LTI
00
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*-«" f " 'r
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C.
I 5 1985
or?ict or tiroftciMts
A>ocoMnusct
MOMITOHINC
MEMORANDUM
SUBJECTi Issuance of Enforcement Considerations for Drafting
and Reviewing Regulations and Guidelines for
Developing New or Revised Compliance and Enforcement
Strategies
PROM: Courtney M. Price ^^
Assistant Administrator for Enforcement and
Compliance Monitoring
TO: Assistant Administrators
Office of General Counsel
Attached is a guidance package containing: 1) enforcement*
considerations for drafting and reviewing regulations; and
2) guidelines for developing new or revised compliance and
enforcement strategies.
Staff members from both the compliance program offices
and the Associate Enforcement Counsel offices assisted with
developing the checklists. My staff interviewed legal and
technical enforcement personnel and incorporated their comments
into the guidance package as well as comments from the review
of draft checklists.
The guidance should encourage consistant consideration of
minimal enforcement requirements during regulation development.
In addition* the guidance may assist with initial enforcement
of a new or revised regulation by providing minimal considera-
tions for developing compliance and enforcement strategies
appropriate to the regulations.
To implement this guidance, I have requested all Associate
Enforcement Counsels to distribute copies of this guidance to
all enforcement attorneys responsible for the enforcement aspects
of regulation development. I encourage you to distribute copies
of this guidance to your national program managers and Associate
General Counsels and any staff who are responsible for regulation
development.
Attachment
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ENFORCEMENT CONSIDERATIONS FOR DRAFTING AND
REVIEWING REGULATIONS; IDENTIFYING THE NEED FOR AND
DEVELOPING NEW OR REVISED COMPLIANCE AND ENFORCEMENT STRATEGIE-
PART I Enforcement Consideration* for Drafting and
Reviewing Regulation*
PURPOSE
As part of the initiative to establish a compliance and
enforcement strategy process, this guidance amplifies the
discussion of the options selection process in the Deputy
Administrator's January 31, 1984, "Criteria and Guidelines for
Review of Agency Actions".
The guidance is in the form of a checklist of minimum
considerations for work group members to use during the process
of developing a major or significant rule. The checklist is a
tool for work groups to use before and during the options selection
process as the work group develops the regulation. This guidance
does not attempt to list the full range of rulemaking options.
- APPLICABILITY
Work groups should use this guidance during the developing
of "major rules" and "significant rules" that have enforcement
ramifications as well as any other rule with enforcement
implications. These classifications of regulations are defined
in the Deputy Administrator's February 21, 1984, "Procedures
for Regulation Development and Review."
CHECKLIST FOR DEVELOPING ENFORCEABLE REGULATIONS AND REVIEWING
REGULATIONS FOR ENFORCEABILTTY
I. PREAMBLE
A. For the regulation under development, would it be
helpful for the preamble to reference the existence of a
compliance and enforcement strategy?
B. Zf the) preamble references the existence of a com-
pliance and enforcement strategy, does the preamble need to
include an abetract of the strategy? If the preamble sets
forth the strategy in too much detail, EPA may have to use a
rulemaking procedure to modify the strategy.
C. If the preamble summarizes policy issues raised during
regulation development, does it give the Agency's rationale for
all major regulatory policy choices when needed to support
future enforcement efforts?
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0. Does the preamble impose substantive requirements
that should be included in the body of the regulations?
II. DEFINITIONS
A. .Are all necessary terms to identify the regulated
community, the regulated activities, or the regulated substances
defined?
B. Are exceptions to defined terms included and narrow
enough to avoid having the exceptions swallow the definition?
C. Are definitions and exceptions precise enough so that
enforcement personnel can identify instances of noncompliance?
D. Once a term has been defined, has the term been used
consistently, in the defined form, throughout the text of the
regulation?
III. SCOPE AND APPLICABILITY OP REGULATION
i
A. Is the statutory authority underlying the regulation
clearly articulated?
B. Are exemptions to the regulation limited in scope
and specific enough to avoid confusion about the regulated
entities to which they apply?
C. If necessary, is the relationship of the regulation to
criminal enforcement in the same program explained?
IV. PERFORMANCE STANDARDS
A. Are performance standards or other end-results
quantified or expressed in measurable ways? Are the methodologies
for measuring performance linked to the basis for the standard?
If applicable, is the averaging time for determining compliance
clearly stated?
B. Art) more enforceable standards available; i.e, easier
to measure), less resource intensive, etc.?
C. Are exceptions or exemptions clearly described?
Are these exceptions/exemptions permissible?
V. MONITORING AND INSPECTION
A. What does the regulated community self-monitor, report,
or maintain in records?
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B. Are the self-monitoring, reporting, or record keeping
requirements related to the statutory compliance requirements
and desired results? Are EPA/authorized state inspection
procedures related to the compliance requirements and results
contemplated under the statute? Do the sampling or emission
monitoring procedures provide for adequate chain of custody
for evidence of violations?
C. Does the regulation provide procedures for entering a
regulated facility, inspecting documents, and collecting samples
as authorized by statute?
0. What test methodologies are available to determine if
a facility is in compliance? Are the methodologies clearly
described? Will standardization and quality assurance support
a credible compliance monitoring program?
E. Can EPA/authorized state inspectors readily identify
conduct in violation ot a regulation from the language ot the
regulation?
P. Are the requirements for reports, records, or inspec-
tion/monitoring technioues designed to reduce enforcement cqsts
and increase the effectiveness of inspections? :
VI. RECORD KEEPING/REPORTING REQUIREMENTS
A. What kind of records or reports does the regulated co
munity maintain on site or submit periodically to an authorize
state or EPA to document compliance or periods of noncowplianJsr
B. What is the content of required records in terms of
evidentiary use to show compliance or failure to comply?
C. Are exceptions to the record keeping requirements
spelled out?
0. What kind pf records do«s the regulated coamunity
maintain to docuaent self-monitoring and related activities
required by the regulation?
B. If the record keeping/reporting requirement may be the
basis et an enforceawnt action, will the information maintained
to meet tfeej requirements provide sufficient evidence to document
a violation? If not, what else is required?
P. Are the reporting requirements frequent enough for a
timely response to a violation? Is the regulated community
required to retain information long enough for enforcement
purposes?
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G. Are exceptions to the reporting requirements spelled
out?
VII. DEMONSTRATING COMPLIANCE WITH PERFORMANCE STANDARDS
A. Does the regulation describe what constitutes compliance?
Is compliance determined on the basis of field inspections,
desk reviews of regularly submitted reports, or is the regulation
self-enforcing?
B. DO the regulations set definite time limits within
which a member ot the regulated community must reach compliance?
Do the time periods have specified beginning and end points?
If compliance is defined by occurrence of an event, rather
than by a date, is the event discrete enough for an inspector
to make a compliance determination?
C. Are the regulations clear about who has the burden
of proving compliance or noncompllance?
D. Is the proof of violation clearly described? Can EfPA
carry the burden ot proof? Does the regulation describe the
•latitude of an inspector's-exercise of professional judgment
in determining whether a.facility is in compliance?
E. Is the response to a civil violation consistent with
criminal enforcement authority under the statute? Does the
regulation provide for coordination with criminal enforcement
actions?
P. Are specific penalties described for each instance of
noncompliance?
G. If compliance and enforcement is delegated to a state,
does the regulation clearly describe the responsibilities of the
delegated state?
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Part ZZ Guideline* for Identifying the Need for and Develops
New or Revised Compliance and Enforcement Strategies
PURPOSE
This auidanc* provides • checklist for OECM and Program
Ottices to evaluate the need for new or revised compliance and
enforcement strategies, assess the appropriate timing for
completing those strategies, and determine the scope ot strategies
that need to be developed.
Work group members may use this checklist during the
options selection process of regulation development to ensure
that new or revised compliance and enforcement strategies are
developed concurrent with the regulation and that pertinent
issues are considered in developing the regulation. Because
each Agency program office or enforcement office identified in
a compliance and enforcement strategy has had a representative
on the work group developing the regulation, a new or revised
strategy should include a discussion of which office is respon-
sible for each part of the strategy. •
This guidance amplifies the Nay 1984, 'Strategy Framework.
for EPA Compliance Program" and the October 1984 memorandum
from the Deputy Administrator on the strategic planning proces--~
for compliance and enforcement within EPA.
APPLZCABZLZTY
This Guidance is limited to developing new or revised
compliance and enforcement strategies fort
1. New program initiatives within the Agency;
2. New statutory responsibilities delegated to the
Agencyi
3. Jtevisiona to existing regulations that a program
otfice determines will have a significant effect
on an ongoing program and
4. Program* with existing strategies that are not
producing adequate environmental results.
A compliance and enforcement atrategy or revisions in
selected components of an existing strategy would not be
necessary for every revision of an existing regulatory program,
For example, a compliance and enforcement strategy would not
be needed for each new or revised effluent guideline.
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GM 59
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1 UNITEO STATES ENVIRONMENTAL PROTECTION AGENCY
' WASHINGTON. D.C. 20460
FEB 6 !9?7
OFFICE OF
ENFORCEMENT AND
MEMORANDUM COMPLIANCE MONITORING
SUBJECT: The Regulatory Development Process: Change in
Steering Committee Emphasis and OECM Implementation
FROM: Thomas L. Adams, Jr.
Assistant Administrator for Enforcement
and Compliance Monitoring
TO: Senior Enforcement Counsel
Associate Enforcement Counsels
I. Background i
On October 16, 1986, the Administrator announced significant
changes in the role of the Steering Committee in the regulatory
development process. (See Attachment 1: Memorandum, Subject:
"The Regulatory Development Process: Change in Steering
Committee Emphasis", Oct. 16, 1986 with attachments.)
Principal changes in the process include:
0 Steering Committee meetings will be held on all
Start Action Requests (SARs) at which lead program
offices will ask other programs for workgroup
representatives, issues, an indication of their
level of interest, and agreement on subsequent
review of the regulation;
* Workgroup reports will be submitted by each
workgroup chair to the Steering Committee; and
• There will be flexibility in determining the
levels of review of the final package, depending
on resolution of issues through the workgroup
process.
A series of ten fact sheets (Attachments 2-11) explain in
greater detail various aspects of the newly-constituted Committee
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A primary purpose for the overall change in Steering Committed
procedures is to preclude situations where major issues or concerns
are raised at the last minute—even as late as the Red Border
Review stage—since any such circumstance may significantly disrupt
the schedule for completion of a project.
For this reason, the new procedures enhance the individual
workgroup's effectiveness by ensuring that issues are raised,
resolved, or elevated early in the regulatory development process;
and to assure that cross-media issues are identified and addressed
as early as possible.
We must therefore ensure that OECM workgroup members are
adequately supervised and clearly understand their role in
speaking for OECM during the course of workgroup deliberations.
Similarly, the OECM Steering Committee Representative must be
adequately informed to speak authoritatively for OECM as matters
come before the Steering Committee for review.
Accordingly, I am asking each Associate Enforcement Counsel
to assume responsibility for ensuring that workgroup members
under his supervision clearly understand and articulate OECM's f
position in all workgroup activities. Enforcement issues
which cannot be routinely resolved within the workgroup must be
elevated to OECM senior management for further guidance.
I have asked Terrell Hunt to serve as OECM's Steering Committ*
Representative and Winston Haythe as the Alternate Representative.
Mary M. Allen of OPPE is the Steering Committee Chair.
II. Procedures;
In order that OECM's participation on the Steering Committee
can be most effective, I am asking that the following procedures be
followed.
First, at the conclusion of each Steering Committee meeting,
which convenes biweekly on Wednesdays, a draft agenda for the
next meeting is distributed. Terrell will furnish copies of
that draft agenda (with any other relevant documents) to the
AECs at the Senior Enforcement Counsel's regular Friday staff
meeting two days thereafter.
Second, each AEC should review that draft agenda (plus any
other distributed materials) for matters applicable to his program
area and then provide Terrell at the next Friday staff meeting
with a one-page summary (e.g., bullets of talking points) for
any issues which should be voiced to the Committee with respect
to each agenda topic. These summaries should also contain the
name and telephone number of the OECM workgroup member for any
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given regulatory matter on the agenda. If an AEC desires no
involvement on an agenda topic in his area, this fact should
likewise be communicated to Terrell.
Finally, if the workgroup member or the AEC desires to
attend the Committee's next meeting, please inform Terrell
by so indicating on that particular summary.
Attachments: 11
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON' DC 2046°
OCT 1C 1386
THE ADMINISTRATOR
MEMORANDUM FOR: Assistant Administrators
General Counsel
Inspector General
Associate Administrators
Regional Administrators
Staff Office Directors
SUBJECT: The Regulatory Development Process: Change in
Steering Committee Emphasis
EPA's regulatory development process is generally viewed as
an effective means of accomplishing the Agency's primary business
•- producing effective regulations. Improvements are sometimes
desirable, however, to keep up with the Agency's changing priori-
ties and needs.
At the September 18th meeting of the Risk Management Council,
we discussed one proposal that could improve the process involving
the role of the Steering Committee. This proposal has been under
consideration for some months and was previously discussed in the
Risk Management Council, the Steering Committee, with individual
Office Directors and Deputy Assistant Administrators, and finall,
with. Assistant Administrators at a recent staff meeting. Given
the positive responses to this proposal and the number of benefits
it offers, I want to begin using it for all regulations starting
through the regulatory development process, effective immediately.
The principal changes you need to be aware of include:
o Steering Committee meetings will now be held on all SARs,
at which lead program offices will ask other programs for
workgroup representatives, issues, an indication of their
level of interest, and agreement on subsequent review of
the regulation;
o A system of workgroup reports submitted by the workgroup
chair to the Steering Committee will be initiated; and
o There will be flexibility in determining the levels of
review of the final package (e.g., bypassing Steering
Committee), depending on resolution of issues through
the workgroup process.
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The purpose of these changes is not to alter the basic pro-
cess itself, but to improve the operations of the workgroup with-
in the system. As the Agency's standing body for regulatory
oversight, the Steering Committee is the appropriate vehicle for
accomplishing this improvement. There are two important objec-
tives behind these changes:
1. To use the Steering Committee as a vehicle to help
program offices plan regulatory activities and set
priorities; enhance the workgroup's effectiveness by
ensuring that issues are raised, resolved, or elevated
early in the regulatory development process; and assure
that cross-media issues are identified and addressed as
early as possible in the process.
2. To set up a dynamic and flexible approach within the
existing regulatory development process to respond to
program offices' varying needs for different types of
regulatory actions, recognizing the overall goal of the
system to produce regulations with adequate involvement
of Agency programs.
An outline of how this process will work in practice is f
attached. The task of implementing this proposal will fall equal-
ly on the Steering Committee as well as line managers within the
Agency. I would like each of you to support the Steering Commit-
tee in moving toward this new role. This process places a premium
on good policy management, timely elevation of issues, and colle-
gia! working relationships at all levels. Your support and coope-
ration are essential.
,ee H. Thomas
Attachment
cc: Steering Committee
Members
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CHANGES AND ROLES IN THE REGULATORY DEVELOPMENT PROCESS
10 HOW THE PROCESS WILL WORK
(a) Make SAR process work;
o SARs would be distributed as now to Steering Committee
representatives prior to formation of workgroup allow-
ing enough tine for program offices, via Steering
Committee representatives, to evaluate and decide the
level of priority for them.
o Regular Steering Committee meetings will be scheduled
at which several SARs will be presented to:
--Have the lead program office present what it intends
to do, ask other programs for: issues, workgroup
representatives, indication of level of interest.
[Note: This will be done for all regulations; from this
point on, the level of review for each will depend on
the type of regulation under consideration.]
•
--Agree on level of subsequent review any particular
regulation would receive given cross-office impli-
cations, scope, complexity (i.e., how nany work-
group reports, whether it needs a development plan
[with or without a separate Steering Committee
meeting], whether it will need a final Steering
Committee meeting).
(b) Work Group Reports(see Exhibit A for prototype of
Format)
o Purpose is to;
—Provide lead program office and workgroup chair with
a means to encourage early raising of issues and
ensure agreements or disagreements in other offices
are identified and resolved early in the process.
. --Include enough information so that workgroup repre-
sentatives will recognize specific issues and
whether or not they have been resolved (this is in
the workgroup chair's best interests, since it
would be counter-productive to have a workgroup
representative raise an issue again later in the
process because he/she did not recognize it in the
workgroup chair's report). The report does not
need to be an exhaustive treatise meant to educate
Steering Committee members or other program offices
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f
on the details of workgroup deliberations (that is
the responsibility of their workgroup representa-
tive).
--Provide Steering Committee members, workgroup repre-
sentatives from other offices and their managers a
useful check on progress of regulations under deve-
lopment.
—Promote a sense of responsiblity in workgroup pro-
cess since workgroup representatives will need to
be sure that positions they take in the workgroup
are consistent with their line managers' and Assist-
ant Administrator's positions (because they will be
documented in the report and concurred on by Steer-
ing Committee members).
o Process;
--Workgroup chair will submit written reports to
Steering Committee chair according to the schedule
agreed to at SAR (or Development Plan) meeting
(could be one during lifetime of workgroup or
several, as necessary).
•
—Report will be distributed to all Steering Coromtt-
tee members requesting comment within a certain
timeframe (e.g., two weeks), after which concur-
rence will be assumed.
— It will be the responsibility of Steering Committee
members to determine whether or not the workgroup
report is accurate, by checking with the workgroup
representative and, as necessary, line managers and
the DAA/AA to confirm the AAship's position.
--If another program office does not agree with the
workgroup chair's characterization of the status of
issue resolution, that should be raised in the com-
ments of the Steering Committee member on the
report. Then, the Steering Committee chair will
work with the relevant Steering Committee members
and program offices to elevate the issue to the
appropriate level until it is resolved. Alterna-
tively, the workgroup chair's report may identify
an issue that needs to be resolved before the work-
group can proceed. The same process of issue eleva-
tion would apply here.
—At the end of the comment period, the Steering Com-
mittee chair will issue a closure memo, with the
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workgroup report attached, noting any comments
received and discussions held, or conclusions
reached, as a result of the workgroup report.
(c) Final Review
o The final workgroup report will recommend whether or
not the package should be sent directly to Red Border,
bypassing final Steering Committee review, or undergo
some other form of closure.
o Through the Steering Committee concurrence process on
the report, other program offices will agree with the
workgroup chair's recommendation, raise unresolved
issues, or suggest some other forum for closure.
2. RESPONSIBILITIES OF WORKGROUP CHAIRS
o Provide report(s) to Steering Committee and other workgroup
members*
o Manage project according to agreed-upon schedule.
i
o Assure that all offices have an opportunity to present views
and that the best option is selected on an objective.and
unbiased bases.
o Assure that cross-media considerations are properly
addressed.
o Provide early and clear information to workgroup members
regarding meetings, issues and other items necessary for
full workgroup member participation.
3. ROLES AND RESPONSIBILITIES OF STEERING COMMITTEE MEMBERS
o The role of Steering Committee members will not change sub-
stantially. However, they will need to take on the respon-
sibility of explicitly assigning representatives to work-
groups, following up on workgroup reports to determine the
AAihip's position, and, in general, serving as the center
of information flow for all regulatory development activi-
ties (with special attention to cross-media issues). Speci-
fically, Steering Committee members will require ready
access to the entire range of personnel in the office (from
workgroup representatives through office directors to the
DAA/AA) to be able to carry out their functions. In addi-
tion, they will need enough authority to be able to elevate
issues for resolution, if necessary, with the AAship.
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o Specific functions of Steering Committee members would
include:
--Representing the Assistant Administrator in policy dis-
cussions arising from the Steering Committee review pro-
cess, including (a) representing the AA1s policy posi-
tions on scheduled agenda items and (b) determining how
unresolved issues could be addressed and at what level.
--Contributing to identification and decisions on how to
resolve cross-media issues in the Agency's regulatory
process.
--Directing the flow of the office's regulatory documents
into and through the regulatory review systems, includ-
ing Start Action Requests, Steering Committee, Red
Border, Options Selection and Federal Register activi-
ties.
--Managing the review of other offices' regulations, re-
viewing SARs and development plans, assure that line
managers understand the nature and consequences of the
regulation, participation in the decision on the AAshiip' s
level of interest, serving as the primary point of con-
tact regarding representation in workgroups, and manag-
ing review of workgroup reports within the AAship,
responding, if necessary, to the report via the Steering
Committee chair.
--Serving as the liaison for OMB review, including track-
ing and issue resolution. Managing the relationship
regarding Executive Orders 12291 and 12498, including
the Regulatory Agenda and Regulatory Program.
--Facilitating the relationships between program staff,
OPPE as managers of the regulatory process, and other
offices. This includes providing information and guid-
ance to program staff on regulatory development.
—Serving as intra- and inter-office mediator to resolve
issues.
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Exhibit A
PROTOTYPE
WORKGROUP REPORTING FORMAT
1„ Issue Resolution;
a. List significant issues resolved since the last report.
For each:
--What is the issue, and how does it relate to the envi-
ronmental problem (or regulatory alternative) being
considered?
--What alternative were considered, and why were they
eliminated? What options remain?
--How was the issue resolved?
b. List significant issues still outstanding. For each:
—What is the issue that is unresolved? What are the
different positions within the workgroup regarding •
this issue? :
--Has a process been established for resolving the issue
within the workgroup, or should it be elevated for
resolution?
— If the lack of resolution relates to the inadequacy
of available data, what data are needed and what time
and resources are required to obtain them?
2. Status of Technical and Analytic Support Work;
a. List Che status of principal studies and analyses sup-
porting the rulemaking? Are further studies needed to
support the project?
b. Are the current and projected studies sufficient in terms
of quality and scope to meet project needs?
3. Operation of the Workgroup;
a. Is participation in the workgroup sufficient to address
important issues and other aspects of the rulemaking?
b. Do you anticipate any delays and, if so, for what reason?
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FACT SHEET #1 — Regulation Management Series
The Steering Committee
Description and Purpose; The Steering Committee is a standing
group with representation from each Assistant Administrator
and the General Counsel. It is the primary mechanism for
coordinating and integrating the Agency's regulatory devel-
opment activities. Its key functions are to approve Start
Action Requests (SARs) and charter workgroups; monitor the
progress of staff-level workgroups, especially regarding
cross-media or inter-office problem-solving; and ensure,
when appropriate, that significant issues are resolved or
elevated to top management. Regions participate in Steering
Committee activities through Regional Regulatory Contacts.
These Contacts coordinate reviews in the Regions and facili-
tate rule-related activities and information for the Regional
Administrators (RAs).
Operationt The Steering Committee meets biweekly (every other
Wednesday morning), with additional meetings scheduled as
necessary. Its regular format is (a) discussion and dispo-
sition of SARs (b) review of Development Plans (c) considera-
tion of pending Workgroup Reports and (d) other issues. Upon
request, the Chair will schedule a separate meeting to consi-
der a proposed or final rulemaking package, or arrange for some
other form of Steering Committee review. Any office may submit
documents or issues for the agenda through its Steering '
Committee Representative. Regional Contacts receive all
Steering Committee documents. Typically they are not able to
attend meetings, but Regions can send written comments. Due to
time limitations, they sometimes call the Regulation Management
Branch (RMB) in the Office of Standards and Regulations with
issues, so that RMB can present these views at a meeting. After
each meeting, the Committee Chair issues a closure memo that
documents outstanding issues, agreements, and action to be taken.
RMB provides staff support for the Committee.
Membership;
OW: George Ames
382-7818
OPTS: Judy Nelson
382-2890
OAR: Paul Stolpman
382-5580
Chair:
OSWER:
OECM:
ORDi
OARM:
Mary M. Allen
382-4001
Joan LaRock
382-4617
Terrell Hunt
382-4539
Irwin Baumel
382-7669
Gail Korb
382-5000
OEA: Richard Laska
382-4095
OPPE: Jack Campbell
382-4335
OGC: Gerald Yamada
475-8064
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FACT SHEET fl page 2 — Regulation Management Series
Role Within Each Office; In addition to their role as members of
the Steering Committee, these representatives play an important
regulatory management role within their offices. They direct
the flow of documents into and through the Agency's regulatory
review systems (including Red Border, Options Selection, and
Federal Register activities)? serve as their Assistant Adminis-
trator's liaison with OMB, under Executive Orders 12291 and
12498; and direct their programs' review of other offices'
regulatory development activities.
See Also: Administrator's Memorandum "The Regulatory Development
Process« Change in Steering Committee Emphasis" (October 16, 1986);
and "Information Sheet to Guide New Steering Committee Process"
(November 19, 1986). Available through 382-5475 or Room 415W.
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FACT SHEET #2 — Regulation Management Series
Start Action Requests
Purpose; A Start Action Request (SAR) initiates work on a rule
or related action and establishes the Agency workgroup. It
provides brief, descriptive information and should be prepared
at the very outset of an office's effort. Its principal pur-
poses are to alert other Agency offices to the lead office's
intention to develop a rule, and provide the Steering Committee
with the opportunity to discuss and plan for the inter-office
or inter-media aspects of the action. In addition, submitting
the SAR to the Steering Committee is the mechanism for: (a)
reaching agreement on the necessary review steps (e.g., a
Development Plan, Options Level I review, Workgroup Reports,
and an Information Clearance Request), and (b) helping all
Agency programs decide at the start of the process whether
to designate members to participate on the workgroup and
what skills would best contribute to the rulemaking.
Preparing the Document: The SAR is a one-page form with instruc-
tions on the reverse side. It asks primarily for descriptive
information, which should be available to the lead office
when it starts work on the regulation. The most important
category of information on the form is Item 4, called
"Description of Action." The Steering Committee uses this •
information to determine the significance of the action for1
the Agency and for individual offices, the need for a
Development Plan, or other planning documents, the composition
of the workgroup, and the type of management review that is
appropriate. For these reasons, the description should give
information on any likely cross-program effects, issues or
problems. The description should:
* Clearly define of the problem, including its health and
environmental significance;
* Indicate the effect of this problem—and any likely regula-
tory action to solve it—on other environmental media or
programs;
* Identify the EPA Regions and other groups that should be
involved; and
* Specify the kind of expertise and level of participation
expected from workgroup members.
Operationi The program office prepares a SAR, and submits 25
copies through its Steering Committee Representative to the
Steering Committee Chair for distribution. The Steering
Committee has at least one week to review it. To be included
in a biweekly Wednesday meeting, SARs must be submitted
before COB (4:00 p.m.) Tuesday, 8 days before the meeting.
The program office briefs the Steering Committee. The
Committee approves the SAR, charters a workgroup, designates
workgroup members, and determines what further reviews are
appropriate. If the SAR does not provide sufficient informa-
tion for Steering Committee Representatives to select their
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FACT SHEET |2 page 2 — Regulation Management Series
workgroup members, they can give the Regulation Management
Branch (RMB) the name or names after the meeting. RMB will
include these names in the closure memo for the meeting. The
program office then convenes the workgroup.
See Also; SAR forms, guidelines, and prototypes are available
from your Steering Committee Representative.
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FACT SHEET 13—Regulation Management Series
The Workgroup
Purposei Workgroups are EPA-wide, staff-level groups formed
to develop regulatory actions and supporting materials.
The workgroup's primary responsibilities are to support
the lead office in its design, technical, and analytical
work; identify and assess principal policy issues and
options, especially those that are cross-media; resolve
issues or elevate them for upper management's resolution;
and ensure the quality and completeness of regulatory
packages. Workgroup members are expected to represent
the policy positions and perspectives of their management
as well as to contribute their technical and analytic
expertise.
Operation: The workgroup's formal operation begins with the
approval of the Start Action Request (SAR) and the chartering
of the workgroup by the Steering Committee. The lead office
chairs and convenes workgroup meetings. Other members of
the workgroup are assigned by their offices' Steering
Committee Representatives. How the workgroup should operate
will vary, depending on the rulemaking. The workgroup
chair should discuss and clarify members' roles and expecta-
tions early in the process to avoid misunderstandings. The;
workgroup's first responsibility, for major and significant1
rules, is to prepare a Development Plan, which the Steering
Committee reviews. For most rules, the Steering Committee
will ask the workgroup to report on its progress through
periodic Workgroup Reports, which the workgroup chair must
prepare. To ensure workgroup and Steering Committee consensus
on the agenda of issues for discussion, the workgroup chair
should prepare a comprehensive list of issues (orginally
part of the Development Plan for major or significant rules),
and revise it as appropriate throughout the rulemaking.
Participation: Typically the lead office will place several
people on the workgroup to support the chair and conduct
the bulk of the technical, analytical, and drafting work.
OGC, OPPE, and often ORD and OECM participate; other
program offices—OAR, OPTS, OSWER, and OW—often participate
actively, especially when there are significant inter-media
issues. OEA and Regional Offices participate less frequently.
If a Steering Committee member assigns more than one represen-
tative, they usually designate one person as lead to represent
the Assistant Administrator's position and coordinate the
efforts of the office's other representatives. If workgroup
progress requires that there be a single lead from other
offices, the lead program Steering Committee member can
request each office to designate a lead. Except for special
cases, it is very difficult for Regions to participate
actively on work groups. Therefore, the lead office should
initiate efforts to solicit Regional office perspectives on
regulatory options, especially those that pertain to
implementation issues.
See Alsot Fact r-rifte... •" , Workgroup Reports."
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FACT SHEET 14 — Regulation Management Series
Development Plans
Purpose; The Development Plan sets forth the framework for
developing proposed major or significant Agency rules.
Its purpose is to explain the need for the action; iden-
tify regulatory goals and objectives; present the major
regulatory issues and alternatives; identify any policies;
decision criteria or other factors that will influence
regulatory choices; and present the work plan for devel-
oping the regulation.
The Development Plan is prepared for Steering Committee
review. This review is meant to identify the full range
of issues early in the process. Steering Committee will:
(a) raise cross-media or other issues or alternatives not
identified in the Plan; (b) inform the lead office of rela-
ted studies underway in the Agency; (c) encourage coordina-
tion of Agency resources, experience and policies; and
(d) review the work plan and schedule to decide how the
various offices will participate, and whether they can meet
time and resource needs of the lead office.
Preparing the Documentt The lead office prepares the document
with participation from the workgroup. The document should
include detail commensurate with the complexity and impor- •
tance of the rule. The extent to which the program can
specify the health and environmental problem as well as the
issues and alternatives will depend upon their previous
experience with this problem and the data available. In
any case, the document should include a comprehensive list
of issues, which the workgroup should amend as necessary
throughout the development process.
Operation: The lead office should submit the Development Plan
to Steering Committee review within 60 days of SAR approval
(unless the Steering Committee agrees to another date).
The lead office submits 25 copies of the Plan to its
Steering Committee Representative, who reviews the document
before sending it to the Steering Committee Chair for distri-
bution. The Steering Committee review period is two weeks.
[To get a Plan on an agenda, the Steering Committee member
must submit it to the Office of Standards and Regulations
by COB Tuesday, IS days before that biweekly Wednesday
meeting.3
Steering Committee members review the package to ensure
that it is complete and to identify questions or issues.
The lead program office then briefs the Steering Committee
on the Plan at the biweekly meeting. Members will raise
any questions or issues at that meeting. After discussion,
and resolution of questions and issues, the Steering Committee
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FACT SHEET 14 page 2 — Regulation Management Series
•
approves the Plan, perhaps contingent upon certain revisions
or clarifications. The Committee agrees upon an appropriate
schedule for workgroup reports and other review steps. A
closure memo documents the Steering Committee meeting,
including issues raised, decisions made, and next steps.
The Steering Committee tracks progress on the rule through
workgroup reports.
See Also; Guidelines and prototype Development Plans available
Steering Committee Representative.
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FACT SHEET #5 — Regulation Management Series
Workgroup Reports
Purpose: Workgroup Reports keep the Steering Committee informed
about workgroup progress on a regulatory action. They
describes (a) issues and alternatives being addressed and
resolved; (b) any issues that need to be elevated for resolu-
tion; and (c) the status of ongoing work and any anticipated
delays. The Steering Committee's discussion of the Workgroup
Report focuases on cross-media or other issues or alternatives
not being considered by the workgroup. Steering Committee
concurrence with the Report is designed to ensure that issues
resolved by the workgroup are not raised again at a later date,
and that unresolved issues are dealt with in a timely way.
Preparing the Documentt The workgroup chair prepares the Report
in consultation with workgroup members. The document should
summarize the status of issues; it need not be exhaustive.
It should include enough detail to allow workgroup members
to determine that all issues are included and their status
is presented accurately. Steering Committee Representatives
are expected to confer with their workgroup member(s). A
cumulative or master list of issues (both resolved and unre- ?
solved) should accompany the Report as an attachment. This
list should simply copy the issues outlined in the Development
Plan, and might not change throughout the workgroup effort.
If no Development Plan is prepared, the first Workgroup Report
should contain the initial list of issues to be addressed.
Any additional issues arising during the rule's development
should be added to the master list.
Operation; The Steering Committee Representative submits 25
copies of the Report to the Steering Committee Chair, who
distributes it for a two-week Steering Committee review.
(Workgroup members should already have received a copy.)
To be included in a biweekly Wednesday meeting, Reports
must be submitted by COB Tuesday, 15 days before that
meeting. At the meeting/ the program office briefs the
Steering Committee on the Report. Typically the workgroup
chair attends the Steering Committee meeting to participate
in the discussion. After discussion, the Steering Committee
approve* the Report or requests revisions and makes recom-
mendations. If issues must be elevated, Steering Committee
Representatives determine what these issues are and in what
forum to raise them. The Steering Committee Chair issues a
closure memo that documents issues raised and decisions made
at the Steering Committee meeting.
See Also: Fact Sheet 13, "The Workgroup." A Workgroup
Reporting Format and copies of prototype Workgroup Reports
are available from your Steering Committee Representative.
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FACT SHEET 16 —Regulation Management Series
Workgroup Closure Meetings
Purpose: The workgroup closure meeting is an alternative to the
Steering Committee's review of regulation packages before they
•nter Red Border (Assistant Administrator's) review. It provides
a forum for confirming that (a) the workgroup has successfully
completed its job, resolving as many issues as possible and
clearly defining others, (b) the rulemaking package is ready
for AA, RA, and DA-level review, and (c) Agency and external
requirements have been met.
Participantsi A representative of the Information and Regulatory
Systems Division, from the Office of Standards and Regulations,
chairs the closure meeting. The role of the OSR chair is to
facilitate closure, not to decide substantive issues. Members'
of the workgroup participate in the meeting as representatives
of their Assistant Administrators. Offices that have not
taken part in the workgroup's deliberations do not participate
in the closure meeting.
Operation:
1. The lead office's Steering Committee Representative requests
a closure meeting through the appropriate Desk Officer i«n
the Regulation Management Branch. The lead office must
provide a complete draft rulemaking package to workgroup
members at least ten days before the closure meeting.
This draft package includes materials that normally are
expected as part of the Steering Committee review—the
rule, action memo, preamble, supporting analysis, infor-
mation clearance request (ICR), and other relevant materials.
2. The typical format for the meeting is: with the OSR chair
presiding, the workgroup chair gives a brief summary of
issues resolved and those still outstanding, and describes
any changes since the lead office distributed the draft
package to the workgroup. Other workgroup members offer
their AA's position (e.g., concurrence, concurrence subject
to revisions, concurrence subject to an issue that will be
raised for decision in Red Border, or nonconcurrence).
The OSR chair encourages closure by clearly establishing:
a. Batters that should be addressed before Red Border,
b. issues (if any) to be presented in Red Border,
c. participation in, and date for beginning Red Border
review, and
d. whether or not to have concurrent OMB and Red Border
review.
3. Following the closure meeting, OSR will issue a brief
summary that certifies a package for Red Border review or
documents other conclusions. This closure memo defines
the conditions, timing, and other aspects of Red Border
review. The lead office and affected parties resolve any
problems, either before or during Red Border review, using
the Steering Committee as a forum, if appropriate.
See Also: Fact Sheet *3, "The Workgroup."
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FACT SHEET #7 -Regulation Management Series
Information Collection Requests (ICRs)
Purposei Under the Paperwork Reduction Act (PRA), Agency offices musj
prepare an ICR to obtain OMB clearance for any activity that will
involve collecting substantially the same information from ten
or more non-Federal respondents. Offices or workgroups involved
in developing a rule may need to prepare ICRs for:
o studies or surveys for rule development; and/or
o information requirements to be included in the rule itself—
e.g. reportingi monitoring, or recordkeeping requirements.
Timingt For studies or surveys, the ICR should be ready to submit four
months before the activity is scheduled to begin. Development
Plans should allow enough lead time in scheduling the research
activities subject to the PRA.
For information requirements, the ICR should normally be ready to
submit by the point at which the rulemaking package first reaches
formal Agency-wide closure or review, whether this is Workgroup
Closure, Steering Committee, or Red Border review. The ICR may
involve rulemaking issues of interest to other participating
offices that need to be resolved at the latest in conjunction
with Red Border review. The ICR must be submitted to OMB on,
the date that the proposed rule is published.'
Preparing the Document; Offices must submit ICRs to the Information
Policy Branch (IPS) in the Office of Standards and Regulations,
which has responsibility for EPA compliance with the PRA. IPS
has available a detailed set of instructions for writing the
ICR; IPB is also prepared to review and offer advice on
preliminary drafts. In writing the ICR, special attention
should be given to:
o the statement of the need for—and use of—the information to
be collected; this is what justifies the ICR;
o the calculations of cost to government and burden on respondents,
especially to make sure that they are consistent with calcula-
tions of economic impact in the rulemaking package; and
o in the case of surveys, a detailed explanation of any statisti-
cal components, including the sampling and analysis plans.
Operation: The originating office submits the ICR to IPB. IPB then
reviews this document for information policy issues—e.g. the need
for the information collection, plans for information management,
data quality, statistical validity—and responds with any problems
within two or three weeks. Once any problems are resolved, IPB
submits the ICR to OMB for their clearance review, which normally
takes 60-90 days. In the case of information requirements in
proposed rules, if OMB does not approve the ICR then the ICR must
be resubmitted in conjunction with publication of the final rule.
See Also: PRA Guidelines
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FACT SHEET 19 page 2 ~ Reyilah on MJ.UCJV, ••:\«-.
response before making substantive changes. OPPE tracks and
reports on the status of rules under OMB review and current
issues for senior management.
