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