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&EPA
Washington, DC 20400
QSWER Directive Initiation Request
. Dna*« Number
9891.5
Name of ConUet Peraon
Courtney, M. Price
Mail Cod*
WH-527
Office
OECM
Telepnone Cod*
Implementation of Direct Referrals for Civil Cases Beginning December 1. 1983
4. Summary of Directive (include brief statement of purpose)
This memo provides guidance to EPA Headquarters and Regional personnel regarding
procedures to fallow in implementing this direct referral agreement.
5. Keywords
Referrals
6a. Does This Directive Supersede Previous Direcuve(s)1?
b. Ooas It Supplement Previous Dtoctivefs)?
X | No [ ] Yea What directive (number, otto)
[I Yes What direct** (number. M*>
No
7. Draft Level
Fl A-S»onadbyAA/DAA
B - Signed by Office Director [ [ C - For Review 4 Comment [ | D - ei De»e
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98915
UNITED STATES ENVIRONMENTAL PRUIH.IION
WASMIMOTOM. DC
KV28BB3
MEMORAHLOM
SUBJECT: Irnpl en entation of Direct Referral* for Civil Cases
Beginning December 1. 1983 /Q
FROM: Courtney M. Price(Jx>u3Z*»s/ *^ ' V*-**-
Assiatant Administrator foe Enforceaent
and Compliance Monitoring
TO: Regional Administrators, Region* I - X
Regional Counsels, Regions I - X
Associate Enforceaent Counsel*
OECM Office Director*
!• BACKGROUND
t
On Septeaber 29, 1983, the Environmental Protection
Agency (EPA) and the Land and Natural Resources Division of
the Department of Justice (DOJ) entered into an agreement
which, beginning on December 1. 1983, allows certain
categories of case* to be referred directly to DOJ fro*) EPA
Regional offices without ay prior concurrence. A copy of
that agreeaent is attached to this aeaorandua.
Thi* aeaorandua provide* guidance to EPA Headquarter*
and Regional personnel regarding procedures to follow-in
implementing this direct referral agreeaent. Additional
guidance will be issued a* required.
11. PROCEDURES PO1 CASES SUBJECT TO DIRECT REFERRAL
Th*. attached agreeaent lists those categories of
cases which can be referred directly by the Regional
Administrator to DOJ. All other case* aust continue to be
reviewed by Headquarter* OECM and will be referred by ae to
DOJ. Cases which contain counts which could be directly
referred and count* which require Headquarter* concurrence
•hould be referred to EPA Headquarter*. If you are uncertain
•whether a particular case aay be directly referred, you
•hould contact the appropriate Associate Enforceaent Counsel
for guidance.
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-2-
Many of the procedures for direct referral cases are
adequately explained in the September 29th agreement.
However, there are some points' I want to emphasize.
Referral packages should be addressed to Mr. T. Henry
Habicht. II, Assistant Attorney General, Land and Natural
Resources Division, D.S. Department of Justice, ""•**™E»~T,
D.C. 20530, Attention: Stephen D. Ramsey. The time limitations
set forth in the agreement for review and initial disposition
of the package will commence upon receipt of the package in
the Land and Natural Resources Division, and not at the DOJ
mailroom. Delivery of referral packages to the Land and
Natural Resources Division will be expedited by use of
express 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
elements:
(a) identification of the proposed defendant(s);
(b) the statutes and regulations which are the basis
for the proposed action against the defendant(s);
(c) a brief statement of the facts upon which the
proposed action is based;
(d) proposed relief to be sought against the defendant(s);
(e) significant or precedential legal or factual issues;
(f) contacts with the defendant(s), including any
previous administrative enforcement actions taken;
(g).lead Regional legal and technical personnel;
(h>- 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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A* provided Sa the September 29, 1983. agreement,
information copies of the referral package may be provided
to the U.S. Attorney for the appropriate Judicial district
ia which the propoeed case nay be filed. These information
packages should be clearly labelled or stamped with the
following words: "Advance Copy — No Action Required At
This Time". Also, information copies should be simultaneously
provided to the appropriate OECM division at Headquarters.