See Also: Fact Sheet 18, "Red Border Review". Steering Committee
Representatives can advise on exemptions from E.O. 12291 review.
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FACT SHEET #10 — Svgulation Management Series
r-jr Publication
Purpose; The y ^.eral Register publication system was established
by Congresr as .a means of informing the public of regulations
that affect. them. The Office of the Federal Register, manages
publication of Federal regulations. Publication in the
Federal Register has certain legal effects, among them?
* providing official notice of a document's existence
and content;
* creating a rebuttable presumption that the text is
a true copy of the original document;
* establishing that the document was duly issued,
prescribed, or promulgated; and
• providing evidence that is recognizec by a court of law.
Preparing the Document: When preparing a document for Federal
Register publication, follow the formal requirements of the
Office of the Federal Register (OFR), found in the Federal
Register Drafting Handbook. The Federal Register package
should include:
* The original plus three copies of the preamble/regulation
(please ensure that the copies have a signature;
' Federal Register Checklist, signed by Steering Committee*
representative or other approving official; and
" Typesetting request (EPA form 2340-15)
For reprints also include EPA form 2340-1
OFR follows strict publication requirements, so even minoS
problems can delay publication. The most common problems causing
delay are: errors in codification; unclear graphs, charts, and
tables; providing too few copies; unclear signatures; not
including a typesetting request; and not preparing the Federal
Register Checklist.
Operation; If your package is reviewed in Red Border you must
submit the Federal Register package with your Red Border
package. In any case, direct all Federal Register packages
to EPA* s Federal Register Officer, Regulation Management
Branch (RMB), Room 415WT, 382-7205. RMB reviews documents
for consistency with OFR requirements, then transmits them
to OFR for publication. Documents usually appear in the
Federal Register within four days after RMB approves them.
However, if a document is particularly long (250 pages or
more), and contains many tables, graphs, and pictures, publi-
cation will take at least one week.
RMB PROVIDES A LISTING
ON E-MAIL THAT DESCRIBES ALL DOCUMENTS SENT TO THE FEDERAL
REGISTER OR PUBLISHED WITHIN THE PAST FIVE DAYS. To access
this system simply: 1) sign onto E-mail, 2) type PRPOST, 3)
type FED. REG when "Subj:" appears, 4) read or scan the listing
See Also; Federal Register Document Drafting Handbook, available
the Agency's supply store; Federal Register Checklist avail-
able from Steering Committee Representatives.
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GM 60
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A
m
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 204*0
MM IGMT
SUBJECT: Procedures and Responsibilities for Updating and
/the.Enforcement Docket
/&***&/fi^ *
FROM: /(Richard H. Mays,^5enior Enforcement Counsel,
)Jfice of Enforcement and Compliance Monitoring (LE-133)
TO: Associate Enforcement Counsel
Regional Counsel
We have just completed compiling and reporting our 1st
Quarter, FY 1987 accountability "leisures for civil judicial
referrals. This process always requires considerable effort
in reconciling and interpreting data and suggests that there
may be some confusion and misunderstanding about the data
required and about the procedures and responsibilities
for updating and maintaining the Docket. ?
The responsibility for providing, maintaining, and verifying
data in the Docket is shared among Headquarters and Regional
staff, Headquarters and Regional data analysts. I have identified
in the attached procedures some of the data problems that we
observed and ask that every one participate in correcting
erroneous and missing data and continue during each monthly
update cycle to provide accurate and complete data. The
procedures discuss the various areas of concern and the
primary responsibilities. Each staff attorney should receive
a copy of these procedures so that they are reminded of how
the Docket is maintained and understand their responsibilities
in the overall process.
Every attorney is asked to review their cases, provide
correct or missing data, and to remain diligent in the monthly
review and entry of Docket data. I have also asked the
Headquarters and Regional data analysts to routinely run
reports that will help locate incorrect or missing data. The
analysts will review these reports for inconsistent or missing
data and contact the Responsible attorneys for clarification.
Your persistence and continued efforts are essential to the
successful operation of the Docket. If you have any questions
about the procedures or wish to make suggestions to improve
the procedures and usefulness of the system please get
in touch with me, Sally Mansbach, or Bruce Rothrock.
cc: J. Bryan
S. Mansbach
B. Rothrock
0. Young
Computer Sciences Corporation
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Procedures and Responsibilities for Updating and
Maintaining the Enforcement Docket
An accurate and current Docket data base <1epon:3s on the
initial entry of cases and on the regular monthly review and
case update by the Headquarters and Regional attorneys assigned
to the case. It is particularly critical that the update and
data entry schedule be adhered to at the end of each fiscal
quarter. The steps in the process are:
(1) Prepare Case Data and Facility Data Forms for the
initial entry of cases, either during the period
when the case is under development or at the time
the case is referred (Regional attorney)
(2) Enter all new cases (Regional analyst)
(3) Prepare monthly case updates (Regional & HO attorneys)
(4) Enter monthly case updates (Regional & HQ analysts)
(5) Run reports to verify the overall accuracy of the Docket
(number of new referrals, overall status of cases,
major milestone dates, referral indicator, law/section)
and distribute to Regional Counsel and Associate ;
Enforcement Counsel for verification (Regional & HQ
analysts)
(6) Verify accuracy of Docket and make corrections
(Regional Counsel, Associate Enforcement Counsel)
(7) Enter corrections (Regional & HO analysts)
(8) Run accountability reports and complete SPMS reporting
instruction forms (HO analysts, MOB)
Monthly updates (item 3) should be completed by the first
of the month, verification (item 6) about the 9th, completion
of SPMS reporting instructions (item 8) and to the Compliance
Evaluation Branch on the 13th, to the Assistant Administrator on
the 14th, and final SPMS reporting and to OMSE no later than
the 15th of the month. This means that all corrections and
data entry and updating (item 7) must be completed by the
10t:h to be included in the accountability report for the just
concluded fiscal quarter.
The verification reports are a tool for use in determining
if all cases have been accounted for and the events surrounding
active or recently concluded cases have been entered in the
DOCKET. Information relevant to quarterly accountability
measures which is obtained after the monthly updates have been
submitted to the Regional analyst can be entered on the
verification reports and included in the final quarterly
update (on the 10th).
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1. Initial Entry of a Case; The Regional attorney assigned
to develop the case is responsible for completing the Case
Data Form and the Facility Data Form(s), and for providing
this information to the Regional analyst for initial entry of
the case. Attorneys should not expect that the analyst will
complete these forms unless a procedure has been arranged
with their analyst and the data is readily available in the
litigation package. Such a procedure does not relieve the
attorney of the responsibility for the accuracy and completeness
of the data.
The attorney may enter a case in the Docket any time
after the case is "opened," but no later than when the case is
initiated. The "Date Opened" is an arbitrary date
but is sometime in the period between when a decision is made
to take judicial action (an attorney is assigned to begin case
development) and when the case is "initiated." The "Date
Initiated" is the date that the Regional Administrator signs
and dates the referral letter. This means that the referral
package is ready to be placed in the mail. To be counted as
initiated in a fiscal quarter, a case must be in the mail and
entered in the Docket by the Regional data analyst by the
last day of the quarter.
2. Major Milestone Event Dates; Major milestone event dates
are critical in tracking cases, accountability measures, and
in most analyses that are performed. The timely and accurate
entry of these dates is crucial for the overall integrity of
the system. Significant problems have arisen due to very
late or inaccurate entry of dates.
We regularly make calculations of the number of cases
pending(e.g., at EPA HO, at court) on a particular day(e.g.,
10/01/86). Each time that a major milesone date is entered,
the Overall Status (present/pending location) of the case
changes. Inaccurate and late entries can seriously distort
data used for accountability and budgeting.
Headquarters and Regional attorneys are responsible for
the entry of dates as part of the monthly case update. More
specifically the lead for entry of each event date is identi-
fied below:
Event/Milestone Date Primary/Lead Responsibility
Violation Determined Regional Attorney
Technical Documents Received Regional Attorney
by ORC
Opened Regional Attorney
Initiated Regional Attorney
Received at FPA H:. HO Attorney
Check List Comply-:- d HO Attorney
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Referred to DOJ
Referred to US Atty
Filed
Concluded
Rer.urned to Region
Reiref erred
HO Attorney or
Regional Attorney for Direct
Referral to DOJ
HO Attorney & Regional Attorney
HO Attorney & Regional Attorney
HQ Attorney & Regional Attorney
HO Attorney
Regional Attorney
Overall Status; The Overall Status of the case coincides
with the most recent major milestone and indicates the
present location of the case. The HO and Regional analysts
are responsible for verifying that the overall status and
latest milestone agree.
Overall
Status Milestone/Event
Opened
0
1
2
3
4
5
S
Meaning
Initiated
To DOJ
To US Atty
Filed in Court
Concluded
Returned to Region
Rereferred
Case opened, under development ?
in Region ;
Initiated, Under Review/pending
at EPA HO
Referred to DOJ; under review/pendi1-^
at DOJ
Referred to US Atty for filing
Filed; pending in court
Concluded; judicial aspects completed
Returned to Region for further
development and subsequent rereferral
Rereferred by Region, pending at
EPA HO (a case that is rereferred
is not counted as a new referral;
the case is counted once at the time
of the original referral)
Headquarters Review Time: The determination of the head-
quarters review time is applied to all cases initiated,
regardless of whether the case is referred to DOJ, declined
and concluded, or returned to the Region for further
development. The starting point is the "Date Received at
EPA HQ" which is defined as the date that the Associate
Enforcement Counsel receives the litigation package. The
Headquarters attorney assigned to the case is responsible
for providing these dates as part of his or her monthly
update. If the "Date Received at EPA HO" is not provided,
the default is "Date Initiated."
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Cases can be divided into four categories and the dates
used in computing the review time is defined for each.
a. Referral by Region to EPA Headquarters;
- Date Received at EPA HQ(or Date Initiated)
- Date Referred to DOJ
b. Direct Referral by Region to DOJ;
- Date Received at EPA HQ(or Date Initiated)
- Date Check List Completed
Note; Date Check List Completed will be entered in the
DOCKET as a miscellaneous event and will appear
on the Case Status/Update Report once entered.
The event code is; CHKLST
c. Referral by Region to EPA HQ, Returned to Region for
Further development;
- Date Received at EPA HQ(or Date Initiated)
- Date Returned to Region
d. Referral by Region to EPA HQ, Declined by EPA HQ or
Withdrawn by Region;
- Date Received at EPA HQ(or Date Initiated)
- Date Concluded (Declined/Withdrawn)
5. Referral
the office(Region
the case and where
referral to DOJ).
Indicator; The
or EPA
the case
"Referral Indicator" designates
HO) developing and originating
is referred(EPA HQ or direct
RH - Region to EPA HO
RD - Region direct to DOJ
A case that is referred by the Region directly to DOJ has
the same date for "Initiated" and "To DOJ". Many cases
that have a Referral Indicator of "RH" have the same date
for "Initiated" and "To DOJ," suggesting that the casr was
really referred directly to DOJ and should have a "Referral
Indicator" of RD.
The Regional Attorney and the Regional Data Analyst are
are responsible For entering the correct Referral Indicator
at the time the case is initiated. Check that all direct
referrals are properly designated.
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(5. Concluded Cases; At the time a case is concluded the
Regional and Headquarters attorneys are responsible for
entering three data itn'is -as part of their monthly
update:
a. Date Concluded
b. Result - how the case was concluded
c. Assessed/Adjusted Penalty - for cases settled by consent
decree or litigated
This information should be provided as soon as possible after
the case is concluded. In the past, delays in entering
these items, for instance "Date Concluded," have altered the
number of active cases on a particular date as previously
reported in OECM's SPMS quarterly accountability measures.
7. Headquarters Division; Some values for Headquarters
Division do not match the Law/Section values, e.g.,
HQDV = PES, and LAW/SECTION - RCRA 7003, CERCLA 106.
The Regional Attorney initiating the case is responsible
for designating on the Case Data Form the appropriate
Headquarters Division that will be reviewing the case.
3. Law/Section; The Law(s) and Section(s) are the ones violated
and cited in the litigation report and complaint, the most
significant entered first. Do not use the section authorizing
enforcement, e.g., CAA, $113. A Section must be entered
for each Law. If more than one section of a particular
law is violate and cited in the litigation report, then
each are entered as separate combinations.
EXAMPLES;
CERCLA 106
CERCLA 107
RCRA 3008
RCRA 7003
In the DOCKET we use the section designation from the published
statute; do not use the one from the U.S. CODE.
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3 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, O.C. 20440
81988
MEMORANDUM
SUBJECT: Enforcement Docket Maintenance
FROM: Edward E. Reict
Acting Deputy Assistant Administrator
for Civil Enforcement
TO: Regional Counsels, Regions I - X
Associate Enforcement Counsels
As was discussed in Tom Adams' memo of February 9, entitled
"Responsibilities for Assuring Effective Civil Judicial
Enforcement" primary responsibility for the timeliness, accuracy
and completeness of information contained in the Enforcement
Docket lies with the Offices of Regional Counsel. Specifically:
(1) Regions are responsible for accurate updates, at
least monthly;
(2) Headquarters is responsible for accurate monthly
update of Headquarters - initiated data fields
(e.g., "checklist completed");
(3) Headquarters will not amend regional data entry;
(4) Headquarters will continue to monitor overall data
quality, on a monthly basis for the balance of
"• PY'88, and thereafter on a quarterly basis;
discrepancies will be brought to the attention of the
"Regional Counsel;
(5) Docket maintenance will be considered as part of the
annual performance assessment discussion with
Regional Counsels.
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-2-
their responsi-
tha
My thanks for your cooperation.
Attachments
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GUIDELINES AND PROCEDURES FOR THE ENTRY
UPDATE OF CIVIL JUDICIAL CASES IN THE
ENFORCEMENT DOCKET SYSTEM
I. INTRODUCTION
"Responsibilities for Assuring Effective Civil Judicial
Enforcement" is the subject of a Tom Adams memorandum, FEB 08,
1988, which gives the Regions increased authority and
responsibility in the judicial enforcement process. One of these
responsibilities pertains to the maintenance of the Enforcement
Docket System.
The Regions also will take the lead in the
criticalfunction of maintaining the Agency's
Enforcement DocketSystem. Except in national lead case
or where this responsibility is undertaken by a
Headquarters attorney and this is so noted in the case
management plan, Offices of Regional Counsel will be i
solely responsible for ensuring that accurate and up- :
to-date information on each caseis maintained in the
System. OECM attorneys will no longer make separate
docket entries as a matter of course; instead we will
rely on the Regionally-entered casestatus information.
OECM will retain an oversight responsibility to
ensure, to the extent possible, thataccurate
information, consistent across the Regions,is available
from the Docket System....
This document describes the procedures and responsibilities
for entering cases in the DOCKET and for the regular, monthly
review and update of the Case Status Report. As stated in Mr.
Adams' memorandum, this responsibility is almost entirely that of
the Regional Attorney, who in most instances is designated the
Lead EPA Attorney.
II. DEFINITION OP A CASE
A. DOCKET Design and Assigning a Case Number.
The amercement Docket has been designed primarily as a
system for-tracking civil judicial enforcement cases. A case is
a matter vftich is developed and referred with the intent that it
will be filed in court as a separate and independent entity, will
receive its own court docket number and not be joined with any
other case. With this in mind, an enforcement matter which
involves multiple facilities, multiple statutory violations, or
multiple defendants is entered as one case if it is intended and
believed at the time of case development and case referral that
it should be handled as one action, filed in court as one case,
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I
and negotiated or litigated as one case. The Docket system hlQ
been designed to handle and report on multiple law/section
violations, multiple facilities and multiple defendants, all
linked to the parent case.
B. Amendments to Ongoing Cases.
It may be necessary once a case has been initiated to
prepare and refer a related matter with the intent of amending
the original case. An example might be an additional statute
violation or other defendants. These matters should not be
entered as separate cases but as amendments. There is a separate
record in the Docket System that allows for entry and tracking of
amendments.
C. Use of DOCKET for SPMS, Accountability, and with the
Workload Model.
The numbers used in the SPMS and Accountability process are
based on cases, the fundamental ingredients of the Docket System.
These are the numbers that we also report to Congress and tl)«
public. The numbers used in the workload model are based on
cases and their component parts, such as amendments, number of
facilities, etc. The Docket structure allows for tracking all
these separate activities for workload model counts, even though—
they are included under a single case name and number.
III. INITIAL CASE ENTRY
A case should be entered in the system ( opened ) as soon as
possible after the Regional program office refers the matter to
the Regional Counsel for civil litigation, and an attorney is
assigned and begins case development. The Regional Attorney is
responsible for completing the following and giving them to the
Regional data analyst for assignment of a case number and initial
data entry:
1. Case Data Form ( APPENDIX A ). Complete all items as
required.
2. Facility Data Form ( APPENDIX B ). complete a separate
for each violating facility.
3. CM* Summary ( APPENDIX C ). Develop a case summary that
contains the following information:
- Case Name: The name of the case as specified in the
litigation report.
- Facility Name: The name of the facility and
location where the violation(s) occurred.
-------
- Nature of case and violations(s) upon which the case
is based. Include the laws and sections violated.
- Proposed relief and remedy, including injunctive
and proposed penalty to be sought at settlement.
Enter penalty fields on the Case Data Form.
- Significant national or precedential legal or
factual issues.
- Previous enforcement actions (date, type).
- Recent contacts with defendant(s) (nature, outcome).
- Other significant aspects.
These paragraphs will be entered in the DOCKET as narrative under
the heading "Case Summary." See APPENDIX C for an example.
The Regional Attorney is responsible for entering a new case
as soon as possible after case development is begun. While ,the
case is under development and prior to being referred (Initiated)
the case is in an overall status of "Opened." The earlier the
case is entered as an "Opened" case the sooner it will appear on
the DOCKET for use in case management. This procedure reduces
the end-of-quarter data entry crisis to record cases initiated (a
large proportion of which appear at the very end of the quarter).
If the case has been entered during case development it is
necessary to enter only the "Date Initiated" at the time the case
is referred. This eliminates the risk that a case might not be
counted because all of the appropriate information could not be
entered before accountability reports are run. Entry of "opened"
cases also facilitates management of actions which are the
subject of pre-referral negotiation.
IV. CASE STATUS REVIEW PROCEDURES
The Lead EPA Attorney has primary responsibility for the
review and update of all active cases. This is done at a minimum
monthly by reviewing the Case status Report and making any
change* or updates directly on the report. The Lead EPA Attorney
receives update forms for all his/her cases from the Regional
data analyst once each month. The Lead EPA Attorney is
responsible for annotating the update forms. These forms are
returned by the Lead EPA Attorney to the data analyst for entry
by the last work day of the month. The data analyst completes
corrections and updates and returns revised forms within five
work days to the Lead EPA Attorney for the next month's review
and update.
The Lead EPA Attorney should pay particular attention to the
-------
following areas:
Case Information
Major Milestone and Miscellaneous Events
Staff, Attorney Names
Results
Penalties
Case Status Comments
An entry must be made in the attorney comment area every
month. Any issues which have been discussed or significant
events which occurred during the past month since the last update
must be included in the comments. An example of the nature and
method of entering status comments is contained in APPENDIX 0.
If there has been no development or no activity in the case, "No
Change" must be entered by the Lead EPA Attorney. The lead EPA
attorney gives the annotated monthly reports to the data analysts
for data entry and data base update. If the analyst does not
receive an update for an active case by the time the review
period has ended, he/she will enter "NO UPDATE RECEIVED."
Except in cases where the Headquarters attorney is the ?Lead
EPA Attorney, Headquarters attorneys will be responsible only for
updating HQ-specific data (e.g., received at EPA HQ, checklist.
completed, for direct referrals and referred to DOJ for other
than indirect referrals).
A chart display of roles and responsibilities is contained
in Appendix E. Summary "case code" tables ar« included in
Appendix F.
V. QUALITY ASSURANCE
The Lead EPA Attorney is responsible for assuring the
accurate, complete, and timely entry of all cases and for the
ongoing, monthly update and verification of case data. Regional
Counsel are responsible for periodic review of the Docket for
ctccuracy and completeness of all data elements, including
Attorney Comments.
Repeated problems with accuracy of data entry should be
brought ta the attention of the Regional Counsel. The Regional
Counsel sjkould notify Sally Mansbach or Bruce Rothrock if
problem* merit further attention.
OECM Headquarters will review the overall Docket for
accuracy and completeness, on a monthly basis for the balance of
FY 1988 and quarterly thereafter. Obvious errors or omissions
will be brought to the attention of the Regional Counsel, for
appropriate Regional action. Headquarters data entry will be
restricted to those data elements which are Headquarters
responsibility. No amendment of Regional data will be made by
-------
Headquarters staff.
Consents or questions teaaraina DO<-V-««.
maintenance procedures 8houldSriSdr25ert.Up??? and
Bruce Rothrock. aaaressed to Sally Mansbach or
-------
ENFORCEMENT CASE DATA FORM
APPENDIX A
CASE NO.: - - E _
(Asisigned by Docket Control
Date Entered:
* CASE NAME:
* TYPE CASE:
(See Back for Adm.)
* HQ DIVISION:
* LAW/SECTION:
1. /
2. /
3. /
4. /
5. /
* TECHNICAL CONTACT:
* REGIONAL ATTORNEY:
* DEFENDANTS:
COMPLAINT?
(Y/N)
1.
2.
3.
4.
* STATE:
VIOLATION TYPE:
DATE OPENED:
* DATE INITIATED:
(Civil)
DATE ISSUED:
(Adj. Ada.)
DATE CONCLUDED:
DATE VIOLATION
DETERMINED:
PROPOSED PENALTY:
CIV - Civil
CIT - Citizen Suit
BNK - Bankruptcy
AIR - Air
HAZ - Hazardous Waste
PES - Pesticides and Toxics
* (Please use the section
of the law VIOLATED,
NOT the section that
authorizes the action)
MOB - Mobile
WAT - Water
PHONE: PTS - _
PHONE: FTS - _
NAMED IN
POLLUTANT:
* REFERRAL INDICATOR
Direct Referral Lead: DOJ
DATE DOCUMENTS
RECEIVED BY ORC:
RH: Region to HQ
RD: Region to DOJ
(Direct Referral)
USA
* Required fields - must be filled out for case entry
-------
Appendix B
FACILITY DATA FORM
*PLEASE USE THE ADDRESS OF THE SITE OF VIOLATION (NOT THE COMPANY MAILING
ADDRESS).
*A SEPARATE FORM MUST BE COMPLETED FOR EACH FACILITY CITED IN THE CASE.
CASE NO.:
-E
| (Assigned by DOCKET analyst)
* FACILITY NAME:
* STREET ADDRESS:
* CITY:
*TYPE OWNERSHIP:
I EPA ID f:
(Assigned by FINDS analyst)
* STATE
ZIP:
P: Private industry or individual,
F: Federal Government :
S: State
C: County
M: Municipal
D: District
iC CODE(s):
(one required)
OPTIONAL
PARENT COMPANY:
NPDES PERMIT NO.
SUPERFUND SITE:
LATITUDE:
LONGITUDE:
(Y or N)
-------
APPENDIX C
CASE SUMMARY CONTENT AMD FORMAT '
Th« following is an example of a Case Summary. The summary
is written by the Regional Attorney and provided to the Regional
Data Analyst along with the Case Data Form and Facility Data Form
at the time the case is initially entered. The summary includes:
Case Name, Facility Name, Nature of case and violation(s) upon
which the case is based, Proposed relief and remedy, Significant
national or precedential legal or factual issues, Previous
enforcement actions, Recent contacts with defendants, other
significant aspects.
- EXAMPLE -
CASE SUMMARY:
THIS IS A PROPOSED ACTION AGAINST THE ACME DISPOSAL CORP
(ADC) ET AL., UNDER SECTION 107 OR CERCLA TO RECOVER PAST COSTS
AND TO ESTABLISH LIABILITY AS TO FUTURE COSTS TO BE INCURRED
UNDER SECTION 104. f
THIS CASE INVOLVED THE ADC SITE, LOCATED IN MODELTOWN, MA.
THE SITE WAS LISTED ON THE NPL ON 04/01/84. THE SITE IS A 100-
ACRE LANDFILL WHICH HAS BEEN OWNED BY ADC SINCE 03/05/75. _
NUMEROUS INDUSTRIAL WASTES HAVE BEEN DISPOSED OF AT THIS FACIL7 -
SINCE 1942.
EPA CONDUCTED ON-SITE GROUNDWATER SAMPLING ON 05/01/85.
ANALYSIS REVEALED THE PRESENCE OF HAZARDOUS SUBSTANCES INCLUDING
METHYL ISOBUTYL, KETONE, AND TOLUENE. A NOTICE LETTER WAS SENT
TO THE SITE OWNER/OPERATOR AND TO THE TEN KNOWN GENERATORS ON
05/20/87. NO RESPONSES WERE RECEIVED.
THE 1ST IMMEDIATE REMOVAL WAS COMMENCED ON 06/01/85 AND WAS
COMPLETED ON 06/25/85. ONE HUNDRED DRUMS AND 500 CU YDS OF SOIL
WERE REMOVED AND DISPOSED OF AT A RCRA-APPROVED FACILITY. THE
2ND IMMEDIATE REMOVAL ACTION WAS STARTED ON 08/01/85. FIFTY
DRUMS AND 100 CU YDS OF SOIL WERE REMOVED AND DISPOSED OF AT A
RCRA-APPROVED FACILITY. TOTAL FEDERAL GOVT COSTS AS OF 11/01/87
ARE $1,524,000.
A DEMAND LETTER FOR PAST COSTS WAS SENT TO ADC ON 12/01/87.
THE STATOT1 OF LIMITATIONS MAY RUN ON 06/25/88. GENERAL NOTICE
LETTERS WERE SENT TO 143 PRP GENERATORS ON 09/01/87.
-------
APPENDIX D
CASE STATUS COMMENTS
The following are examples of attorney case status comments,
provided as part of the monthly review of active cases. Comments
are written by the attorney directly on the Case Status Report
directly below or in the margin beside the previous months entry.
- EXAMPLE -
HEADQUARTERS CASE STATUS:
REGIONAL CASE STATUS:
01-30-88: COMPLAINT FILED IN DIST. CT (EDMA) ON 01/15/88
AGAINST ADC, CITY OF MODELTOWN, GENERAL DISPOSAL CORP,, ET AL.
02-28-88: ADC FILED ANSWER ON 02/15/88; GENERAL DENIALS. ADC
FILED MOTION TO DISMISS ON 02/15/88. ?
03-30-88: ADC MOTION TO DISMISS DENIED ON 03/20/88. STATUS
CONF SCHEDULED TO BE HELD ON 04/18/88.
04-29-88: STATUS CONF HELD ON 04/18/88. GENERAL DISPOSAL CORP
REQUESTED TREATMENT AS DE MINIMIS GENERATOR. LITIGATION TEAM
PLANS TO MEET ON 05/20/88. GOVT PLANNING TO FILE MOTION FOR SJ.
(1) It is important to add precis* dates to update comments
both to be specific and to avoid confusion between the date of
the docket entry and the date of the event.
(2) It is important to follow up on stated planned events
in subsequent monthly updates with comments as to whether or not
the planned event took place and, if so, when.
(3) Case status comments should reflect the general content
of settlement proposals and draft and final consent decrees,
including final construction deadlines, final compliance
deadlines), penalties, duration of the decree, and whether or not
stipulated penalties are included.
(4) ' If there are no updates during a month, enter "NO
CHANGE".
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CIVIL JUDICIAL ENFORCEMENT DOCKET
DATA ENTRY MAINTENANCE VERIFICATION
RESPONSIBILITIES AND PROCEDURES
APPENDIX E
03/11/88
ACTIVITY
WHO
Regional Attorney"
assigned t» Cjpwe
development or
Lead EPA Atty
WHAT
When
Optional; When case Is
opened or any time up
to but no later than
when case is referred
to HQ or directly to
DOJ
HOI/
Open a Case
Completes: Case Data Form,
Facility Data Form for each
violating Fac., Case Sunnary.
Case is a matter which is
filed, settled or litigated
separately front any other
Case.
Attorney completes forms anJ
Case Summary. All items
marked with '*' oust he
completed. Gives to Regional
data analyst.
Initial Case
Entry
Regional Data
Analyst
Assign Case Number: Enter
data from Case Data and
Facility Data Forms, Case
Sunnary
At time Regional
Attorney Completes
Forms.
On-line from Case Data and
Facility Data Forms, Case
Summary
Case Review
and Case Update
of all Active
Cases
a. Lead EPA Atty
Maf. Milestones/Misc. Events,
Dates, Staff, Status Comments
and Signfleant Case events
Monthly, Completed and
given to Regional
Analyst by 1st work
day of each month
Review & edit as appropriate
Case Update Report fusing
clear notations in bright
colored ink)
b HQ Attorney
HQ data fields (e.g. checklat Monthly
complete. HQ Comments if appropriate)
Case Update Report, as above,
delivered by HQ data analyst
Data Entry,
Data Rase
Update
a. Reg. Analyst
Case Update Report as
reviewed and annotated by
Lead Attorney
b. HQ Analyst
As appropriate
Case/Data
Veri ficat ion
HQ Attorney
Major milestone Dates, Over-
all Status (see 3b), other
Case Level Data;
Status Comment
Lead Attorney
Monthly, Beginning the
1st of the month,
completed by the 5th
work day. Run new
Update Reports and
distribute by 8th work
day.
On-line, directly from Case'
Update provided by Regional
Attorney. Update all active
cases even if no change matte
or no update received.
Monthly for FY'8«
quarterly thereafter
Scan Case Update Report
provided by HQ Analyst. Any
obvious errors or omtesions
are brought to t'
attention of Ass.
then Regional Counsel for
r oaH
-------
aVII. JUDICIAL FNFU...<:MENT DOCKET
DATA ENTRY MAINTENANCE VERIFICATION
RESPONSIRILITIES AND PROCEDURES
ACTIVITY
Tracking
Set dements
and Litigation
EVents
Concluding a
Case (CD/Judge-
ment Entered
Closing a Case
Final Compli-
ance, Case
Withdrawn.
Declined. Dis-
nissed or
Combined
Case Returned
to Region
Case Reref erred
Monitor Case
Returned to
Region
Amending a
Case
TrarJTf VIP
WHO
Lead EPA Atty
HQ Attorney
Lead EPA Atty
Lead EPA Atty
Lead EPA Atty"
Tead FPA Atty
Lead EPA Atty
HQ Attorney
Lead FPA Atty
THAT
Significant events related
to settlement negotiation
or Litigation as required
by RC
HQ Events, as appropriate
Enter data about settle-
nent/Judgement Results,
Pate, Penalty
Enter Data for Closed Case -
when final compliance
achieved or case is with-
drawn, declined or dismissed
Enter "Date Returned"^
Enter "Date Re-referral"
Determine cases returned and
pending > 60 days. Deter-
mine action to he taken:
Refer or close. Update Docket
Assess need to discuss cases
with Region
Add amendments to existing
case when matter is part
of on-going case and will
rot he filed as a separate
matter for litigation
TWBT
Monthly
Monthly
Monthly
Monthly
Monthly
Monthly
Monthly
Quarterly
then matter is referred
TfW
Part of monthly review of
Case Update Report.
monthly case review.
Part of monthly review of
Case Update Report, or as
events occur.
Part of monthly review of
Case Update Report, or as
events occur.
Part of Monthly Update, or
as returns occur by proper
notification of data analyst.
Part of Monthly Update
Analyst produces report
of all cases returned to
Region and pending >60 days
for Lead EPA Attorney review
HQ analyst prepares quarterly
report on cases rtd to Region
X»0 days
Monthly Case Update, or on
amendment data form, to
Regional Analyst,
amendment occurs
-------
VIOLATION TABLE
Appendix ?
VIOLATION
TYPE
AOVIOL
CLO
FIFRA
FIN
GFR
GRANT
GWM
IMP
IND
INFO
LOT
MPRSA
NESHAP
NOPRMT
NORPTG
NSPS
NSR
PMN
PRETMT
PRMTVL
PSD
PWSM/R
PWSMCL
PWSNP
PWSSA
.11 EC
REP
SIP
SPILL
C'lC
OICCAC
UICMFL
UICMIN
(J 1C MOM
UICNPA
UICOIN
UICPRS
UICUNI
UICUNO
UXCVPA
VHAP
404PMT
Air Pollutants
DESCRIPTION
Administrative Order Violation
Closure and Post-Closure Plan
FIFRA
Financial Responsibility
General Facilities Requirements
P.L. 92-500 Facility
Groundwater Monitoring
Import s
Indus trial Source
CAA/114 (INFO)
Land Disposal & Treatment
MPRSA
National Emission Stds. for Haz.
Discharge v/o Permit
No .-porting or Monitoring
New Source Performance Standards
New Source Review
Pre-manufacturing Notice
Pretreatment
Permit Violation
Prevention of Significant Deterioration
PWS Monitoring/Reporting
PWS Maximum Containment Level
PWS Notification to Public
PWS Sampling & Analyzing
Required Records Maintenance
Reporting Violations
State Implementation Plan
311/CWA
UIC/SDWA
UIC Casing & Cementing
UIC Fluid Movement in Underground Source
Drinking Water
PIC Mechanical Integrity
Moni tori ng
No Approved Plugging & Abandonment Plan
Injection Between Outermost Casing
Injection Beyond Authorized Pressure
Unauthorized Injection
Unauthorized Operation of a Class IV Well
Compliance w/Plugging & Abandonment Plan
Hazardoua Air Pollutants
of
UIC
UIC
UIC
UIC
UIC
UIC
UIC
Volatile
404/CWA
-------
POLLUTANT TABLE
Appendix F
POLLUTANT
TYPE
ARSN
ASB
BENZ
BERY
CO
COE
CON
LEAD
MERC
NOX
OP
PCB
PM
RAOON
RDNC
S02
VNCL
DESCRIPTION
Arsenic
Asbes cos
Benzene
Beryliu«
Carbon Monoxide
Coke Oven Emissions
Containers (Drums, Tanks)
Lead
Mercury
Nitrogen Oxides
Opacity
Polychlorinated Biphenyls
Particulaee Matter
Radon
Radionuc1 ides
Sulfur Dioxide
Vinyl Chloride
** If you would like
the table, please
FTS-382-2614
to see any more pollutants added to
contact Bruce Rothrock at
-------
RESULT TABLE
Appendix F
1-
RESULT
LEVEL
Before
Referral
DOJ
Co
RESULT
CODE
WR - Withdrawn by
Region
DE - Declined by HQ
RESULT
REASON
2- After WE
Referral Co DJ
DOJ/US Atty, DA
Before filing
of Complaint
or CD
Withdrawn by HQ
Declined by DOJ
Declined by US
ac torney
3- After filing LN
of Complaint
or CD CM
Li C igated w/no
Pena 1 ty
CD w/no Penalty
CP - CD v/Penalty *RO
LP"- Litigated w/Penalty *CO
*BO
Penalty under RCRA'
Penalty under CERCLA
Penalty under both
& CERCLA
*CR - CD/Coat Recovery *OC -
*LR - Litigated/Coat *OT -
Recovery
*CB - CD v/Penalty & Coat *RC -
Recovery
*LB - Litigated v/Penalty *CC -
and Cost Recovery
*CT -
*RT -
*BC -
*BT -
Coat Recovery under CERCL
Coat Recovery w/treble
damages under CERCLA
Penalty under RCRA & Coat
Recovery under CERCLA
Penalty and Coat Recovery
under CERCLA
Penalty under CERCLA, Cos
Recovery w/treble damages
under CERCLA
Penalty under RCRA, Cost
Recovery w/treble damages
under CERCLA
Penalty under both RCRA &
CERCLA, Coat Recovery and*
CERCLA
Penalty under both RCRA &
CERCLA, Coat Recovery w/
treble damages under CCRC1
DC - Dismissed by Court
VD • Voluntarily Dismissed
CO - Combined
Recult code and Result reason apply only to RCRA/CERCLA cases
-------
Appendix F
REFERRAL INDICATOR TABLE
REFERRAL
INDICATOR DESCRIPTION
RH Region to Headquarters
RD Region to DOJ
8U Region to US Attorney
HD Headquarters to DOJ
-------
GUIDANCE ON THE USE OF ALTERNATIVE DISPUTE RESOLUTION
IN EPA ENFORCEMENT CASES
I. INTRODUCTION
To effect compliance with the nation's environmental laws,
the United States Environmental Protection Agency (£?A; has
developed and maintained a vigorous judicial and administrative
enforcement program. Cases instituted under the program must be
resolved, either through settlement or decision by the appro-
priate authority, as rapidly as possible in order to maincair.
the integrity and credibility of the program, and to reduce the
backlog of cases.
Traditionally, the Agency's enforcement cases have been
settled through negotiations solely between representatives of
the Government and the alleged violator. With a 95 percent
success rate, this negotiation process has proved effective, '
and will continue to be used in most of the Agency's cases.
Nevertheless, other means of reaching resolution, known col-
lectively as alternative dispute resolution (ADR), have evolved.
Long accepted and used in commercial, domestic, and labor disputes,
ADR techniques, such as arbitration and mediation, are adaptable
to environmental enforcement disputes. These ADR procedures
hold the promise for resolution of some of EPA's enforcement
cases more efficiently than, but just as effectively as, those
used in traditional enforcement. Furthermore, ADR provisions
can also be incorporated into judicial consent decrees and consent
agreements ordered by administrative law judges to address
future disputes.
EPA does not mean to indicate that by endorsing the use of
ADR in its enforcement actions, it is backing away from a strong
enforcement position. On the contrary, the Agency views ADR as
merely another tool in its arsenal for achieving environmental
compliance. EPA intends to use the ADR process, where appropriate,
to resolve enforcement actions with outcomes similar to those
the Agency reaches through litigation and negotiation. Since
ADR addresses only the process (and not the substance) of case
resolution, its use will not necessarily lead to more lenient
results for violators; rather, ADR should take EPA to its desired
ends by more efficient means.
ADR is increasingly becoming accepted by many federal
agencies, private citizens, and organizations as a method of
handling disputes. The Administrative Conference of the United
States has repeatedly called for federal agencies to make greater
-------
-2-
use of ADR techniques, and has sponsored numerous studies to
further their use by the federal government. The Attorney
General of the United States has stated that it is the policy
of the United States to use ADR in appropriate cases. 3y
memorandum, dated February 2, 1987, the Administrator of EPA
endorsed the concept in enforcement disputes, and urged senior
Agency officials to nominate appropriate cases.
