PROM: A. James Barnes l<
Deputy
TO: Assistant Administrators
Associate Administrator for Regional Operations
Regional Administrators
Regional Counsels
Regional Division Directors
Directors, Program Compliance Offices
The attached enforcement agreements guidance for PY 1989
looks to continuing the successes of the State/EPA enforcement
relationship. It re-emphasizes the need for annual updates
of the enforcement agreements. It also introduces the regional
enforcement strategies process as a means of addressing state and
regional priorities and reiterates the importance of timely and
appropriate enforcement responses and federal facilities compliance.
There is a new emphasis for FY 1989 on tracking of both state and
federal referred/filed cases, inspector training and development,
and on upfront agreements on penalty sharing.
The "Revised Policy Framework for State/EPA Enforcement
Agreements" renains our blueprint for the State/EPA enforcement
relationship. States and Regions should reacquaint themselves
with its provisions and focus on fully implementing them, consistent
with progr««-specif ic guidance.
T.iw recently issued report on the PY 87 Implementation of
the Timely and Appropriate Enforcement Response Criteria highlights
response areas needing increased attention by Headquarters program
Offices, Regions, and States. I encourage you to read this report
and work closely within the Regions and Headquarters Program Offices
-------
-2-
to improve regional and state performance, trackina of vi
and enforcement follow-up. The steering Committi£9on the
Federal Enforcement Relationship is c
Region's performance in implementing the timely and
C°ntinue to
.*:..". 3CS fc :.".S<.
In a continuing effort to improve e"n^rcWenit' planning, OECM
will be developing, with the program o^fieeWVulftaries of FY
1989 enforcement priorities. These «uram*'ri«s will be available in
June and will be based on results of th* 'strategic planning sessions
with the program offices and the FY 1989 GpVratirtg year Guidance.
They can assist in developing operating platfjb ¥»ong regional
program divisions, Regional Counsels, and Environmental service
Oivioions, by identifying shifting emphases in ease selection,
inspoction targeting, etc. The Regions may wish,to share these
enforcement priority summaries with states'1 ii^part of the enforcement
agreements process. /roi:.,
r s, J.'-! i i-i - •'
I remain firmly committed to full and "effective implementation
of the Enforcement Agreements process and "Sin; relying on your
continued personal attention to this impol*€ait&. Effort.
.• a -. c - » :" -• -'
Attachments
cc: Steering Committee on the State/Federal
Enforcement Relationship ^aus
Regional Enforcement Contacts
ait
i; a i. :.>
r, 95 s&ncfo so
-------
ATTACHMENT 1
"
GUIDANCE POR'JlJPLEMEjTING THE PY 1989 ENFORCEMENT AGREEMENTS PROCESS
v ? * pn 1 1 v^ c'-
** f ' '
~ .
1. Maintainirnq.fehcSnf or cement Agreements Process
The process for State/EPA enforcement agreements has been
in place fqr a^e/sc^our years and has led to greater clarity of
the roles amlcsj&ansib-ilities between Regions and States and to
more effective e^po^&ment — as our enforcement data for the
last two ycals, i^^P«*« • The revised "Policy Framework for
State/EPA erfra£ffi«nfc Agreements," issued in August 1986, continues
to serve as tfe>" Blueprint for our State/EPA enforcement relationship.
Each year, RegioAS-and States should jointly review the agreements
to assure: w/rti "ee^
f!&£W ¥$ft-
• That the agreem.fnts reflect any changes in State and Federal
enforcement priorities. Guidance documents which highlight
enforcement priorities are identified in Attachment 2. The
new Regional^aforcement strategies process that resulted from
the EPA Enforcement Management Council discussions, may be used
as one mean|''4&ftf after responding to differences among national,
regional, and state enforcement priorities.
• That the "no surprises" policy applies to all aspects of the
compliance and enforcement program, states and Regions should
evaluate their success in involving Attorneys General, determine
if Attorney General involvement should be increased, especially
for Superfund and Federal facilities enforcement actions, and
determine if other parties1 need to be routinely notified or
consulted in the enforcement process. Regions and States
should discuss the need to further share enforcement and
compliance information including inspection results, monitoring
reports, and evidence, and how this could best be accomplished.
0 That effective dispute resolution processes are in plaice
to surface issues quickly to managers in both Regions' and
States and provide for prompt resolution.
2. Improved Management and Tracking of Enforcement Responses
a. For Enfogctaant Responses that are Timely and Appropriate;
The PY 1987 report on the implementation of the timely and
appropriate enforcement response criteria indicated that some
improvements have te««n made by some programs but that still more
needed to be don« to fully implement the guidance. In PY 1988,
the steering Committee on the State/Federal Enforcement Relationship
I/ The Steering committee on the State/Federal Enforcement
~ Relationship is exploring the need to improve communications
and relations with State environmental boards or commissions.
