United States	Office of
Environmental Protection	Solid Waste and
Agency	Emergency Response
4>EPA
DIRECTIVE NUMBER: 9832.6
TITLE: Shall Cost Recovery Referrals	I
APPROVAL DATE: July 12, 1985
EFFECTIVE DATE: July 12, 1985
ORIGINATING OFFICE: oecm/owpe
0 FINAL
~ DRAFT
LEVEL OF DRAFT
D A — Signed by AA or DAA
D B — Signed by Office Director
D C — Review & Comment
REFERENCE (other documents):
SWER OSWER OSWER
DIRECTIVE DIRECTIVE Dl

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1 United Stales6nv'rc~~"-~"'
I jb W-Ci-
' V>EPA OSWER Directive Initiation Reauest
1 Ok active Number
9B32.6
2 Originator Information
Name of Contact Person
David Van Slyke
Mail Code
LE134S
Office
OECM/OWPE
Telephone Number
382-3050
3 Title
Snail Cost Recovery Referrals
4 Summary of Directive (Include brief statement of purpose/
Agency policy on Referring CERCLA cost recovery cases valued at less than
§200,000*.
5 Keywords
Cases valued, Cost Recovery, $200,000
&a Does thu Directive Supersede Previous Directives? J | Yes | No What directive (number, tnlel
b Does It Supplement Previous Directive^)? Q Yes ^ No What Directive (number, titlej
7.Draft Level
O A — Signed by AA/DAA Q B — Signed by Office Director O C — For Review & Comment Q In Development
This Request Meets OSWER Directives System Format
Signature of Lead Office Directives Coordinator
Date
3-6= -zrj
9 Name and Title of Approving Official
Date
OSWER OSWER OSWER
DIRECTIVE DIRECTIVE L

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9832,6
Attachment XVII
Snail Cost Recovery Referrals
7/12/8 5

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? A \	UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
w ?	WASHINGTON, D.C. 20460
/
JUL 1 2 1985	9Q32

MEMORANDUM
SUBJECT:
FROM:
TO:
Small Cose
Recovery Referrals
:irt Coun
Frederick F. Stiehl
Associate Enforcement Counsel for Uaste
Office of Enforcement and Compliance Monitoring
Gene A- Lucero, Director
Office of Waste Programs
Office of Solid Waste and
h&Jl A- lo=>
Enforcement
Emergency Response
Regional Counsels, Regions I-X
Regional Waste Management Division Directors,
Regions I-X
Based on discussions among our 6taff and Regional
enforcement personnel, it appears that confusion exists
regarding Agency policy on referring CERCLA cost recovery
cases valued ac less than $200,000. Apparently* a. feu of the
Regions believe thac Hearfquarrera will not accept these cases
because the December 5, 1984, Interim CERCLA Settlement Policy
(1) places a high priority on large dollar amount cases (see
the section on targets for litigation (p. 17), which discusses
referring cases involving a "significant" amount of money) ,
and (2) references the possibility that cases under $200,000
could be handled administratively.
Although the Agency has placed a higher priority on
referring cost recovery cases with expenditures In excess of
$200,000, there are situations where referring small cost
recovery actions is entirely appropriate. For example, where
we have initiated settlement discussions which have failed to
produce a settlement because of the recalcitrance of the
responsible parties, referral would generally be appropriate to
demonstrate the Agency'6 commitment toward enforcement as a
vehicle to compel private party response at CERCLA sites. In
addition, where a Region has no cases for more than $200,000,
where an enforcement presence would serve a deterrent effect,
where a Region's other enforcement priorities allow for the
expenditure of resources to support a small cost recovery case,
or where the circumstances are ripe for testing some important
aspect of law, referral of such a case would be appropriate.

-------
- 2 -
9832.6
As you know, the Agency Is working toward providing the
Regions with both the tools and the authority to settle small
cost recovery cases (up to $500,000) administratively, To
ensure that 6uch administrative resolutions are attractive
options for responsible parties, however, the Agency oust be
prepared to take judicial action against those who do not
settle on terms acceptable to Che Agency* Under such circum-
stances, small cost recovery actions vill take on an even
greater importance, since it vill be necessary to show the
reguLated community that the Agency is serious about pursuing
small cost recovery cases in the Judicial, as veil as the
administrative, forum. In furtherance of that effort, our
offices and the Department of Justice are prepared to fully
support small cost recovery cases referred by the Regions which
further program goals end are otherwise consistent with Agency
policy.
For most of you this memorandum simply confirms operating
guidance which you are already following. We vanted to ensure,
however, that the Settlement Policy did not create any undue
reluctance on the part of the Regions to develop small cost
recovery cases for referral.
cc: David T. Buente, Department of Justice