This guidance seeks to:
(1) Establish Policy - establish that it is EPA policy
to utilize ADR in the resolution of appropriate civil
enforcement cases.
(2) Describe Methods - describe some of the applicable
types of ADR, and the characteristics of cases which
might call for the use of ADR;
(3) Formulate Case Selection Procedures - formulate
procedures for determining whether to use ADR in
particular cases, and for selection and procurement
of a "third-party neutral" (i.e., mediators,
arbitrators, or others employed in the use of ADR);
t4) Establish Qualifications - establish qualifications
for third-party neutrals; and
'[5) Formulate Case Management Procedures - formulate
procedures for management of cases in which some
or all issues are submitted for ADR.
II. ALTERNATIVE DISPUTE RESOLUTION METHODS
ADR mechanisms which are potentially useful in environ-
mental enforcement cases will primarily be mediation and nonbind-
ing arbitration. Fact-finding and mini-trials may also be helpful
in a number of cases. A general description of these mechanisms
follows. (See also Section VIII, below, which describes in
greater detail how each of these techniques works.) Many other
forms of ADR exist, none of which are precluded by this guidance.
Regardless of the technique employed, ADR can be used to resolve
any or all of the issues presented by a case.
A. Mediation^- is the facilitation of negotia-tions by a
person not a party to the dispute (herein "third-party neutral"-)
who has no power to decide the issues, but whose function is to
For further information on the mediation role of Clean Sites Inc
see guidance from the Assistant Administrator, Office of Solid
Waste and Emergency Response and Assistant Administrator, Office
of Enforcement and Compliance Monitoring on the "Role of Clean
Sites Inc. at Superfund Sites," dated April 24, 1987.
-------
TABLE OF CONTENTS
Guidance on the Use of Alternative Dispute Resolution (ACR)
in EPA Enforcement Cases
Pages
I. • INTRODUCTION 1
II. ALTERNATIVE DISPUTE RESOLUTION METHODS 2
III. CHARACTERISTICS OF ENFORCEMENT CASES
SUITABLE FOR ADR 4
A. Impasse or Potential for Impasse 5
3. Resource Considerations 5
C. Remedies Affecting Parties Not Subject to an
Enforcement Action 6
IV. PROCEDURES FOR APPROVAL OF CASES FOR ADR 6
A. Decisionmakers 7
3. Case Selection Procedures 7
1. Non Binding ADR 8
2. Binding ADR 8 ,
V, SELECTION OF A THIRD-PARTY NEUTRAL 8
A. Procedures for Selection 8
B. Qualifications for Third-Party Neutrals 9
1. Qualifications for Individuals 10
2. Qualifications for Corporations and Other
Organizations 11
VI. OTHER ISSUES 12
A. Memorialization of Agreements 12
B. Fees for Third-Party Neutrals 12
C. Confidentiality 12
D. Relationship of ADR to Timely and Appropriate and
Significant Noncompliance Requirements 14
VII. PROCEDURES FOR MANAGEMENT OF ADR CASES 14
A. Arbitration 14
B. Mediation 15
C. Mini-trial 17
D. Fact-finding ........... 18
VIII. ATTACHMENTS
A. Attachment A: Letter of Nomination of Case for Mediation
B. Attachment B: Letter of Nomination of Case for Binding
Resolution
C. Attachment C: Arbitration Procedures
D. Attachment D: Mediation Protocols
E. Attachment E: Agreement to Institute Mini-Trial Proceeding
F. Attachment F: Agreement to Institute Fact-Finding
-------
GUIDANCE ON THE USE OF ALTERNATIVE DISPUTE RESOLUTION
IN EPA ENFORCEMENT CASES
United States Environmental Protection Agency
-------
AUG I 4 !CCT
MEMORANDUM
SUBJECT: Final Guidance on Use cf Alternative Dispute
Resolution Techniques in Enforcement Actions
TO: Assistant Administrators
Regional Administrators
I. Purpose
Attached is the final guidance on the use of alternative
dispute resolution (ADR) techniques in enforcement actions. This
guidance has been reviewed by EPA Headquarters and Regional
offices, the Department of Justice, as well as by representatives
of the regulated community. We have also sought the advice of
leading ADR professionals, including many of the renowned partici-
pants at a recent Colloquium on ADR sponsored by the Administrative
Conference of the United States.
The reaction to the draft guidance has been overwhelmingly
favorable and helpful. In response to comments, the guidance more
clearly distinguishes the uses of binding and non-binding techniques,
emphasizes the need to protect the confidentiality of conversations
before a neutral, and includes model agreements and procedures for
the use of each ADR technique.
II. Use of ADR
As the guidance explains, ADR involves the use of third-party
neutrals to aid in the resolution of disputes through arbitration,
mediation, mini-trials and fact-finding. ADR is being used increas-
ingly to resolve private commercial disputes. EPA is likewise
applying forms of ADR in various contexts: negotiated rulemaking,
RCRA citing, and Superfund remedial actions. ADR holds the promise
of lowering the transaction costs to both the Agency and the
regulated community of resolving applicable enforcement disputes.
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-2-
I view ADR as a new, innovative and potentially mora effac-iva
way .to accomplish the results we have sought for years using
conventional enforcement techniques. We retain our strict adherence
to the principle that the regulated community must comply with the
environmental laws. The following tasks will'be undertaken to
enable the Agency to utilize ADR to more effectively and efficiently
foster compliance:
Training. Some within the Agency may fear that using less
adversarial techniques to resolve enforcement actions implies that
the agency will be seeking less rigorous settlements. This is not
the case. We must train our own people in what ADR is, what it is
not, and how it can help us meet our own compliance objectives. We
plan to accomplish this by making presentations at national program
and regional counsel meetings, and by consulting on particular cases.
Outreach. We must also make an affirmative effort to demon-
strate to the regulated community that EPA is receptive to sugges-
tions from them about using ADR in a given case. Nominating
a case for ADR need not be viewed as a sign of weakness in either
party. After we have gained experience, we plan to conduct a •
national conference to broaden willingness to apply ADR in the
enforcement context.
Pilot Cases. Ultimately/ the value of ADR must be proven by
its successful application in a few pilot cases. ADR is being use
to resolve an important municipal water supply problem involving
the city of Sheridan, Wyoming. Two recent TSCA settlements also
utilized ADR to resolve disputes which may arise in conducting
environmental audits required under the consent agreements. Beyond
these, however, we need to explore the applicability of ADR to
additional cases.
Ill. Action and Follow^Up
I challenge each of you to help in our efforts to apply ADR
to the enforcement process. I ask the Assistant Administrators to
include criteria for using ADR in future program guidance, and to
include discussions of ADR at upcoming national meetings. I ask
the Regional Administrators to review the enforcement actions now
under development and those cases which have already been filed to
find cases which could be resolved by ADR. I expect each Region
to nominate at least one case for ADR this fiscal year. Cases
should be identified and nominated using the procedure set forth
in the guidance by September 4, 1987
Attachment
cc: Regional Enforcement Contacts
Regional Counsels
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assist the parties in reaching settlement. The mediator serves
to schedule and structure negotiations, acts as a catalyst between
the parties, focuses the discussions,' facilitates exchange between
the parties, and serves as an assessor - but not a judge - of
the positions taken by the parties during the course of negotia-
tions. With the parties' consent, the mediator may take on
additional functions such as proposing solutions to the problem.
Nevertheless, as in traditional negotiation, the parties"retain
the power to resolve the issues through an informal, voluntary
process, in order to reach a mutually acceptable agreement.
Having agreed to a mediated settlement, parties can then make
the results binding.
B. Arbitration involves the use of a person — not a party
to the -dispute — to hear stipulated issues pursuant to procedures
specified by the parties. Depending upon the agreement of the
parties and any legal constraints against entering into binding
arbitration, the decision of the arbitrator may or may not be
binding. All or a portion of the issues — whether factual,
legal or remedial — may be submitted to the arbitrator. Because
arbitration is less formal than a courtroom proceeding, parties t
can agree to relax rules of evidence and utilize other time-saving
devices. For the present, EPA appears to be restricted by law.
to use binding arbitration only for small CERCLA cost recovery
cases. We are conducting further research regarding its use to
decide .factual issues.
C. Fact-finding entails the investigation of specified
issues by a neutral with subject matter expertise, and selected
by the parties to the dispute. The process may be binding or
nonbinding, but if the parties agree, the material presented
by the fact-finder may be admissible as an established fact in
a subsequent judicial or administrative hearing, or determinative
of the issues presented. As an essentially investigatory process,
fact-finding employs informal procedures. Because this ADR
mechanism seeks to narrow factual or technical issues in dispute,
fact-finding usually results in a report, testimony, or established
fact which may be admitted as evidence, or in a binding or advisory
opinion.
D. Mini-trials permit the parties to present their case, or
an agreed upon portion of it, to principals who have authority
to settle the dispute (e.g., vice-president of a company and a
senior EPA official) and, in some cases as agreed by the parties,
to a neutral third-party advisor. Limited discovery may precede
the case presentation. The presentation itself may be summary
or an abbreviated hearing with testimony and cross-examination
as the parties agree. Following the presentation, the principals
reinstitute negotiations, possibly with the aid of the neutral
as mediator. The principals are the decisionmakers while the
third-party neutral, who usually has specialized subject matter
expertise in trial procedures and evidence, acts as an advisor
on potential rulings on issues if the dispute were to proceed to
trial. This ADR mechanism is useful in narrowing factual issues
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or mixed questions of law and fact, and in giving the principals
a. realistic view of the strengths and weaknesses of their cases.
III. CHARACTERISTICS OF ENFORCEMENT CASES SUITABLE FOR ADR
This section suggests characteristics of cases which may be
most suitable for use of ADR. These characteristics are neces-
sarily broad, as ADR may theoretically be used in any type of
dispute. Enforcement personnel can use these characteristics to
make a preliminary assessment of whether ADR should be considered
for use in a particular case, including a discrete portion or
issu<2 in a case.
ADR procedures may be introduced into a case at any point
in i(:s development or while pending in court. However, it is
preferable that ADR be considered as early as possible in the
progress of the case to avoid the polarizing effect which frequently
results from long and intense negotiations or the filing of a
lawsuit. ADR should, therefore, be considered prior to referral '
of a case to DOJ. Indeed, the threat of a referral may be used
as an incentive to convince the other parties to utilize an
appropriate ADR technique.
Notwithstanding the preference for consideration and use
of AJ3R at an early stage in the progress of a case, there are
occasions when ADR should be considered after a case has been
raferred and filed in court. This is particularly true when the
parties have reached an apparent impasse in negotiations, or the
court does not appear to be willing to expeditiously move the
case to conclusion through establishing discovery deadlines,
conducting motions hearings or scheduling trial dates. In such
cases, introduction of a mediator into the case, or submission
of some contested facts to an arbitrator may help to break the
impasse. Cases which have been filed and pending in court for a
number of years without significant movement toward resolution
should be scrutinized for prospective use of ADR.
In addition to those circumstances, the complexity of legal
and technical issues in environmental cases have resulted in a
recent trend of courts to appoint special masters with increasing
frequency. Those masters greatly increase the cost of the litigation
and, while they may speed the progress of the case, the parties
have little direct control over the selection or authority of
the masters. The government should give careful consideration
to anticipating a court's desire to refer complex issues to a
master by proposing that the parties themselves select a mediator
to assist in negotiations or an arbitrator to determine some
factual issues.
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The following characteristics of cases which .-nay be candidates
for use of some form of ADR are not intended to be exhaustive.
Agency personnel must rely upon their own judgment and experience
to evaluate their cases for potential applications of ADR. In all
instances where the other parties demonstrate their willingness to
use ADR, SPA should consider its use. Sample characteristics of
cases for ADR2:
A. Impasse or Potential for Impasse
When the resolution of a case is prevented through impasse,
EPA is prevented from carrying out its mission to protect and
enhance the environment, and is required to continue to commit
resources to the case which could otherwise be utilized to address
other problems. It is highly desirable to anticipate and avoid,
if possible, the occurrence of an impasse.
Impasse, or the possibility for impasse, is commonly created
by the following conditions, among others:
(1) Personality conflicts or poor communication among
negotiators;
(2) Multiple parties with conflicting interests;
'(3) Difficult technical issues which may benefit from
independent analysis;
(4) Apparent unwillingness of a court to rule on matters
which would advance the case toward resolution; or
(5) High visibility concerns making it difficult for the
parties to settle such as cases involving particularly sensitive
environmental concerns such as national parks or wild and scenic
rivers, issues of national significance, or significant adverse
employment implications.
In such cases, the involvement of a neutral to structure,
stimulate and focus negotiations and, if necessary, to serve as an
intermediary between personally conflicting negotiators should be
considered as early as possible.
B- Resource Considerations
All enforcement cases are important in that ail have, or
should have, some deterrent effect upon the violator and other
members of the regulated community who hear of the case. It is,
therefore, important that EPA's cases be supported with the
ADR is not considered appropriate in cases where the Agency is
contemplating criminal action.
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Isve.L of resources necessary to achieve the desired result.
Nevertheless, because of the size of SPA's enforcement effort,
it i.'3 recognized that resource efficiencies must be achieved
whenever possible to enable EPA to address as many violations as
possible.
There are many cases in which utilizing some form of ADR
would achieve resource efficiencies for EPA. Generally, those
caseu contain the following characteristics:
(1) Those brought in a program area with which EPA has had
considerable experience, and in which the procedures, case law
and remedies are relatively well-settled and routine; or
(2) Those having a large number of parties or issues where
ACR can be a valuable case management tool.
C. Remedies Affecting Parties not Subject to an Enforcement Actfion
Sometimes, the resolution of an underlying environmental problem
would benefit from the involvement of persons, organizations or
entities not a party to an impending enforcement action. This is
becoming more common as EPA and the Congress place greater emphasis
on public participation in major decisions affecting remedies in
enforcement actions. Such cases might include those in which:
(1) A state or local governmental unit have expressed an
interest, but are not a party;
(2) A citizens group has expressed, or is likely to express
an interest; or
(3) The remedy is likely to affect not only the violator,
but the community in which the violator is located as well (e.g.,
those! cases in which the contamination is wide-spread, leading
to a portion of the remedy being conducted off-site).
In such cases, EPA should consider the use of a neutral very
early in the enforcement process in order to establish communication
with those interested persons who are not parties to the action,
but whose understanding and acceptance of the remedy will be
important to an expeditious resolution of the case.
IV. PROCEDURES FOR APPROVAL OF CASES FOR ADR
This section describes procedures for the nomination of
cases for ADR. These procedures are designed to eliminate confusic
regarding the selection of cases for ADR by: (1) integrating the
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selec.tion of cases for ADR into the existing enforcement case
selection process; and (2) creating decision points and contacts
in the regions, headquarters, and DOJ to determine whether to
use ADR in particular actions.
A. Decisionmakers
To facilitate decisions whether to use ADR in a particular
action, decision points in headquarters, the regions and DOJ
must be established. At headquarters, the decisionmaker will
be the appropriate Associate Enforcement Counsel (AEC). The AEC
should consult on this decision with his/her corresponding head-
quarters compliance division director. At DOJ, the decisionmakar
will be the Chief, Environmental Enforcement Section. In the
regions, the decisionmakers will be 'the Regional Counsel in con-
sultation with the appropriate regional program division director.
If the two Regional authorities disagree on whether to use ADR
in a particular case, then the Regional Administrator (RA) or
the Deputy Regional Administrator (DRA), will decide the matter.
This decisionmaking process guarantees consultation with and
concurrence of all relevant interests.
B. Case Selection Procedures
Anyone in the regions, headquarters, or DOJ who is partici-
pating in the development or management of an enforcement action,
or any defendant or PRP not yet named as a defendant, may suggest
a case or selected issues in a case for ADR.3 Any suggestion,
however, must be communicated to and discussed with the appropriate
regional office for its consent. The respective roles of the AECs
and DOJ are discussed below. After a decision by the Region or
litigation team to use ADR in a particular case, the nomination
should be forwarded to headquarters and, if it is a referred
case, to DOJ. The nominations must be in writing, and must
enumerate why the case is appropriate for ADR. (See Section III
of this document which describes the characteristics for selection
of cases for ADR.) Attachments A and B are sample case nomination
communications. Attachment A pertains to nonbinding ADR, and
Attachment B pertains to binding ADR.
Upon a determination by the Government to use ADR, Government
enforcement personnel assigned to the case (case team) must
approach the PRP(s) or other defendant(s) with the-suggestion.
The case team should indicate to the PRP(s) or defendant(s) the
factors which have led to the Agency's recommendation to use
J Nomination papers should always be deemed attorney work product
so that thev are discoverv free.
*»*>* *** A 4 * u w •*. *^ i * £f\^£f*^ 4, «^ h? * **^ wk «k ^ v^ ^ rvv* j ^
so that they are discovery free
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ABR, 'and the potential benefits to .all parties from its use.
The I?RP(s) or other defendant (s) should understand, nevertheless,
that the Government is prepared to proceed with vigorous litigation
in the case if the use of a third-party neutral fails to resolve
the matter. Further, for cases which are referable, the defenca.it (s)
should be advised that EPA will not hesitate to refer the matter
co DOJ for prosecution.
1. Nonbinding ADR
For mediation, mini-trials, nonbinding arbitration, and
other ADR mechanisms involving use of a third-party neutral as a
nonbinding decisioninaker, regions should notify the appropriate
AEC -md, if the case is referred, DOJ of: (1) its intent'co use
ADR :.n a particular case, and (2) the opportunity to consult
with the Region on its decision. Such notification should be in
writing and by telephone call. The AEC will consult with the
appropriate headquarters program division director. The Region
may presume that the AEC and DOJ agree with the selection of the ,
case for ADR unless the AEC or DOJ object within fifteen (15) :
calendar days of receipt of the nomination of the case. If
eithor the AEC or DOJ object, however, the Region should not
proceed to use ADR in the case until consensus is reached.
2. Binding ADR
For binding arbitration and fact-finding, and other ADR
mechanisms involving the use of third-party neutrals as binding
decisiionmakers, the appropriate AEC must concur in the nomination
of the case by the Region. In addition, DOJ must also concur in
the use of binding ADR in referred cases. Finally, in non-CERCLA
casen which may involve compromise of claims in excess of $20,000
or where the neutral's decision will be embodied in a court order,
DOJ must also concur. Without the concurrence of headquarters
and DOJ under these circumstances, the Region may not proceed
with ADR. OECM and DOJ should attempt to concur in the nomina-
tion, within fifteen (15) days of receipt of the nomination.
Under the Superfund Amendments and Reauthorization Act (SARA),
Pub. L. No. 99-499, §122(h)(2)(1986). EPA may enter into binding
arbitration for cost recovery claims under Section 107 of CERCLA,
provided the claims are not in excess of $500,000, exclusive of
interest. Until regulations are promulgated under this section,
EPA i,s precluded from entering into binding arbitration in cost
recovery actions. Accordingly, Attachment C is not yet appropriate
for use in cases brought under this section. It is, however, avail-
able for use in nonbinding arbitration.
V. SELECTION OF A THIRD-PARTY NEUTRAL
A. Procedures for Selection
Both the Government and all defendants must agree on the need
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for a neutral in order to proceed with ADR. Ir. some situations
(e.g'.; in a Superfund case), however, the parties may proceed with
ADR with consensus of only some of the parties depending on the
issue and the parties. Once agreed, the method for selecting
the neutral and the actual selection in both Superfund and other
cases -will be determined by all parties involved with the excep-
tion of cases governed by §107 of CERCLA. To help narrow the
search for a third-party neutral, it is useful, although not
required, for the parties to agree preliminarily on one or more
ADR mechanisms. OECM is available to help at this point in the
process, including the procurement of in-house or outside persons
to aid the parties in selecting an appropriate ADR mechanism.
In Section VIII below, we have indicated some of the situations
where each ADR mechanism may be most appropriate. Of course', the
parties are free to employ whichever technique they deem appropriate
for the case. Because the ADR mechanisms are flexible, they are
adaptable to meet the needs and desires of the parties.
The parties can select a third-party neutral in many ways. ?
Each party may offer names of proposed neutrals until all parties
agree on one person or organization. Alternatively, each party
may propose a list of candidates, and allow the other parties to
strike unacceptable names from the list until agreement is
reached. For additional methods/ see Attachments C, 0, and E.
Regardless of how the parties decide to proceed, the Government
may obtain names of qualified neutrals from the Chief, Legal
Enforcement Policy Branch (LEPB) (FTS 475-8777, LE-130A, E-Mail
box EPA 2261), by written or telephone request. With the help
of the Administrative Conference of the U.S. and the Federal
Mediation and Conciliation Service, OECM is working to establish
a national list of candidates from which the case team may select
neutrals. In selecting neutrals, however, the case team is not
limited to such a list.
It is important to apply the qualifications enumerated below
in section V.B. in evaluating the appropriateness of a proposed
third-party neutral for each case. Only the case team can decide
whether a particular neutral is acceptable in its case. The
qualifications described below provide guidance in this area.
At any point in the process of selecting an ADR mechanism or
third-party neutral, the case team may consult with the Chief,
LEPB, for guidance.
B. Qualifications for Third-Party Neutrals
The following qualifications are to be applied in the
selection of all third-party neutrals who may be considered for
service in ADR orocedures to which EPA is a party. While a
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third-party neutral should meet as many of the qualifications as
possible, it may be difficult to identify candidates who possess
all the qualifications for selection of a third-party neutral.
Failure to meet one or more of these qualifications should not
necessarily preclude a neutral who all the parties agree would
be satisfactory to serve in a particular case. The qualifications
are, therefore, intended only as guidance rather than as pre-
requisites to the use of ADR. Further, one should apply a greater
degiree of flexibility regarding the qualifications of neutrals
involved in nonbinding activities such as mediation, and a stricter
adhorence to the qualifications for neutrals making binding
decisions such as arbitrators.
1. Qualifications for Individuals
a. Demonstrated Experience. The candidate should
have; experience as a third-party neutral in arbitration, mediation
or other relevant forms of ADR. However, other actual and active
participation in negotiations, judicial or administrative hearings
or other forms of dispute resolution, service as an administrative
law judge, judicial officer or judge, or formal training as a-
neutral may be considered. The candidate should have experience
in negotiating, resolving or otherwise managing cases of similar
complexity to the dispute in question, e.g., cases involving
multiple issues, multiple parties, and mixed technical and legal
issues where applicable.
b. Independence. The candidate must disclose any
interest or relationship which may give rise to bias or the
appearance of bias toward or against any party. These interests
or relationships include:
(a) past, present or prospective positions with or financial
interests in any of the parties;
(b) any existing or past financial, business, professional,
family or social relationships with any of the parties
to the dispute or their attorneys;
(c) previous or current involvement in the specific dispute;
(d) past or prospective employment, including employment as
a neutral in previous disputes, by any of the parties;
(e) past or present receipt of a significant portion of the
neutral's general operating funds or grants from one or
more of the parties to the dispute.
The existence of such an interest or relationship does not
necessarily preclude the candidate from serving as a neutral,
particularly if the candidate has demonstrated sufficient
independence by reputation and performance. The neutrals with
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the most experience are most likely to have past or current
relationships with some parties to the dispute, including the
Government. Nevertheless, the candidate must disclose all
interests, and the parties should then determine whether the
interests create actual or apparent bias.
c. Subject Matter Expertise. The candidate should
have sufficient general knowledge of the subject matter of the
dispute to understand and follow the issues, assist the parties
in recognizing and establishing priorities and the order of
consideration of those issues, ensure that all possible avenues
and alternatives to settlement are explored, and otherwise serve
in the most effective manner as a third-party neutral. Depending
on the case, it may also be helpful if the candidate has specific
expertise in the issues under consideration.
d. Single Role. The candidate should not be serving
in any other capacity in the enforcement process for that particular
case that would create actual or apparent bias. The case team
should consider any prior involvement in the dispute which may
prevent the candidate from acting with objectivity. For example,
involvement in developing a settlement proposal, particularly '
when the proposal is developed on behalf of certain parties, may
preclude the prospective neutral from being objective during
binding arbitration or other ADR activities between EPA and the
parties concerning that particular proposal.
Of course, rejection of a candidate for a particular ADR
activity, such as arbitration, does not necessarily preclude
any role for the candidate in that case. The candidate may
continue to serve in other capacities by, for example, relaying
information among parties and presenting offers on behalf of
particular parties.
2. Qualifications for Corporations and Other Organiza-
tions.4 Corporations or other entities or organizations which
propose to act as third-party neutrals, through their officers,
employees or other agents, in disputes involving EPA, must:
(a) like unaffiliated individuals, make the disclosures
listed above; and
(b) submit to the parties a list of all persons who, on
behalf of the corporation, entity or organization, will
or may be significantly involved in the ADR procedure.
These representatives should also make the disclosures
listed above.
4 For further guidance regarding Clean Sites Inc., see guidance
from the Assistant Administrator, Office of Solid Waste and
Emergency Response and Assistant Administrator, Office of
Enforcement and Compliance Monitoring on the "Role of Clean Sites
Inc. at Superfund Sites," dated April 24, 1987.
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In selecting a third-party neutral to resolve or aid in the
resolution of a dispute to which EPA is a party, Agency personnel
should remain at all times aware that the Agency must not only
uphold its obligation to protect public health, welfare and the
environment, but also develop and maintain public confidence
that the Agency is performing its mission. Care should be taken
in the application of these qualifications to avoid the selection
of third-party neutrals whose involvement in the resolution of
the case might undermine, the integrity of that resolution and
the enforcement efforts of the Agency.
VII. OTHER ISSUES:
A. Memorializaticn of Agreements
Just as it would in cases where ADR has not been used, the
case team should memorialize agreements reached through ADR in
orders and settlement documents and obtain OOJ and headquarters
approval (as appropriate) of the terms of any agreement reached
through ADR.
B. Fees For Third-Party Neutrals
The Government's share of ADR costs will .be paid by Head-
quarters. Contact LEPB to initiate payment mechanisms. Because
such mechanisms require lead time, contact with LEPB should be
made as early as possible after approval of a case for ADR.
It is EPA policy that PRPs and defendants bear a share of
these costs equal to EPA except in unusual circumstances. This
policy ensures that these parties "buy in" to the process. It
is important that the exact financial terms with these parties
be settled and set forth in writing before the initiation of ADR
in the case.
C. Confidentiality
Unless otherwise discoverable, records and communications
arising from ADR shall be confidential and cannot be used in
litigation or disclosed to the opposing party without permission,
This policy does not include issues where the Agency is required
to make decisions on the basis of an administrative record such
as the selection of a remedy in CERCLA cases. Public policy
interests in fostering settlement compel the confidentiality of
ADR negotiations and documents. These interests are reflected
in a number of measures which seek to guarantee confidentiality
and ure recognized by a growing body of legal authority.
Most indicative of the support for non-litigious settlement
of disputes is Rule 408 of the Federal Rules of Evidence which
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randera offers of compromise or settlement or statements made
during discussions inadmissable in subsequent litigation between
the -parties to prove liability. Noting the underlying policy
behind the rule, courts have construed the rule to preclude
admission of evidence regarding the defendant's settlement of
similar cases . 5
Exemption protection under the Freedom of Information Act
(FOIA), 15 U.S.C. §552, could also accommodate the interest in
confidentiality. While seme courts have failed to recognize t'.\e
"settlement negotiations privilege,"*5 other courts have recognized
the privilege. '
In addition to these legal authorities and policy argumen-s,
confidentiality can be ensured by professional ethical codes.
Recognizing that promoting candor on the parties' part and
impartiality on the neutral's part is critical to the success of
ADR, confidentiality provisions are incorporated into codes of
conduct as well as written ADR agreements (See Attachment D).
The attachment provides liquidated damages where a neutral reveals
confidential information except under court order. ,
Furthermore, confidentiality can be effected by court order,
if ADR is court supervised. Finally, as many states have done
5 See Scaramuzzo v. Glenmore Distilleries Co., 501 F.Supp. 727
(N.D~111.1980), and to bar discovery, see Branch v. Phillips
Petroleum Co., 638 F.2d 873 (5th Cir. 198TT. Courts have
also construed labor laws to favor mediation or arbitration
and have therefore prevented third-party neutrals from being
compelled to testify. See, e.g., N.L.R.B. v..Joseph Macaluso,
Inc., 618 F.2d 51 (9th Cir. 1980) (upholding N.L.R.B.'s
revocation of subpoena issued to mediator to avoid.breach of
impartiality).
x
6 See, e.q., Center for Auto Safety v. Department of Justice, 576
F. SuppT^39, 749 (D.D.C. 1983).
7 See Bottaro v. Hatton Associates, 96 F.R.D. 158-60 (E.D.N.Y 1982)
(noting "strong public policy of favoring settlements" and public
interest in "insulating the bargaining table from unnecessary
intrusions"). In interpreting Exemption 5 of the FOIA, the Supreme
Court asserted that the "contention that [a requester could] obtain
through the FOIA material that is normally privileged would create
an anomaly in that the FOIA could be used to supplement civil
discovery. ...We do not think that Congress could have intended
that the weighty policies underlying discovery privileges could
be so easily circumvented." United States v. Weber Aircraft,
104 S.Ct. 1488, 1494 (1984).
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sta'iutor iiy, EPA is considering the promulgation of regulations
which further ensure the confidentiality of ADR proceedings.
D. Relationship of ADR to Timely and Appropriate and
Significant Noncompliance Requirements
The decision to use ADR would have no particular impact under
the "timely and appropriate" (TiA) criteria in a case where there
is already an administrative order or a civil referral since the
"tinely and appropriate" criteria would have been met by the
initiation of the formal enforcement action. In the case of a
civxl referral/ the 60-day period by which DOJ is to review and
filo an action may be extended if ADR is used during this time.
The decision to use ADR to resolve a violation prior to the
initiation of a formal enforcement action, however, would be
affected by applicable "timely and appropriate" criteria (e.g.,
if the violation fell under a program's Significant Noncompliance
(SNC) definition, the specific timeframes in which compliance
must be achieved or a formal enforcement action taken would
apply). The use of ADR would not exempt applicable "T&A" :
requirements and the ADR process would normally have to proceed
to resolve the case or "escalate" the enforcement response.
However, since, "T&A" is not an immutable deadline, that ADR
is being used for a particular violation would be of central
significance to any program management review of that case (e.g.,
the Deputy Administrator's discussion of "timely and appropriate"
enforcement during a regional review would identify the cases in
which ADR is being used.)
VIII. PROCEDURES FOR MANAGEMENT OF ADR CASES
This section elaborates on the various ADR techniques: How
they work, some problems that may be encountered in their use,
and their relationship to negotiation and litigation. For each
ADR technique, we have provided, as.an attachment to this guidance,
an example of procedures reflecting its use. "These attachments
are for illustrative purposes only, and do not represent required
procedures. The specific provisions of the attachments should
be adapted to the circumstances of the case or eliminated if not
applicable.
A. Arbitration
1. Scope and Nature
As stated in Section II, above, arbitration involves the
selection by the parties of a neutral decisionmaker to hear
selected issues and render an opinion. Depending on the parties'
agreement, the arbitrator's decision may or may not be binding.
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For the present, EPA appears to be restricted by Law to use
binding arbitration only for small CERCLA cost recovery cases.
We are conducting further research regarding its use to decide
factual issues. Included as Attachment C are draft generic
arbitration procedures for formal arbitration. To conduct less
formal proceedings, the parties may modify the procedures.
2. Use
Arbitration is most appropriate in resolving routine cases
that do not merit the resources required to generate and process
a civil judicial referral. It may aid in resolving technical
disputes that are usually submitted to the courts or administrative
law judges (ALJs), which disputes require subject-matter expertise
which federal district court judges and ALJs may lack.®
3. Mediation
1. Scope and Nature
Mediation, an informal process, is entered into voluntarily^
by the parties to a dispute and in no way binds them beyond their
own agreement. More than the other ADR processes, mediation is
best viewed as an extension of the direct negotiation process
begun by the parties. As in direct negotiation, the parties
continue to control the substance of discussions and any agree-
ment reached. In mediation, however, the mediator directs and
structures the course of discussions.
The mediation format varies with the individual style of the
mediator and the needs of the parties. Initially, the mediator is
likely to call a joint meeting with the parties to work out ground
rules such as how and when meetings will be scheduled. Included
as Attachment D are generic mediation protocols for use and
adaptation in all EPA mediations. Most of the items covered in
the attachment would be useful as ground rules for most EPA
enforcement negotiations. Ordinarily, mediators will hold a
series of meetings with the parties in joint session, as well as
with each party. In joint meetings, the mediator facilitates
discussion. In separate caucuses, the mediator may ask questions
or pose hypothetical terms to a party in order to clarify its
position and identify possible areas for exchange and agreement
with the opposing party. Some mediators will be more aggressive
than others in this role; they may even suggest possible settlement
alternatives to resolve deadlocks between the parties. In general,
however, the mediator serves as a facilitator of discussions and
abstains from taking positions on substantive points.
9 Arbitration is specifically authorized under Section 107 of CERCLA
for cost recovery claims not in excess of $500,000, exclusive of
interest.
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There are no external time limits on mediation other than
those imposed by the parties or by external pressures from the
courts, the community or public interest groups. In all cases,
the Government should insist on a time limit for the mediation
to ensure that the defendants do not use mediation as a stalling
device. .The Government should also insist on establishing points
in the process to evaluate progress of the mediation. As the
parties approach settlement terms through mediation, final authority
for decisionmaking.remains the same as during direct negotiations,
i.e., requirements for approval or concurrence from senior managers
are applicable.
2. Use of Mediation
Mediation is appropriate for disputes in which the parties
have reached or anticipate a negotiation impasse based on, among
other things, personality conflicts, poor communication, multiple
parties, or inflexible negotiating postures. Additionally,
mediation is useful in those cases where all necessary parties ar«e
not before the court (e.g., a state which can help with the funding
for a municipality's violation). Mediation is the most flexible
ADR ;nechanism, and should be the most widely used in Agency disputes
3. Withdrawal from Mediation
As a voluntary and unstructured process, mediation proceeds
entirely at the will of the parties and, therefore, may be concluded
by the parties prior to settlement. A determination to withdraw
from mediation should be considered only when compelling factors
militate against proceeding. If the mediation has extended
beyond a reasonable time period (or the period agreed upon by
the parties) without significant progress toward agreement, it
may be best to withdraw and proceed with direct negotiations or
litigation. Withdrawing from mediation might also be considered
in the unlikely event that prospects for settlement appear more
remote than at the outset of the mediation. Finally, inappropriate
conduct by the mediator would warrant concluding the mediation
effo;rt or changing mediators.
4. Relation to Litigation
In the ordinary case, prior to referral or the filing of an
administrative complaint, the time limits for mediation could be
the isame as those for negotiation. In contrast to normal
negotiations, however, the parties may agree that during the
time period specified for mediation,.litigation activities
such as serving interrogatories, taking depositions, or filing
motions may be suspended. In filed civil judicial cases, where
the court imposes deadlines, it will be necessary to apprise the
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court of the parties' activities dad to build -.DR into the court's
timetable. For agreements relating ADR activities to ongoing
litigation, see paragraph 17 of Attachment E.
C. Mini-Trial
1. Scope and Nature
Like other ADR techniques, the mini-trial is also voluntiry
and nonbinding on the parties. In the mini-trial, authority for
resolution of one or more issues rests with senior managers who,
representing each party in the dispute, act as decisionmakers .
In some cases a neutral referee is appointed to supervise the
proceedings and assist the decisionmakers in resolving an issue
oy providing che parties wi -h a .nore realistic view of their
case. In addition, the neutral's presence can enhance public
acceptability of a resolution by effectively balancing the
interests of the Government and the defendant.
The scope and format of the mini-trial are determined solely
by the parties to the dispute and are outlined in an initiating :
agreement. Because the agreement will govern the proceedings,
the parties should carefully consider and define issues in advance
of the mini-trial. Points that could be covered include the
option of and role for a neutral, issues to be considered, and
procedural matters such as order and schedule of proceedings and
time limits. Attachment E is a sample mini-trial agreement.
The mini-trial proceeds before a panel of decisionmakers
representing the parties and, in some cases, a neutral referee.
Preferably, the decisionmakers will not have participated directly
in the case prior to the mini-trial. The defendant's represen-
tative should be a principal or executive of the entity with
decisionmaking authority. EPA's representative should be a
senior Agency official comparable in authority to the defendant's
representative. In some cases, each side may want to use a
panel consisting of" several decisionmakers as its representatives.
The neutral referee is selected by both parties and should have
expertise in the issues under consideration.
At the mini-trial, counsel for each side presents his or her
strongest and most persuasive case to the decisionmakers in an
informal, trial-like proceeding. In light of this structure,
strict rules of evidence do not apply, and the foraiat for the
presentation is unrestricted. Each decisionmaker is then afforded
the unique opportunity to proceed, as agreed, with open and
direct questioning of the other side. This information exchange
allows the decisionmakers to adjust their perspectives and posi-
tions in light of a preview of the case. Following this phase
of the mini-trial, the decisionmakers meet, with or without
counsel or the neutral referee, to resolve the issue(s) or case
presented, through negotiation.
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2. Role of the Neutral
The neutral referee may serve in more than one capacity
in Uhis process, and should be selected with a clearly defined
concept of his or her role. The most common role is to act as
an cidvisor to the decisionrnaXers during the information exchange.
The neutral may offer opinions on points made or on adjudication
of Uhe case in Litigation, and offer assistance to the decision-
makars in seeing the relative merits of their positions. The
neutral's second role can be to mediate the negotiation between
the decisionmakers should they reach an impasse or seek assistance
in forming an agreement. Unless otherwise agreed by the parties,
no evidence used in the mini-trial is admissible in litigation.
3. Use
As with mediation, prior to .referral or the filing of an
administrative complaint, the time limits for a mini-trial would
be the same as those for negotiation. The parties usually agree,
howover, that during the time period specified for a mini-trial,
litigation activities such as serving interrogatories, taking '
depositions, or filing motions may be suspended except as otherwise
agreed. In general, mini-trials are appropriate in cases involving
only a small number of parties, and are most useful in four kinds
of disputes:
1. Where the parties have reached or anticipate reaching
a negotiation impasse due to one party's overestimation, in the
view of the other party, of the strength of its position?