-------
-2-
will be discussing how to improve th^use^^ the;, timely and
appropriate response criteria as an
approprate response criteria as an .9Q£0?£«pieB&&ool.
• Regions and States should, connistsnf, .wiroqrain guidances,
improve their management and track"i"hgr~cTf 'Isighif icarit non-
compliers/violators. . r*c sv,fi^3 If .ISA •'
..
• The PY 1988 enforcement agreements -jstrt^pta improving use of
state penalty authorities or other^ sanctions r.tPo? PY 1989,
States should commit to developing^asdbiSipitSienfcing A strategy
for obtaining a penalty or other sanefc*on^d«signed to determine
future violations consistent with program faidance defining
•appropriate" enforcement response, --Regions -should continue
to encourage states to develop ciy&|£adffiiniaferative penalty
authorities or to use- other appropriate iS.a»efeions available
under state law or regulation.
. o .; as 7 &?£ :• • •
The Deputy Administrator and each, .p^ograifl office will
review Regional data for timely and appropriate; response as
part of scheduled Regional visits and reviews. The PY 1987
timaly and appropriate report includes :c?9ection on EPA and
state performance, by Region, specif icalTy Tor 'this purpose.
& ** *3j t~. *> -" JU "*'
b. For Tracking and Follow-through on?Cag«ss jr.U
The current tracking and reporting systemg-.call for periodic
reporting by EPA and states on cases filed or referred, we are,
howover, facing problems by not knowingc-fefeejafeatus of state cases
once they have been filed or referred,^nofc^Hnowiag whether or
when they have been settled, or not kno^i-ng whether or when
final compliance has been achieved.
9 Regions and States should agree on how e^isfrt&g:reporting
relationships can provide the status of filed or referred cases
up to the time of settlement or closure,jtnd^wben compliance has
been achieved. ': *?;.?.
3. Inspector Training and Development
a\*«j;
In PY 1988, EPA will issue a policy^* ferment and EPA
Order on inspector training and development» Although EPA's
Order for inspector training and development does not establish
training requirements for state and local inspectors* States
are encouraged to adopt their own formal inspector training
programs.
• Regions and States should annually assess a State's inspector
training needs and inspection priorities as part of the
enforcement agreements process.
• Regions should encourage state inspector training programs
through information sharing and through state participation
-------
-3-
in the design of EPA's training curricula, routine communication
on course 9f£eEthcal entities may share in civil
penalties thati?rtstttt*froBi their participation, to the extent
permitted by§>4t&q«&d?-1tfeei circumstances of the individual case.
Appendix C:.^f£atoens»©l'ieypPrainework is an October 30, 1985
memorandum eont&iiiiRf* EPA's policy on the division of penalties
with state ®Rdsa§e&i -^governments, unnecessary disputes regarding
penalty sharing-tha'fffe&aiiaen when discussions on the appropriate
division of'-pAaaiGiftfl'&d&cur late in the enforcement process.
• Regions and States should consider developing a process
for establ£sfe£ftfc?€naltv sharing ground rules in advance of
enf orcement«sit£i«men! negotiations .
5. Working wtittasftaCtaSTo- improve Federal Facilities Compliance
r „• 10J Y-'---- • '• •
Once the Federal Facilities Compliance strategy is complete,
Regions should £i&Ss.ess'; the following areas and incorporate
into the agreements, as appropriate, understandings reached
with
•
The enfore€>Fneftt£&ppiroffieh a State generally plans to use for
responding ?t:0«Ped<*ral -facility violations and plans for
escalating.^!!®' pftSi^onse, if necessary;
• Types of situations where a State would request EPA support
or direct oset'SdfJF *•''•'*
Advance ntftlfrf fc©*t*0n to States when EPA conducts inspections
at Federal facilities, and protocols for State enforcement
response following EPA inspections in delegated States j
plans for joint !PA/§tate annual review of compliance
problems -ae^^*iS«l facilities in a State.
-------
A -, 4 : V"5 .—• 1 2" "'•'•"••-
EXISTING OR PLANNED* NATIONAL GUIDANCE AFFECTING STATE EPA ENFORCEMENT AGREEMENTS PROCESS
(rev. 4/6/88)
inter-program National Guidance:
• Revised Policy Framework for State/Federal Enforcement Agreements, August 26, 1986
•«•* • -.»
i- . r t,*-
• Annual Guidance for the W 1999 Enforcement Agreements Process.