-------
V5S2*/
'~v.
WASHINGTON, D C. 20460
JUL s 0 1935
9832,6
OFFICl Of INFOfl CI ME <"!
AND COMP^HNCt
UOMTOfclJiG
MEMORANDUM
Counsel for Waste

TO:
Regional Counsels, Regions I-X
On August 8, 1984, the RCRA/CERCLA Case Management Handbook
was provided to the EPA Regional Offices co assist you and your
staff in the preparation of judicial referrals under RCRA and
CERCLA authorities. The purpose of this guidance vas to
describe the process of assembling a case and to cLearly identify
the requirements for all hazardous waste referral packages. EPA
oust assure that cases referred to the Department of Justice are
complete and can be filed within 60 days of referral.
Experience with the implementation of the Case Management
Handbook has indicated that filing by the Department ofjustice
has been delayed in some cases by the following problems with
Che referral packages:
0 Demand Letters. For cost recovery cases, the Region
should send Demand Letters and allow the response time
to run before referral. Where prospective defendants
are willing to settle, the settlement can be worked
out before referring a complaint (and consent decree)
for filing or possibly obviating the need to file.
* Settlement Negotiations. In most cases, limited
settlement negotiations with identified responsible
parties should be completed prior to the referral of a
case to Headquarters. This preference for conducting
negotiations prior to requesting that the Department
of Justice commence preparation of judicial pleadings
is set out In the Case Management Handbook, Chapter II.
If the negotiations may result in a consent decree

-------
- 2 -
9832,6
or present precedential issues, Headquarters or the
Department of Justice can be brought in informally
without a referral.
8 Financial Viability of Potential Defendants. It is
important that all referrals contain complete information
based on thorough research regarding the financial
status and insurance assets of potential defendants.
Chapter 111 of the Case Management Handbook describes
the contents of a hazardous waste referral, Including
the types of information required regarding potential
defendants.
0 Endangerment Assessment. A complete endangerment
assessment must be included In all referral packages
for CERCLA 1106 and RCRA $7003 cases. The endangerment
assessment should contain information sufficient to
establish a prima facie Imminent hazard claim.
Appendices two and three of the Case Management Hand-
book contain a checklist of facts necessary for imminent
and substantial endangerment cases.
0 Cost Documentation. The Region must submit accurate
cost recovery check lists to OWPE at least six weeks
prior to submitting the referral package to Headquarters.
This will ensure that cost recovery cases referred to
the Department of Justice will have thorough cost
documentation as required by the Case Management Hand-
book, Appendix one.
The Department of Justice i6 required to file a complaint
within 60 day6 of the referral from EPA. The 60 day period is
Intended to allow the Department of Justice to review the
litigati on report and prepare its final pleadings. The 60 day
period is not intended to allow the Agency time to provide
supplemental information for the referral package or make
initial contact with the defendants regarding the possibility
of settlement.
All requests to the Department of Justice to delay the
filing of a case beyond the 60 day period oust be Bade by the
Assistant Administrator for OECM. To originate such a request,
the Region must write the Assistant Administrator for OECM.
Any request by the Region to OECM to extend the filing date of
an action should be made before the 60 day period at the Depart-
ment of Justice has run. Vie have informally stressed to the
Department that the filing of cases should not be delayed in
Teliance on the Region's intention to request such a delay.

-------
- 3 -
9832*6
Effective prosecution of hazardous va6te cases, once
referred to the Department of Justice, is a critical element
of the Agency's enforcement strategy. Compliance with the
procedures Bet out above and in the Case Management Handbook
will assure that matters appropriate for judicial enforcement
will be referred end filed in a timely way. If you have any
questions regarding these procedures, please contact me.
cc: Gene A. Lucero, Director, OWPE
David T. Buente, Acting Chief, Environmental Enforcement
Section, DOJ
Richard H. Mays, Senior Enforcement Counsel