2. Where significant policy issues axist which would
benefit from a face-to-face presentation to decisionmakers (without
use of a neutral);
3, Where the issues are technical, and the decisionmakers
and neutral referee have subject-matter expertise; or
\
4. Where the imprimatur of a neutral's expertise would
aid in the resolution of the case.
D. Fact-finding
1. Scope and Nature
Binding or nonbinding fact-finding may be adopted voluntarily
by parties to a dispute, or imposed by a court. It is most
appropriate for issues involving technical or factual disputes.
The primary purpose of this process is to reduce or eliminate
conflict over facts at issue in a case. The fact-finder's role
is to act as an independent investigator, within the scope of the
authority delegated by the parties. The findings may be used in
reaching settlement, as "facts" by a judge or ALJ in litigation,
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or as binding determinations. Like other ADR processes involving
a neutral, a resolution based on a fact-finder's report will have
greater credibility with the public.
The neutral's role in fact-finding is clearly defined by an
initial agreement of the parties on the issue(s) to be referred
to the fact-finder and the use to be made of the findings or
recommendations, e.g., whether they will be binding or advisory.
Once this agreement is framed, the role of the parties in the
process is limited and the fact-finder proceeds independently.
The fact-finder may hold joint or separate meetings or both with
the parties in which the parties offer documents, statements, or
testimony in support of cheir positions. The fact-finder is also
free to pursue other sources of information relevant to the
issue(s). The initial agreement of the parties should include a
deadline for receipt of th^ !act-f inder' s report. Attachment F
is a sample face-finding agreement.
The fact-finder issues a formal report of findings, and
recommendations, if appropriate, to the parties, ALJ or the ,
court. If the report is advisory, the findings and recommenda- :
tions are used to influence the parties' positions and give
impetus to further settlement negotiations. If the report is
binding, the parties adopt the findings and recommendations as
provisions of the settlement agreement. In case of litigation,
the findings will be adopted by the judge or ALJ as "facts" in
the case.
2. Relation to Litigation
Decisions regarding pursuit of litigation when fact-finding
is instituted are contingent upon the circumstances of the case
and the issues to be referred to the fact-^f inder. If fact-find-
ing is undertaken in connection with an ongoing settlement
negotiation, in most cases it is recommended that the parties
suspend negotiations on the issues requiring fact-finding until
the fact-finder's report is received. If fact-finding is part
of the litigation process, a decision must be made whether to
proceed with litigation of the rest of the case or to suspend
litigation while awaiting the fact-finder's report.
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ATTACHMENT
MEMORANDUM
SUBJECT: Nomination of U.3. v. XYZ Co. for•Non-binding
Alternative for Dispute Resolution
FROM: Deputy Regional Administrator
TO: Associate Enforcement Counsel
for Hazardous Waste Enforcement
Chief, Environmental Enforcement Section
Department of Justice
This memorandum is to nominate U.S. v. XYZ Co. for alterna-
tive dispute resolution (ADR).. The case is a CERCLA enforcement
action involving multiple PRPs as well as a number of complex
technical and legal issues. .The RI/FS and the record of decision
have both been completed. We anticipate that the PRPs are inte-
rested in settling this matter and, we believe, a trained mediator
will greatly aid negotiations. The members of the litigation
team concur in this judgment.
We understand that if you object within 15 days of the receipt
of this letter, we will not proceed with ADR in this case without
your approval. We do believe, however, that ADR is appropriate
in this action. We look forward to working with your offices in
this matter .
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ATTACHMENT B
MEMORANDUM
SUBJECT: Nomination of United States v. ABC Co. for Binding
Alternative Dispute Resolution
FROM: ' Deputy Regional Administrator
TO: Associate Enforcement Counsel for Water Enforcement
Chief, Environmental Enforcement Section
Department of Justice
This memorandum requests concurrence in the use of a binding
fact-finding procedure in United States v. ABC Co. The case
involves the following facts:
ABC Co. owns and operates a specialty chemical production
and formulation facility. Wastewater streams come from a variety
of production areas which change with product demand. Because
of these diverse processes, the company's permit to discharge :
wastewater must be based on the best professional judgment of
the permit writer as to the level of pollution control achievable.
The company was issued an NPDES permit in 1986. The permit
authorizes four (4) outfalls and contains limits for both conven-
tional and toxic organic pollutants. The effluent limitations of
the permit incorporate the Best Available Technology requirements
of the Clean Water Act (CWA).
EPA filed a civil lawsuit against the company for violating
effluent limits of the 1986 permit. As part of the settlement of
the action, the company was required to submit a compliance plan
which would provide for modification of its existing equipment,
including institution of efficient operation and maintenance
procedures to obtain compliance with the new permit. The settle-
ment agreement provides for Agency concurrence in the company's
compliance plan.
The company submitted a compliance plan, designed by in-house
engineers, which proposed to slightly upgrade their existing
activated sludge treatment system. The company has claimed that
this upgraded system provides for treatment adequate to meet the
permit limits. EPA has refused to concur in the plan because EPA
experts believe that additional treatment modifications to enhance
pollutant removals are required to meet permit limits on a con-
tinuous basis. This enhancement, EPA believes, is possible with
moderate additional capital expenditures.
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A fact-finding panel, consisting of experts in utility,
sanitation and chemical engineering, is needed to assess the
adequacy of the treatment system improvements in the compliance
plan in satisfying permit requirements. Resolution of this
issue by binding, neutral fact-finding will obviate the
expenditure of resources needed to litigate the issue.
We request your concurrence in the nomination of this case
for fact-finding within fifteen (15) days. We look forward to
hearing from you.
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ATTACHMENT C
ARBITRATION PROCEDURES'
SUBPART A - GENERAL
1. Purpose
This document establishes ana governs procedures for the
arbitration of EPA disputes arising under [insert applicable
statutory citations].
2. Scope and Applicability
The procedures enunciated in this document may be used to
arbitrate claims or disputes of the SPA regarding [insert
applicable statutory citations and limitations on scope, if
any. ]
SUBPART' a - JURISDICTION OF ARBITRATOR, REFERRAL OF CLAIMS,
AND ARBITRATOR SELECTION
1. Jurisdiction of Arbitrator
i
(a) In accordance with the procedures set forth in this
document, the Arbitrator is authorized to arbitrate
[insert applicable categories of claims or disputes.]
(b) The Arbitrator is authorized to resolve disputes
and award claims within the scope of the issues
presented in the joint request for arbitration.
2. Referral of Disputes
(a) EPA [insert reference to mechanism by which EPA has
entered into dispute, e.g., after EPA has issued
demand letters or an administrative order], and one
or more parties to the case may submit a joint request
for arbitration of [EPA's claim, or one or more issues
in dispute among the parties] [a group
authorized to arbitrate such matters, e.g., the National
Arbitration Association (NAA)] if [restate any general
limitations on scope]. The joint request shall include:
A statement of the matter in dispute; a statement of
the issues to be submitted for resolution; a statement
that the signatories consent to arbitration of the
dispute in accordance with, the procedures established
by this document; and the appropriate f-iling fee.
(b) Within thirty days after submission of the joint request
for arbitration, each signatory to the joint request shall
individually submit to the National Arbitration Association
Regulations applicable to section 112 of SARA are currently
being prepared.
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two copies of a written statement 'which shall include:
(1) An assertion of the parties' positions in che
matter in dispute;
(2) The amount of money in dispute, ii ^pprcpriate;
(3) The remedy sought;
(4) Any documentation which the party isems necsssarv
to support its position;
[(5) A statement of the legal standard applicable -.o
the claim and any other applicable principles .; c
law relating to the claim;]
(6) The identity of any known parties who are not
signatories to the joint request for arbitration;
and
(7) A recommendation for the locale for the arbitral
hearing.
A copy of the statement shall be sent to all parties.
3. Selection of Arbitrator
(a) The NAA has established and maintains a National Panel of
Environmental Arbitrators.
(b) After the filing of the joint request for arbitration, the
NAA shall submit simultaneously to all parties to the
dispute an identical list of ten [five] names of persons
chosen from the National Panel of Environmental Arbitrators.
Each party to the dispute shall have seven days from the
date of receipt to strike any names objected to, number
the remaining names to indicate order of preference, and
return the list to the NAA. If a party does not return
the list within the time specified, all persons named
shall be deemed acceptable. From among the persons
who have been approved on all lists, and if possible, in
accordance with the designated order of mutual preference,
the NAA shall invite an Arbitrator to serve. If the
parties fail to agree.upon any of the persons named, or
if acceptable Arbitrators are unable to serve, or if for
any other reason the appointment cannot be made from the
submitted lists, the NAA shall make the appointment from
among other members of the Panel without the submission
of any additional lists. Once the NAA makes the appointment,
it shall immediately notify the parties of the identity
of the Arbitrator and the date of the appointment.
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(c) The dispute shall be heard and determined by one
Arbitrator, unless the NAA decides that three Arbitrators
should be approved based on the complexity of the issues
or the number of parties.
(d) The NAA shall notify the parties of the appointment of the
Arbitrator and send a copy of these rules to each party.
A signed acceptance of the case by the Arbitrator shall
be filed with the NAA prior to the opening of the hearing.
After the Arbitrator is appointed, all communications
from the parties shall be directed to the Arbitrator.
(e) If any Arbitrator should resign, die, withdraw, or be
disqualified, unable or refuse to perform the duties of the
office, the NAA niay declare the office vacant. Vacancies
shall be filled in accordance with the applicable provisions
of this Section, and unless the parties agree otherwise,
the matter shall be reheard.
4. Disclosure i
(a) A person appointed as an Arbitrator under the above section
shall, within five days of receipt of his or her notice of
appointment disclose to the NAA any circumstances likely
to affect impartiality, including [those factors listed in
section V.B. of the accompanying guidance]
(b) Upon receipt of such information from an appointed
Arbitrator or other source, the NAA shall on the same day
communicate such information to the parties and, if it
deems it appropriate, to the Arbitrator and others.
(c) The parties may request within seven days of receipt of
such information from the NAA that an Arbitrator be
disqualified.
(d) The NAA shall make a determination on any request for
disqualification of an Arbitrator within seven days after
the NAA receives any such request. This determination
shall be within the sole discretion of the NAA, and its
decision shall be final.
5- Intervention and Withdrawal
(a) Subject to the approval of the parties and the Arbitrator,
any person [insert applicable limitations, if any, e.g.
any person with a substantial interest in the subject of
the referred dispute] may move to intervene in the arbitral
proceeding. Intervening parties shall be bound by rules
that the Arbitrator may establish.
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(b) Any party may for good cause shown move to withdraw from
the arbitral proceeding. The Arbitrator may approve such
withdrawal, with or without prejudice to the moving party,
and may assess administrative faas or expenses against
the withdrawing party as the Arbitrator deems appropriate.
SUBPART C - HEARINGS BEFORE THE ARBITRATOR
1. Filing of Pleadings
(a) Any party may file an answering statement with the NAA no
later than seven days from the date of receipt of an
opposing party's written statement. A copy of any
answering statement shall ba served upon all parties.
(b) Any party may file an amended written statement with
the NAA prior to the appointment of the Arbitrator. A
copy of the amended written statement shall be served
upon all parties. After the Arbitrator is appointed,
however, no amended written statement may be submitted
except with the Arbitrator's consent.
C(c) Any party may file an answering statement to the amended
written statement with the NAA no later than seven days
from the date of receipt of an opposing party's amended
written statement. A copy of any answering statement
shall be served upon all parties.]
2, Pre-hearing Conference
.At the request of one or more of the parties or at the
discretion of the Arbitrator, a pre-hearing conference with the
Arbitrator and the parties and their counsel will be scheduled in
appropriate cases to arrange for an exchange of information,
including witness statements, documents, and the stipulation
oil uncontested facts to expedite the arbitration proceedings.
The Arbitrator may encourage further settlement discussions
during the pre-hearing conference to expedite the arbitration
proceedings. Any pre-hearing conference must be held within
s:Lxty days of the appointment of the Arbitrator.
3,, Arbitral Hearing
(a) The Arbitrator shall select the. locale for ^fche arbitral
hearing, giving due consideration to any recommendations
by the parties.
(b) The Arbitrator shall fix the time and place for the
hearing.
(c) The hearing shall commence within thirty days of the
pre-hearing conference, if such conference is held, or
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within sixty [thirty] days of the appointment of the
Arbitrator, if no pre-hearing conference is held. The
Arbitrator shall notify each party by mail of the
hearing at least thirty days in advance, unless the parties
by mutual agreement waive such notice or modify the terns
. thereof.
(d) Any party nay be represented by counsel. A party who
intends to be represented shall notify the other parties
and the Arbitrator of the name and address of counsel at
least three days prior to the date set for the hearing at
which counsel is to appear. When an arbitration is
initiated by counsel, or where an attorney replies for
the other parties, such notice is deemed to have been
given.
(e) The Arbitrator shall make the necessary arrangements for
making a record of the arbitral hearing.
(f) The Arbitrator shall make the necessary arrangements for ;
the services of an interpreter upon the request of one or'
more of the parties, and the requesting parties shall
assume the cost of such service.
(g) The Arbitrator may halt the proceedings upon the request of
any party or upon the Arbitrator's own initiative.
(h) The Arbitrator shall administer oaths to all witnesses
before they testify at the arbitral hearing.
(i) (1) A hearing shall be opened by the recording of the
place, time, and date of the hearing, the presence
of the Arbitrator and parties, and counsel, if any,
and by the receipt by the Arbitrator of the written
statements, amended written statements, if any, and
answering statements, if any. The Arbitrator may, at
the beginning of the hearing, ask for oral statements
clarifying the issues involved.
(2) The EPA shall then present its case, information and
witnesses, if any, who shall answer questions posed
by both parties. The Arbitrator has discretion to
vary this procedure but shall afford full and equal
opportunity to all parties for the presentation
of any material or relevant information.
(3) Exhibits, when offered by any party, may be received
by the Arbitrator. The names and addresses of all
witnesses, and exhibits in the order received, shall
be part of the record.
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(j) The arbitration may proceed in the absence of any party
which, after notification, fails to be present or fails
to obtain a stay of proceedings. If a party, after
notification, Fails to be present, fails to obtain a
stay, or fails to present information, the party will be
in default and will have waived the right to be present
at the arbitration. A decision shall not be made solely
on the default of a party. The Arbitrator shall requir-e
the parties who are present to submit such information as
the Arbitrator may require for the making of a decision.
(k) Information and Evidence
(1) The parties may offer information as they desira,
subject to reasonable limitations as the Arbitrator deems
appropriate, and shall produce additional information as
the Arbitrator may deem necessary to an understanding and
determination of the dispute. The Arbitrator shall be
the judge of the relevancy and materiality of the information
offered, and conformity to legal rules of evidence shall
not be necessary.
(2) All information shall be introduced in the presence
of the Arbitrator and all parties, except where any of
the parties has waived the right to be present pursuant
to paragraph (j) of this section. All information
pertinent to the issues presented to the Arbitrator for
decision, whether in oral or written form, shall be made
a part of the record.
(1) The Arbitrator may receive and consider the evidence
of witnesses by affidavit, interrogatory or deposition,
but shall give the information only such weight as the
Arbitrator deems appropriate after consideration of any
objections made to its admission.
>
(m) After the presentation of all information, the Arbitrator
shall specifically inquire of all parties whether they
have any further information to offer or witnesses to be
heard. Upon receiving negative replies, the Arbitrator
shall declare the hearing closed and minutes thereof
shall be recorded.
(n) The parties may provide, by written agreement, for the
waiver of the oral hearing.
(o) All documents not submitted to the Arbitrator at the
hearing, but arranged for at the hearing or by subsequent
agreement of the parties, shall be filed with the Arbitrator
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;.[ ic I A '
/-.Oo I 4 ,^^,;
MEMORANDUM
SUBJECT: Final Guidance on Use cf Alternative Dispute
Resolution Techniques in Enforcement Actions
TO:
Assistant Administrators
Regional Administrators
I. Purpose
Attached is the final guidance on the use of alternative
dispute resolution (ADR) techniques in enforcement actions. This
guidance has been reviewed by EPA Headquarters and Regional
offices, the Department of Justice, as well as by representatives
of the regulated community. We have also sought the advice of '
leading ADR professionals, including many of the renowned partici-
pants at a recent Colloquium on ADR sponsored by the Administrative
Conference of the United States.
The reaction to the draft guidance has been overwhelmingly
favorable and helpful. In response to comments, the guidance more
clearly distinguishes the uses of binding and non-binding techniques,
emphasizes the need to protect the confidentiality of conversations
before a neutral, and includes model agreements and procedures for
the use of each ADR technique.
II. Use of ADR
As the guidance explains, ADR involves the use of third-party
neutrals to aid in the resolution of disputes through arbitration,
mediation, mini-trials and fact-finding. ADR is being used increas-
ingly to resolve private commercial disputes. EPA is likewise
applying forma of ADR in various contexts: negotiated rulemaking,
RCRA citing, and Superfund remedial actions. ADR holds the promise
of lowering the transaction costs to both the Agency and the
regulated community of resolving applicable enforcement disputes.
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I view ADR as a new, innovative and potentially ncra effectiva
way to accomplish the results we have sought for years us ins (
conventional enforcement techniques. We retain cur strict adheranc!
to the principle that the regulated community must comply with the
environmental laws. The following tasks will'be undertaken to
enable the Agency to utilize ADR to more effectively anc. efficient!'
foster compliance:
•Training. Some within the Agency may fear that using less
adversarial techniques to resolve enforcement actions implies that
the agency will be seeking less rigorous settlements. This is not
the case. We must train our own people in what ADR is, what it is
not, and how it can help us meet our own compliance objectives. We
plan to accomplish this by making presentations at national program
and regional counsel meetings, and by consulting on particular c^s^r.
Outreach. We must also make an affirmative effort to demon-
strate to the regulated community that EPA is receptive to sugges-
tions from them about using ADR in a given case. Nominating
a ease for ADR need not be viewed as a sign of weakness in either
party. After we have gained experience, we plan to conduct a •
national conference to broaden willingness to apply ADR in the
enforcement context.
Pilot Cases. Ultimately, the value of ADR must be proven by
its successful application in a few pilot cases. ADR is being use
to resolve an important municipal water supply problem involving
the city of Sheridan, Wyoming. Two recent TSCA settlements also
utilized ADR to resolve disputes which may arise in conducting
environmental audits required under the consent agreements. Beyond
these, however, we need to explore the applicability of ADR to
additional cases.
Ill, Action and Follow-Up
I challenge each of you to help in our efforts to apply ADR
to f.he enforcement process. I ask the Assistant Administrators to
include criteria for using ADR in future program guidance, and to
include discussions of ADR at upcoming national meetings. I ask
the Regional Administrators to review the enforcement actions now
undor development and those cases which have already been filed to
find cases which could be resolved by ADR. I expect each Region
to nominate at least one case for ADR this fiscal year. Cases
should be identified and nominated using the procedure set forth
in the guidance by September 4, 1987
Attachment
cc: Regional Enforcement Contacts
Regional Counsels
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GUIDANCE ON THE USE OF ALTERNATIVE DISPUTE RESOLUTION
IN SPA. ENFORCEMENT CASES
United States Environmental Protection Agency
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TA3LZ OF CONTENTS
Guidance on the Use of Alternative Dispute Resolution (A-R)
in EPA Enforcement Cases
Paces
I. INTRODUCTION ;
II. ALTERNATIVE DISPUTE RESOLUTION METHODS 2
III. CHARACTERISTICS OF ENFORCEMENT CASES
SUITABLE FOR ADR 4
A. Impasse or Potential for lapasse 3
3. Resource Considerations 5
C. Remedies Affecting Parties Not Subject to an
Enforcement Action 5
IV. PROCEDURES FOR APPROVAL OF CASES FOR ADR 6
A. Decisionmakers 7
3. Case Selection Procedures 7
1. Non Binding ADR
2. Binding ADR.
SELECTION OF A THIRD-PARTY NEUTRAL
A. Procedures for Selection 8
B. Qualifications for Third-Party Neutrals 9
1. Qualifications for Individuals 10
2. Qualifications for Corporations and Other
Organizations 11
VI . OTHER ISSUES 12
A. Memorialization of Agreements 12
B. Fees for Third-Party Neutrals 12
C. Confidentiality 12
D. Relationship of ADR to Timely and Appropriate and
Significant Noncompliance Requirements 14
VII. PROCEDURES FOR MANAGEMENT OF ADR CASES 14
A. Arbitration 14
B. Mediation 15
C. Mini-trial 17
D. Fact-finding -•• 13
VIII. ATTACHMENTS
A. Attachment A: Letter of Nomination of Case for Mediation
B. Attachment B: Letter of Nomination of Case for Binding
Resolution
C. Attachment C: Arbitration Procedures
D. Attachment D: Mediation Protocols
E. Attachment E: Agreement to Institute Mini-Trial Proceeding
F. Attachment F: Agreement to Institute Fact-Finding
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GUIDANCE ON THE USE OF ALTERNATIVE DISPUTE RESOLUTION
IN EPA ENFORCEMENT CASES
I. INTRODUCTION
To effect compliance with the nation's environmental laws,
the United States Environmental Protection Agency (£?A; has
developed and maintained a vigorous judicial and administrative
enforcement program. Cases instituted under the program must be
resolved, either through settlement or decision by the appro-
priate authority, as rapidly as possible in order to maincair.
the integrity and credibility of the program, and to rsduce the
backlog of cases.
Traditionally, the Agency's enforcement cases have been
settled through negotiations solely between representatives of
the Government and the alleged violator. With a 95 percent
success rate, this negotiation process has proved effective, '
and will continue to be used in most of the Agency's cases.
Nevertheless, other means of reaching resolution, known col-
lectively as alternative dispute resolution (ADR), have evolved.
Long accepted and used in commercial, domestic, and labor disputes,
ADR techniques, such as arbitration and mediation, are adaptable
to environmental enforcement disputes. These ADR procedures
hold the promise for resolution of some of EPA's enforcement
cases more efficiently than, but just as effectively as, those
used in traditional enforcement. Furthermore, ADR provisions
can also be incorporated into judicial consent decrees and consent
agreements ordered by administrative law judges to address
future disputes .
EPA does not mean to indicate that by endorsing the use of
ADR in its enforcement actions, it is backing away from a strong
enforcement position. On the contrary, the Agency views ADR as
merely another tool in its arsenal for achieving environmental
compliance. EPA intends to use the ADR process, where appropriate,
to resolve enforcement actions with outcomes similar to those
the Agency reaches through litigation and negotiation. Since
ADR addresses only the process (and not the substance) of case
resolution, its use will not necessarily lead to more lenient
results for violators; rather, ADR should take EPA to its desired
ends by more efficient means.
ADR is increasingly becoming accepted by many federal
agencies, private citizens, and organizations as a method of
handling disputes. The Administrative Conference of the United
States has repeatedly called for federal agencies to make greater
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use of ADR techniques, and has sponsored numerous studies to
further their use by the federal government. The Attorney
General of tha United States has stated that it is the policy
of the United States to use ADR in appropriate cases. 3y
memorandum, dated February 2, 1987, the Administrator of iPA
endorsed the concept in enforcement disputes, and urged senior
Agency officials to nominate appropriate cases.
This guidance seeks to:
(.1) Establish Policy - establish that it is EPA policy
to utilize ADR in the resolution of appropriate civil
enforcement cases.
(2) Describe Methods - describe some of the applicable
types of ADR, -and the characteristics of cases which
might call for the use of ADR;
(3) Formulate Case Selection Procedures - formulate
procedures for determining whether to use ADR in
particular cases, and for selection and procurement
of a "third-party neutral" (i.e., mediators,
arbitrators, or others employed in the use of ADR);
(4) Establish Qualifications - establish qualifications
for third-party neutrals; and
(5) Formulate Case Management Procedures - formulate
proceduresfor management of cases in which some
or all issues are submitted for ADR.
II. ALTERNATIVE DISPUTE RESOLUTION METHODS
ADR mechanisms which are potentially useful in environ-
mental enforcement cases will primarily be mediation and nonbind-
ing arbitration. Fact-finding and mini-trials may also be helpful
in a number of cases. A general description of these mechanisms
follows. (See also Section VIII, below, which describes in
greater detail how each of these techniques works•) Many other
forms; of ADR exist, none of which are precluded by this guidance.
Regardless of the technique employed, ADR can be used to resolve
any cr all of the issues presented by a case.
A. Mediation1 is the facilitation of negotiations by a
person not a party to the dispute (herein "third-party neutral")
who has no power to decide the issues, but whose function is to
For further information on the mediation role of Clean Sites Inc
see guidance from the Assistant Administrator, Office of Solid
Waste and Emergency Response and Assistant Administrator, Office
of Enforcement and Compliance Monitoring on the "Role of Clean
Sites Inc. at Superfund Sites," dated April 24, 1987.
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assist the parties in reaching settlement. The mediator serves
to schedule and structure negotiations, acts as a catalyst between
the parties, focuses the discussions, facilitates exchange between
the parties, and serves as an assessor - but not a judge - of
the positions taken by the parties during the course of negotia-
tions. With the parties' consent, the mediator may take on
additional functions such as proposing solutions to the orobiem.
Nevertheless, as in traditional negotiation, the parties"retain
the power to resolve the issues through an informal, voluntary
process, in order to reach a mutually acceptable agraement.
Having agreed to a mediated settlement, parties can then make
the results binding.
3. Arbitration involves the use of a person — not a party
to the dispute — to hear stipulated issues pursuant to procedures
specified by the parties. Depending upon the agreement of the
parties and any legal constraints against entering into binding
arbitration, the decision of the arbitrator may or may not be
binding. All or a portion of the issues — whether factual,
legal or remedial — may be submitted to the arbitrator. Because
arbitration is less formal than a courtroom proceeding, parties •
can agree to relax rules of evidence and utilize other time-saving
devices. For the present, EPA appears to be restricted by law.
to use binding arbitration only for small CERCLA cost recovery
cases. We are conducting further research regarding its use to
decide factual issues.
C. Fact-finding entails the investigation of specified
issues by a neutral with subject matter expertise, and selected
by the parties to the dispute. The process may be binding or
nonbinding, but if the parties agree, the material presented
by the fact-finder may be admissible as an established fact in
a subsequent judicial or administrative hearing/ or determinative
of the issues presented. As an essentially investigatory process,
fact-finding employs informal procedures. Because this AOR
mechanism seeks to narrow factual or technical issues in dispute,
fact-finding usually results in a report, testimony, or established
fact which may be admitted as evidence, or in a binding or advisory
opinion.
D. Mini-trials permit the parties to present their case, or
an agreed upon portion of it, to principals who have authority
to settle the dispute (e.g., vice-president of a company and a
senior EPA official) and, in some cases as agreed by the parties,
to a neutral third-party advisor. Limited discover-y may precede
the case presentation. The presentation itself may be summary
or an abbreviated hearing with testimony and cross-examination
as the parties agree. Following the presentation, the principals
reinstitute negotiations, possibly with the aid of the neutral
as mediator. The principals are the decisionmakers while the
third-party neutral, who usually has specialized subject matter
expertise in trial procedures and evidence, acts as an advisor
on potential rulings on issues if the dispute were to proceed to
trial. This ADR mechanism is useful in narrowing factual issues
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or sliced questions of law and fact, and in giving the principals
a realistic view of the strengths and weaknesses of their cases.
III. CHARACTERISTICS OF ENFORCEMENT CASES SUITABLE FOR APR
"his section suggests characteristics of cases which may be
most 'suitable for use of ADR. These characteristics are neces-
sarily broad, as ADR may theoretically be used in any type of
dispute. Enforcement personnel can use these characteristics to
make a preliminary assessment of whether ADR should be considered
for u.<>e in a particular case, including a discrete portion or
issue in a case .
procedures may be introduced into a case at any point:
in it;; development or while pending in court. However, it is
preferable that ADR be considered as early as possible in the
progrsiss of the case to avoid the polarizing effect which frequently
results from long and intense negotiations or the filing of a
lawsuit. ADR should, therefore, be considered prior to referral :
of a case to DOJ. Indeed, the threat of a referral may be used
as an incentive to convince the other parties to utilize an
appropriate ADR technique.
Notwithstanding the preference for consideration and use
of ADR at an early stage in the progress of a case, there are
occasions when ADR should be considered after a case has been
referred and filed in court. This is particularly true when the
parties have reached an apparent impasse in negotiations, or the
court does not appear to be willing to expedi tiously move the
case f.o conclusion through establishing discovery deadlines,
conducting motions hearings or scheduling trial dates. In such
cases, introduction of a mediator into the case, or submission
of sonie contested facts to an arbitrator may help to break the
impasse. Cases which have been filed and pending in court for a
number of years without significant movement toward resolution
should be scrutinized for prospective use of ADR.
Jin addition to those circumstances, the complexity of legal
and technical issues in environmental cases have resulted in a
recent; trend of courts to appoint special masters with increasing
frequency. Those masters greatly increase the cost of the litigation
and, v/hile they may speed the progress of the case, the parties
have little direct control over the selection or authority of
the mcisters. The government should give careful consideration
to anticipating a court's desire to refer complex issues to a
master by proposing that the parties themselves select a mediator
to assist in negotiations or an arbitrator to determine some
factual issues .
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The following characteristics of cases which .nay be car.diju-j
for use of some form of ADR are not intended to be exhaustive.
Agency personnel must rely upon their own judgment and experience
to evaluate their cases for potential applications of ADR". in all
instances where the other parties demonstrate their willingness to
use ADR, EPA should consider its use. Sample characteristics
cases for
A. Impasse or Potential for Impasse
When the resolution of a case is prevented through impasse,
EPA is prevented from carrying out its .mission to protect and
enhance the environment, and is required to continue to commit
resources to the case which could otherwise be utilized to address
other problems. It is highly desirable to anticipate and avoid,
if possible, the occurrence of an impasse.
Impasse, or the possibility for impasse, is commonly created
by the following conditions, among others:
(1) Personality conflicts or poor communication among
negotiators ;
(2) Multiple parties with conflicting interests;
"(3) Difficult technical issues which may benefit from
independent analysis;
(4) Apparent unwillingness of a court to rule on matters
which would advance the case toward resolution; or
(5) High visibility concerns making it difficult for the
parties to settle such as cases involving particularly sensitive
environmental concerns such as national parks or wild and scenic
rivers, issues of national significance, or significant adverse
employment implications.
In such cases, the involvement of a neutral to structure,
stimulate and focus negotiations and, if necessary, to serve as an
intermediary between personally conflicting negotiators should be
considered as early as possible.
B. Resource Considerations
All enforcement cases are important in that all have, or
should have, some deterrent effect upon the violator and other
members of the regulated community who hear of the case. It is,
therefore, important that EPA's cases be supported with the
ADR is not considered appropriate in cases where the Agency is
contemplating criminal action.
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Level of resources necessary to achieve the desired result.
Nevertheless, because of the size of EPA's enforcement effort,
it is recognized that resource efficiencies must be achieved
whenever possible- to enable EPA to address as many violations as
possible.
There are many cases in which utilizing some form of ADR
would achieve resource efficiencies for EPA. Generally, those
case.3 contain the following characteristics:
(1) Those brought in a program area with which EPA has had
considerable experience, and in which the procedures, case law
and remedies are relatively well-settled and routine; or
(2) Those having a large number of parties or issues where
ACR oan be a valuable case management tool.
C. Remedies Affecting Parties not Subject to an Enforcement Actfion
Sometimes, the resolution of an underlying environmental problem
would benefit from the involvement of persons, organizations or
entities not a party to an impending enforcement action. This is
becoming more common as EPA and the Congress place greater emphasis
on public participation in major decisions affecting remedies in
enforcement actions. Such cases might include those in which:
(1) A state or local governmental unit have expressed an
interest, but are not a party;
(2) A citizens group has expressed, or is likely to express
an interest; or
(3) The remedy is likely to affect not only the violator,
but the community in which the violator is located as well (e.g.,
thosu cases in which the contamination is wide-spread/ leading
to a portion of the remedy being conducted off-site).
In such cases, EPA should consider the use of a neutral very
early in th« enforcement process in order to establish communication
with those interested persons who are not parties to the action,
but whose understanding and acceptance of the remedy will be
important to an expeditious resolution of the case.
IV. PROCEDURES FOR APPROVAL OF CASES FOR ADR
This section describes procedures for the nomination of
cases for ADR. These procedures are designed to eliminate confusic
regarding the selection of cases for ADR by: (1) integrating the
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selection of cases for ADR into the existing enforcement case
selection process; and (2) creating decision points and contacts
in the regions, headquarters, and DOJ to determine whether to
use ADR in particular actions.
A. Decisionmakers
To facilitate decisions whether to use ADR in a particular
action, decision points in headquarters, the regions and DOJ
must be established. At headquarters, the decisionmaker will
be the appropriate Associate Enforcement Counsel (AEC). The AEC
should consult on this decision with his/her corresponding head-
quarters compliance division director. At DOJ, the decisionmakar
will be the Cnief, Environmental Enforcement Section. In the
regions, the decisionmakers will be the Regional Counsel in con-
sultation with the appropriate regional program division director.
If the two Regional authorities disagree on whether to use ADR
in a particular case, then the Regional Administrator (RA) or
the Deputy Regional Administrator (DRA), will decide the matter. ,
This decisionmaking process guarantees consultation with and :
concurrence of all relevant interests.
B. Case Selection Procedures
Anyone in the regions, headquarters, or DOJ who is partici-
pating in the development or management of an enforcement action,
or any defendant or PRP not yet named as a defendant, may suggest
a case or selected issues in a case for ADR.3 Any suggestion,
however, must be communicated to and discussed with the appropriate
regional office for its consent. The respective roles of the A£Cs
and DOJ are discussed below. After a decision by the Region or
litigation team to use ADR in a particular case, the nomination
should be forwarded to headquarters and, if it is a referred
case, to DOJ. The nominations must be in writing/ and must
enumerate why the case is appropriate for ADR. (See Section III
of this document which describes the characteristics for selection
of cases for ADR.) Attachments A and B are sample case nomination
communications. Attachment A pertains to nonbinding ADR, and
Attachment B pertains to binding ADR.
Upon a determination by the Government to use ADR, Government
enforcement personnel assigned to the case (case team) must
approach the PRP(s) or other defendant(s) with the-suggestion.
The case team should indicate to the PRP(s) or defendant(s) the
factors which have led to the Agency's recommendation to use
Nomination papers should always be deemed attorney work product
so that they are discovery free.
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ADR, ar.d the potential benefits to all parties from its use.
The ?RP(s) or other defendant(s) should"understand, nevertheless,
that the Government is prepared to proceed with vigorous litigation
in the case if the use of a third-party neutral fails to resolve
the matter. Further, for cases which are refarr-able, the is fep.da.it (s)
should be advised that EPA will not hesitate to refer the matter
to DOJ for prosecution.
1. Nonbinding ADR
For mediation, mini-trials, nonbinding arbitration, and
other ADR mechanisms involving use of a third-party neutral as a
nonbinding decisionmaker, regions should notify the appropriate
ASC and, if the case is referred, DOJ of: (1) its intent*to use
ADR ia a particular case, and (2) the opportunity to consult
with the Region on its decision. Such notification should be in
writing and by telephone call. The AEC will consult with the
appropriate headquarters program division director. The Region
may presume that the AEC and DOJ agree with the selection of the ,
case for ADR unless the AEC or DOJ object within fifteen (15) :
calendar days of receipt of the nomination of the case. If
eitheir the AEC or DOJ object, however, the Region should not
proceed to use ADR in the case until consensus is reached.
,2. Binding ADR
i?or binding arbitration and fact-finding, and other ADR
mechanisms involving the use of third-party neutrals as binding
decisionmakers, the appropriate AEC must concur in the nomination
of th<» case by the Region. In addition, DOJ must also concur in
the Uije of binding ADR in referred cases. Finally, in non-CSRCLA
cases which may involve compromise of claims in excess of $20,000
or whore the neutral's decision will be embodied in a court order,
DOJ must also concur. Without the concurrence of headquarters
and DOJ under these circumstances, the Region may not proceed
with ADR. OECM and DOJ should attempt to concur in the nomina-
tion within fifteen (15) days of receipt of the nomination.
Under the Superfund Amendments and Reauthorization Act (SARA),
Pub. L. No. 99-499, §122(h)(2)(1986), EPA may enter into binding
arbitration for cost recovery claims under Section 107 of CERCLA,
provided the claims are not in excess of $500,000, exclusive of
interest. Until regulations are promulgated under this section,
EPA isi precluded from entering into binding arbitration in cost
recovery actions. Accordingly, Attachment C is not yet appropriate
for use in cases brought under this section. It is, however, avail-
able iior use in nonbinding arbitration.
V. SELECTION OF A THIRD-PARTY NEUTRAL
A. Procedures for Selection
Hoth the Government and all defendants must agree on the need
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for a neutral in order to proceed with ADR. Ir. some situations
(e.g'., in a Super fund case), however, the parties nay proceed with
ADR with consensus of only some of the parties depending on the
issue and the parties. Once agreed, the method for selecting
the neutral and the actual selection in both Super fund and other
cases will be determined by all parties involved with the excep-
tion of cases governed by §107 of CERCLA. To help narrow the
search for a third-party neutral, it is useful, although not
required, for the parties to agree preliminarily en one or r.cra
ADR mechanisms. CECM is available to help at this point in the
process, including the procurement of in-house or outside persons
to aid the parties in selecting an appropriate ADR mechanism.
In Section VIII below, we have indicated some of the situatior
where each ADR mechanism may be most appropriate. Of course', the
parties are free to employ whichever technique they deea apprcpria'
for the case. Because the ADR mechanisms are flexible, they are
adaptable to meet the needs and desires of the parties.
The parties can select a third-party neutral in many ways. ?
Each party may offer names of proposed neutrals until all parties
agree on one person or organization. Alternatively, each party
may propose a list of candidates, and allow the other parties to
strike unacceptable names from the list until agreement is
reached. For additional methods, see Attachments C, D, and E.