Program to Train, Develop and Recognize Compliance Inspectors and field Investigators,
be-'4ssaed June 1988. •„ ----/•& ./• '-'"*- *•'•* c
? Federa-L-tFaqtlity Compliance Strategy, to be issued June 1988.
water-NPDES
Drinking Mater
Media Program Guidance;
Air
RCKA
FIFRA/TSCA
• national Guidance
fore Overs ight of -i
r NPDES Programs'
PY 1987, 4/1/87
l7^ , I
• PY 85 Initiatives ° Timely and Appro-
on Compliance Moni- priate Enforce-
v. tor ing and Enforce- ment Response
ment Oversight, Guidance, 6/28/84.
6/29/84. rev. 4/11/86
^
• ffinar Guidance on
stances of Non-
Cowpliance Report-
8/26/85
,,v ., ,
• QNCR Guidance, 3/86
0 Inspection Strategy
and Guidance, 4/85
implementation,
3/20/84.
Regulations:
NIPDWR, 40 CPR
Parts 141, 142.
Guidance for PWSS
Program Reporting
Requirements,
7/9/84.
Compliance Data
System Guidelines
for FY 1986, 2/86.
• Guidance on
Pedera1ly-Report-
able Violations,
4/11/86.
0 Compliance Moni-
toring Strategy,
3/31/88.
Interim National
Criteria for a
Quality Hazardous
Waste Management
program Under RCRA,
' A
I
• PY 1988 RCRA Imple-
mentation Plah> -
3/31/87, to be^rg-
issued for FY 89
by 4/1/88.
• RCRA Enforcement
Response Policy,
issued 12/21/84,
revised 12/21/87.
Final py 88 En-
forcement and
Certification
Grant Guidance,
3/10/87.
Interpretative
Rule: PIPRA State
Primacy Enforce-
ment Responsibi-
lities, 40 CPR
Part 173, 1/15/83
Final TSCA Grant
Guidance for the
Cooperative Agree-
ment States,
3/10/87.
• Plan
ridance is underlined.
-------
Hatec-MPDES Drinking Hater
T 1 r
• Revised Enforcement • PY 85-86 Strategy '
Air
RCRA
PIPRA/TSCA
Management System,
3/86.
.-. <«- & 5 . { -.;,„•,.
• NPDES Federal
Penalty Policy,
Peewits, 2/86.
• Guidance for Re-
porting and Evalu-
ating/ row Ncsi-
_ Compl iance with __
Prctereatment " '
Implementation
Requirements,
9/30/87.
• Ii^lemenfcat^on of
the Pretreatment
fermfts and En-
, toreement Track-
ing system,
3/24/87 Uetter)
• National Municipal
Policy, published
3/28/84, and
guidance, 3/84.
• NMP Enforcement
Strategy, 9/22/87.
for Eliminating
Persistent Viola-
tions at Community
water systems,
3/r yes,
!fVF f OU*
Agreements, 4/87.
W*.' 87r SPMS fc OWAS
Targets for the ••
IKSS Pcogram, (SNC
definitions),
Asbestos Strategy,
3/31/88.
Guidance on PY 88
PWSS Enforcement
Agreements, 4/87.
Guidance on use of
AO Authority Under
SDMA Amendments,
1/20/87.
PY 88 UIC Reporting
Guidance, 4/87.
UIC Program Guidance
153, 12/86.
•? >•„ 5.-'*1 ' * C». .
PWSS Oompllance
Strategy, 4/1/87.
• Compliance and
Enforcement Program
Descriptions in
Class B VOC source Final Authorization
Compliance Strategy, Application and State
3/87. Enforcement Strategies,
o 6/12/84.'*-HV <* i i
VSSC'
^McKEnforce-
ment Log - form for
monthly
Technical Enforce-
ment Guidance on
Ground-Mater
Monitoring, Interim
Final, 8/85.
compliance Order
Guidance for Ground
water Monitoring,
8/85.
Loss of Interim
Status Guidance,
8/85.
RCRA State Over-
sight Inspections,
12/87.
T«ff.S.f»S.«('
-------
Hater-HPDES
Drinking Mater
Air
RCRA
PIPRA/tSCA
.'. ' '• ;•'/ ;:--.' I .-••.•-••• " I
Pretreati«ent Otm- * UIC OCMpliance
piianoe Monitoring Strategy, 3/31/67.
and Enforcement
Guidance, July 25,
• Administrative
Penalty Order Regu-
lations, Policies,
1 and Guidances,
August 28, 1987
r*'-;:.'•;-.>•"". " .:-^'-
• IKS Policy;&jjfe'
•ent, Oct. 31,
1905.
f, '*,
* OdMf>liance Moni-
toring and firi-
forcenent Strategy
for ipxlcg. to be
issued April 1986.
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