It is important that the directly referred cases be tracked
in our case docket system and Headquarters oversight initiated,
Copies of the referral cover letter will be provided to
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
DOJ shares our desire to handle these eases as expedi-
tiously as possible* To that end* DOJ has agreed that,
within thirty days of receipt of the package in the Land end
Natural Resources Division at DOJ Headquarters, it will
determine whether Headquarters DOJ or the U.S. Attorney
will have the lead litigation responsibilities on • specific
case. DOJ vill notify the Regional offices directly of its
'determination in this regard, with a copy to the appropriate
OECM division. Although USA offices will have lead respon-
sibilities in many cases, the Land and Natural Resources
Division will continue to have oversight and management
responsibility for all cases. All complaints and consent
decrees will continue to require the approval of the
Assistant Attorney General for the division before the case
can be filed or settled.
DOJ has reaffirmed the time frame of the Memorandum
of Understanding, dated June 15, 1977, for the filing of
cases within 60 days after receipt of the referral package,
where possible. Where it is not possible, DOJ will advise
the Region and Headquarters of any reasons for delays in
filing of the case. However, when DOJ determines that
the USA should have the lead responsibilities in a case, DOJ
will forward the case to the USA within thirty days of
referral to the extent feasible.
DOJ can request additional information from a Region
on a case or return a case to a Region for further develop-
ment. In order to avoid these delays* referral packages
should be as complete as possible and the Regions should
work closely with DOJ to develop referral package*.
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The Deputy Administrator has expressed concern in the
past on the nunber of cases returned to the Region* or
declined by EPA or DOJ. I have assured the Deputy Adninistratoi
that 1 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'a judicial
en forces en t program.
Headquarters OECM Responsibilities;
Although OECM will not formally concur on cases directly
referred to DOJ, OECM will still review these packages and
nay 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 ana pinpoint areas where future
guidance should be developed. OECM will also be available
as a consultant to both DOJ and the Regions on these eases.
OECM will be available to address policy issues as they
arise and, aa resources permit, may be able to assist in
case development or negotiation of these cases. Aay request
from a Regional office for Headquarters legal assistance
should be in writing from the Regional Administrator to
me, setting forth the reasons for the request and the type
of assistance needed.
OECM also maintains an oversight responsibility for
these cases. Therefore, Regional attorneys must report
the status of these cases on a regular basis through use
of the automated case docket.All information fortne case
required by tne 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 «c£
enforcement Activities are being uniformly and consistently
applied nationwide. After the defendants have signed the
settlement, the Regional Administrator should forward a
copy of the settlement to me (or my designee) with a written
analysis of the settlement and a request that the settlement
be signed and referred for approval by the Assistant Attorney
General for the Land and Natural Resources Division and for
entry. The settlement will be reviewed by the appropriate
OECM Enforcement Division for consistency with law and
Agency policy.
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98915
Withla twenty-oat days from the date of receipt of the
settlement by the appropriate OECM division. I vill either
sign the settlement and transmit it to DOJ with a request
that the settlement be entered, or transmit a memorandum to
the Regional Office explaining factors which justify post-
ponement of referral of the package to DOJ. or return the
package to the Regioa 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 .will coordinate review of the settlement
with the Headquarters program office and respond to the
Regional office, generally, within ten days of receipt of
the draft. The Regional office should remain la 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 will also continue -to concur ia and forward to DOJ
all requests for withdrawal of cases after referral. la
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 soae other
extraordinary event justifies suspending court proceedings.
The review of reasoas for withdrawal or delay of case*
after expenditure of Agency and DOJ resources is an important
function of OECM oversight. Therefore, should the Regioaal
offices desire to request withdrawal or delay of a case
which has beea referred to DOJ, a memorandum setting forth
the reasoae for such a request should be forwarded to the
appropriate OECM division, where It will be reviewed and
appropriate actioa recommended to me.
111. CASES NOT SUBJECT TO DIRECT REFERRAL
Those cases not subject to direct referral will be
forwarded by the Regional Administrator to the Office
of Enforcement and Compliance Monitoring for review prior
to referral to DOJ. OECM has committed to a twenty-one day
turn-around tiae for these cases. The twenty-one day
review period starts when the referral is received by the
appropriate OECM division*
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9891.5
Within this twenty-one day period, OECM will decide
whether to refer the case to DOJ (OECM then has fourteen
additional days to formally refer the case), to return the
eaee to the Region for further development, or to requeat
additional information frco the Region.
Becauae of thia short OECM review period, emphaais
ehould be placed on d-ev-eloping complete referral packagaa
ao that delay occassioned by requeata for additional infor-
mation from the Region will be rare. OECM mav refer a caae
to DOJ vhlch lacka some information only if the referral
can be tup pi en en ted vith a minimum ot time and effort by
infotnation available to the Regional office which can
immediately be gathered and transmitted to DOJ. However,
thia practice ia discouraged. In the few instances in
which a case is referred to DOJ without all information
attached, the information should, at a minimum, be centrally
organized in the Regional office and the litigation report
should analyze the completeness and substantive content of
the information.