Regardless of how the parties decide to proceed, the Government
may obtain names of qualified neutrals from the Chief, Legal
Enforcement Policy Branch (LEPS) (FTS 475-8777, LE-130A, E-Mail
box EPA 2261), by written or telephone request. With the help
of the Administrative Conference of the U.S. and the Federal
Mediation and Conciliation Service, OECM is working to establish
a national list of candidates from which the case team may select
neutrals. In selecting neutrals, however, the case team is not
limited to such a list.
It is important to apply the qualifications enumerated below
in section V.B. in evaluating the appropriateness of a proposed
third-party neutral for each case. Only the case team can decide
whether a particular neutral is acceptable in its case. The
qualifications described below provide guidance in this area.
At any point in the process of selecting an ADR mechanism or
third-party neutral, the case team may consult with the Chief,
LEP3, for guidance.
B. Qualifications for Third-Party Neutrals
The following qualifications are to be applied in the
selection of all third-party neutrals who may be considered for
service in ADR orocedures to which EPA is a party. While a
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third-party neutral should Tieet as many of the qualifications as
possible, it may be difficult to identify candidates who possess
all the qualifications for selection of a third-party neutral.
Failure to meet one or more of these qualifications should not
necessarily preclude a neutral who all the parties agree would
be satisfactory to serve in a particular case. The qualifications
are, therefore, intended only as guidance rather than as pre-
requisites to the use of ADR. Further, one should apply a greater
degree of flexibility regarding the qualifications of neutrals
involved in nonbinding activities such as mediation, and a stricter
adherence to the qualifications for neutrals making binding
decisions such as arbitrators.
1. Qualifications for Individuals
a. Demonstrated Experience. The candidate should
have experience as a third-party neutral in arbitration, mediation
or other relevant forms of ADR. However, other actual and active
participation in negotiations, judicial or administrative hearings
or other forms of dispute resolution, service as an administrative
law judge, judicial officer or judge, or formal training as a
neutral may be considered. The candidate should have experience
in negotiating, resolving or otherwise managing cases of similar
complexity to the dispute in question, e.g., cases involving
multiple issues/ multiple parties, and mixed technical and legal
issues where applicable.
b. Independence. The candidate must disclose any
interest or relationship which may give rise to bias or the
appearance of bias toward or against any party. These interests
or relationships include:
(a) past, present or prospective positions with or financial
interests in any of the parties;
(b) any existing or past financial, business, professional,
family or social relationships with any of the parties
to the dispute or their attorneys;
(c) previous or current involvement in the specific dispute;
(d) past or prospective employment, including employment as
a neutral in previous disputes, by any of the parties;
(e) past or present receipt of a significant portion of the
neutral's general operating funds or grants from one or
more of the parties to the dispute.
The existence of such an interest or relationship does not
necessarily preclude the candidate from serving as a neutral,
particularly if the candidate has demonstrated sufficient
independence by reputation and performance. The neutrals with
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the most experience are ?.ost likely co have oast or zurrer.t
relationships with some parties to the dispute, includinc the
Government. Nevertheless, the candidate must disclose all
interests, and the parties should then determine whether the
interests create actual or apparent bias.
c. Subject Matter Expertise. 'The candidate should
have sufficient general knowledge of the subject matter of the
dispute to understand and follow the issues, assist the parties
in recognizing and establishing priorities and the order of
consideration of those issues, ensure that all possible avenues
and alternatives to settlement are explored, and otherwise serve
in the most effective manner as a third-party neutral. Depending
on the case, it may also be helpful if the candidate has specific
expertise in the issues under consideration.
d. Single Role. The candidate should not be serving
in any other capacity in the enforcement process for chat particuia:
case that would create actual or apparent bias. The case team
should consider any prior involvement in the dispute which may
prevent the candidate from acting with objectivity. For example,
involvement in developing a settlement proposal, particularly ;
when the proposal is developed on behalf of certain parties, may
preclude the prospective neutral from being objective during
binding arbitration or other ADR activities between EPA and the
parties concerning that particular proposal.
Of course, rejection of a candidate for a particular ADR
activity, such as arbitration, does not necessarily preclude
any role for the candidate in that case. The candidate may
continue to serve in other capacities by, for example, relaying
information among parties and presenting offers on behalf of
particular parties.
2. Qualifications for Corporations and Other Organiza-
tions .4 Corporations or other entities or organizations which
propose to act as third-party neutrals, through their officers,
employees or other agents, in disputes involving EPA, must:
(a) like unaffiliated individuals, make the disclosures
listed above; and
(b) submit to the parties a list of all persons who, on
behalf of the corporation, entity or organization, will
or may be significantly involved in the ADR procedure.
These representatives should also make the disclosures
listed above.
For further guidance regarding Clean Sites Inc., see guidance
from the Assistant Administrator, Office of Solid Waste and
Emergency Response and Assistant Administrator, Office of
Enforcement and Compliance Monitoring on the "Role of Clean Sites
Inc. at Superfund Sites," dated April 24, 1987.
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In selecting a third-party neutral to resolve or aid in tha
resolution of a dispute to which EPA is a party, Agency personnel
should remain at all times aware that the Agency must not only
uphold its obligation to protect public health, welfare and the
environment, but also develop and ,-naintaia public confidence
that the Agency is performing its mission. Care should be taken
in the application of these qualifications to avoid the selection
of third-party neutrals whose involvement in the resolution of
the case might undermine the integrity of that resolution and
the enforcement efforts of the Agency.
VII. OTHER ISSUES;
A. Memorializaticn of Agreements
Just as it would in cases where ADR has not been used, the
case team should memorialize agreements reached through ADR in
orders and settlement documents and obtain DOJ and headquarters '
approval (as appropriate) of the terms of any agreement reached
through ADR.
B. Fees For Third-Party Neutrals
The Government's share of ADR coats will .be paid'by Head-
quarters. Contact LEPB to initiate payment mechanisms. Because
such mechanisms require lead time, contact with LEPB should be
made as early as possible after approval of a case for ADR.
It is EPA policy that PRPs and defendants bear a share of
thesa costs equal to EPA except in unusual circumstances. This
policy ensures that these parties "buy in" to the process. It
is important that the exact financial terms with these parties
be settled and set forth in writing before the initiation of ADR
in the case.
C. Confidentiality
Unless otherwise discoverable, records and communications
arising from ADR shall be confidential and cannot be used in
litigation or disclosed to the opposing party without permission.
This policy does not include issues where the Agency is required
to make decisions on the basis of an administrative record such
as the selection of a remedy in CERCLA cases. Public policy
interests in fostering settlement compel the confidentiality of
ADR negotiations and documents. These interests are reflected
in a number of measures which seek to guarantee confidentiality
and are recognized by a growing body oc legal authority.
Most indicative of the support for non-litigious settlement
of disputes is Rule 408 of the Federal Rules of Evidence which
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randers oSfar-3 of compromise or settlement or 3;: a--emep.cs -ade
during discussions inadmis sable in subsequent Litigation between
the -parties to prove liability. Noting the underlying policy
behind the rule, courts have construed the rule to preclude
admission of evidence regarding the defendant's settlement of
similar cases . 5
Exemption protection under the Freedom of Information Act
(FOIA), 15 U.S.C. §552, could also accommodate the interest in
confidentiality. While seme courts have failed to r-jccgnize t'.'.e
"settlement negotiations or ivilege, "^ other courts have recognized
the privilege.'
In addition to these legal authorities and policy arguments,
confidentiality can be ensured by professional ethical cedes.
Recognizing that promoting candor on the parties' part and
impartiality on the neutral's part is critical to the success of
ADR, confidentiality provisions are incorporated into codes of
conduct as well as written ADR agreements (See Attachment D).
The attachment provides liquidated damages where a neutral reveals
confidential information except under court order. ,
Furthermore, confidentiality can be effected by court order,
if ADR is court supervised. Finally, as many states have done
5 See Scaramuzzo v. Glenmore Distilleries Co., 501 F.Supp. 727
(N7D~111.1980), and to bar discovery, see Branch v. Phillips
Petroleum Co., 638 F.2d 873 (5th Cir. 19STT. Courts have
also construed labor laws to favor mediation or arbitration
and have therefore prevented third-party neutrals from being
compelled to testify. See, e.g., N.L.R.B. v. Joseph Macaluso,
Inc., 618 F.2d 51 (9th 51?. T980) (upholding N.L.R.B.'s
revocation of subpoena issued to mediator to avoid.breach of
impartiality).
X
6 See, e.g., Center for Auto Safety v. Department of Justice, 576
F. SuppTT3 9, 749 (D.D.C. 1983).
7 See Bottaro v. Hatton Associates, 96 F.R.D. 158-60 (E.D.N.Y 1982)
(noting "strong public policy of favoring settlements" and public
interest in "insulating the bargaining table from unnecessary
intrusions"). In interpreting Exemption 5 of fhe FOIA, the Supreme
Court asserted that the "contention that [a requester could] obtain
through the FOIA material that is normally privileged would create
an anomaly in that the FOIA could be used to supplement civil
discovery. ...We do not think that Congress could have intended
that the weighty policies underlying discovery privileges coul_i
be so easily circumvented." United States v. Weber Aircraft,
104 S.Ct. 1488, 1494 (1984).
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statutoriiy, 2PA is considering the promulgation of rsgulat ior.s
which further ensure ".He -:onf idential i ty oc ADR proceedings.
D. Relationship of ADR to Timely and Appropriate and
significant Noncompliance Requirements
The decision to use ADR would have no particular impact under
the "timely and appropriate" (TiA) criteria in a case where there
is already an administrative order or a civil referral since the
"timely and appropriate" criteria would have been met by the
initiation of the formal enforcement action. In the case of a
civil referral, the 60-day period by which DOJ is to review and
file an action may be extended if ADR is used during this time.
The decision to use ADR to resolve a violation prior to the
initiation of a formal enforcement action, however, would be
affected by applicable "timely and appropriate" criteria (e.g.,
if the violation fell under a program's Significant Noncompliance.
(5NC) definition, the specific timeframes in which compliance
must be achieved or a formal enforcement action taken would
apply). The use of ADR would not exempt applicable "T&A" :
requirements and the ADR process would normally have to proceed
to resolve the case or "escalate" the enforcement response.
However, since, "T&A" is not an immutable deadline, that ADR
is being used for a particular violation would be of central
significance to any program management review of that case (e.g.,
the Deputy Administrator's discussion of "timely and appropriate"
enforcement during a regional review would identify the cases in
which ADR is being used.)
VIII. PROCEDURES FOR MANAGEMENT OF ADR CASSS
This section elaborates on the various ADR techniques: How
they worfc, some problems that may be encountered in their use,
and their relationship to negotiation and litigation. For each
ADR technique, we have provided, as an attachment to this guidance,
an example of procedures reflecting its use. " These attachments
are for illustrative purposes only, and do not represent required
procedures. The specific provisions of the attachments should
be adapted to the circumstances of the case or eliminated if not
applicable.
A. Arbitration
1. Scope and Nature
As stated in Section II, above, arbitration involves the
selection by the parties of a neutral decisionraaker to hear
selected issues and render an opinion. Depending on the parties'
agreement, the arbitrator's decision may or may not be binding.
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For the present, EPA appears to ce restricted by Law to use
binding arbitration only for small CERCLA cost recovery cases.
We are conducting further research regarding its use to decide
factual issues. Included as Attachment C are draft generic
arbitration procedures for formal arbitration. To conduct less
formal proceedings, the parties may modify the procedures.
2- Use
Arbitration is most appropriate in resolving routine cases
that do not merit the resources required to generate and process
a civil judicial referral. It may aid in resolving technical
disputes that are usually submitted to the courts or administrative
law judges (ALJs), which disputes require subject-matter expertise
which federal district court judges and ALJs may lack.°
3. Mediation
1. Scope and Nature
Mediation, an informal process, is entered into voluntarily}
by the parties to a dispute and in no way binds them beyond their
own agreement. More than the other ADR processes, mediation is
best viewed as an extension of the direct negotiation process
begun by the parties. As in direct negotiation, the parties
continue to control the substance of discussions and any agree-
ment reached. In mediation, however, the mediator directs and
structures the course of discussions.
The mediation format varies with the individual style of the
mediator and the needs of the parties. Initially, the mediator is
likely to call a joint meeting with the parties to work out ground
rules such as how and when meetings will be scheduled. Included
as Attachment 0 are generic mediation protocols for use and
adaptation in all EPA mediations. Most of the items covered in
the attachment would be useful as ground rules for most EPA
enforcement negotiations. Ordinarily, mediators will hold a
series of meetings with the parties in joint session, as well as
with each party. In joint meetings, the mediator facilitates
discussion. In separate caucuses, the mediator may ask questions
or pose hypothetical terms to a party in order to clarify its
position and identify possible areas for exchange and agreement
with the opposing party. Some mediators will be more aggressive
than others in this role; they may even suggest possible settlement
alternatives to resolve deadlocks between the parties. In general,
however, the mediator serves as a facilitator of discussions and
abstains from taking positions on substantive points.
8 Arbitration is specifically authorized under Section 107 of CERCLA
for cost recovery claims not in excess of 5500,000, exclusive of
interest.
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There are no external time limits on mediation other than
thosei imposed by the parties or by external pressures from the
courts, the community or public interest groups. In all cases,
the Government should insist on a time limit for the mediation
to ensure that the defendants do not use mediation as a stalling
device. The Government should also insist on establishing points
in the process to evaluate progress of the mediation. As the
parties approach settlement terms through mediation, final authority
for decisionmaking.remains the same as -during direct negotiations,
i.e., requirements for approval or concurrence from senior managers
are applicable.
2. Use of Mediation
Mediation is appropriate for disputes in which the parties
have reached or anticipate a negotiation impasse based on, among
other things, personality conflicts, poor communication, multiple
parties, or inflexible negotiating postures. Additionally,
mediation is useful in those cases where all necessary parties ane
not before the court (e.g., a state which can help with the funding
for a municipality's violation). Mediation is the most flexible
ADR mechanism, and should be the most widely used in Agency disputes
3. Withdrawal from Mediation
As a voluntary and unstructured process, mediation proceeds
entirely at the will of the parties and, therefore, may be concluded
by the parties prior to settlement. A determination to withdraw
from mediation should be considered only when compelling factors
militate against proceeding. If the mediation has extended
beyond a reasonable time period (or the period agreed upon by
the parties) without significant progress toward agreement, it
may be best to withdraw and proceed with direct negotiations or
litigation. Withdrawing from mediation might also be considered
in the unlikely event that prospects for settlement appear more
remote than at the outset of the mediation. Finally, inappropriate
conduct by the mediator would warrant concluding the mediation
effort or changing mediators.
4. Relation to Litigation
In the ordinary case, prior to referral or the filing of an
administrative complaint, the time limits for mediation could be
the same as those for negotiation. In contrast to normal
negotiations, however, the parties may agree that during the
time period specified for mediation, litigation activities
such as serving interrogatories, taking depositions, or filing
motions may be suspended. In filed civil judicial cases, where
the court imposes deadlines, it will be necessary to apprise the
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court of the parties' activities -i;vi to buili -.DR into the court's
timetable. For agreements relating ADR activities to ongoing
litigation, see paragraph 17 of Attachment E.
C. Mini-Trial
1. Scope and Nature
Like other ADR techniques, the mini-trial is also voiu-itiry
and nonbinding on the parties. In the mini-trial, authoricy for
resolution of one or more issues rests with senior managers who,
representing each party in the dispute, act as decisionmakers.
In some rases a neutral refar-?e is appointed to supervise tha
proceedings and assist the decisior.makecs in resolving an issue
cy providing the parties -.vita a more realistic view of their
case. In addition, the neutral's presence can enhance public
acceptability of a resolution by effectively balancing the
interests of the Government and the defendant.
The scope and format of the mini-trial are determined solely
by the parties to the dispute and are outlined in an initiating :
agreement. Because the agreement will govern the proceedings,
the parties should carefully consider and define issues in advance
of the mini-trial. Points that could be covered include the
option of and role for a neutral, issues to be considered, and
procedural matters such as order and schedule of proceedings and
time limits. Attachment E is a sample mini-trial agreement.
The mini-trial proceeds before a panel of decisionmakers
representing the parties and, in some cases, a neutral referee.
Preferably, the decisionmakers will not have participated directly
in the case prior to the mini-trial. The defendant's represen-
tative should be a principal or executive of the entity with
decisionmaking authority. EPA's representative should be a
senior Agency official comparable in authority to the defendant's
representative. In some cases, each side may want to use a
panel consisting oT several decisionmakers as its representatives.
The neutral referee is selected by both parties and should have
expertise in the issues under consideration.
At the mini-trial, counsel for each side presents his or her
strongest and most persuasive case to the decisionmakers in an
informal, trial-like proceeding. In light of this structure,
strict rules of evidence do not apply, and the format for the
presentation is unrestricted. Each decisionmaker is then afforded
the unique opportunity to proceed, as agreed, with open and
direct questioning of the other s'ide. This information exchange
allows the decisionmakers to adjust their perspectives and posi-
tions in light of a preview of the case. Following this phase
of the mini-trial, the decisionmakers meet, with or without
counsel or the neutral referee, to resolve the issue(s) or case
presented, through negotiation.
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2. Role of the Neutral
The neutral referee may serve in more than one capacity
in tills process, and should be selected with a clearly defined
concept of his or her role. The most common role is to act as
an advisor to the decisionmakers during the information exchange.
The neutral may offer opinions on points made or on adjudication
of the case in litigation, and offsr assistance to the decision-
make jrs in seeing the relative merits of their positions. The
neutirai's second role can be to mediate the negotiation between
the decisionmakers should they reach an impasse or seek assiscance
in forming an agreement. Unless otherwise agreed by the parties,
no evidence used in the mini-trial is admissible in Litigation..
3. Use
As with mediation, prior to referral or the filing of an
administrative complaint, the time limits for a mini-trial would
be the same as those for negotiation. The parties usually agree,
however, that during the time period specified for a mini-trial,
litigation activities such as serving interrogatories, taking •
depositions, or filing motions may be suspended except as otherwise
agreed. In general, mini-trials are appropriate in cases involving
only a small number of parties, and are most useful in four kinds
of disputes:
1. Where the parties have reached or anticipate reaching
a negotiation impasse due to one party's overestimation, in the
view of the other party, of the strength of its position;
2. Where significant policy issues exist which would
benellit from a face-to-face presentation to decisionmakers (without
use of a neutral);
3, Where the issues are technical, and the decisionmakers
and neutral referee have subject-matter expertise; or
>
4. Where the imprimatur of a neutral's expertise would
aid i.n the resolution of the case.
D. Fact-finding
1. Scope and Nature
Binding or nonbinding fact-finding may be adopted voluntarily
by petrties to a dispute, or imposed by a court. It is most
appropriate for issues involving technical or factual disputes.
The primary purpose of this process is to reduce or eliminate
conflict over facts at issue in a case. The fact-finder's role
is to act as an independent investigator, within the scope of the
authority delegated by the parties. The findings may be used in
reaching settlement, as "facts" by a judge or ALJ in litigation,
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or as binding determinations. Like ocher ADR processes involving
a neutral, a resolution based on a fact-finder's report will have
greater credibility with the public.
The neutral's role in fact-finding is clearly defined by an
initial agreement of the parties on the issue(s) to be referred
to the fact-finder and the use to be made of the findings or
recommendations, e.g., whether they will be binding or advisory.
Once this agreement is framed, the role of the parties in the
process is limited and the fact-finder proceeds independently.
The fact-finder may hold joint or separate meetings or both with
the parties in which the parties offer documents, statements, or
testimony in support: of cheir positions. The fact-finder is also
free to pursue ocher sources of information relevant to the
issue(s). The initial agreement of the parties should include a
deadline for receipt of the fact-finder's report. Attachment F
is a sample face-finding agreement.
The fact-finder issues a formal report of findings, and
recommendations, if appropriate, to the parties, ALJ or the ,
court. If the report is advisory, the findings and recommenda- •
tions are used to influence the parties' positions and give
impetus to further settlement negotiations. If the report is
binding, the parties adopt the findings and recommendations as
provisions of the settlement agreement. In case of litigation,
the findings will be adopted by the judge or ALJ as "facts" in
the case.
2- Relation to Litigation
Decisions regarding pursuit of litigation when fact-finding
is instituted are contingent upon the circumstances of the case
and the issues to be referred to the fact^finder. If fact-find-
ing is undertaken in connection with an ongoing settlement
negotiation, in most cases it is recommended that the parties
suspend negotiations on the issues requiring fact-finding until
the fact-finder's report is received. If fact-finding is part
of the litigation process, a decision must be made whether to
proceed with litigation of the rest of the case or to suspend
litigation while awaiting the fact-finder's report.
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ATTACHMENT
MEMORANDUM
SUBJECT: Nomination of U. 3 . v . XY.Z Co. for-Non-binding
Alternative for Dispute Resolution
FROM: Deputy Regional Administrator
TO: Associate Enforcement Counsel
for Hazardous Waste Enforcement
Chief, Environmental Enforcement Section
Department of Justice
This memorandum is to nominate U.S. v. XYZ Co. for alterna-
tive dispute resolution (ADR). The case is a CERCLA enforcement
action involving multiple PRPs as well as a number of complex
technical and legal issues. .The RI/FS and the record of decision
have both been completed. We anticipate that the PRPs are inte-
rested in settling this matter and, we believe, a trained mediator
will greatly aid negotiations. The members of the litigation
team concur in this judgment.
We understand that if you-object within 15 days of the receip'
of this letter, we will not proceed with ADR in this case without
your approval. We do believe, however, that ADR is appropriate
in this action. We look forward to working with your offices in
this matter.
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ATTACHMENT 3
MEMORANDUM
SUBJECT: Nomination of United States v. ABC Co. for Binding
Alternative Dispute Resolution
FROM: Deputy Regional Administrator
TO: Associate Enforcement Counsel for Water Enforcement
Chief, Environmental Enforcement Section
Department of Justice
This memorandum requests concurrence in the use of a binding
fact-finding procedure in United States v. A3C Co. The case
involves the following facts:
A3C Co. owns and operates a specialty chemical production
and formulation facility. Wastewater streams come from a variety
of production areas which change with product demand. Because
of these diverse processes, the company's permit to discharge :
wastewater must be based on the best professional judgment of
the permit writer as to the level of pollution control achievable.
The company was issued an NPDES permit in 1986. The permit
authorizes four (4) outfalls and contains limits for both conven-
tional and toxic organic pollutants. The effluent limitations of
the permit incorporate the Best Available Technology requirements
of the Clean Water Act (CWA).
EPA filed a civil lawsuit against the company for violating
effluent limits of the 1986 permit. As part of the settlement of
the action, the company was required to submit a compliance plan
which would provide for modification of its existing equipment,
including institution of efficient operation and maintenance
procedures to obtain compliance with the new permit. The settle-
ment agreement provides for Agency concurrence in the company's
compliance plan.
The company submitted a compliance plan, designed by in-house
engineers, which proposed to slightly upgrade their existing
activated sludge treatment system. The company has claimed that
this upgraded system provides for treatment adequate to meet the
permit limits. EPA has refused to concur in the plan because EPA
experts believe that additional treatment modifications to enhance
pollutant removals are required to meet permit limits on a con-
tinuous basis. This enhancement, EPA believes, is possible with
moderate additional capital expenditures.
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A fact-finding panel, consisting of experts in utility,
sanitation and chemical engineering, is needed to assess the
adequacy of the treatment system improvements in the compliance
plan in satisfying permit raquirements. Resolution of this
issue by binding, neutral fact-finding will obviate the
expenditure of resources needed to litigate the issue.
We request your concurrence in the nomination of this case
for fact-finding within fifteen (15) days. We look forward to
hearing from you.
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A?3 I T RAT 10M ?ROCEDI'RES *
SU3PART A - GENERAL
1• Purpose
This document establishes and governs procedures for -he
arbitration of EPA disputes arising under [insert acoli^
statutory citations].
2. Scooe and Acoiicabili '-.-
The procedures enunciated in this document .-nay be used to
arbitrate clai.-ns or disputes of the EPA regarding C insert
applicable statutory citations and limitations en scope, if
any. ]
SUB PART' 3 - JURISDICTION OF ARBITRATOR, REFERRAL OF CLAIMS,
AND ARBITRATOR SELECTION
^' Jurisdiction of Arbitrator
i
(a) In accordance with the procedures set forth in this •
document, the Arbitrator is authorized to arbitrate
[insert applicable categories of claims or disputes.]
(b) The Arbitrator is authorized to resolve disputes
and award claims within the scope of the issues
presented in the joint request for arbitration.
2- Referral of Disputes
(a) EPA [insert reference to .nechanism by which EPA has
entered into dispute, e.g., after EPA has issued
demand letters or an administrative order], and one
or more parties to the case may submit a joint request
for arbitration of [EPA's claim, or one or more issues
in dispute among the parties] ___^____^____ [a group
authorized to arbitrate such matters, e.g., the National
Arbitration Association (NAA)] if [restate any general
limitations on scope]. The joint request shall include:
A statement of the matter in dispute; a statement of
the issues to be submitted for resolution; a statement
that the signatories consent to arbitration of the
dispute in accordance with the procedures established
by this document; and the appropriate f-lling fee.
(b) Within thirty days after submission of the joint request
for arbitration, each signatory to the joint request shall
individually submit to the National Arbitration Association
Regulations applicable to section 112 of SARA are currently
being prepared.
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two copies of a written sea tamer.1: .vhich shal_ induce:
(1) An assertion of the parties' positions in che
matter in dispute;
(2)--The amount of money in dispute, i: appropriate;
(3) The remedy sought;
(4) Any documentation which the part/ ieema necsssarv
to support its position;
[(5) A statement of the legal standard applicable -_c
the claim and any other applicable principles :;
law relating to the claim; ]
(6) The identity of any known parties who are not
signatories to the joint request for arbitration;
and
(7) A recommendation for the locale for the arbitril
hearing.
A copy of the statement shall be sent to all parties.
3. Selection of Arbitrator
(a) The NAA has established and maintains a National Panel of
Environmental Arbitrators.
(b) After the filing of the joint request for arbitration, the
NAA shall submit simultaneously to all parties to the
dispute an identical list of ten [five] names of persons
chosen from the National Panel of Environmental Arbitrators.
Each party to the dispute shall have seven days from the
date of receipt to strike any names objected to, number
the remaining names to indicate order of preference, and
return the list to the NAA. If a party does not return
the list within the time specified, all persons named
shall toe deemed acceptable. From among the persons
who have been approved on all lists, and if possible, in
accordance with the designated order of mutual preference,
the NAA shall invite an Arbitrator to serve. If the
parties fail to agree.upon any of the persons named, or
If acceptable Arbitrators are unable to ser-ve, or if for
any other reason the appointment cannot be made from the
submitted lists, the NAA shall make the appointment from
among other members of the Panel without the submission
of any additional lists. Once the NAA makes the appointment,
it shall immediately notify the parties of the identity
of the Arbitrator and the date of the appointment.
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(c) The dispute shall be heard and determined by one
Arbitrator, unless the NAA decides that three Arbicracors
should be approved based on the complexity of the issues
or the number of parties.
(d) The NAA shall notify the parties of the appointment of the
Arbitrator and send a copy of these rules to each party.
A signed acceptance of the case by the Arbitrator shall
be filed with the NAA prior to the opening of the hearing.
After the Arbitrator is appointed, all communications
from the parties shall be directed to the Arbitrator.
(e) If any Arbitrator should resign, die, withdraw, or be
disqualified, unable or refuse to perform the duties of -he
office, the NAA may declare the office vacant. Vacancies
shall be filled in accordance with the applicable provisions
of this Section, and unless the parties agree otherwise,
the matter shall be reheard.
4. Disclosure i
(a) A person appointed as an Arbitrator under the above section
shall, within five days of receipt of his or her notice of
appointment disclose to the NAA any circumstances likely
to affect impartiality, including [those factors listed in
section V.B. of the accompanying guidance]
(b) Upon receipt of such information from an appointed
Arbitrator or other source, the NAA shall on the same day
communicate such information to the parties and, if it
deems it appropriate, to the Arbitrator and others.
(c) The parties may request within seven days of receipt of
such information from the NAA that an Arbitrator be
disqualified.
(d) The NAA shall make a determination on any request for
disqualification of an Arbitrator within seven days after
the NAA receives any such request. This determination
shall be within the sole discretion of the NAA, and its
decision shall be final.
5- Intervention and Withdrawal
(a) Subject to the approval of the parties and the Arbitrator,
any person [insert applicable limitations, if any, e.g.
any person with a substantial interest in the subject of
the referred dispute] may move to intervene in the arbitral
proceeding. Intervening parties shall be bound by rules
that the Arbitrator may establish.
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(b) Any party may for good cause shown move to withdraw frcir.
the arbitral proceeding. The Arbitrator may approve such
withdrawal, with or without prejudice to the moving party,
and may assess administrative faes or expenses against
the withdrawing party as the Arbitrator deems appropriate-
SUBPART C - HEARINGS BEFOR£ THE ARBITRATOR
1. Filing of Pleadings
(a) Any party may file an answering statement with the NAA no
later than seven days from the date of receipt of an
opposing party's written statement. A copy of any
answering s i:^temenc shall be served upon all parties.
Co) Any party may file an amended written statement with
the NAA prior to the appointment of the Arbitrator. A
copy of the amended written statement shall be served
upon all parties. After the Arbitrator is appointed, ?
however, no amended written statement may be submitted :
except with the Arbitrator's consent.
C(c) Any party may file an answering statement to the amended
written statement with the NAA no later than seven days
from the date of receipt of an opposing party's amended
written statement. A copy of any answering statement
shall be served upon all parties.]
2. Pre-hearing Conference
At the request of one or more of the parties or at the
discretion of the Arbitrator, a pre-hearing conference with the
Arbitrator and the parties and their counsel will be scheduled in
appropriate cases to arrange for an exchange of information,
including witness statements, documents, and the stipulation
of uncontested facts to expedite the arbitration proceedings.
The Arbitrator may encourage further settlement discussions
during the pre-hearing conference to expedite the arbitration
proceedings. Any pre-hearing conference must be held within
sixty days of the appointment of the Arbitrator.
3. Arbitral Hearing
(a) The Arbitrator shall select the.locale for the arbitral
hearing, giving due consideration to any recommendations
by the parties.
(b) The Arbitrator shall fix the time and place for the
hearing.
(c) The hearing shall commence within thirty days of the
pre-hearing conference, if such conference is held, or
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within sixty [thirty] days of the appointment of -he
Arbitrator, if no pre-hearing conference is held. The
Arbitrator shall notify ench
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(j) The arbitration may proceed in the absence of any party
which, after notification, fails to be present or fails
to obtain a stay of proceedings. If a party, after
notification, Pails to be present, fails to obtain a
stay, or fails to present information, the party will be
in default and will have waived the right to be present
at the arbitration. A decision shall not be nade solely
on the default of a party. The Arbitrator shall require
the parties who are present to submit such information as
the Arbitrator may require for the making of a decision.
(k) Information and Evidence
(1) The parties may offer information as they desire,
subject to reasonable limitations as the Arbitrator deems
appropriate, and shall produce additional information as
the Arbitrator may deem necessary to an understanding and
determination of the dispute. The Arbitrator shall be
the judge of the relevancy and materiality of the information
offered, and conformity to legal rules of evidence shall '
not be necessary.
(2) All information shall be introduced in the presence
of the Arbitrator and all parties, except where any of
the parties has waived the right to be present pursuant
to paragraph (j) of this section. All information
pertinent to the issues presented to the Arbitrator for
decision, whether in oral or written form, shall be made
a part of the record.
(1) The Arbitrator may receive and consider the evidence
of witnesses by affidavit, interrogatory or deposition,
but shall give the information only such weight as the
Arbitrator deems appropriate after consideration of any
objections made to its admission.
N
(m) After the presentation of all information, the Arbitrator
shall specifically inquire of all parties whether they
have any further information to offer or witnesses to be
heard. Upon receiving negative replies, the Arbitrator
shall declare the hearing closed and minutes thereof
shall be recorded.
(n) The parties may provide, by written agreement, for the
waiver of the oral hearing.
(o) All documents not submitted to the Arbitrator at the
hearing, but arranged for at the hearing or by subsequent
agreement of the parties, shall be filed with the Arbitrator
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ATTACHMENT D
MEDIATION PROTOCOLS
I. PARTICIPANTS
A. Interests Represented. Any interest that would be
substantially affected by EPA's action in
[specify case] may be represented. Parties may
group together iato caucuses to represent allied
interests.
3. Additional Parties. After negotiations have begun, addi-
tional parties may join the negotiations only with tha
concurrence of all parties already represented.
C. Representatives. A representative of each party or
alternate must attend each full negotiating session.
The designated representative may be accompanied by such
other individuals as the representative believes is
appropriate to represent his/her interest, but only the
designated representative will have the privilege of
sitting at the negotiating table and of speaking
during the negotiations, except that any repre-
sentative may call upon a technical or legal adviser
to elaborate on a relevant point.
II. DECISIONMAKING
A. Agendas. Meeting agendas will be developed by consensus.
Agendas will be provided before every negotiating
session.
B. Caucus. A caucus can be declared by any participant at
any time. The participant calling the caucus will inform
the others of the expected length of the caucus.
III. SAFEGUARDS FOR THE PARTIES
A. Good Faith. All participants must act in good faith in
all aspects of these negotiations. Specific offers,
positions, or statements made during the negotiations
may not be used by other parties for any other purpose
or as a basis for pending or future litigation. Personal
attacks and prejudiced statements are unacceptable.
B. Right to Withdraw. Parties may withdraw from the
negotiations at any time without prejudice. Withdrawing
parties remain bound by protocol provisions on public
comment and confidentiality.
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C. Minutes. Sessions shall not be recorded verbatim.
Formal minutes of the proceedings shall not be kept.
D. Confidentiality and the Use of Information
(1) [All parties agree not to withhold relevant information
If a party believes it cannot or should not release
such information, it will provide the substar.ee c:
the information in some form (such as by aggregating
data, by deleting non-relevant confidential informa-
tion, by providing summaries, or by furnishing it
to a neutral consultant to use or abstract) or a
general description of it and the reason for ncc
providing it directly.]
(2) [Parties will provide information called for by this
paragraph as much in advance of the meetings as
possible.]
(3) The entire process is confidential. The parties and
the mediator will not disclose information regarding
the process, including settlement terms, to third
parties, unless the participants otherwise agree. TT
process shall be treated as compromise negotiation
for purposes of the Federal Rules of Evidence and
state rules of evidence. The mediator will be
disqualified as a witness, consultant or expert in
any pending or future action relating to the subject
matter of the mediation, including those between
persons not parties to the mediation. Failure to
meet the confidentiality or press requirements of
these protocols is a basis for exclusion from the
negotiations.
(4) The mediator agrees that if he/she discloses informa-
tion regarding the process, including settlement terms,
to third parties without the participants' agreement,
except as ordered by a court with appropriate juris-
diction, he/she agrees to the following as liquidated
damages to the parties:
(a) Removal from the case;
(b) Removal from any EPA list of approved neutrals;
and
(c) Payment of an amount equal to ^ ^__ [at a
minimum, the amount of the mediator'sfee].
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SCHEDULE
A. Time and location. Negotiating sessions will initiall-
be held [insert how often]. The first
negotiating session is scheduled for
Unless otherwise agreed upon, a deadline of
months for the negotiations will be -2 stab Li shed .
The locatioa of the meetings will be tiecided by the
participants.
B. Discontinue if unproductive. The participants nay dis-
continue negotiations at any time if they do not appea:
productive
Press
A. [Joint Statements. A joint press statement shall be
agreed to by the participants at the conclusion
of each session. A joint concluding statement shall
be agreed to by the participants and issued by the '
mediator at the conclusion of the process. Participants
and the mediator shall respond to press inquires within
the spirit of the press statement agreed to at the
conclusion of each session.]
B. [Meetings with the Press. Participants and the
mediator will strictly observe the protocols regarding
confidentiality in ail contacts with the press and
in other public forums. Tie .nediator shall be
available to discuss with the press any questions on
the process and progress of the negotiations. No
party will hold discussions with the press concerning
specific offers, positions, or statements made during
the negotiations by any other party.]
VI. MEDIATOR
A neutral mediator will work with all the parties to
ensure that the process runs smoothly.
VII. APPROVAL OF PROPOSALS
Partial Approval. It is recognized that, unqualified
acceptance of individual provisions is not possible
out of context of a full and final agreement. However,
tentative agreement of individual provisions or portions
thereof will be signed by initialing of the agreed
upon items by the representatives of all interests
represented. This shall not preclude the parties from
considering or revising the agreed upon items by mutual
consent.
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.3. Final Approval. Upon final agreement:, ail representatives1
shall sign and date the appropriate document. It 13
explicitly recognized that the representatives of the
U.S. EPA do not have the final author icy to agree to any
terms in this case. Final approval must be obta'ir.ed
from [insert names of proper officials].
VIII. EFFECTIVE DATE
These protocols shall be effective upon the signature of the
reoresentatives.
For :he U.S. Environmental Protection Agency
Signature Date
For [Name of violator]
Signature Dace
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Attachment E
AGREEMENT TO INSTITUTE MINI-TRIAL PROCEEDINGS
The United States Environmental Protection Agency (EPA)
and XYZ Corporation, complainant and respondent, respectively,
in the matt.er oE XYZ Corp., Docket No. , agree to
the alternative dispute resolution procedure set forth in
this document for the purpose of fostering the potential
settlement of this case. This agreement, and all of the
actions that are taken pursuant to this agreement, are
confidential. They are considered to be part of the settlement
process and subject to the same privileges that apply to
settlement negotiations.
1. The parties agree to hold a mini-trial to inform
chair management representatives of the theories, strengths,
and weaknesses of the parties' respective positions. At the
mini-trial, each side will have the opportunity and responsibility
to present its "best case" on all of the issues involved in
this proceeding.
2. Management Representatives of both parties, including :
an EPA official and an XYZ official at the Division Vice
President level or higher, will attend the mini-trial. The
representatives have authority to settle the dispute.
3. A mutually selected "Neutral Advisor" will attend the
mini-trial. The Neutral Advisor will be chosen in the
following manner. By , [insert date] the parties
shall exchange a list o"lfive potential Neutral Advisors
selected from the list of candidates offered 'oy
[insert neutral organization]. The potential candidates
shall be numbered in order of preference. The candidate who
appears on both lists and who has the lowest total score
shall be selected as the Neutral Advisor. If no candidate
appears on both lists, the parties shall negotiate and shall
select and agree upon a Neutral Advisor by
[insert date].