-------
(g)
LNITk-D S. ATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
JUL I 2 1985
9832,
MEMORANDUM
SUBJECT: Small Cose Recover? Referrals
FROM: Frederick F. Stlehl
Associate Enforcement Counsel for Waste
Office of Enforcement and Compliance Monitoring
Gene A. Lucero, Director
Office of Waste Programs Enforcement
Office of Solid Wa6te and Emergency Response
TO:	Regional Counsels, Regions 1-X
Regional Waste Management Division Directors,
Regions I-X
Based on discussions among our staff and Regional
enforcement personnel, it appears that confusion exists
regarding Agency policy on referring CERCLA cost recovery
cases valued at less than $200,000. Apparently, a few of the
Regions believe that Headquarters will not accept these cases
because the December 5, 1984, Interim CERCLA Settlement Policy
(1) places a high priority on large dollar amount cases (see
the section on targets for litigation (p. 17), which discusses
referring cases involving a "significant" amount of money),
and (2) references the possibility that cases under $200,000
could be handled administratively.
Although the Agency has placed a higher priority on
referring cost recovery cases with expenditures in excess of
$200,000, there are situations where referring small cost
recovery actions is entirely appropriate. For example, where
we have initiated settlement discussions which have failed to
produce a settlement because of the recalcitrance of the
responsible parties , referral would generally be appropriate to
deaonstrate the Agency's commitment toward enforcement as a
vehicle to compel private party response at CERCLA sites. In
addition, where a Region has no cases for aore than $200,000,
where an enforcement presence would serve a deterrent effect,
where a Region'6 other enforcement priorities allow for the
expenditure of resources to support a small cost recovery case,
or where the circumstances are ripe for testing some important
aspect of law, referral of such a case would be appropriate.

-------
- 2 -
9832*6
As you know, the Agency is working toward providing the
Regions with both the tools and the authority to settle 6mall
cost recovery cases (up to $500,000) administratively. To
ensure that such administrative resolutions are attractive
options for responsible parties, however, the Agency must be
prepared to take judicial action against those who do not
settle on terns acceptable to the Agency. Under 6uch circum-
stances, snail cost recovery actions vill take on an even
greater importance, 6ince it vill be necessary to show the
regulated community that the Agency is aeriou6 about pursuing
small cost recovery cases In the Judicial, as well as the
administrative, forum. In furtherance of that effort, our
offices and the Department of Justice are prepared to fully
support small cost recovery cases referred by the Regions which
further program goals and are otherwise consistent with Agency
policy.
For most of you this memorandum simply confirms operating
guidance which you are already following. We wanted to ensure,
however, that the Settlement Policy did not create any undue
reluctance on the part of the Regions to develop small cost
recovery cases for referral.
cc: David T. Buente, Department of Justice

-------
VlA3ni WlU ^ 1 u.v> iv«vv
9832,6
JUL 3 g 1985
CFFICI or t\FO*CEWt»-"T
ASDCOHPtl*ikCl
MOSITOHlhC
MEMORANDUM
nt Counsel for Waste

TO:
Regional Counsels, Regions 1-X
On August 6, 1984, the RCRA/CERCLA Case Management Handbook
was provided to the EPA Regional Offices to assist you and your
staff in the preparation of judicial referrals under RCRA and
CERCLA authorities. The purpose of this guidance was to
describe the process of assembling a case and to clearly identify
the requirements for all hazardous waste referral packages. EPA
must assure that cases referred to the Department of Justice are
complete and can be filed within 60 days of referral*
Experience with the implementation of the Case Management
Handbook has indicated that filing by the Department of Justice
has been delayed in some cases by the following problems with
the referral packages:
*	Demand Letters. For cost recovery cases, the Region
should-send-Demand Letters and allow the response time
to run before referral. Where prospective defendants
are willing to settle, the settlement can be worked
out before referring a complaint (and consent decree)
for filing or possibly obviating the need to file.
*	Settlement negotiations. In most cases, limited
settlement negotiations with identified responsible
parties Bhould be completed prior to the referral of a
case to Headquarters. This preference for conducting
negotiations prior to requesting that the Department
of Justice commence preparation of judicial pleadings
is set out in the Case Management Handbook, Chapter II.
If the negotiations nay result in a consent decree