A referral will be returned to the Region, with an
explanatory memorandum, if substantial information or
further development is needed to complete the package.
Therefore, the Regions should work closely with OECM
attorneys to be -certain referral packages contain all
necessary information.
IV. MEASURING THE EFFICACY OF THE DIRECT REFERRAL AGREEMENT
I will use EPA*a case docket system, OECM's quarterly
Management Accountability reports and DOJ'a responses to
the referral packages to review the success of the direct
referral agreement. OECM will review the quality of the
litigation reporta accompanying directly referred cases and
discuss the general quality of referrals from each Regional
office at case status meetings held periodically with DOJ'a
Environmental Enforcnent Section.
If yon 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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».
;• -. ^.. :.. .... 98915
J UNITED STATES EMVmONMEKTAi, PROTECTION ASCUCY
_r
••*'•
1 *"
Honorabl* F. H«nry labicbt, XI J: . .* *^-
Acting Assistant Attorney C*n«r*l •""•• •. • v^-
''*'
and Natural Resources Division •
D.S. Department of Justice • . •.--•;.«.-* r- ^ i. 4
Washington* D.C. 20530 .1 -±'••.-,-•' . "
... • ' * ••v«/s?... -,rr..: ... VT • £
Desr Banks ; • •. ' • ?.£>. : •• r .-• =i S.'5?""
' '•'••' -.^v' " "~* -£ -^
As a result of our meeting on Thursday* September S** lt8«P
and the subsequent discussions of respective staffs, we are in
agreement that* subject to the conditions set forth below* the
classes of esses listed herein will be referred'directly from
XPA's Regional Offices to the Land and Natural Resources Division
of the Department of Justice in Washington* D.C.
The terms* conditions and procedures to be followed in
implementing this agreement ares
1. The Assistsnt Administrator for Enforcement and Compliance
Monitoring will waive for a period of one year the
of the Assistant Administrator's prior concurrence for referral
to the Department, of Justice for the following elssses of
judicial enforcement easess
fa) Cases under Section 1414 (b) of the Safe Drinking Mater
Act which involve violations of the National Interim
Primary Drinking Water Regulations* such as reporting or
monitoring violations* or maximum contaminant violation*
(b) The following eases under the Clean Water Acts
fi) eases involving discharges without a permit
by industrial dischargers!
lii) all eases against minor industrial dischargers!
till) eases'involving failure to monitor or report by
' industrial diechargersi
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9891.5
fiv) referrals to collect stipulated penalties tram
industrials under concent decrees*
Cv) xafarrala to eoXlect administrative apill penalties
ander Section 311(J) of the CHAs
(c) All eaaaa aadar tha Clean Air Act except tha following!
• - (i) eases involving tha ateel industry i
(ii) eaaaa involving non-ferrous saeltarsi
(iii) eaaaa involving National Xmiesioas Standarda for
flssardoua Air Follutantat •••
(iv) eaaas involving the post-1982 enforcement policy.
2. Cases described in Section 1, above* shall be referred
directly from the Regional Administrator to tha Land and
Natural Resources division of fJOJ in tha following* aanners
(a) The referral package ahall ba forvardad to tha Aaaiatant
Attorney General for Land and Natural Resources, U.a*.
Departaent of Juatica (OOJ)« with eopiaa of tha package
being aiaultaneoualy forwarded to the D.B* Attorney
(USA) for tha appropriate judicial district in which
tha propoaed ease ia to ba filed (narked 'advance copy-
no action required at this tiae*)v and tha Assistant
Administrator for Enforcement and Coapliance Monitoring
(OECH) at EPA Headquarters. OECH ahall have tha following
functions with regard to aaid referral packages
(i) OECH ahall have no reaponaibility for review of
auch referral packages, and tha referral ahall ba
: effective aa of tha data of receipt of tha package
by DOJt however* DECK ahall consent to the ftegi
upon any apparent shortcomings or defects which
it suy observe in tha package. TOJ may, of eoursa,
continue to consult with OECH on such referrals*
Otherwise, OECM shall be responsible only for
routine oversight of the progress and management
of tha eaae consistent with applicable present
and future guidance. OECM shall, however, retain
final authority to approve aettlementa on behalf
of EPA for these eases, as ia other eaaaa.
•".•*..