4. The fees and expenses of the Neutral Advisor will be
borne equally by both parties. [However, if the Neutral
Advisor provides an opinion as to how the case should be
resolved, and a party does not follow the recommended
disposition of the Neutral Advisor, that party shall bear the
Advisor's entire fees and expenses.]
5. Neither party, nor anyone on behalf of either party,
shall unilaterally approach, contact or communicate with the
Advisor. The parties and their attorneys represent and
warrant that they will make a diligent effort to ascertain
all prior contact between themselves and the Neutral Advisor,
and that all such contacts will be disclosed to counsel for
the opposing party.
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6. Within 10 days after the appointment of the Neutral
Advisor, mutually agreed upon basic source material will be
jointly sent to the Neutral Advisor to assist him or her in
familiarizing himself or herself with the basic issues of the
case. This material will consist of neutral matter including
this agreement, the complaint and answer, the statute, any
relevant Agency guidance, a statement of interpretation and
enforcement policy, the applicable civil penalty policy, and
any correspondence between the parties prior to the filing
of the complaint.
7. All discovery will be completed in the
[insert number] working days following the execution of this
agreement. Neither party shall propound more than 25 inter-
rogatories or requests for admissions, including subparts;
nor shall either party take more than five depositions) and
no deposition shall last more than three hours. Discovery
taken during the period prior to the mini-trial shall be
admissible for all purposes in this litigation, including »
any subsequent hearing before [a federal judge or administrative'
law judge] in the event this mini-trial does not result in a
resolution of this dispute. It is agreed that the pursuit
of discovery during the period prior to the mini-trial shall
not restrict either party's ability to take additional discovery
at a, later date. In particular/ it is understood and agreed
that partial depositions may be necessary to prepare for the
mini-trial. If this matter is not resolved informally as a
result of this procedure, more complete depositions of the
same individuals may be necessary. In that event, the partial
depositions taken during this interim period shall in no way
foreclose additional depositions of the same individual regarding
the same or additional subject matter for a later hearing.
8. By , [insert date] the parties shall
exchange all exhibits they plan to use at the mini-trial,
and send copies at the same time to the Neutral Advisor. On
the same date the parties also shall exchange and submit to
the Neutral Advisor and to the designated trial attorney for
the opposing side: (a) introductory statements no longer than
25 double-spaced pages (not including exhibits), (b) the
names of witnesses planned for the mini-trial, and (c) all
documentary evidence proposed for utilization at the mini-tial.
9. Two weeks before the mini-trial, if he or she so
desires and if the parties agree, the Neutral Advisor may
center jointly with counsel for both parties to resolve any
outstanding procedural questions.
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10. The mini-trial proceeding shall ce held on ,
and shall take day(s). The morning proceedings shall begin
at _^ a.m. and shall continue until a.m. The afternoon's
proceedings shall begin at p.m. and continue until
A sample two day schedule follows:
12:00 Noon
1:00 p.m.
2:30 p. a.
4: 00 p . 3i.
5:00 p.m.
Day 2
8:30 a.m - 12:00 Noon
12:00 Noon - 1:00 p.m.
•1: 00 p.m. - 2: 30 p.m.
2:30 p.m. - 3:00 p.m.
3:00 p.m. - 4:30 p.m.
4:30 p.m. - 4:45 p.m.
4:45 p.m. - 5:00 p.m.
EPA's position and case presentation
Lunch*
XYZ's cross-examination
£?A's re-examination
Open question and answer period
I
XYZ's position and case presentation
Lunch*
EPA's cross-examination
XYZ's re-examination
Open question and answer period
EPA's closing argument
XYZ's closing argument
*Flexible time period for lunch of a stated duration,
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11. The presentations at zhe mini-trial will os informal.
For'ital rules of evidencs will not apply, and witnesses nay
provide testimony in the narrative. The management repre-
sentatives may question a witness at the conclusion of the
witness' testimony for a period not exceeding ten minutes
per witness. In addition, at the conclusion of each day's
presentation, the management repesentatives may as'< any
further questions that they deem appropriate, subject to the
time limitations specified in paragraph 10. Cr'sss-exami.-.atio-
will occur at the conclusion or each party's direct _ase
presentation.
12. At the mini-trial proceeding, the trial attorneys
will have complete discretion to structure their presentations
as desired. Forms of presentation include, but are not
limited to, expert witnesses, lay witnesses, audio visual
aids, demonstrative evidence, and oral argument. The parties
agree that there will be no objection by either party to
the form or content of the other party's presentation.
i
13. In addition to asking clarifying questions, the Neutral
Advisor may act as a moderator. However, the Neutral Advisor
will not preside like a judge or arbitrator, nor have the
power to limit, modify or enlarge the scope or substance of
the parties' presentations. The presentations will not be
recorded, but either party may take notes of the proceedings.
14. In addition to counsel, each management representative
may have advisors in attendance at the mini-trial, provided
thett all parties and the Neutral Advisor shall have been
notified of the identity of such advisors at least tan days
beiiore commencement of the mini-trial.
15. At the conclusion of the mini-trial, the management
representatives shall meet, by themselves, and shall attempt
to agree on a resolution of the dispute. By agreement, other
meiabers of their teams may be invited to participate in the
meetings.
16. At the request of any management representative,
th(» Neutral Advisor will render an oral opinion as to the
lilcely outcome at trial of each issue raised during the mini-
trial. Following that opinion, the management representatives
will again attempt to resolve the dispute. If all management
representatives agree to request a written opinion" on such
matters, the Neutral Advisor shall render a written opinion
within 14 days. Following issuance of any such written
opinion, the management representatives will again attempt
to resolve the dispute.
17. If the parties agree, the [adminstrative law judge or
federal district court judge] may be informed in a confidential
communication that an alternative dispute resolution procedure .
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is being employed, but neither party shall inform the
[administrative law judge or federal district court judge]
at any time as to any aspect of the mini-trial or of the
Advisor. Furthermore, the parties may file a joint motion to
suspend proceedings in the [appropriate court] in
this case. The motion shall advise the court that the suspension
is for the purpose of conducting a mini-trial. The court will
be advised as to the time schedule established for completing
the mini-trial proceedings. Written and oral statements
made by one party in the course of the mini-trial proceedings
cannot be utilized by the other party and shall be inadmissible
at the hearing of this matter before the [administrative law
judge or federal district court judge] for any purpose,
including impeachment. However, documentary evidence that
is otherwise admissible shall not be rendered inadmissible
as a result of its use at the mini-trial.
18. Any violation of these rules by either party will
seriously prejudice the opposing party and be prima facie
grounds for a motion for a new hearing; and to the extent
that the violation results in the communication of information •
to the [administrative law judge or federal district court judge]
contrary to the terms of this agreement, it shall be prima
facie grounds for recusal of the [administrative law judge or
federal district court judge]. Moreover, notwithstanding the
provisions of Paragraph 4 above, any violation of these rules
by either party will entitle the opposing party to full
compensation for its share of the Neutral Advisor's fees and
expenses, irrespective of the outcome of any administrative
or court proceeding.
19. The Neutral Advisor will be disqualified as a hearing
witness, consultant, or expert for either party, and his or her
advisory response will be inadmissible for all purposes in
this or any other dispute involving the parties. The Neutral
Advisor will treat the subject matter of the presentations
as confidential and will refrain from disclosing any trade
secret information disclosed by the parties. After the
Advisor renders his or her opinion to the parties, he or she
shall return all materials provided by the parties (including
any copies) and destroy all notes concerning this matter.
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Dated: Dated:
By: , By:
Attorney for United States Attorney for XYZ
Environmental Protection Corporation
'Agency
Affirmation of Neutral Advisor:
I agree to the foregoing provisions of this Alternative
Dispute Resolution Agreement.
Dated:
Signed:
Neutral Advisor
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All parties shall be given an opportunity to examine
documents•
4- Arbitral Decision
(a) The Arbitrator shall render a decision within thirty [five]
days after the hearing is declared closed except if:
(1) All parties agree in writing to an extension; cr
(2) The Arbitrator determines that an extension of the
time limit is necessary.
(b) The decision of the Arbitrator shall be signed and in
writing. It shall contain a brief statement of the basis
and rationale for the Arbitrator's determination. At the
close of the hearing, the Arbitrator may issue an oral
opinion which shall be incorporated into a subsequent written
opinion.
i
(c) The Arbitrator may grant any remedy or relief within the
scope of the issues presented in the joint request for
arbitration.
(d) The Arbitrator shall assess arbitration fees and expenses
in favor of any party, and, in the event any administra-
tive fees or expenses are due the NAA, in favor of the
NAA.
(e) If the dispute has been heard by three Arbitrators, all
decisions and awards must be made by at least a majority,
unless the parties agree in writing otherwise.
(f) If the parties settle their dispute during the course of
the arbitration, the Arbitrator, upon the parties' request,
may set forth the terms of the agreed settlement.
(g) The Arbitrator shall mail to or serve the decision on
the parties.
(h) The Arbitrator shall, upon written request of any party,
furnish certified facsimiles of any papers in the Arbitrator's
possession that may be required in judicial proceedings
relating to the arbitration.
SUBPART D - APPEALS, FEES AND OTHER PROVISIONS
1. Appeals Procedures
(a) Any party may appeal the award or decision within thirty
days of notification of the decision. Any such appeal
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-8-
shall be :nade to the [insert "Federal district court for
the district in which the arbitral hearing took place" or
"Chief Judicial Officer, U.S. Environmental Protection
Agency"].
(b) The award or decision of the Arbitrator shall be binding
and conclusive, and shall not be overturned unless achieved
through fraud, misrepresentation, abuse of discretion,
other misconduct by any of the parties, or mutual mistake
of fact. [Insert "No court shall" or "The Chief Judicial
Officer shall not"] have jurisdiction to review the award
or decision unless there is a verified complaint: with
supporting affidavits attesting to specific instances
of such fraud, misrepresentation, abuse of discretion,
other misconduct, or mutual mistake of fact.
(c) Judgment upon the arbitration award may be entered in
any Federal district court having jurisdiction. The award
may be enforced in any Federal district court having
jurisdiction.
(d) Except as provided in paragraph (c), no award or decision
shall be admissible as evidence of any issue of fact or '
law in any proceeding brought under any other provision
of [insert applicable statutory acronyms] or any other
provision of law, nor shall any prearbitral settlement be
admissible as evidence in any such proceeding. Arbitration
decisions shall have no precedential value for future
arbitration, administratiave or judicial proceedings.
2. Administrative Fees, Expenses, and Arbitrator's Fee
(a) The HAA shall prescribe an Administrative Fee Schedule
and a Refund Schedule. The schedules in effect at the
time of filing or the tine of refund shall be applicable.
The filing fee shall be advanced by tha parties to the
NAA as part of the joint request for arbitration, subject
to apportionment of the total administrative fees by the
Arbitrator in the award. If a matter is withdrawn or
settled, a refund shall be made in accordance with the
Refund Schedule.
(b) Expanses of witnesses shall be borne by the party presenting
such witnesses. The expense of the stenographic record
and all transcripts thereof shall be prorated equally
among all parties ordering copies, unless otherwise
agreed by the parties, or unless the Arbitrator assesses
such expenses or any part thereof against any specified
party in the award.
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(c) The per diem fee for the Arbitrator shall be igreed -per.
by the parties and the MAA prior to the comrner.cemen;: of
any activities by the Arbitrator. Arrangements for
compensation of the Arbitrator shall be made by the tfAA.
(d) The NAA may require an advance deposit from the parties
to defray the Arbitrator's Fee and the Administrative
Fee, but shall render an accounting to the parties and
return any balance of such deposit in accordance with
the Arbitrator's award.
3. Miscellaneous Provisions
(a) Any party who proceeds with the arbitration after know-
ledge that any provision or requirement of this Part
has not been complied with, and who calls to object
either orally or in writing, shall be deemed to
have waived the right to object. An objection, whether
oral or written, must be made at the earliest possible
opportunity.
(b) Before the selection of the Arbitrator, all oral or •
written communications from the parties for the Arbitra-
tor's consideration shall be directed to the NAA for
eventual transmittal to the Arbitrator.
(c) Neither a party nor any other interested person shall
engage in ex parte communication with the Arbitrator.
(d) All papers connected with the arbitration shall be served
on an opposing party either by personal service or United
States mail, First Class, addressed co the party's attorney,
or if the party is not represented by an attorney or the
attorney cannot be located, to the last known address of
the party.
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ATTACHMENT ?
^JITED STATES
ENVIRONMENTAL PROTECTION AGENCY
In the Matter of ... )
XYS Corporation, ) Docket No.
)
Respondent )
AGREEMENT TO INSTITUTE FACT-FINDING PROCEDURES
A. General Provisions
1. Purpose
2. Definitions
B. Guidelines for Conduct of Neutral Fact-finding
1. Scope and Applicability
2. Jurisdiction of Neutral Fact-finder
3. Selection of Neutral Fact-finder
4. Information Regarding Dispute
5. Determination of Neutral Fact-finder
6. Confidentiality
7. Appeals Procedures
8. Administrative Fees/ Expenses, and Neutral Fact-finder's Fee
9. Miscellaneous Provisions
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A. GENERAL PROVISIONS
I. Purpose
This agreement, contains the procedures to be followed
for disputes which arise over [stats issue(s)].
2. Definitions
Terms not defined in this section have the meaning given cy
Cstate applicable statute(s) and sec-icr. ( 3 , ~.
All time deadlines in these alternative dispute resolution (AiR)
procedures are specified in calendar days. Except when
otherwise specified:
(a) "Act" means Cstace acolicable 3tatute(s) and ci".a.-ion 1.-.
U.5. Code].
(b) "NAO" means any neutral administrative organization
selected by the parties to administer the requirements of
the ADR procedures. ,
(c) "Neutral Fact-finder" means any person selected in accprdanc;
with and governed by the provisions of these ADR procedures.
(d) "Party" means EPA and the X¥Z Corporation.
B,, GUIDELINES FOR CONDUCT OF NEUTRAL FACT-FINDING
1. Scope and Applicability
The ADR procedures established by this document are
for disputes arising over ; [state issue(s)].
2. Jurisdiction of Neutral Fact-finder
In accordance with the ADR procedures set forth in this
document, the Neutral Fact-finder is authorized to issue
determinations of fact regarding disputes over [state
___^_p____^.^_____ issue(s)], and any other issues
authorized by the parties.
3. Selection of Neutral Fact-finder
The Neutral Fact-finder will be chosen by the parties in
the following manner.
(a) The parties shall agree upon a neutral adminis-
trative organization (NAO) to provide services to the
parties as specified in these ADR procedures.
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The parties shall jointly request the NAO to provide
them with a list of three to five (3-5) potential Neutral
Fact-finders. Either party may make recommendations
to the NAO of qualified individuals. Within ten (10)
days after the receipt of the list of potential Neutral
Fact-finders, the parties shall numerically rank the
listed individuals in order of preference and simultane-
ously exchange such rankings. The individuals with
the three (3) lowest combined total scores shall be
selected as finalists. Within ten (10) days after such
selection, the parties shall arrange to meet with and
interview the finalists. Within ten (10) days after
such meetings, the parties shall rank the finalists in
order of preference and exchange rankings. The individual
with the lowest combined total score shall be selected
as the Neutral Fact-finder.
(b) The NAO shall give notice of the appointment of the
Neutral Fact-finder to each of the parties. A signed
acceptance by the Neutral Fact-finder shall be filed
with the NAO prior to the initiation of fact-finding
proceedings.
(c) If the Neutral Fact-finder should resign, die, withdraw,
or be disqualified, unable, or refuse to perform the
duties of the office, the NAO may, on proof satisfactory
to it, declare the office vacant. Vacancies shall be
filled in accordance with the applicable provisions
of this section, and the dispute shall be reinitiated,
unless the parties agree otherwise.
4. Information Regarding Dispute
(a) Within ten (10) days after the selection of the Neutral
Fact-finder, basic source material shall be jointly
submitted to the Neutral Fact-finder by the parties.
Such basic source material shall consist of:
1) an agreed upon statement of the precise nature of
the dispute,
2) the position of each party and the' rationale for it,
3) all information and documents which support each
party's position, and
4) [describe additional material].
(b) Thereafter, for a period of _( ^ days, the Neutral
Fact-finder shall conduct an investigation of the issues
in dispute. As part of such investigation, the Neutral
Fact-finder may interview witnesses, request additional
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-4-
. documents, rsquest additional information by written
questions/ and generally use all means at his or her
disposal to gather the facts relevant to the disputes as
he or she determines. The Neutral Fact-finder shall be
the sole determiner of the relevancy of information.
Conformity to formal rules of evidence shall not be
necessary.
5. Determination o'f Neutral Factfinder
(a) The Neutral Fact-finder shall render a determination
within days of the time limitation specified
in Section B. TT'o) above, unless:
(1) Both parties agree in writing to an extension;
[or
(2) The Neutral Fact-finder determines that an
extension of the time limit is necessary.]
(b) The determination of the Neutral Fact-finder shall be
signed and in writing. It shall contain a full statement
of the basis and rationale for the Neutral Fact-finder's
determination.
(c) If the parties settle their dispute prior to the deter-
mination of the Neutral Fact-finder, the Neutral Fact-finder
shall cease all further activities in regard to the
dispute upon receipt of joint notice of such settlement
from the parties.
(d) The parties shall accept as legal delivery of the deter-
mination the placing of a true copy of the decision in
the mail by the Neutral Fact-finder, addressed to the
parties' last known addresses or their attorneys, or by
personal service.
(e) After the Neutral Fact-finder forwards his or her deter-
mination to the parties, he or she shall return all
dispute-specific information provided by the parties
(including any copies) and destroy notes concerning
this matter.
6. Confidentiality
(a) The determination of the Neutral Fact-finder, and all
of the actions taken pursuant to these ADR procedures,
shall be confidential and shall be entitled to the
same privileges that apply generally to settlement
negotiations.
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(b) The Neutral Fact-finder shall treat che subject .natc-jr
of all submitted information as confidential, and
shall refrain from disclosing any trade secret or
confidential business information disclosed as such
by the parties. [If XYZ has previously formally claimed
information as confidential business information (C3I),
XYZ shall specifically exclude the information from
such C3I classification for the limited purpose of
review by the Neutral Fact-finder.]
(c) No determination of the Neutral Fact-finder shall be
admissible as evidence of any issue of fact or law in any
proceeding brought under any provision of [state statute]
or any other provision of law.
7. Appeals Procedures
(a) Any party may appeal the determination of the Neutral
Fact-finder within thirty days of notification of
such determination. Any such appeal shall be made to
the [Chief Judicial Officer, U.S. Environmental Protec-
tion Agency, or district court judge].
(b) The determination of the Neutral Pact-finder shall be
binding and conclusive, and shall not be overturned
unless achieved through fraud, misrepresentation,
other misconduct by the Neutral Fact-finder or by any
of the parties, or mutual mistake of fact. The [admin-
istrative law judge or federal district court judge]
shall not have jurisdiction to review the determination
unless there is a verified complaint with supporting
affidavits filed by one of the parties attesting to
specific instances of such fraud, misrepresentation,
other misconduct, or mutual mistake of fact.
3. Administrative Fees, Expenses, and Neutral Fact-finder's Fee
(a) The fees and expenses of the Neutral Fact-finder, and
of the NAO, shall be borne equally by the parties.
The parties may employ additional neutral organizations
to administer these ADR procedures as mutually deemed
necessary, with the fees and expenses of such organizations
borne equally by the parties.
(b) The NAO shall prescribe an Administrative Fee Schedule
and a Refund Schedule. The schedules in effect at the time
of the joint request for fact-finding shall be applicable.
The filing fee, if required, shall be advanced by the
parties to the NAO as part of the joint request for
fact-finding. If a matter is settled, a refund shall
be made in accordance with the Refund Schedule.
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(c) Expenses of providing information to the Neutral Fact- ii.-.ier
shall be borne by the party producing such informal L.;:I .
!d) The per diem fee for the Neutral Fact-finder shall be
agreed upon by the parties and the NAO prior to the
commencement of any activities by the Neutral Fact-f i.-.der .
Arrangements for compensation of the Meutrai Fact-finder
shall be made by the MAO.
9. Miscellaneous Provisions
(a) Before the selection of the Neutral Fact-finder, all oral
or written communications from the parties cor the }feu trial
Fact-finder's consideration shall be directed to the MAO
for eventual transmittai to the Neutral Fact-finder.
(b) All papers connected with the fact-finding shall be served
on the opposing party either by personal service or United
States mail, First Class.
i
(c) The Neutral Fact-finder shall be disqualified from acting'
on behalf of either party, and his or her determination
pursuant to these ADR procedures shall be inadmissible
for all purposes, in any other dispute involving the
parties.
(d) Any notification or communication between the parties,
or with and by the Neutral Fact-finder shall be confidential
and entitled to the same privileges that apply generally
to settlement negotiations.
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*l UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 2t4«0
AL)B 20 B87
OFFICE OF ESFOKCEMFNT
AND COMPLIANCE
MONITORING
MEMORANDUM
SUBJECT: Policy on Invoking Section 9 of the EPA/DOJ
Memorandum of Understanding
FROM-. Thomas L. Adams, Jr.
Assistant Administrator
TO: Regional Administrators
Regions I-X
Section 9 of the EPA/DOJ Memorandum of Understanding concerning
civil litigation provides authority to the Administrator to appoint
Agency attorneys to represent the Agency in certain circumstances.
This is an important but virtually unused authority. The lack of
use to date may be due, in part, to the absence of a policy and
procedure for invoking Section 9.
We anticipate greater use of Section 9 in the future on a
selected basis to carry out its intended purpose. To facilitate
its future use, we have developed the attached policy. We look
forward to working closely with you in its implementation.
If you have any questions about the policy, please feel free
to call Ed Reich at FTS 382-3050.
Attachment
cc: Deputy Regional Administrators, Regions I-X
Regional Counsels, Regions I-X
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POLICY INVOKING SECTION 9 OF THE EPA/DOJ MEMORANDUM OF UNDERSTANDIJ
Background
In June 1977, EPA and the Department of Justice entered into a
Memorandum of Understanding concerning the conduct of environmental
litigation. The MOU was intended to ensure that Federal court civil
litigation under EPA statutes was effectively conducted to the best
interests of the government and the public. It was also intended to
resolve differing views of the appropriate roles of DOJ and Agency
attorneys and establish a close and cooperative relationship between
the? attorneys of the two agencies. The MOU dealt specifically with
civil litigation under the Clean Air Act, the Federal Water Pollution
Control Act, and the Safe Drinking Water Act, although it has
become the model for litigation under other environmental statutes
as well. The MOU received legislative sanction in 1977 when Congress
specifically incorporated the MOU in Section 305(b) of the Clean
Air Act.
Primary Responsibilities Under the MOU
The MOU creates a number of important responsibilities for
each agency, reflecting the roles and areas of expertise of each.
The major provisions of the MOU can be summarized as follows:
(1) The Attorney General "shall have control over" all cases,
to which EPA is a party.
(2) When requested by the Administrator, the Attorney General
shall permit Agency attorneys to participate in ca*es
"subject to the supervision and control of the Attorney
General."
(3) The Attorney General retains the right to allocate tasks
between attorneys, giving "due consideration to the
substantive knowledge of the respective attorneys of the
matter at issue so that the Government's resources are
utilized to the best advantage."
(4) Settlement of any case in which DOJ represents the Agency
requires the concurrence of both the Administrator and
the Attorney General (or their delegatees).
(5) The Attorney General shall establish specific deadlines,
not longer than 60 days, by which time DOJ attorneys must
either file complaints or report to the Attorney General
why such complaint has not been filed.
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(6) If a complaint is not filed within 120 days of referral,
the Administrator may request the Attorney General to
file a complaint within 30 days. Failure to thereafter
file within said 30 days may be considered by the Agency
as a failure of the Attorney General to notify the
Administrator within a reasonable time that he will
appear in litigation for the purposes of Section 305
of the Clean Air Act, Section 506 of the Federal Water
Pollution Control Act, or Section 1450 of the Safe
Drinking Water Act. (Under such circumstances, the
Administrator is authorized by the cited statutory
provisions to appoint Agency attorneys to appear and
represent him.)
(7) Failure to file a complaint within the time period
requested by the Administrator in cases seeking
immediate action under the emergency provisions of the
three statutes also would constitute a failure to so
notify the Administrator, also authorizing Agency
attorneys to assume representation.
(8) In conducting litigation, the Attorney General shall
defer to the Administrator's interpretation of
scientific and technical matters.
Current Experience
Experience has shown that the 60 day target for filing cases
has not been consistently met. There are a number of explanations
for the disparity between the 60-day deadline created by the MOU
and the actual performance in implementing it. In some instances,
the complexity of the case makes review and filing within 60 days
an unrealistic target. In other cases, further pre-filing prepara-
tion is required or the case is held after referral at EPA's
request for reasons of litigative strategy or to conduct pre-filing
settlement negotiations. However, cases may also be delayed in
filing for reasons relating purely to management and utilization of
DOJ resources and DOJ's own sense of priorities. Certain cases may
be important to EPA because of the principle involved and yet may
be viewed by DOJ attorneys as being only marginally worth their
time, thus affecting the relative priority such cases receive. In
a few cases, differences in statutory or regulatory interpretation
or unresolved policy issues can also delay filing.
An analysis of unfiled cases pending at DOJ shows that a
number of cases fall within the scope of Section 9 of the MOU,
affecting cases unfiled after 120 days. However, the Agency has
only rarely notified DOJ of its intention to invoke that section
and appoint Agency attorneys to represent itself, let alone
actually appoint such attorneys under that section.
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Consideration Affecting Invoking Section 9
Section 9 is clearly intended to give the Agency the discretion
to assume responsibility for representing itself in cases unfiled
after 120 days, after 30 days notice to DOJ. There are a wide
variety of considerations that go into deciding whether it is
appropriate to invoke the MOD.
The threshold consideration relates to the reasons for the
case remaining unfiled. Obviously, if the case is unfiled because
EPA agrees that further pre-filing preparation is required or
because EPA has asked for a delay for litigative strategy reasons
or to conduct pre-filing settlement negotiations, invoking
Section 9 would be inappropriate and unwarranted.
However, if a case is unfiled simply due to unavailability of
DOJ resources, consideration of invocation may be appropriate.
Further, if DOJ believes that a case should not be filed due to
technical deficiencies in the evidence but EPA does not agree,
consideration should be given to invoking Section 9 in light of
DOJ's failure to defer to the Agency's expertise in accordance with
Section 14 of the MOU. Finally, if the delay is due to differences
over interpretation and application of Agency policy or priorities,
and DOJ does not defer to the Agency's proper role in establishing,
interpreting, and implementing policy or priorities, consideration
of Section 9 would also be appropriate.
Even within the classes of cases identified in the previous
paragraph, invoking the MOU should be viewed as an unusual action
when other attempts to resolve the problems in a case have proven
fruitless. Within these classes of cases, the Agency must weigh
such additional factors as:
(a) the Agency interest to be served by assuring filing of
the case in a more timely fashion, where the case is
necessary to validate an Agency policy objective, this
may be a particularly important consideration;
(b) the ability of the Agency, both in terms of attorney
availability and experience levels, to handle the
litigation without DOJ involvement and support;
(c) the desire to maintain, as much as possible, DOJ
involvement in cases since combined use of Agency
and DOJ resources normally provides the most effective
government representation; and
(d) the likelihood of filing of the complaint within the near
future if the MOU is not invoked, and whether invoking the
MOU is likely to accelerate filing by DOJ.
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-4-
(Note that invoking Section 9 in the sense of sending a letter
to the Attorney General requesting him to file within 30 days does
not, in itself, commit the Agency to assume the lead after that
period.)
Procedures for Invoking Section 9
Section 9 may be invoked only by the Assistant Administrator
for Enforcement and Compliance Monitoring. It may be invoked at
his own initiative, upon the request of a Regional Administrator or
his delegated, or at the request of the Assistant Administrator
for Air and Radiation for cases arising under Sections 203 and 211
of the Clean Air Act.
A request by the RegionV to invoke Section 9, which would
normally involve enforcement litigation, should be in memorandum
form and should be directed to the Assistant Administrator for
OECM. The memorandum should briefly summarize the facts of the
case, especially any relevant information not previously contained
in the referral package, and the appropriateness of invoking
Section 9 in light of the criteria discussed in this memorandum.
The memorandum should detail, to the best of the Region's knowledge,
the reasons for the case remaining unfiled, and all efforts made to
get the case filed. If DOJ had asked for any additional informa-
tion before filing, the memorandum should detail specifically what
was requested and how the Agency responded. The request should
also contain a proposed case management plan, a recommendation as
to which EPA lawyers should be designated to represent the Agency,
and a commitment by the Region to provide the resources (technical
and legal) necessary to prosecute the action.
Upon receipt and review of the memorandum, or after discussion
with the Regional Administrator and the Regional Counsel or their
delegatees where the Assistant Administrator raises the issue on
his own initiative, the Assistant Administrator may decide to
invoke Section 9. If so, prior to the Agency's sending a letter
under Section 9, the Deputy Assistant Administrator - Civil
Enforcement and the appropriate Associate Enforcement Counsel will
meet with the Chief, Environmental Enforcement Section to see if an
acceptable resolution can be achieved or if any circumstances exist
of which the Agency may not be aware. The appropriate Regional
Counsel, or designee, will be given notice and opportunity to
V As used in this section, the terms "Region" and "Regional
Administrator and Regional Counsel" shall mean, for cases
under Sections 203 and 211 of the Cleari Air Act, the Office of Air
and Radiation and the Assistant Administrator for Air and Radiation,
respectively.
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-5-
attend any such meeting. Assuming the matter is not acceptably
resolved in this manner, the Assistant Administrator shall send a
letter to the Assistant Attorney General, Land and Natural Resources
Division requesting him to file within 30 days in accordance with
Section 9.
During this 30-day period, the Agency will continue to make
all reasonable efforts to obtain the filing of the complaint. If
at the end of the 30-day period the case remains unfiled, the
Assistant Administrator will again discuss the case with the
Regional Administrator and Regional Counsel to determine the
appropriate action. If determined to be appropriate, the Assistant
Administrator shall appoint Agency attorneys to represent the
Agency in the case and so notify the Assistant Attorney General in
writing of this action.
Support of Cases Where Agency Invokes Section 9
It is primarily the responsibility of the Office of Regional
Counsel to provide the legal support to prosecute and manage a case
where the Agency appoints its own attorneys under Section 9. This
consideration should be factored into both the recommendation to
invoke Section 9 and in the case management plan. However, if the
Regional Counsel so requests, the appropriate Associate Enforcement
Counsel in OECM will endeavor to provide assistance to supplement
Regional resources available for the case.
Where a case is to be nationally-managed in accordance with
existing guidance, the appropriate Associate Enforcement Counsel
will be primarily responsible for providing legal support. For
cases arising under Sections 203 and 211 of the Clean Air Act,
attorneys in the Field Operations and Support Division of the
Office of Air and Radiation will exercise primary responsibility.
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3M 64
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I UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
f. WASHINGTON, D.C. 20460
SEP I 4 1987
Office OF
ENFORCEMENT AND
COMPL'ANrt MONITQHING
MEMORANDUM
SUBJECT: Processing of Consent Decrees
FROM: Thomas L. Adams, Jr. \ N -^
Assistant Administrator ""*-^^— .X^inc* •••* -—
TO: OECM Attorneys
The August 10-12 meeting on Enhancing and Streamlining
the Enforcement Process produced several promising proposals
for long-term improvements in the way our Agency conducts
enforcement. In addition to following up on these proposals,
I am currently looking for ways to streamline our own internal
operations and thereby shorten the time for Headguarters
review of documents submitted by the Regions.
One suggestion which I plan to implement immediately
is designed to speed up Headguarters processing of consent
decrees. Consent decrees are normally sent to Headquarters
with a cover memorandum which explains the nature of the
case, the contents of the settlement, and other important
issues. The staff attorney prepares a memorandum to me
recommending that the decree be forwarded to the Department
of Justice. This memorandum, in part, summarizes or restates
the facts and issues discussed in the Regional cover memorandum.
Rather than reiterating the information contained in
the Region's cover memorandum, I would prefer that you refer
to and attach that memorandum where appropriate. Of course,
any items requiring further discussion should also be addressed
in the cover memorandum you prepare.
In any case, the package sent to me for signature should
contain, in the cover memorandum you prepare or in the attached
Regional submission, the following information:
1) identification of the cause of action (including
statutory and regulatory provisions at issue)
and the basic facts of the case;
2) summary of the terms of the settlement, including
anticipated environmental results and an explanation
of any significant variance from established guidance
on drafting consent decrees;
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-2-
3) discussion of precedential issues and issues of
national importance;
4) discussion of whether the penalty comports with
the applicable penalty policy (there should be a
full explanation of any penalty figure below that
which is recommended by the applicable policy);
5) discussion of any unusual injunctive relief obtained
(e.g., environmental auditing or credit projects);
6) if the consent decree allows the defendant to come
into comnliance after the statutory deadline,
discussion of the reason for doing so; and
7) if the settlement is not complete, discussion of the
elements and issues of the remaining case.
Thank you for your cooperation in imolementing this new
procedure. I would enjoy hearing any additional ideas you may
have for avoiding duplication of effort or otherwise stream-
lining the enforcement process.
cc: Regional Counsels, Regions I - X
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GM 65
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'*,
3 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
f WASHINGTON, O.C. 20460
SEP 2 9 '^r
Off ICE OF
ENFORCEMENT AND
COMPLIANCE MONITORING
MEMORANDUM
SUBJECT: Processing of Indirect Referrals
FROM: Thomas L. Adams, Jr.
Assistant Administrator
TO: OECM-Attorneys
Under current practices for handling indirect referrals
in OECM, the staff attorney generally prepares a memorandum
which summarizes the case, discusses significant issues, and
then recommends that I refer the case to the Department of
Justice for filing. The litigation report sent to head-
quarters by the Region often contains a cover memorandum from
the Regional Administrator that also summarizes the case
being referred.
In continuing our efforts to streamline the enforcement
process, I want to encourage OECM staff attorneys to refer to
and attach the Regional Administrator's cover memorandum to
the package that is sent to me for signature as appropriate.
Points that are adequately covered in the Regional memorandum
need not be addressed in the OECM staff attorney's memoran-
dum.
In any case, the package sent to me for signature should
contain, in the memorandum you prepare or in the attached
Regional memorandum, the following information:
1) "" a brief summary of the case, including the basic
facts and an identification of the cause(s) of
action(s);
2) a summary of the injunctive relief requested and a
discussion of whether the proposed bottom-line
penalty is consistent with the applicable penalty
policy;
3) a discussion of any precedential issues, any issues
of national importance and any significant weak-
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nesses that may prevent the United States from
obtaining the relief sought; and
4) identification of any government personnel who must
be recused from participation in, or review of, the
case (please keep in mind that Jonathan Cannon is
recused from all cases handled by the law firm of
Beveridge and Diamond, and I am recused from all
Republic steel cases).
I anticipate that, for most cases, this information can
be provided in a two to three page memorandum prepared by you
that either discusses each of the four items itself, or, as
appropriate, refers to an attached Regional memorandum.
cc: Regional Counsels, I - X
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GM 66
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. DC 20460
OCT SW4
THE ADMINISTRATOR
MEMORANDUM
SUBJECT: Guidance for Assertion of Deliberative Process
Privilege
TO: Assistant Administrators
General Counsel
Inspector General
Associate Administrators
Regional Administrators
The following guidance covers the assertion of the
deliberative process privilege in response to depositions,
motions to compel discovery and questions posed at a trial or
hearing.V
By separate action today, I have approved a delegation of
authority authorizing you to assert this privilege on behalf
of EPA. The guidance should be consulted and applied when
exercising the authority to assert this privilege. (See dele-
gation entitled "Assertion of Deliberative Process Privilege.)
The guidance covers three areas:
• When should EPA assert the privilege?
• Who should assert the privilege?
• How should one assert the privilege?
The purpose of this privilege is to prevent disclosure cf
certain documents or other materials containing personal advice,
recommendations or opinions relating to the development of
I/ This guidance does not cover assertion of this privilege in
Freedom of Information Act matters. Nor does it cover other
discovery privileges such as attorney work product, attorney
client, etc. Finally, proper objections may lie to discovery
that are not based on any privilege such as objections to cis-
covery of legally irrelevant evidence.
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-2-
Agency policy, rulsmaking, utt of enforcement discretion, the
uettlemtnt of eases, etc. Public disclosure of such material
would be likely either to inhibit the honest exchange of views
or inaccurately reflect or prematurely disclose the views of
the n.
the Agency.
I. Background
w, deliberative process privilege applies to information
which is generated as part of the process leading to a final
Agency decision or action on a matter. The function of the
privilege is to encourage the honest and free expression of
opinion, suggestions and ideas among those formulating policy
for government agencies. United States v. Berrigan, 482 F.2d
171 (3rd Cir. 1973). ~~ - ~ - *—
Inherent in. this rationale is the assumption that, sbsent
the privilege, the range of fresh ideas will be limited by
fear of later public scrutiny of internal statements and sug-
gestions. Thus, effective and innovative government will
suffer. This purpose has been recognized in deciding that the
privilege applies to documents *so candid or personal in
nature that public disclosure is likely in the future to stifle
the honest and frank communication within the agency.* Coastal
States! Gas Corp. v. Dept. of Energy, 617 P.2d 654, 666 (DTcT
Cir. 1980).
The privilege likewise 'covers recommendations, draft
documents, proposals, suggestions and other subjective documents
which reflect the personal opinion of the writer rather than
the policy of the agency." Id* Perhaps the most encompassing
definition holds that "it is well established that the privilege
obtains with respect to intra-governmental documents reflecting
advisory opinions, recommendations, and deliberations compris-
ing part of a process by which governmental decisions And
policies are formulated." Carl Zeiss Stiftung v. V.E.B. Carl
Zeiss, Jftna, 40 F.R.D. 318, 324 iD.D.C. 1966), aff'd 364 F.2d
979, cert., denied 369 U.S. 952 (1967).