-------
- 2 -
9832/t
or present precedential issues, Headquarters or the
Department of Justice can be brought in informally
without a referral.
*	Financial Viability of Potential Defendants. It la
important that all referrals contain complete information
based on thorough research regarding the financial
status and insurance assets of potential defendants.
Chapter 111 of the Case Management Handbook describes
the contents of a hazardous waste referral, including
the types of information required regarding potential
defendants.
*	Endangerment Assessment. A complete endangerment
assessment must be included in all referral packages
for CERCLA 1106 and RCRA 17003 cases. The endangerment
assessment should contain information sufficient to
establish a prima facie imminent hazard claim.
Appendices two and three of the Case Management Hand-
book contain a checklist of facta necessary for imminent
and substantial endangerment cases.
*	Cost Documentation. The Region must submit accurate
cost recovery check lists to OWPE at least six veeks
prior to submitting the referral package Co Headquarters.
This will ensure chat cost recovery cases referred to
the Department of Justice will have thorough cost
documentation as required by Che Case Management Hand-
book, Appendix one.
The Department of Justice is required to file a complaint
wichin 60 days of the referral from EPA. The 60 day period is
intended to allow the Department of Justice to review the
litigation report and prepare its final pleadings. The 60 day
period is not intended to allow Che Agency cime Co provide
supplemental information for the referral package or make
initial contact with the defendants regarding the possibility
of settlement.
All requests to the Department of Justice to delay the
filing of a case beyond the 60 day period oust be Bade by Che
Assistant Administrator for OECM. To originate such a request,
the Region must write the Assistant Administrator for OECM.
Any request by Che Region co OECM to extend the filing dace of
an action should be made before the 60 day period at the Depart-
ment of Justice has run. We have informally stressed to the
Department that the filing of cases should not be delayed in
reliance on the Region's intention to request such a delay.

-------
9832,6
Effective prosecution of hazardous waste cases, once
referred to the Department of Justice, is a critical element
of the Agency's enforcement strategy. Compliance with the
procedures set out above and in the Case Management Handbook
will assure that matters appropriate for judicial enforcement
will be referred and filed in a timely way. If you have any
questions regarding these procedures, please contact me.
cc: Gene A. Lucero, Director, OWPE
David T. Buente, Acting Chief, Environmental Enforcement
Section, DOJ
Richard H. Mays, Senior Enforcement Counsel

-------
yte
\	UNITED STATES ENVIRONMENTAL PR^TECTIOi^ AGtNCY
WASHINGTON. D.C. 20480	O n 7 ~
JUL I 2 1985
MEMORANDUM
SUBJECT: Small Cost Recovery Referrals
FROM: Frederick F. Stiehl
Associate Enforcement Counsel for Waste
Office of Enforcement and Compliance Monitoring
A>
Enforcement
Gene A. Lucero, Director
Office of Waste Programs
Office of Solid Waste and Emergency Response
TO:	Regional Counsels, Regions I-X
Regional Waste Management Division Directors,
Regions 1-X
Based on discussions among our staff and Regional
enforcement personnel, it appears that confusion exists
regarding Agency policy on referring CERCLA cost recovery
cases valued at less than $200,000. Apparently, a few of the
Regions believe that Headquarters will not accept these cases
because the December 5, 1984, Interim CERCLA Settlement Policy
(1) places a high priority on large dollar amount cases (see
the section on targets for litigation (p. 17), which discusses
referring cases Involving a "significant" amount of money),
and (2) references the possibility that cases under $200,000
could be handled administratively.
Although the Agency has placed a higher priority on
referring cost recovery cases with expenditures in excess of
$200,000, there are situations where referring small cost
recovery actions is entirely appropriate. For example, where
we have initiated settlement discussions which have failed to
produce a settlement because of the recalcitrance of the
responsible parties, referral would generally be appropriate to
demonstrate the Agency's commitment toward enforcement as a
vehicle to compel private party response at CERCLA sites. In
addition, where a Region has no cases for more than $200,000,
where an enforcement presence would serve a deterrent effect,
where a Region'6 other enforcement priorities allow for the
expenditure of resources to support a small cost recovery case,
or where the circumstances are ripe for testing some important
aspect of law, referral of such a case would be appropriate.