(ii) Tha referral package shall be ia tha format and
contain information provided by guidance memoranda
as aay be promulgated from time to tiae by OECM in
consultation with OOJ and Regional representatives.
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.98915
fill} OOJ •hall* within 10 days from receipt of th«
referral package, determine (1) whether the Lands
9ivision of HO9 will heve lead responsibility for
thm eaas» or (2! whether the OSA will have load
responsibility for the case.
1 i.c• • >
while it is agreed that to the extent feasible,
cases in which the OSA wilJ have the laad will te
transmitted to the USA for filing and handling
•• .. • ' within thia 30-day period* if OOJ determines that
the eaaa requires additional lagal or factual
development «t OOJ prior to referring the matter
to the OSA, the case Bay be returned to the
Regional Officer or Bay be retained at the Lands
Division of DOJ for further development, including
requesting additional information from the Regional
Office. In any event, OOJ will notify, the Regional
Office, OECM and the DBA of its determination of
the lead role within the above-mentioned 10-day
period.
(iv) Regardless of whether OOJ or the DSA ia determined
to have lead responsibility for management of
the case, the procedures and time limitations aet
forth in the HOU and 28 CFR 10.65 at aeq., shall
remain in affect and shall run concurrently with
the management determinations made pursuant to
thia agreement*
3. (a) All other cases not specifically described in paragraph
1, above* which the Regional Offices propoae for judicial
enforcement shall first be forwarded to OECH and the
appropriate Headquarters program office for review.
A copy of the referral package shall be forwarded simul*
taneously by the Regional Of flea to the I^nds Division of
DOJ and to the OSA for ths appropriate judicial district,
the OSA'a copy being marked •advance copy-no action required
at this time.* .
(b) OtCH shall reviev the referral package within twenty-on*
(21) calendar daya of the date of receipt of aaid package
from ths Regional Administrator and shall* within said
time period, make a determination of whether the case
should be (a) formally referred to OOJ, (b) returned to
the Regional Administrstor for any additional development
which aay be required} or (el whether ths Regional
Administrator should be requested to provide any additional
material or information which may be required to satisfy
the necessary and sssantial lagal and factual requirements-
for that type of cass.
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(el liny request for information* or return of the
to tha legion shall be transmitted by appropriate lettf t
or memorandum signed by the AA for OCCH (or ber designs )
within tha aforementioned twenty-one day period. Should
OKCN concur la the proposed referral of tha case to DOJ*
tha actual referral ahall be by letter from the AA for
OCCN (or ber deaignee) signed within fourteen days of
the termination of tha aforementioned twenty-one day
review period* Copies of tha letters referred to herei*
ahall be seat to the Asa ia tan t Attorney General for tha
Lands Division of D03. .
''' (d) Open receipt of the referral package by DOJ* tha
procedures and time deadlines sat forth in paragraph
Mo. 8 of the MOO ahall apply.
Zn order to allow sufficient time prior to implementation of
thia agreement to sake the U.S. Attorneys, the Hagional Offices
and our ataffa aware of theae proviaiona* it ia agreed that thia
agreeaent ahall become affective December 1* 1963. Courtney Prior
will diatributa a memorandum within EPA explaining thia agreement
and how it will bja^mplemented within the Agency. (You will receit*
a copy.) 4 ,.
Z believe that thia agreement will eliminate tha necessity of
formally amending the Memorandum of Understanding between our
respective agencies* and will provide necessary experience to
ascertain whether theaa procedurea will result in aignifieant
savings of time and rasoureea. In that regard* Z have asked
Courtney to establish criteria for measuring tha efficacy of this
agreement during tha one year trial period* and Z aak that you
cooperate with her in providing such reasonable and necessary
information aa aha may raqueat of you in making that determination.
At the and of tha trial period—or at any time in the interval—
we may propoaa such adjustments in the procedures set forth herein
as may !>e appropriate baaed on experience of all parties.
Zt is further understood that it is tha mutual desire of the
Agency and DOJ that cases be referred to the OSA for filing as
oxpeditioualy as possible*'
' *•* "
I appreciate your cooperation in arriving at thia agreement*
If this masts with your approval* please sign the enclosed copy
in tha apace indicated below and xaturn tha copy to aw for our
filss. • -._. . - ......
Sincerely yours*
Alvin I. Aim
Deputy Administrator
Appro
r. Penry HtTbicbt* ZZ •
Acting Assistant Attorney General
land and natural lasourcea Division
«»*> F*^ .Tn •*$«•>
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