There are several limitations upon the otherwise broad
reach of the privilege. First, the document or other written
material nust be predecisional, meaning generated before the
policy to which it pertains was adopted by the Agency. In the
case of nentsl impressions or opinions, predecisional means
that the information sought in discovery consists of thoughts
that were never communicated in writing as part of the policy
setting or rulemaking process. Any document written to explain
or support an established policy is not privileged. NLRB v.
Sears, Roebuck and Co. . 421 U.S. 132 (1975). Furthermore even
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-3-
if • document was predecisional vhtn prepared, it can lose that
status "if it is adopted, formally or informally, as the agency
position on an issue or is used by the agency in its dealings
with the public.* Coastal States Gas Corp. v. Dept. of Energy,
617 P.2d at 666. The privilege also does not apply to matters
which are purely factual in nature unless such factual material
is inextricably bound within truly deliberative or opinion
matters. Smith v. FTC, 403 F. Supp. 1000 (D. Del. 1975).
II. When to Assert the Privilege
Although the law allows the Agency to assert this privilege
in a wide variety of situations, it does not require the Agency
to exercise that right. Indeed, it is EPA policy that the
Agency will not assert the privilege in every case where it
applies. The Agency has a responsibility to the public to
provide the relevant facts which underlie a particular policy.
This responsibility suggests that we disclose data and the
reasons supporting a policy on occasion which might otherwise
fall within the scope of the privilege.
The Agency should release documents or other materials
o'thervise subject to the deliberative process privilege except
where:
• release of the documents or other
matters may cause harm to the public
interest (See Section IV (5) for
definition of harm),
• the documents or other matters are
subject to another privilege which
• would justify nondisclosure, or
• release of the material would be
unlawful.£/
Documents or other materials should not be withheld solely
because they would reveal flaws in the case or information
embarrassing to the government.
«
III. Who Should Assert the Privilege
In general, the head of the office responsible for devel-
oping the document or material in question should assert the
2/ It is the responsibility of counsel to decide whether the
materials are subject to some other privilege or their release
is unlawful.
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-4-
priviltge on EPA's behalf where appropriate. Thus, if a liti-
gant makes a discovery request at a regional office seeking
production of matters which originated with a Headquarters
program office, the decision to assert the privilege should
probably be nade by the head of that Headquarters program
office. Of course, if the document was produced in a regional
office, the Regional Administrator would assert the privilege,
if appropriate.
;rv. How to Assert the Privilege
The guidance contained in this section should be followed
in asserting the deliberative process privilege. The delibera-
tive process privilege nay be claimed only for documents or
other materials which are truly deliberative or recommendatory
in nature and .consist of advisory matter or personal opinion
rather than factual matter or Agency policy. Material or
documents which are essentially factual in nature or which
embody policies upon which the Agency has relied may not be
withheld under the claim of deliberative process privilege.
Furthermore, material which is clearly factual and which can
be excised from deliberative material must be extracted and
disclosed.
At a deposition, trial, or hearing, or similar circum-
stances where it is impracticable for the Agency to have a
high official on call to claim the privilege, the privilege
may initially be asserted by the attorney representing the
Agency. He or she will raise and protect any potential claim
of privilege by objecting to a question posed and directing
the witness not to answer. If necessary - for example, in
order to respond to a notion to compel - the attorney nust
furnish an affidavit from the appropriate Agency official
which formalizes and supports the assertion of the privilege.
The affidavit would be furnished to opposing counsel and, when
appropriate, to the hearing officer or trial judge.
In formally asserting the privilege, the delegatee should
comply with the following:
ID All delegatees must obtain the advance concurrence
of the Office ofc General Counsel before asserting the privilege.
2) The privilege shall be claimed by executing an
affidavit to be furnished to opposing counsel and, when
appropriate, to the hearing officer or trial judge.
3) Where appropriate, the affidavit shall identify
each document, portion of the document or other matter for
which the privilege is claimed.
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-5-
4) The affidavit shall specify that the delegatee has
personally reviewed each document or other natter for which
the privilege is being claimed.
In cases involving an extraordinarily large amount of
material, the delegatee need only review a representative
sample. It is understood that these will be extreme cases. Zn
addition, the process of selecting the representative sample
will be under close scrutiny. Alternatively, the delegatee may
rely upon a personal briefing of a responsible Agency employee
with personal knowledge of the matters for which the claim of
privilege is sought or upon a comprehensive affidavit of such
a responsible Agency employee in lieu of a briefing. The
affidavit of the delegatee shall state the extent of the review
and whether he or she is relying upon the briefing or affidavit
of another.
5) The affidavit shall contain a statement that in the
judgment of the affiant (delegatee), disclosure of the documents
or other matters may cause an identifiable harm to the public
interest. For these purposes, 'harm* may be found where public
disclosure is likely in the future to inhibit honest and frank
communication necessary to effective policy making or might
inaccurately reflect or prematurely reveal the views of the
Agency. Documents or other materials should not be withheld
solely because they would reveal flaws in the case or informa-
tion embarrassing to the government.
6) Any agency official wishing to assert this privilege
must be prepared to provide the material in question to the
court for an in camera review.
William D. Fuckelshaus
LEOOA:JA1bber:1t:426-7503:Rm.3404M:2/22/84:Disk;l1bber:8/9
Rev1$fon:2/27/84:3/l/83:3/6/84:3/30/84:4/5/84:4/9/84:4/12/84
5/7/84:5/10/84:7/27/84
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DELEGATIONS . 1200 TN 106
" 10/3/84
GENERAL, ADMINISTRATIVE, AND MISCELLANEOUS
1-49. Assertion of the Deliberative Process Privilege
• i
1. AUTOORJTY. To assert the deliberative process privilege in judicial and
administrative litigation with respect to documents, portions of documents,
or other materials within the control of the Agency.
2. TO WHOM DELEGATED. Deputy Administrator, Assistant Administrators.
General Counsel* Inspector General, Associate Administrators, and Regional
Administrators.
3. LIMITATIONS. All delegates must obtain the concurrence of the General
Counsel before asserting the deliberative process privilege.
4. REDELBGATION AUTHORITY. This authority may not be redelegated.
5. ADDITIONAL REFERENCES.
a. Rule 501, Federal Rules of Evidence;
t. Rule 26, Federal Pules of Civi] Procedure; and
c. See the Memorandum of October 3, 1984, from William D. Ruckelshaus,
Administrator, to Assistant Administrators, General Counsel, Inspector General,
Associate Administrators, and Regional Administrators entitled "Guidance for
Assertion "of Deliberative Process Privilege."
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, O.C. 20460
APR 2 2 1985 or"ctor
COUNfCL.
MEMORANDUM
TO: Deputy Administrator
Assistant Administrators
Inspector General
Associate Administrators
Regional Administrators
PROM: Gerald H.
Acting Gene ral^C tins el y
SUBJECT: Assertion of the Deliberative
Process Privilege
On October 3, 1984, the Administrator delegated to you the
authority to assert the deliberative process privilege in litigation
on the condition thac you obtain the General Counsel's concurrence
before asserting the privilege (see attached). This memorandum
sets forth the procedures for obtaining that concurrence.
In general, the head of the office responsible for developing
the document or material in question should assert the privilege.
In all cases, the official asserting the privilege should prepare
a memorandum requesting the General Counsel's concurrence. If the
litigating attorney needs to file an affidavit to support the priv-
ilege, a draft affidavit should also be forwarded for review. The
Associate General Counsels, Associate Enforcement Counsels, and
Regional Counsels will be available to take the lead in preparing
these documents. The official must explain both the basis for the
conclusion that the materials fall within the deliberative process
privilege and the reasons why release of the documents may cause
harm to the public interest. Depending on the stage of the litiga-
tion, the explanation should be either in the affidavit or in the
memorandum. A representative sample of the documents should be
provided to the General Counsel along with, the affidavit or memo-
randum. The extent to which the asserting official must review
and describe the documents is addressed in the Administrator's
memorandum.
Attachment
cc: Regional Counsels
Associate General Counsels
Associate Enforcement Counsels
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i
f UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
* WASHINGTON. D.C. 20460
ornce or
GCNIRAl. COUNSEL
SEP 3 01987
MEMORANDUM
SUBJECT: Change in Review Process for Concurrence in Assertions
of Deliberative Process Privilege in Litigation
FROM: Francis S.
General Counsel
TO: Associate General Counsels
As you know, in accordance with the directive of the
former Administrator, my concurrence is required in any
assertion of the deliberative process privilege by the Agency
in response to depositions, motions to compel discovery or
questions posed at trial or hearings. The attached memoranda
set out the procedures which already are in place and which
remain in effect for obtaining my concurrence.
Until now, the Grants, Contracts and General Law Division
has been responsible for reviewing requests for my concurrence.
Effective immediately, requests for concurrence will be reviewed
by the OGC division with programmatic responsibility for the
documents or testimony in question, rather than only the Grants,
Contracts and General Law Division. For example, requests to
assert the deliberative process privilege in Superfund cost
recovery cases will be brought to the attention of the Solid
Waste and Emergency Response Division, and requests in Clean
Air Act administrative hearings will be directed to the Air
and Radiation Division.
The request for concurrence in asserting the privilege
should be sent to me, along with the division's recommendation.
The Contracts and Information Law Branch of the Grants,
Contracts and General Law Division will be available to discuss
the standards to be applied and procedures to be followed in
this review process. Contact Tom Darner at 382-5460 to request
assistance.
cc: Assistant Administrators
Regional Counsels
Regional Administrators
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GM 67
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I MTED STATES F.NA IROVMEM VI. PROTECTION AC.KM
W \xHINMOY I) ( :iM*fl
January 1.1, 1988
MEMORANDUM
SUBJECT: Procedures for Assessing Stipulated Penalties
FROM: Thomas L. Adams, Jr. ^—^V^***^ V\. *Xc
Assistant Administrator for Enforcement I \
and Compliance Monitoring \\
TO: Regional Administrators
Regional Enforcement Contacts
Regional Counsels
Regional Program Division Directors
Program Office Enforcement Directors
The purpose of this memorandum is to clarify procedures for
assessing stipulated penalties for consent decree violations.
As discussed in my August 23, 1986 memo on Expanded Civil
Judicial Referral Procedures, the direct referral process will
be followed to enforce the terms of a judicial decree for payment
of penalties agreed to as part of the settlement on the original
violation. Stipulated penalties (i.e. penalties due and owing
because of a violation of the consent decree terms) are not
covered under the above direct referral procedures. -The procedure
described below will be used for enforcing the payment of
stipulated penalties.
Unless the consent decree specifies otherwise, letters to
defendants demanding payment of stipulated penalties should be
sent by DOJ. The following procedures apply for enlisting DOJ's
assistance:
o Th« Region sends a letter to DOJ (copy to OECM) requesting
DOJ to issue a demand letter. The letter to DOJ should
contain summary information sufficient to apprise DOJ of'
relevant facts, issues and proposed solutions.
o DOJ copies the Region and OECM with any response to the
demand letter.
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o If the response is unsatisfactory, the Region will send
a direct referral package to DOJ (copy to OECM). The
referral package should request that DOJ enforce against
the unresolved consent decree violations, include any
relevant new information arising since the demand letter
request, and specify the extent of the relief which EPA
wishes to pursue.
o DOJ takes appropriate action to enforce the original
consent decree with full participation by the Region.
o When the defendant pays stipulated penalties to the
Federal government without receiving a demand letter
(e.g. if the consent decree establishes stipulated
penalties which are automatically due when certain events
happen and the defendant pays such sums to EPA or the
U.S. Attorneys Office), the Region should notify the
appropriate Associate Enforcement Counsel of that fact
in writing or by telephone. OECM is currently developing
procedures for' tracking and collecting civil penalties
which may change the notification requirement in the
future.
S1PMS CONSENT DECREE TRACKING MEASURE
Under the SPMS consent decree measure, a demand letter is not
considered a "formal enforcement response." A penalty payment
must be received or a direct referral package sent to DOJ (copy
to OECM) before the violation is considered addressed. Where a
demand letter has been sent, the Region should report the decree
in the "in violation with action planned" category. When a
direct referral is sent to DOJ to address the non-payment of a
stipulated penalty, the Region should report the decree in the
"in violation with action commenced" category.
If you have any questions regarding these procedures, please
contact Lisa Oyler, Compliance Evaluation Branch, OECM, at 475-6113
ccs Roger J. Marrulla, DOJ
David Buente, DOJ
Gerald A. Bryan, OCAPO
Thomas Gallagher, NEIC
Deputy Assistant Administrators, OECM
Associate Enforcement Counsels, OECM
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GM 68
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I NITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
•" OM •
January 11, 1988 'SMO"H
MEMORANDUM
SUBJECT: Procedures for Modifying Judicial Decrees
Vfrs3b
FROM: Thomas L. Adams, Jr.
Assistant Administrator for Enforcement
and Compliance Monitoring
TO: Regional Administrators
Regional Enforcement Contacts
Regional Counsels
Regional Program Division Directors
Program Office Enforcement Directors
The purpose of this memorandum is to clarify procedures for
modifying consent decrees and other judicial orders entered in
EPA enforcement cases.
Consent decree "modifications" are changes to a consent
decree proposed jointly to the court by the Federal government and
a defendant, largely to address circumstances which have arisen
since the entry of the consent decree (such as force majeure
events or other unanticipated circumstances). Thus, these
"modifications" are distinct from Federal government unilateral
enforcement actions requiring the violator to comply with the
terms of the decree and imposing sanctions. Consent decree
modifications should be addressed as follows:
o As soon as the need to modify a consent decree is
discovered, the Region should send a letter to the
appropriate OECM-AEC and DOJ-Environmental Enforcement
Section Chief notifying them of the intent to open
negotiations with the defendant. The letter should
contain summary information sufficient to apprise OECM
and DOJ of relevant facts, issues, and proposed solutions.
o Consistent with appropriate consultation procedures with
OECM or DOJ, the Region (along with OECM or DOJ, as
appropriate) may proceed to negotiate a modification of
the consent decree in the manner described in the letter.
-------
o OECM retains authority for approving any modifications
on behalf of EPA. DOJ retains authority for approving
any modifications on behalf of the United States.
o After OECM and DOJ officials have approved the modifica-
tions, the DOJ attorney will present the proposed consent
decree modification to the appropriate court for approval.
SPMS CONSENT DECREE TRACKING MEASURE
A consent decree violation handled through modification will
be considered addressed under the SPMS consent decree tracking
measure when a modified consent decree is signed by the AA-OECM
and DOJ representative. Until these officials approve the
modification/ the Region will report the consent decree in the
"in violation with action planned" category.
If you have any questions regarding these procedures, please
contact Lisa Oyler, Compliance Evaluation Branch, OECM, at 475-6118
cc: Roger J. Marzulla, DOJ
David Buente, DOJ
Gerald A. Bryan, OCAPO
Thomas Gallagher, NEIC
Deputy Assistant Administrators, OECM
Associate Enforcement Counsels, OECM
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GM 69
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
JAN I *
OFFICE OF ENFORCEME--r
^NDCOMPL! \N( '.
MONITORING
MEMORANDUM
SUBJECT: Expansion of Direct Referral of Cases to the.
Department of Justice
FROM: Thomas L. Adams, Jr.
Assistant Administrator
TO: Regional Administrators, Regions I - X
Deputy Regional Administrators, Regions I - X
Regional Counsels, Regions I - X
' Assistant Administrators
Associate Enforcement Counsels
OECM Office Directors
I. BACKGROUND
During the past year, my office has worked closely with
the Regions, the Headquarters program offices, and the Land
and Natural Resources Division of the U.S. Department of
Justice (DOJ) to expand the use of direct referral of cases.
On January 5, 1988, EPA and DOJ entered into an agreement
which expanded the categories of civil judicial cases to be
referred directly to DOJ Headquarters from the EPA Regional
offices without my prior concurrence. In entering into this
agreement, EPA has taken a major step towards streamlining
the enforcement process and more fully utilizing our Regional
enforcement capabilities.
On January 13, 1988, the Administrator signed an interim
delegations package which will allow the Agency to immediately
implement expanded direct referrals to DOJ. A final delega-
tions package is now being prepared for Green Border review.
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This memorandum provides guidance to EPA Headquarters
and Regional personnel regarding procedures to follow in
implementing the expanded direct referral agreement. Prior
guidance on direct referrals appears in a November 28, 1983,
memorandum from Courtney Price entitled "Implementation of
Direct Referrals for civil cases Beginning December l, 1983.
That guidance is superseded to the extent that the current
guidance replaces or changes procedures set forth therein;
otherwise the 1983 document remains in effect.
II. SUMMARY
Effective immediately for non-CERCLA cases, and effec-
tive April 1, 1988, for CERCLA cases, the Regions will*
directly refer to the Department of Justice all civil cases
other than those listed in the attachment to this memorandum
entitled "Cases Which Will Continue to be Referred Through
Headquarters." This attachment lists cases in new and
emerging programs and a few, highly-selected additional
categories of cases where continued referral through EPA
Headquarters has been determined to be appropriate. EPA
Headquarters will have 35 days to review the case simul-
taneously with DOJ. EPA Headquarters will focus its review
primarily on significant legal or policy issues. If major
legal or policy issues are raised during this review, EPA
Headquarters will work with the Regi'on to expedite resolu-
tion,,
Attached is a copy of the agreement between EPA and DOJ,
which is incorporated into this guidance. Many of the
procedures for direct referral of cases are adequately
explained in the agreement. However, there are some points I
would! like to emphasize.
III. PROCEDURES
A. CASES SUBJECT TO DIRECT REFERRAL
The attached agreement lists those categories of cases
which must continue to be referred through the Office of
Enforcement and Compliance Monitoring (OECM). All other
cases should be referred directly by the Regional Office to
DOJ Headquarters, with the following two exceptions:
(1) cases which contain counts which could be directly
referred and counts which require prior EPA Headquarters
review should be referred through EPA Headquarters, and
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(2) any referral which transmits a consent decree
should be referred through EPA Headquarters, except
where existing delegations provide otherwise.
If you are uncertain whether a particular case may be
directly referred, you should contact the appropriate
Associate Enforcement Counsel for guidance.
B. PREPARATION AND DISTRIBUTION OF REFERRAL PACKAGES
The contents of a referral package (either direct to DOJ
or to EPA Headquarters) should contain three primary divi-
sions: (1) a cover letter; (2) the litigation report; (3) the
documentary file supporting the litigation report. *
The cover letter should contain a summary of the
following elements:
(a) identification of the proposed defendant(s);
(b) the statutes and regulations which are the basis
for the proposed action against the defendant(s);
(c) the essential facts upon which the proposed action
is based, including identification of any signi-
ficant factual issues;
(d) proposed relief to be sought against defendant(s);
(e) significant or precedential legal or policy issues;
(f) contacts with the defendant(s), including any
previous administrative enforcement actions taken;
(g) lead Regional legal and technical personnel;
(h) any other aspect of the case which is significant
and should be highlighted, including any extra-
ordinary resource demands which the case may
require.
A direct referral to DOJ is tantamount to a certifi-
cation by the Region that it believes the case is suffi-
ciently developed for filing ofa complaint, and that the
Region is ready, willing and able to provide such legal and
technical support as might be reasonably required to pursue
the case through litigation.
Referral packages should be addressed to the Assistant
Attorney General, Land and Natural Resources Division, U.S.
Department of Justice, Washington D.C. 20530. Attention:
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Chief, Environmental Enforcement Section. Copies of all
referral packages should also be sent to the Assistant
Administrator for OECM and the appropriate Headquarters
program offioe.
OOJ has reaffirmed the time frame of the Memorandum of
Understanding, dated June 15, 1977, for the filing of cases
within 60 days after receipt of the referral package, where
possible. DOJ can request additional information from a
Region on a case or return a case to a Region for further
development. In order to avoid these delays, referral
packages should 'be as complete as possible and the Regions
should work closely with DOJ to develop referral packages.
C. IDENTIFICATION AND RESOLUTION OF SIGNIFICANT*LEGAL
AND POLICY ISSUES
A major element in assuring the success of the expanded
direct referral program is an efficient process to identify
and resolve significant legal and policy issues. This should
be done as early as possible to assure that unresolved issues
not delay a referral. Early identification and resolution
will also help the Agency to avoid devoting significant
Regional resources to preparing a litigation report for a
case which will ultimately be considered inappropriate for
referral.
The procedures make clear that the Regional office has
the initial responsibility for identification of significant
legal and policy issues. Such issues should be identified to
OECM and the appropriate Headquarters program office as soon
as a decision is made to proceed with litigation. All
parties should then work to address the issues as quickly as
possible, preferably before the referral package is sent to
Headquarters.
The agreement with DOJ also outlines procedures for
Headquarters review of referral packages to determine whether
any significant legal or policy issues exist which would
impact filing, and the process for resolution of such issues.
If an issue surfaces during the 35-day Headquarters review
period, OECM will work for quick resolution of the issue,
with escalation as necessary to top Agency management. This
should serve primarily as a "safety valve" for those few
issues not previously identified, rather than as the point at
which issues are first raised.
Finally, if DOJ raises a significant legal or policy
issue during its review, OECM will work with the Region and
the Headquarters program office to expedite resolution of the
issue. If DOJ makes a tentative determination to return a
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referral, DOJ will consult with OECM and the Regional Office
in advance of returning the referral.
0. CASE QUALITY/STRATEGIC VALUE
OECM will evaluate Regional performance as to the
quality and strategic value of cases on a generic basis.
While OECM will not request withdrawal of an individual
referral based on concerns about quality or strategic value,
it will consider these factors during the annual audits of
the Offices of Regional Counsel and the annual Regional
program office reviews. Concerns relative to issues of
quality or strategic value will also be raised informally as
soon as they are identified.
E. WITHDRAWAL OF CASES PRIOR TO FILING
Cases should be fully developed and ready for filing at
the time they are referred to DOJ Headquarters. Thus, case
withdrawal should be necessary only under the most unusual
circumstances. If, after consultation with OECM, withdrawal
is determined to be appropriate, the Regions may request that
DOJ withdraw any directly referred case prior to filing.
Copies of the Region's request should be sent to the Assis-
tant Administrator for OECM and the appropriate program
office.
F. MAINTENANCE OF AGENCY-WIDE CASE TRACKING SYSTEM
In order to assure effective management of the Agency's
enforcement program, it is important to maintain an accurate,
up-to-date docket and case tracking system. Regional
attorneys must continue to report the status of all cases.
including directly referred cases, on a regular basis through
use of the national Enforcement Docket System. All infor-
mation for the case required by the case docket system must
appear in the docket and be updated in accordance with
current guidance concerning the automated docket system.
If you have any questions concerning the procedures set
forth in this memorandum, please contact Jonathan Cannon,
Deputy Assistant Administrator for Civil Enforcement, at
FTS 382-4137.
Attachment
cc: Hon. Roger J. Marzulla
David Buente
Nancy Firestone
Assistant Section Chiefs
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*" A ri
I M»r | UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. O.C. 20460
OFFICE OF
ENFORCEMENT AND
COMPLIANCE MONITORING
Honorable Poger J. Marzulla
Acting Assistant Attorney General
Lane! and Natural Resources Division
Washington, D.C. 20530
Dear Roger:
As you know, the Agency has been considering changes in
existing procedures to increase the effectiveness of its enforcement
program. One change, which we discussed at our recent,meeting with
you, is a major expansion of the direct referral program for civil
judicial enforcement actions, whereby such cases are referred
directly from the Regional Administrators to your office.
We believe the past successes of this program and the
increased maturity of Regional staff warrant adopting direct
referrals as the basic mode of operation. Thus, with your
acceptance, we intend to utilize direct referrals to your office
for virtually all civil cases other than those relating to certain
new statutory authorities or emerging programs where judicial
enforcement experience is limited. As such programs mature, we
will expand the scope of direct referrals to cover them. In
addition, as new programs are implemented under new statutory or
regulatory requirements, we contemplate an initial period of
referrals through Headquarters for these cases prior to their
incorporation into the direct referral process.
Based on discussions within the Agency and with your staff,
we would propose that direct referrals cover all civil cases but
those listed in Attachment A. This list includes cases in new and
emerging programs and a few, highly-selected additional categories
of cases where continued referral through Headquarters has been
determined to be appropriate. This would allow direct referral of
the vast majority of civil cases, including those which would still
require significant national coordination to assure a consistent
approach (such as auto coating VOC air cases). For this reason,
the jprocedures applicable to this small subset of cases as outlined
in the memorandum entitled "Implementing Nationally Managed or
Coordinated Enforcement Actions: Addendum to Policy Framework for
State/EPA Enforcement Agreements" dated January 4, 1985 will remain
in effect.
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For all but CERCLA cases, this expansion would be effective
on January 1, 1988. For CERCLA cases, direct referrals would take
effect on April 1, 1988. We anticipate joint issuance by our
offices of the model CERCLA litigation report prior to that date.
Also attached (Attachment B) is the outline of the direct
civil referral process as the Agency intends to implement it.
This outline refines current direct referral procedures by more
clearly focusing authority and accountability within the Agency.
Under these modified procedures, the Regional Office has the
lead on direct referrals. The Region will be solely responsible
for the quality of the referral. In this context, quality
encompasses both the completeness and accuracy of the litigation
report and the strategic value of the case. Any problems
involving case quality should be raised directly with the Region.
OECM will evaluate Regional performance as to the'quality
and strategic value of cases on a generic basis. While OECM will
not request withdrawal of an individual referral on the basis of
concerns about quality or strategic value, we are committed to
working with the Regional Offices to assure that current standards
are maintained or even exceeded in future referrals. We welcome
your input on Agency performance to assist us in this regard.
As the procedures detail, OECM (as well as the appropriate
Headquarters office) will continue to be actively involved in
identification and resolution of significant legal and policy
issues. Such issues normally should be raised and resolved prior
to the actual referral. If such an issue surfaces during the
35-day Headquarters review period, we will work for quick resolution
of the issue, with escalation as necessary to top Agency management.
During the period required for resolution, DOJ will treat the
referral as "on hold". In the unusual circumstance where an issue
is still unresolved after 60 days from the date of referral, we
would contemplate withdrawal of the referral by the Agency pending
resolution unless a formal "hold" letter has been submitted in
accordance with the procedures contained in the memorandum entitled
"Expanded Civil Judicial Referral Procedures" dated August 28,
1986.
If a significant policy or legal issue is raised by DOJ during
its review, OECM remains committed to work with the Regional and
program offices to assure expedited resolution of the issue.
Obviously, these procedures are not intended to inhibit discussions
between our offices to facilitate a resolution. In addition, if
DOJ makes a tentative determination to return a referral, we
understand that you will consult with OECM and the Regional Office
in advance of returning the referral.
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-3-
we believe this expansion in use of direct referrals represeni
a major advance in streamlining the Agency's enforcement process
and. appreciate your support in its implementation. This letter,
upon your acceptance, will supersede the letters of September 29,
1983, October 28, 1985, and August 28, 1986 on this subject and
constitute an amendment to the June 15, 1977 Memorandum of
Understanding between our respective agencies.
I appreciate your continuing cooperation and support in our
mutual efforts to make our enforcement process more effective. I
hope this letter meets with your approval. If so, please sign in
the space provided below and return a copy of the letter to me for
distribution throughout the Agency.
Sincerely,
Thomas L. Adams, Jr.
Assistant Administrator
Attachments
Approved:
L , ,.. , JAH05»W
Roger J. Marzulla ' Date
Acting Assistant Attorney General
Land and Natural Resources Division
U.S. Department of Justice
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RESPONSIBILITIES AND PROCEDURES FOR DIRECT REFERRALS
OF CIVIL JUDICIAL ENFORCEMENT ACTIONS TO THE DEPARTMENT OF JUSTICE
(1) Regional Offices have the lead on direct referrals to
the Assistant Attorney General, Land and Natural Resources Division,
Department of Justice (DOJ); Regions will be responsible for
the quality of referrals.
(2) Regions will identify any significant legal/policy issues
as soon as the decision is made to proceed with litigation. Such
issues will be raised in writing for consideration by OECM and the
appropriate Headquarters program office. All parties will attempt
to resolve such i'ssues as early as possible, preferably before the
referral package is sent to Headquarters. Regions will also flag
such issues in the cover memo transmitting the referral.
(3) At the same time the referral is sent to DOJ, it will be
sent to OECM and the appropriate Headquarters program office for a
simultaneous and independent review to determine whether any other
significant policy/legal issues exist which would impact filing.
(4) Headquarters offices will complete their reviews within
35 days of receipt of the referral. Each Headquarters office will
notify the Region in writing of any significant issues identified
or that no such issues have been identified. A copy of this
memorandum will be sent to DOJ. The Headquarters offices will
coordinate their reviews and, to the extent possible, provide a
consolidated response.
(5) If significant issues are identified and not readily
resolved, Headquarters (the Assistant Administrator for OECM),
after consultation with the program office Assistant Administrator,
may request the Regional Administrator to withdraw the case. If
the Regional Administrator and the Assistant Administrator for OECM
(and, as applicable, the program office Assistant Administrator)
are unable to agree on the appropriate resolution of the issue, the
issue would be escalated to the Deputy Administrator.
(6) If a significant issue is not resolved within 60 days of
the date of referral, the case will normally be withdrawn pending
resolution unless an appropriate "hold" letter is sent to DOJ in
accordance with the procedures contained in the memorandum entitled
"Expanded Civil Judicial Referral Procedures" dated August 28, 19R6
(document GM-50 in the General Enforcement Policy Compendium.)
(7) Headquarters will NOT request withdrawal of a referral
package for any of the following reasons:
— overall quality of referral package
-- strategic value of case
-- adequacy of documentation
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-2-
(8) If DOJ makes a tentative decision to return a referral
to.EPA, it will consult with the Regional Office and OECM prior
to making a final decision to return the case.
(9) Headquarters will evaluate on a generic basis (e.g.,
trends or repeated concerns) the quality/strategic value of a
Region's referrals. Concerns relative to issues of quality or
strategic value will be raised informally as soon as they are
identified.
(10) Headquarters oversight will be accomplished primarily
through annual program and OGC/ORCM reviews, or a_d hoc reviews
as problems are identified in a given Region.
Note; Where a re.ferral also transmits a signed consent decree
for Headquarters approval, the procedures applicable to
processing settlements shall apply in lieu of these
procedures.
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CASES WHICH WILL CONTINUE TO BE REFERRED THROUGH HEADQUARTERS
ALL MEDIA;
Parallel Proceedings — Federal civil enforcement
natters where a criminal investigation of the same
violations is pending
RCRA/CERCLA; UST enforcement
Enforcement of RCRA land ban
technology regulations
and minimum
Enforcement of administrative orders for access
and penalty cases for failure to comply with
requests for access (Section 104)
Referrals to enforce Title III of SARA, the
Community Right-to-Know provisions
TSCA/FIFRA;
Referrals to compel compliance with or restrain
violations of suspension orders under FIFRA
Section 6(c)
FIFRA actions for stop sales, use, removal, and
seizure under Section 13
Referrals to enforce Title III of SARA, the
Community Right-to-Know provisions
Injunctive actions under Section 7 of TSCA
(actions for injunctive relief to enforce the
regulations promulgated under Section 17 or
Section 6 could be directly referred)
WATER!
Clean Water Act pretreatment violations —failure
of a POTW to implement an approved local
pretreatment program
Clean Water Act permit violations relating to or
determined by biological methods or techniques
measuring whole effluent toxicity
PWSS cases to enforce against violations of
administrative orders which were not issued using
an adjudicatory hearing process
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WATER
(corrtd.) Cases brought under the Marine Protection,
Research and Sanctuaries Act (MPRSA)
UIC cases1
AIR; Smelter cases
1 The ten cases referred to date indicate that the
regulations raise interpretive issues of continuing national
significance. There also appears to be a need for greater
experience at gathering the facts necessary to prove violations
and support appropriate relief. For this reason, the first 3 UIC
cases from each Region shall be referred through Headquarters.
Ones the Associate Enforcement Counsel for OECM determines that
the Region has completed three successful referrals, the Region
may proceed to refer these cases directly to DOJ.
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UNITED STATES ENVIRONMENTAL PROTECTION
WASHINGTON. DC tMM
W28J9B3
MEMORANLOM
SUBJECT: Implementation of Direct Referrals for Civil
Beginning December 1. 1983
FROM: Courtney M. Price(j
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-2-
Manv of the procedures for direct referral cases are
Adequately explained la the September 29th agreement*
However, there are aoae points' I want to emphasize.
Referral package* should be addressed to Mr. f. Henry
RaMcht, II, Assistant Attorney General, Land and Natural
Resources Division, U.S. Department of Justice, Washington.
D.C. 20530, Attention: Stephen D. Ramsey. The tine 1 in its t ions
set, forth in the agreement for review and initial disposition
of the package will commence upon receipt of the package in
th« Land and Natural Resources Division, and not at the DOT
mailroom. Delivery of referral packages to the Land and
Natural Resources Division will be expedited by use of
express mail, which is not commingled with regular mail in
DOJ's mailroom.
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
el«)«nts:
(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 ttatenent 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(t), including any
previous administrative enforcement actions taken;
(g) lead Regional legal and technical personnel;
(h) any other aspect of the case which is significant and
should be highlighted, including any 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.
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Ai provided in the September 29. 1983, agreement,
information copies of the referral package may he provided
to the U.S. Attorney for the appropriate Judicial district
In which the proposed case nay be riled. These information
packages should be clearly labelled or stamped with the
following vords: "Advance Copy — Mo Action Required At
This Tine1*. Also, Information copies should be simultaneously
provided to the appropriate OECM division at Headquarter*.
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
OECM's Office of Management Operations for inclusion in the
automated case docket system when Headquarters informational
copy is received at OECM's Correspondence Control Unit.
Department of Justice Responsibilities
DQJ 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 Headquarter!, it will
determine whether Headquarters DOJ or the U.S. Attorney
will have the lead litigation responsibilities on • 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 die
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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The Deputy Administrator hat expressed concern in the
past en the maber of cases returned to che Regions or
declined by EPA or DOJ. 1 have aaaured 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
enforcanent 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, aa resources permit, may be able to assist la
case development or negotiation of these eases. 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 alao maintains an oversight responsibility for
repo
the status of these cases on a regular basis through use
these cases. Therefore, Regional attorneys must reort
a reg
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 At torn i
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-
Within twenty-one days from the date of receipt of the
settlement by the appropriate OECM division, l will either
sign the settlement and trantnit it to DOJ with a request
that the settlement be entered, or tranrait 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
agrees en t 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 vill 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 may result in rejection
of a proposed settlement which has been approved by the
defendant(s) and the Regional office*
I vill also continue to concur in and forward to DOJ
all requests for withdrawal of cases after referral* In
addition, I 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 HOT 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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-€-
Within this twenty- one day period, OECM will decide
whef-her to refer the case to DOJ (OECM then has fourteen
additional day* to formally refer the case) , to return the
casft to the Region for further development, or to request
additional information from the Region.
Because of this rfhort OECM review period, emphasis
should be placed on developing complete referral package*
•o that delay occasioned by requests for additional Infor-
mation from the Region will be rare. OECM Bay refer a case
to EOJ which lacks sane information only if the referral
can be supplemented with a minimum ol tine end effort by
in fora at ion 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 ia 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's 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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UNITED STATES CMVIROUMEKTAL PROTECTION A3EKCY
Honorable T. Henry Babiebt* XX
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 vesting on Thursday* September 1," 19B4-* •<
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*
IPX'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 ares
X. The Assistsnt 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 casesi
(a) Cases under Section 1414(b) of the Safe Drinking Water
Act which involve violations of the National Interim
Primary Drinking Water Regulations, much as reporting or
monitoring violations, or maximum contaminant violationai
*
(b) The following cases under the Clean Water Acts
•
ft) cases involving discharges without a permit
by industrial dischargersi
•T , •"• ** . •
(ii) all cases againstminor industrial dischargers!
fill) eases'involving failure to monitor or report by
' industrial dischargers!
-------
referrals to collect stipulated penalties f
industrials under consent decrees*
referrals to collect administrative spill penal tiea
under Section 311 (J) of the CWA|
lei All eaaea iind*r the Clean Air Act except the following
: (i) cases involving the steel industry!
• ( •
(ii) cases involving non-ferrous
(iii) eases involving ••tionsl Cnissions Standards for
flazardous Air Pollutants i ••
* • .-
liv) casts involving the post-1982
-------
fill) DQJ shall, within 30 days froa receipt of the
referral packa9*, deteraine (1) whether the Lends
Division of "DOJ will have lead responsibility for
the eases or (2) whether the OSA will have lead
responsibility for the caee.
l.'re- »
While ft is agreed that to the extent feasible,
cases in which the OSA vilJ have the lead will be
transmitted to the DSA for filing and handling
within this 30-day period, if DOJ determines that
the ease requires additional legal or factual
development at DOJ prior to referring the matter
to the OSA, the ease Bay be returned to the
Regional Office, or Bay be retained at the Lands
Division of DOJ for further development, including
requesting additional information froa the Regional
Office. Zn any event, DOJ will notify the Regional
Office, OEQt and the OSA of its determination of
the lead role within the above-aentioned 30-day
period.
(iv) Regardless of whether DOJ or the OSA is deterained
to have lead responsibility for management of
the case, the procedures and time limitations set
forth in the HOU and 28 CFR fO.65 et seq., shall
remain in effect and shall run concurrently with
the Banageaent determination! Bade pursuant to
this agreeaent.
3. (a) All other eases not specifically described in paragraph
1, above, which the Regional Offices propose for judicial
enforcement shall first be forwarded to OECM and the
appropriate Headquarters program office for review.
A copy of the referral package shall be forwarded siBiil*
taneously by the Regional Office to the Lands Division of
DOJ and to the OSA for the appropriate judicial district,
the USA's copy being Barked 'advance copy-no action required
at this time.* .
(b) OECM shall review the referral package within twenty-one
(21) calendar days of the date of receipt of said package
froa the Regional Administrator and shall, within said
tiae period, Bake a determination of whether the ease
should be (•) formally referred to DOJ, (b) returned to
the Regional Administrator for any additional developaent
which Bay be required; or (el whether the Regional
Administrator should be requested to provide any additional
material or information which Bay be required to satisfy
the necessary and essential legal and factual requirements~
for that type of case.