-------
- 2 -
9832
As you know, the Agency is working toward providing the
Regions with both the tools and the authority to settle snail
cost recovery cases (up to $500,000) administratively. To
ensure that such administrative resolutions are attractive
options for responsible parties, however, Che Agency oust be
prepared to take judicial action against those who do not
settle on terns acceptable to the Agency. Under such circum-
stances, email cost recovery actions will take on an even
greater importance, 6ince it vill be necessary to show the
regulated community that the Agency is serious about pursuing
6mall cost recovery cases In the judicial, as veil as the
administrative, forum. In furtherance of that effort, our
offices and the Department of Justice are prepared to fully
support small cost recovery cases referred by the Regions which
further program goals and are otherwise consistent vith Agency
policy.
For most of you thi6 memorandum simply confirms operating
guidance which you are already following. We wanted to ensure,
however, that the Settlement Policy did not create any undue
reluctance on the part of the Regions to develop small cost
recovery cases for referral.
cc: David T. Buente, Department of Justice

-------
JUL s o 1985
9832,6
OFFICI OF £SFO»ClMIVT
AND COMPLIANCE
MOMTOAIhG
MEMORANDUM
nt Counsel for Waste

TO:
Regional Counsels, Regions 1-X
On August 8, 1984, the RCRA/CERCLA Case Management Handbook
was provided to the EPA Regional Offices to assist you and your
staff in the preparation of judicial referrals under RCRA and
CERCLA authorities. The purpose of this guidance was to
describe the process of assembling a case and to clearly identify
the requirements for all hazardous waste referral packages. EPA
must assure that cases referred to the Department of Justice are
complete and can be filed within 60 days of referral.
Experience with the implementation of the Case Management
Handbook has indicated that filing by the Department of Justice
has been delayed in some cases by the following problems with
the referral packages:
•	Demand Letters. For cost recovery cases, the Region
should send Demand Letters and allow the response time
to run before referral. Where prospective defendants
are willing to settle, the settlement can be worked
out before referring a complaint (and consent decree)
for filing or possibly obviating the need to file.
*	Settlement Negotiations. Inmost cases, limited
settlement negotiations with identified responsible
parties should be completed prior to the referral of a
case to Headquarters. This preference for conducting
negotiations prior to requesting that the Department
of Justice commence preparation of Judicial pleadings
is set out in the Case Management Handbook, Chapter 11.
If the negotiations nay result In a consent decree

-------
- 2 -
or present precedential issues, Headquarters or
Department of Justice can be brought in informally
without a referral.
*	Financial Viability of Potential Defendants. It is
important that all referrals contain complete information
based on thorough research regarding the financial
status and insurance assets of potential defendants.
Chapter 111 of the Case Management Handbook describes
the contents of a hazardous waste referral, including
the types of information required regarding potential
defendants.
*	Endangeraent Assessment. A complete endangeraent
assessment must be included in all referral packages
for CERCLA SI06 and RCRA 17003 cases. The endangeraent
assessment should contain information sufficient to
establish a prima facie imminent hazard claim.
Appendices two and three of the Case Management Hand-
book contain a checklist of facta necessary for imminent
and substantial endangeraent cases.
® Cost Documentation. The Region must submit accurate
cost recovery check lists to OUPE at least 6ix week6
prior to submitting the referral package to Headquarters.
This will ensure that cost recovery cases referred to
the Department of Justice will have thorough cost
documentation as required by the Case Management Hand-
book, Appendix one.
The Department of JuBtiee Is required to file a complaint
within 60 days of the referral from EPA. The 60 day period 16
Intended to allow the Department of Justice to review the
litigation report and prepare lt6 final pleadings. The 60 day
period 16 not intended to allow the Agency time to provide
supplemental information for the referral package or sake
initial contact with the defendants regarding the possibility
of settlement.
All requests to the Department of Justice to delay the
filing of a case beyond the 60 day period must be cade by the
Assistant Administrator for OECM. To originate such a request,
the Region oust write the Assistant Administrator for OECM.
Any request by the Region to OECM to extend the filing date of
an action should be made before the 60 day period at the Depart-
ment of Justice has run. We have informally stressed to the
Department that the filing of cases should not be delayed In
reliance on the Region's intention to request such a delay.

-------
Effective prosecution of hazardous waste cases, once
referred to the Department of Justice, is a critical element
of the Agency's enforcement strategy. Compliance with the
procedures set out above and in the Case Management Handbook
will assure chat natters appropriate for judicial enforcement
will be referred and filed in & tiaely vay, If you have any
questions regarding these procedures, please contact me.
cc: Gene A* Lucero, Director, OtfPE
David T. Buente, Acting Chief, Environmental Enforcement
Section, DOJ
Riehard H. Mays, Senior Enforcement Counsel

-------