-------
(el Any request for Information, or re-tarn of the
to the ftegion shall b« transmitted by appropriate letter
or memorandum signed by the AA for OECH (or her design**)
within the aforementioned twenty-one day period. Should
OECN concur la the proposed referral of the caae to DOJ*
the actual referral shall be by letter from the AA for
OECH (or her deaignee) signed within fourteen days of
the termination of the aforeaentioned twenty-one day
review period. Copies of the letters referred to herein
shall be sent to the Assistant Attorney Central for the
Lands Division of DO3. .
»'. ' ••:. ' ' •'•"• •"•'• ••'"'."
(d) Upon receipt of the referral package by DQJ, the
procedures snd time d tad lines set forth in paragraph
Mo. 8 of the MOU shall apply.
* , •
In order to allow sufficient tiat prior to implementation of
this iigreement to suite the U.S. Attorneys, the legions!' Of f ices
and our staffs aware of these provisions , it is agreed that this
agreement shall becoae affective December 1, If 83. Courtney Fries
will Distribute s aeaorandua within EPA explaining this agreement
and how it will be implemented within the Agency, (you will receive
a cop}/.) .'...- _
»>.• . '• . •
;t believe that this agreeaent will eliminate the necessity cm
formally amending the fleaorandum of Understanding between our ^
respective agencies* and will provide necessary experience to
ascertain whether these procedures will result in significant
savings of time snd resources. In that regard, 2 have asked
Courtney to establish criteria for measuring the efficacy of this
agreement during the one year trial period, and I ask that you
cooperate with her in providing such reasonable and necessary
information as she may request of you in making that determination.
At th<> end of the trial period—or at any time in the interval— •
we may propose such adjustments in the procedures set forth bereia
as may be appropriate based on experience of all parties.
It is further understood that it is the mutual desire of the
Agency and DOJ that eases be refsrrsd to the USA for filing as
•xpeditiously as possible. '
I appreciate your cooperation in arriving at this agreement.
If this meets with your approval, please sign the enclosed copy
in the space indicated below and return the copy to me for our
. . .
-*<.£ y Sincerely yours
Alvin L. Ate
Deputy Administrator
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GM 70
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
JAN I 4 1988
OFFICE OF ENFORCEMENT
^SDCOMPLIANCE
MONITORING
MEMORANDUM
SUBJECT: Delegation of Concurrence and Signature Authority
FROM: Thomas L. Adams, Jr. VJL v
Assistant Administrator"— *N**""OW»' V
TO: Associate Enforcement Counsels
Regional Counsels
As part of our continuing effort to streamline the
enforcement process, OECM has been seeking ways to move cases
quickly through our office while maintaining the ability to
identify and participate in decisions involving significant legal
and policy issues. In order to streamline our internal review
process, I hereby redelegate the following concurrence and
signature authorities to the appropriate Associate Enforcement
Counsels:
Redeleqated Authorities
1) Concurrence authority for all categories of CERCLA referrals
except:
a) actions to enforce administrative orders for
access under CERCLA Section 104
b) actions for failure to comply with requests for
access under CERCLA Section 104
c) actions to enforce Title III of SARA, the
Community Right-to-Know provisions
-------
2] Direct Referral*
a) Concurrence authority for all direct
referrals shall be redelegated to the
appropriate Associate Enforceaent Counsels.
b) The authority to recoaaend withdrawal of a
direct referral shall reside with the
Assistant Administrator for OECM, after
consultation with the appropriate
Headquarters prograa office.
3) Signature of Consent Decrees
a) Signature authority for consent decrees shall
be redelegated to the Associate Enforceaent
Counsels, with concurrence by the appropriate
Headquarters prograa office as required
by current delegations, for the following
categories of cases:
(1) actions seeking only the collection of
penalties based on previously assessed
administrative orders;
(2) actions for access to property;
(3) information collection actions;
(4) proofs of claia in bankruptcy actions.
b) Signature authority for all other consent
decrees shall continue to reeide with the
Assistant Administrator for OECM, with
concurrence by the appropriate Headquarters
prograa office as required by current
delegations.
Although the AZC'a will have primary responsibility for
these redelegated items, it is important that the Assistant
Administrator and Deputy Assistant Administrator* be kept
informed of all major legal or policy issues and important trends
in Regional enforcement efforts. Thus, in connection with these
redelegations, the following procedures should be followed:
) Each Division's weekly highlights will include a brief
summary of each direct referral received during the pre s
week'. - J /
-------
2) For wh direct referral with which the AEC concurs, _eo.p\aa_
of tte concurrence memorandum, checklist^and any other
docuMnt sent to the Region in connection with the direct
referral will be circulated to the Assistant Administrator
for OECM. A copy of the concurrence memorandum should also
be sent to the Assistant Attorney General for Land and
Natural Resources.
3) Where a recommendation to withdraw the referral is deemed
appropriate, the AEC will prepare the following materials:
a) a memorandum from the AEC to the
Assistant Administrator for OECM
containing a detailed discussion of the
reason for requesting that the case be
withdrawn; and
b) a memorandum from the Assistant
Administrator for OECM to the Regional
Administrator which outlines the basis
for requesting that the case be
withdrawn. After signature by the
Assistant Administrator, a copy of this
memorandum should be sent to the
Assistant- Attorney General for Land and
Natural Resources.
These redelegations shall become effective immediately.
cc: Deputy Administrator
Deputy Regional Administrators
Deputy Assistant Administrators for OECM
Headquarters Program Office Enforcement Directors
OECM Attorneys and Supervisors
-------
GM 71
-------
m)
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, O.C. 2M44
OMICIO*
MAR I M988
MEMORANDUM
SUBJECT: Case Management Plans
FROM:
TO:
Thomas- L. Adams, Jr.
Assistant Administrator for Enforcement and
Compliance Monitoring (OECM)
U.S. Environmental Protection Agency (HPA)
i"V <.? * '7vN y
Roger J. Marzulla I V.L \_ f ' I ] •
Acting Assistant Attorney General
Land and Natural Resources Division
U.S. Department of Justice (DOJ)
EPA Regional and OECM Attorneys
EPA Regional Program Office Personnel
Environmental Enforcement Section Attorneys
DOJ Division of Land and Natural Resources
The environmental enforcement cases initiated by the United
States Environmental Protection Agency (EPA) and the United
States Department of Justice (DOJ) are characterized by their
complexity, their significant demand on resources, and the
participation of numerous legal and technical people from many
offices. Nearly all cases present major challenges to EPA and
DOJ, and in some instances can take several years to bring to
conclusion. In order to achieve the best possible results in the
shortest time, with the most efficient use of resources, both EPA
and DOJ will be implementing a number of measures to promote the
effective handling of cases.
Case management plans represent a mechanism to enhance
the effectiveness of the environmental enforcement program.
Case management plans are plans for the conduct of environmental
enforcement cases which provide a road map for bringing a case
-------
-2-
from its initiation to a successful conclusion. The primary
elements of the plans include the tasks to be performed, the
people assigned to perform the tasks, and the dates by which the
tasks are to be completed. Case management plans include both
the litigation and negotiation elements of the case, and the
legal and technical tasks to be performed.
With the number of people involved in cases, it is
essential to establish as early as possible which litigation
team members will be responsible for what tasks and when these
tasks will be completed. Because OOJ is primarily responsible
for management and control of the case, it will have the lead
role in establishing the case management plan. Attorneys in the
regional offices, the Office of Enforcement and Compliance
Monitoring, and in some cases U.S. Attorney's Offices, also play
significant roles in the cases, as do EPA technical staff;
therefore, they will participate in the development of the plan.
The case management plan will, to the maximum extent practicable,
reflect the agreement among members of the litigation team as to
how they will bring the case from its initiation to a successful
conclusion.
OOJ has developed the attached form covering the legal
assignments for the litigation elements of case management plans
This form is comprehensive and will be used for all cases
beginning April 1, 1988. The form will be used as follows.
Regional attorneys and regional program staff who are
preparing litigation reports should indicate their availability
for case work assignments in a draft case management plan when
the case is referred. The attorney should use the standard OOJ
foni, and should propose assignments for the regional attorney
and regional technical staff which include only those tasks which
regional supervisors and managers consider appropriate for the
individuals assigned to perform them. The form, as submitted by
the region, will not address assignments for DOJ attorneys or
Assistant U.S. Attorneys. The draft case management plan should
also reflect the regional attorney's initial thinking concerning
the strategy and timetable for litigating and negotiating the
casci, although at this point in the development of the case, the
draft plan may not contain much detail.
During the period assigned for its review of the referral,
OECM will propose to DOJ, after discussion with the region, any
assignments which management considers appropriate for the OECM
attorney assigned to the case. The DOJ attorney should then, in
consultation with EPA, complete the case plan for litigation and
negotiation. It is important for the DOJ attorney to initiate
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-3-
development of a strategy and timetable for the case, in concert
with the other members of the litigation team. The team's
members should assure support for the plan by their respective
supervisors. The plan should reflect a realistic assessment of
the resources (including technical and contract dollar resources)
available to support the case, and team members should be
assigned responsibility for actually obtaining the resources
contemplated by the plan. The DOJ attorney should have a case
plan in place by the date of filing of the complaint, addressing
the roles of DOJ, the Assistant U.S. Attorney, and regional and
headquarters legal and technical staff.
Because litigation and negotiation of environmental
cases is a dynamic process, initial projections of tasks in a
case plan will need to be revised on a periodic basis. In order
to keep the case plan up to date, but, at the same time, avoid
undue consumption of the litigation team's- time, the case plans
will be updated on a quarterly basis. " The case plans will serve
as the primary discussion documents for the legal and technical
staff and their first-line supervisors in periodic case reviews.
The plans also will be used as a guide to managers interested in
the general progress of a case. In order to facilitate the best
use of the case management plans, DOJ will work towards
developing a means of incorporating the plans in its case docket
system.
If prepared and used properly, case management plans can
help assure effective and efficient management of complex
cases and available resources.
-------
Date
PRELIMINARY CASE PLAN
Case Name:
Statutes:
U.S. v,
DJ #90-
Nature of
VtoLicion/Claims
Litigation Team:
DOJ/LNRD:
DOJ/AUSA:
EPA/KG:
EPA/OECM:
A,
EPA Region:
District:
EPA/Reg. Program
EPA/HQ Program
State Repc
General Breakdown of Case Responsibilities
Assignment
lo General Oversight and Case Management
-- Review of all briefs and other
filings; consultation on litigation
and negotiations strategy
2» Principal Contact with Defendant(s)
on Litigation Matters
3. Principal Contact with Defendant(s)
Regarding Settlement
4. Development of Technical Proof
[List needs for liability and
remedy case; assign by need]
5. Selection and Development of Expert(s)
[List needs]
6. Development of Liability Case */
[List elements; assign by element]
7. Development of Remedy Case
[Break down; assign by element
where possible]
Name
DOJ Attorney
(or AUSA) '
-------
- 2 -.
B. Preliminary Discovery Plan
Name
Date
2.
Offensive Discovery
a~. First Sec ot Interrogatories
b. First Set of Production
Requests
c. First Set of Requests for
Admissions
d. Forseeable Offensive Depositions
[List each deponent and assign
by deponent]
Defensive Discovery
a. Responses to Written Discovery
b. Depositions
C. Preliminary Motions Plan
IT U.S. Motion to Strike Jury Trial Demand
2. U.S. Motion to Strike Defenses V
3. U.S Motion for Partial Summary
Judgment V
4. U.S. Motion for Case Management Order
(if appropriate)
To be assigned as they
are noticed
5.
Analyze Answer/Morion to Disroiss V
6. Response to Motion to Dismiss V
D. Preliminary Settlement Plan
[List near- term events and tasks
relating to settlement; assign
as appropriate]
E. Deadline for First Revision and Expansion
V In multiple defendant cases, list each defendant and assign by defendar
in single defendant cases, assign by liability element.
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GM 72
-------
I UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
f WASHINGTON, DC 20460
APR 8 1168
MEMORANDUM
SUBJECT: Assuring Timely Filing and Prosecution of Civil
Judicial Actions
FROM: Thomas L. Adams, Jr.
Assistant Administrator
TO: Regional Administrators, Regions I-x
Regional Counsels, Regions I-X
This memorandum continues the efforts we have been making
to clarify the responsibilities of Headquarters and Regional
Offices in assuring an effective civil judicial enforcement
program. It was developed in cooperation with the Enforcement
Management Council.
Consistent with the approach taXen in my memorandum of
February 8, 1988, entitled "Responsibilities for Assuring
Effective Civil Judicial Enforcement", the Regional Offices
have primary responsibility in the vast majority of cases for
taking whatever actions are necessary to secure timely filing
and prosecution of civil judicial enforcement actions. This is
part of the responsibility of the lead Agency attorney,
typically a Regional attorney, and his or her supervisors.
This responsibility includes working with the Department of
Justice attorney assigned to the case (and, as necessary, the
Assistant U.S. Attorney), monitoring the status of cases at DOJ
to assure tbat they are filed in a timely manner, following up
direct ly.uttfc-DOJ management to resolve problems or expedite
action vttlfejt case is not moving along in a manner consistent
with a MNlBy filing target, alerting OECM whenever problems
exist iilMli%)ilTii nil mi to delay significantly a filing or when
OECM (orf£rogram office) assistance is required, monitoring the
progress of filed cases (through active participation and use
of the case management plan) to assure that negotiations and
litigation are proceeding acceptably, and maintaining current,
complete and accurate information about the case in the
Agency's enforcement docket system.
-------
OECM, working with the Headquarters program offices, is
charged with the responsibility for assuring the overall
effectiveness of the Agency's judicial enforcement program. To
carry out this responsibility, OECM plans to monitor the status
of both unfiled and filed civil cases, primarily through the
enforcement docket system. To help monitor progress and assure
timely filing of civil cases, each Associate Enforcement Counsel
win discuss witn the Regional Counsel or Deputy Regional Counsel
the status of any case which had been pending unfiled at the
Department of Justice for at least 120 days as of the end of the
preceding month. This will allow for a full discussion of any
problems with the case, actions taken by the Region to get the
case filed or to otherwise resolve the problems, and any further
actions which the Region or OECM can take. (If problems exist,
the Region is encouraged to contact OECM or the program office
earlier than the 120-day point if Headquarters can be of
assistance in expediting filing of the referral). These
discussions should be useful not only in expediting the
particular case but also in determining whether any broader
problems exist which need to be addressed. Cases presenting
particular difficulties may also be put on the agenda for a
subsequent monthly enforcement conference call conducted by the
Deputy Assistant Administrator for Civil Enforcement^'
For filed cases, I have asked each of the Associate
Enforcement Counsel in OECM to develop an appropriate periodic
audit mechanism, working with their Regional and program
counterparts and the Department of Justice. Further guidance o
this subject will be provided later.
I look forward to working with you on our continued efforts
to assure an effective judicial enforcement program. If you have
any questions about this memorandum, please contact Ed Reich at
FTS 382-4137.
cc: Deptfgy Regional Administrators, Regions l-x
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GM 73
-------
3 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
/ WASHINGTON. O.C. 20460
APR I 3 c:3
#73
office of
ENFORCEVIf.M AND
COMPLIANTt wONiro«i»iG
MEMORANDUM
SUBJECT: Process for Conducting Pre-Referral Settlement
on Civil Judicial Enforcement Cases
FROM: /orThomas L. Adams, Jr.
Assistant Administrator for Enforcement
and Compliance Monitoring
TO: Regional Administrators
Deputy Regional Administrators
Regional Counsels
Associate Enforcement Counsels
HQ compliance Office Directors
This memorandum transmits to you an agreement between EPA
and the Department of Justice on an authoritative process for
conducting pre-referral settlement negotiations of non-Superfund
civil judicial enforcement cases. A separate process, reflecting
the same basic concepts but recognizing the unique features of
Superfund, is being developed jointly by OECM, OWPE and the
Department of Justice.
This agreement addressess one of the judicial enforcement
streamlining initiatives identified by EPA's newly-formed
Enforcement Management Council at recent meetings in Easton,
MD. The major objective of this initiative is to promote
efficient and expeditious resolution of civil enforcement cases
on appropriate terms. The mechanism developed for doing this
is the attached set of protocols, which establish a process for
providing • Regional office with pre-authorization to negotiate
settlement with a potential defendant on behalf of the United
States before resorting to the full-scale referral/litigation
process. Typically, a Region will have the option of deciding
whether to invoke this procedure for a given case or to proceed
immediately to the referral process.
-------
? UNITED STAT£S ENVIRONMENTAL PROTECTION AGENCY
y* WASHINGTON. DC 20460
'"-c^ MAR -9 1968
O<
Honorable Roger J. Marzulla co*»nyw.rkM«^,
Acting Assistant Attorney General
Land and Natural Resources Division
U.S. Department of Justice
Washington, D.C. 20530
Dear Roger:
This letter requests your concurrence in the enclosed
"F'rocess for Conducting Pre-Referral Settlement Negotiations"
which EPA and the Department of Justice will employ as part of
our joint efforts to streamline the United States' civil judicial
environmental enforcement program.
This initiative is intended to build on successes we have
stten in pilot projects using pre-referral settlement negotiations.
More specifically, the primary intent of establishing in a
formal manner these joint procedures is:
1. to expedite the resolution of civil enforcement cases
on satisfactory terms which support the public interest, and
2. to allow the United states to accomplish this objective
in a resource-efficient manner.
To these ends, the procedures established here identify
appropriate milestones and timetables for conducting pre-referral
settlement negotiations which are reasonable management targets
in straightforward environmental enforcement cases.V The more
routine the case (i.e., no complicated factual issues or unusual
t<»rms of settlement), the more likely the government will be
able to apply this framework for expeditious, efficient case
resolution.
V This process does not apply to Superfund cases. Pre-referral
negotiations procedures, taking into account specific statutory
requirements, will be developed separately. EPA and the
Department have agreed to evaluate the potential for adapting
these procedures to the Superfund context.
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-2-
Please note that Regional counsels will receive workload
credit for a case which a Region has opened for negotiation
with a mini-lit report under these protocols, even if EPA has
not formally referred the case with a full-scale lit report to
DOJ for filing. Regional Counsels, however, are responsible
for having their docket clerks make appropriate case entries on
EPA's Enforcement DOCKET system in the "Cases Opened" category.
These cases would move to the "Cases Initiated" category once
the Region forwards to DOJ a full lit report or settlement
document for filing.
Naturally, as an Agency we will have to pay close attention
to implementation of this process to ensure that it is successful
in achieving settlements on appropriate terms more expeditiously.
Thanks in advance for your cooperation as we move forward to
implement these pr-ocedures.
Attachment
cc: Jim Barnes, EPA HQ
Roger Marzulla, DOJ
David Buente, DOJ
Jerry Bryan, EPA HQ
Tom Gallagher, EPA-NEIC
Sally Mansbach, EPA HQ
-------
-2-
The guidance identifies the areas which a Region must
address in a mini-lit report to initiate the pre-referral
negotiation process. All participating offices will need to
work together to strike an appropriate balance in deciding how
mjch detail this information should cover to facilitate informed
review or quick filing if negotiations break down, yet still
allow for productive negotiations to commence quickly, in
most cases, Regional submission of a draft consent, decree based
upon available program-specific models is likely to produce
easier, quicker approval of proposed settlement terms and final
consent decrees.
It vill remain important for representatives of all
participating offices to maintain continuous, open lines of
communication to permit these procedures to attain their
objectives. Offices still will work out their respective roles
on a case-by-case basis, although this guidance sets out norms
to help make these determinations. Furthermore, the appropriate
Assistant Section. Chief at DOJ will be responsible for working
out the extent of U.S. Attorney involvement in pre-referral
negotiation activities consistent with these procedures and
ti!me lines. In any event, it remains crucial for EPA and the
Department to monitor the use of these procedures diligently to
affirm that they indeed result in a more effective, efficient
enforcement effort. We nevertheless understand that because we
have pressed to institute these new procedures quickly, both
EPA and the Department will need additional time to modify
computer systems to track adequately adherence to these protocols
Thank you for the Department's support of our mutual work
in this area. Please indicate your approval of this process
in the signature blank below and return a copy of your signed
approval to me, or give me a call if you have any
questions.
Sincerely,
Thomas L. Adams, Jr.
Assistant Administrator for Enforcement
and Compliance Monitoring
Enclosure
I concur in the enclosed "Process for Conducting Pre-Referral
Negotiations."
\
14
So,ger J. Marzalla (Date)
Acting Assistant Attorney General
Land and Natural Resources Division
U.S. Department of Justice
-------
PROCESS FOR CONDUCTING PRE-REFERRAL
SETTLEMENT NEGOTIATION
Should a Region wish to use this process, the RA or his/her
delegate will initiate the process as is done presently for
referrals by sending simultaneously to OECM, the HQ Program
Compliance Office and DOJ a mini-lit report/case summary
(typically 5-10 pages) which summarizes:
a. defendant and its enforcement history
b. summary of violation(s) at issue or cause of action
(including known environmental impact)
c. summary of available evidence
d. noteworthy legal and equitable defenses
e. significant contacts with defendant (by EPA and/or the
State)
f. any legal or other significant action by the State,
local agencies, or citizen groups
g. proposed terms of settlement--present view of bottom
line, (including up-front and stipulated penalties,
scope of relief, compliance schedule and any releases
of liability) supporting rationale, and penalty
calculation in accordance with the penalty policies
h. legal, policy or other issues/strategic considerations
of primary significance to the government or bearing
on appropriate terms of settlement or the conduct of
litigation
i. milestones for negotiation and filing, covering all
parties to the lawsuit
j. potential for criminal prosecution or investigation
k. what participation the Region requests from HQ and
DOJ in negotiations beyond what these procedures call
for.
A proposed draft consent decree to use to open negotiations
must accompany the mini-lit report. EPA's computer DOCKET
system will begin tracking these cases once the Region sends
its mini-lit report to HQ and
I/ As an alternative to filing a mini-lit report at the start
of this process and a full lit report later on if negotiations
do not reach a timely settlement, a Region may choose instead
to file a full lit report at the start of the process, and
follow that with a simple update if pre-referral negotiations
do not crod'jce a settlement.
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-2-
II. DOJ, OECM and the Program Office will provide comments on
the proposed case, their interest in oarticipating because
of national issues, terms of settlement, further contact
point, and negotiation/litigation strategy to the Region
within 21 days*/ of receipt. Participating offices should
initially conve"y or subsequently confirm their comments
in writing. If necessary, comments will also address
whether unique circumstances in a case indicate that the
proposed pre-referral settlement negotiation process is
not appropriate for the case. HQ Offices will coordinate
during their review and wherever possible, OECM will
consolidate the comments into a coordinated response. A
simultaneous discussion among all litigation team members
may be particularly helpful to identify and resolve
outstanding issues. Upon response, the Region will have
authority to negotiate a settlement consistent with
pre-approved terms.
a. The region will keep HQ and DOJ apprised of changes in
the course of negotiations to the extent there is a desire
to deviate from key pre-approved terms {e.g. bottom-line
penalty, scope of relief, compliance schedule and
requirements, releases of liability) and will circulate to
the HQ and DOJ contacts for clearance successive re-drafts
of the decree before forwarding these redrafts to opposing
counsel, consistent with present practice for post-filing
negotiations. HQ and DOJ contacts will have a seven-day
target, but sooner if possible, for responding to re-drafts
in which the Region has clearly identified changes from
prior versions. Regions should also keop HQ and DOJ
generally informed of the status of ongoing negotiations.
b. If settlement in principle is not reached within
90 days of the latter of DOJ/HQ responses to the mini-lit
report, the Region will, within 30 days, submit a full lit
report to DOJ (copy to OECM and HQ program office), unless
otherwise agreed. The Regional Counsel, in consultation
with the appropriate Regional Division Director, may
invoke a 30-day extension to the 90-day period in exceptional
cases upon consultation with the appropriate OECM Associate
Enforcement counsel. Moreover, at any point in this
90-day period, the Regional Counsel, in consultation with
the appropriate Regional Division Director, may "remove" a
case iron this process for the purpose of placing it on a
filing track. In such a situation, the case will be
handled as a normal referral and the Region will submit
the full litigation report.
2/ All time periods are in calendar days,
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-3-
c. DOJ will have a management target of filing the case
within 45 days of receipt of a complete lit report unless
new issues emerge based upon more complete case development
or unless the case is settled in principle before that
deadline.
d. If settlement in principle is reached, the Region will
within 20 days submit a final draft consent decree to HQ
and DOJ for review. HQ/DOJ will review and comment to the
Region within 15 days of receipt. Within 45 days of
HQ/DOJ response (unless otherwise agreed), the Region will
submit a signed consent decree with cover letter explaining
the rationale supporting the settlement to HQ (copy to
DOJ) for approval.
III. EPA HQ will, within 21 days from receipt of a signed
consent decree with supporting documentation/rationale,
act on (approve or disapprove) civil settlements which are
within preapproved terms as initially set forth or as
modified over the course of negotiations.
IV. Simultaneous with submission to EPA HQ, Regions will send a
copy of the consent decree to DOJ to initiate a simultaneous
review. DOJ will have a management target of 21 days from
receipt of a signed consent decree from EPA HQ to act on
(lodge or disapprove) civil settlements which are within
pre-approved terms as initially set forth or modified over
the course of negotiations.
V. DOJ will have a management target of 45 days from the date
of lodging to move a court for entry of a consent decree,
assuming no significant public comment. If 45 days cannot
be met because of significant public comment, DOJ and EPA
will agree on a process and timetable for response.
A flow chart of the proposed time lines is attached to assist
the reader. The procedures set out in this document are intended
solely for the guidance of government personnel. They are not
intended and may not be relied upon to create any rights,
substantive or procedural, enforceable by any party in litigation
with the United States. The United states reserves the right
to act at Variance with these procedures and to change them at
any time without public notice.
Attachment
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PRE-REFERRAL SETTLEMENT NEGOTIATIONS TIME LINE
>DAy 186***
Mini-Lit
Report to
•OBCM
•DOJ
•HO Prog
ofc.
Pull
•* 30 Days Litigation
P[ Rpt. to
I [ DOJ and HO
SI
I
Comment O[
By HQ and N(
21 days DOJ To 90 days*!
Regions |
S(
K
p[**
I
R(
El
A(
C[ Final CD
H[ 20 Draft CD 15 HQ/DOJ 45 Submit to
days To HQ/DOJ days Resp. days HQ fc DOJ
Case
45 days Filed
HQ C.D
21 Appv. 21 Lodqe<
days to DOJ days w/cr
45
days
Ct fo
Entry
of CD
>DAY 278
***
*The Regional Counself in consultation with the appropriate Regional Division Director, may invoke a 30-day extension
to this 90-day period in exceptional cases upon consultation with the appropriate Associate Enforcement Counsel
••SIP • Settlement in principle
**These total times do not account for the time it takes to transmit reports or final settlement documents between
offices. The total times also may be extended by 30 days where an extension to the negotiating period Is invoked.
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GM 74
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I MU.DM VTKs I \\IRO\\IFNT\I. PROTECTION -\CENCY
JH25
MEMORANDUM
SUBJFCT:
F»OM:
TO:
Guidance or. Certification
Enforcement Agreements
of Compliance with
Thomas L. Adams, Jr.
Assistant administrator for Enforcement
and Compliance Monitoring
Assistant Administrators
Reoional Administrators
Regional Counsels
\
I.
BACKGROUND
Over the past several years, EPA has initiated record
numbers of civil judicial and administrative enforcement actions.
The vast majority of such actions have been resolved by judicial
consent decree or administrative consent order.
The terms of many of these settlements require the violator
to oerform specific tasks necessary to return to or demonstrate
comoliance, to accomplish specific environmental cleanup or other
remedial steps, and to take prescribed environmentally beneficial
action.
Settlement agreements typically specify that the violator
oerform certain reauired activities ana thereafter report their
accomolishment to EPA. Verification that the required activities
have actually been accomplished is an essential element in the
overall success of the Agency's enforcement program.
II. PURPOSE
The focus o* this advisorv auidance is or. verification of
comoliance with settlement aareements wnicn ceauire specific
oerformance to achieve or maintain compliance with a regulatory
standard. EPA has onaoina responsibility for ensuring that
settlina parties are in comnliance with the terms of their
neaotiat«»
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-2-
The inspection programs of EPA and other federal regulatory
agencies are based of necessity on the concept that .a limited
number of regulated facilities will be inspected each year.
Conversely, this means tnat a large number of regulated parties
can operate for extended periods of time without'being the
suerject of an on-site inspection by EPA staff. Hence, it is
crucial to ensure that all reauired compliance reports are
received from the. regulated facility in a timely manner. In
addition--and eaually as imoortant—timely review of such
reports must oe undertaken by EPA to ensure that the reports
are adeauate under the terms of the settlement agreement.
EPA experience shows that the majority of regulated parties
make aood faith efforts to comely with their responsibilities
uncier the environmental laws and regulations. Nevertheless, the
Agency must have effective monitoring procedures to detect
instances of noncompliance with a settlement agreement. A vital
component of these orocedures will be to ensure that the environ-
mental results obtained in the enforcement action are indeed
achieved and that criminal sanctions, where appropriate, are
available to respond to instances of intentional misrepresentation
or fraud committed by such violators.
EPA will ensure that all responsible officials entering
into settlement aareements with the Agency are held accountable
for their subseouent actions and the actions of any subordinates
responsible for the information contained in compliance reports
submitted to the Agency.
I XI. GUIDANCE
A. Certification by Responsible corporate Official
The terms of settlement agreements, as well as any certifi-
cation language in subsequent reports to the Agency, should
be drafted in a manner to trigger the sanctions of 18 U.S.C.
«1001,J[/ in the event that false information is knowingly and
willfully submitted to EPA. Submission of such false information
._!/ United States Code, Title 18, Section 1001 provides:
"Whoever, in any matter within the jurisdiction
of any deoartmer.t or agency of the United states know-
ingly and willfully falsifies, conceals or covers up
by trick, scheme, or device a material fact, or makes
any false, fictitious or fraudulent statements or
reoresentations, or makas or uses any false writing
or document knowing the same to contain any fa.lse,
fictitious or fraudulent statement or entry, snail be
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-3-
mav also expose the defendant(s) in judicial consent decree
falsification Incidents to both civil and criminal contempt
proceedings.
This provision of law is a key sanction within the federal
criminal code for discouragina any person trom intentionally
deceivina or misleadinq the united states government.
!• Signatories to Reports
Settlement agreements should specify that all future reports
by the settling party to tne Agency, which purport to document
compliance with the terms of any agreement, shall be signed by
a responsible official. The term "responsible official" means
as follows:.2/
a. For a corporation; a responsible corporate
officer. A responsible corporate officer means: (a) A president,
secretary, treasurer or vice-president of the corporation in
charge of a principal business function, or any other person who
performs similar policy- or. decision-making functions for the
corporation, or (b) the manager of one or more manufacturing,
production, or operating facilities employing more than 250
persons or having gross annual sales or expenditures exceeding
S35 million (in 198? dollars when the Consumer Price Index was
345.3), if authority to sign documents has been assigned or
delegated to the manager in accordance with corporate procedures.
b. For a partnership or sole proprietorship; a
general partner or the proprietor, respectively.
2. When to Require a Certification statement
The requirement for an attestation by a responsible
official is always useful as a matter of sound regulatory
manaaement practice. Such a requirement is more urgent,
(Note 1, cont'd)
fined not more than $10,000 or imprisoned not more than
five years, or both.
N
There ar» four basic elements to a Section 1001 offense: (1) a
statement; (2) falsity; (3) the talse statement be made "know-
inaly and willfully"; and (4) the false statement be made in a
"matter within the jurisdiction of any department or agency of
the United states", united States v. Marchisio, 344 F.2d 653,
666 (2d Cir. 1965) .
2/ For NPDFS matters, the definitions of "responsible official"
and "certification", as set forth in 40 CFR $122.22, may be used
as alternative lanauaae to this auidance.
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-4-
however, where a regulated party has a history of noncompliance
or whertt prior violations place one's veracity into question. 3/
3. Terms of a Certification Statement
An example of an appropriate certification statement for
inclusion in reports submitted to the Agency by regulated parties
who are signatory to a settlement agreement is as follows:
"I certify that the information contained
in or accompanying this (submission) (document)
is true, i;curate, and complete.
"AS to (the) (those) identified portion(s)
of this (submission) (document) for which I
cannot personally verify (its) (their) truth
and accuracy, I certify as the company official
havina supervisory responsibility for the
person(s) who, acting under my direct instructions,
made the verification, tha" ".his information is
true, accurate, and complex." */
B. Documentation to verify Compliance
Typical settlement agreements require specific steps to
be undertaken by the violator. AS EPA statf members engage in
settlement negotiations and the drafting of settlement documents,
they should identify that documentation which constitutes the
_3_/ While personal liability is desirable to promote compliance,
it should be noted that corporations may be convicted under 18
U.S.C. S1001 as well. A corporation may be held criminally
responsible for the criminal acts ot its employees, even if the
actions of the employees were against corporate policy or express
instructions. See U.S. v. Automated Medical Laboratories, 770
F.2d 339 (4th Cir. 1985); U.S. v. Richmond, 700 F.2d 1183 (8th
Cir. 1983). Moreover, both a corooration and its agents may
be convicted for the same offense. See U.S. v. Basic Construc-
tion Co.. 711 F.2d 570 (4th Cir. 1983).
4/ It is inevitable that in negotiating consent agreements,
counsel tor respondents will seek to insert lanauaqe in the
certification statement as to the truth of the submissions to be
to the "best information" or to tne "fullest understanding" or
"belie?" of the certifier. Such qualifiers should not be
incoroorated, since the provisions of 18 U.S.C. §1001 provide
for prosecution for makino false statements knowingly and
wi iltullv--not for tormina erroneous beliefs, etc.
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most usetul evidence t*at the action required has actually been
'undertaken. The most useful evidence would be that information
or documentation t%hat best and most easily allows tne Agency
to verify compliance with the terms (including milestones) of
a settlement agreement. Ixamples of documentation to substantiate
compliance include, but are not limited to, invoices, work
orders, disposal records, and receipts or manifests.
Attachment A is a suggested type of checklist that can be
developed tor use within each program area._5/ ^he checklist
includes examples ot specific documentary evidence which can be
reauired to substantiate that prescribed actions have, in fact,
been undertaken. •
IV. SUMMARY
This auidance is to orovide assistance to EPA employees
who negotiate and dratt settlement documents. It is appropriate
when circumstances so dictate that such documents contain
sufficient certification language for ensuring/ to the maximum
extent possible, that all. reports made to EPA, pursuant to the
terms of any settlement agreement, are true, accurate, and
comolete, and that such reoorts are attested to by a responsiblt
official.
The Aaency must incorporate within its overall regulatory
framework all reasonable means for assuring compliance by the
regulated community. The inclusion of compliance certification
language, supported by precise documentation requirements, in
neaotiated settlement agreements may, in appropriate instances,
mean tne difference between full compliance witn both the
letter and the spirit of the law, and something less than full
compliance. In the case of the latter, the violating party
is then subiect to the sanctions of the federal-criminal code.
Attachment A
5X EPA or a State may be unable to confirm the accuracy of
certifications for an extended period of time. Therefore,
it is suagested that, whenever certification by a respondent/
defendant'is reouired, the order/decree provide that "back-up"
documentation—such as laooratory notes and materials ot the
tvoes listed in the examples in the text above—be retained for
an aopropnate period of time, such as three years. See, tor
example,'the 3 year retention time in 40 CFR S122.4K j) (2) .
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MF.ANS OF CERTIFYING COMPLIANCE
WITH CONSENT AGREEMENTS
(Examples)
Action Required By
Consent Agreement
Violator's oificial
Certifies That:
Documents Accompanying
Certification:
•Purchase pollution control
equipment.
•Installation
•Onooino operat ion and main-
tenance
•Meet discharge levels
•l.atielod transformers
•Do risk study
•Hi re employees
•Use
coatings
•Train employees (e.g., work
pract- ices)
•Equipment purchased
•Equipment installed and tested
•Operating as required
•Discharge levels have been met
•Transformers have been labeled
•Study has been completed
•Employees have been hired
•Verifying complying coatings
are used
•Employee training has been
completed
•°,»-t up environmental auditing |*Unit has been established
. • |*orientation and instruction
ijf v - | completed
•Invoice
•invoice for'work with photograph
•Continuous monitot ing tar*?
•Periodic sample results
•Maintenance of records
•Continuous monitoring tapes
•Periodic sample results
•Photographs
•Study report and recommendations
•Personnel records
(•Position descriptions
(•Entry on duty dates
(•Salary data
I
(•Documents to verify VOC content
I
(•Educational materials and record
j of employee attendance at
j training session
I
(•Same as above re: personnel
(•Charter of audit group
I
on next |>ar)e)
ATTACHMENT A
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(continued tram previous paqe)
MEANS OF CERTIFYING COMPLIANCE
• -n;
WITH CONSENT AGREEMENTS
(Examples)
Action Required By
Consent Agreement
Violator's Official
Certifies That:
Documents Accompanying
Certification;
•Dispose of PCBs
•Replace PCB transformers
•Renist^r p'.siicide certifi-
cation of ajjpl icator
•Remove a, .-lied product from
the market
•PCBs disposed of in lawful
manner
•New transformers installed
•Applicator certification has
been accomplished
•Removal has been accomplished
•Comply with asbestos removal
and disposal regulations
•Monitor waste stream
•Sludoe removal
•Conduct qroundwater monitoring
•Collect and analyze soil
•Copies of manifests
•Copies of purchase and instal-
lation receipts
•Copies of certificates
•Copies of corr«?spondance with
customers and documentation
of removal
•Copies of customer lists for
independent verification by
EPA and states
•Compliance with asbestos removal *List of locations of all jobs
and disposal regulations on
a job-by-job basis
•Waste stream has been properly
monitored
•Sludge removed by milestone
deadline
•Discharge Monitoring Report
•Copies of invoices on sludge
removal
•Groundwater monitoring accom- *2/A (quality analysis) tests;
plished in appropriate nanner
•Soil samples collected and
analyzed in specified manner
certification by laboratory
•Same as above
cmovi- rout ami nated soils and
d i sr osi -of in compl iance
•Contaminated soils removed and j*Copies of contract documents
disposed of in compliance -«| and manifests
with RCRA v ••
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