UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
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Date Signed: February 6, 1990
MEMORANDUM
SUBJECT: Multi-Media Settlements of Enforcement Claims
FROM: James M. Strock
Assistant Administrator
TO: Regional Administrators, Regions I-X
Regional Counsel, Regions I-X
Associate Enforcement Counsel
Program Compliance Office Directors
A. PURPOSE
The purpose of this memorandum is to provide guidance which explains 1) EPA policy
strongly disfavoring judicial and administrative settlements of enforcement cases which include
releases of potential enforcement claims under statutes which are not named in the complaint and
do not serve as the basis for the Agency bringing the enforcement action, and 2) how approval
for any multi-media settlements of enforcement claims should be obtained in civil judicial
enforcement cases in the Region and at Headquarters.
B. DISCUSSION
As a general rule, a settlement of a hazardous waste enforcement action, for example,
may include a covenant not to sue providing the settling party with protection from subsequent
civil enforcement action under some or all provisions of CERCLA and/or RCRA.1 Similarly, a
Clean Water Act enforcement settlement may expressly settle EPA claims under some or all
provisions of the Clean Water Act. A settlement which extends to potential EPA enforcement
claims under any statute(s) outside of the program medium under which the case was brought,
e.g.. a CWA release in a CERCLA case, or a release in a CERCLA case under all statutes
administered by EPA, should not be given except under exceptional circumstances, because it is
JThe United States generally gives covenants not to sue, not releases, in the CERCLA
context. This guidance, however, uses the terms "covenant not to sue" and "release"
interchangeably. Use of the word "release" is not intended to signify any differing effect of the
settlement but is merely used for ease of exposition.
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standard EPA policy that releases, when granted, should be no broader than the causes of action
asserted in the complaint.2
Although defendants often seek releases broader than the specific medium at issue in the
case, multi-media releases for single-medium enforcement cases are strongly discouraged and
will be granted only in exceptional cases. A proposal to enter into such a settlement will
undergo close scrutiny at both the Regional and Headquarters level. When deciding whether to
entertain a request for a multi-media release, the Region should consider the following factors:
1) The extent to which EPA is in a position to know whether it has a cause of action
warranting further relief against the settling party under each of the statutes included in the
release. If, after investigation, it is determined that no cause of action exists, then it is somewhat
more likely that the release might be considered;
2) Whether the settlement provides adequate consideration for the broader release. If the
relief to be obtained under the settlement includes appropriate injunctive relief and/or penalties
for any actual or potential violation/cause of action under the other media statutes, then it is
somewhat more likely that the release might be considered; and
3) Whether the settling party is in bankruptcy. If the relief obtained through the
settlement is all the Agency can obtain from the settling party, and the settling party will be
ceasing operations, then it is somewhat more likely that the multi-media release might be
considered if the settlement is otherwise favorable to the Government. This rationale is far more
persuasive in the Chapter 7 or Chapter 11 liquidation context than in the Chapter 11
reorganization context.
In addition, the only possible statutory releases or covenants not to sue that EPA will
grant are for statutes administered by EPA. Multi-media settlements should not grant releases
phrased in broad terms such as "all statutes administered by EPA." Rather, all such releases
should specifically name the EPA statutes included in the release. Further, releases should not
include broad statements reaching beyond EPA-administered statutes such as "all claims or
causes of action of the United States." A settlement should also not release any common law
claims EPA may have, because it is not clear what, if any, Federal common law exists in the
environmental area, and thus a release of this kind is of undefined scope. Similarly, State law
claims should not be released by the Federal government, since it is unclear what, if any, Federal
causes of action derive from State law. Moreover, as a matter of practice and policy, we should
2If multi-media causes of action have been asserted in the United States' complaint, then
settlement of and releases under all statutes involved in the action would not be unusual,
provided that appropriate relief is obtained under each statute. Such settlements would,
however, require the concurrence of all Regional and Headquarters media offices involved, as
described in Part C below.
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not purport to bind States when they are not directly involved in our enforcement cases.3 As
always, releases may be granted only for civil liability, not for criminal liability.4
C. PROCEDURES
All settlements involving multi-media resolution of enforcement claims require the
approval of the appropriate EPA official(s) consistent with Agency delegations of authority. For
civil judicial enforcement cases specifically, all multi-media settlements, including all CERCLA
settlements resolving claims under other EPA-administered statutes, require the approval or
concurrence of the AA-OECM.5 In any case in which the Region wishes to propose to the AA-
OECM that EPA enter into such a settlement, certain procedures must be followed.
First, cross-media consultation among all affected Regional program offices and Office
of Regional Counsel branches must be undertaken. This consultation should involve joint
investigation as to whether there are any actual or potential causes of action under any statute
under which a release is contemplated. An appropriate investigation, for example, is likely to
include a check of all relevant files, a determination of whether a field inspection is warranted,
and, if so, an inspection, and an inquiry to State program and legal counterparts to ensure that
EPA is not unknowingly settling or waiving any potential claims it may have based upon
relevant and available information. In the event that an appropriate cross-media investigation
cannot be undertaken, a release for any uninvestigated medium cannot be given.
Second, when the settlement is referred to Headquarters for approval or concurrence, the
Regional Administrator's cover memorandum to the AA-OECM should highlight the existence
of the multi-media settlement or release. It should also include a statement by the Regional
3Ordinarily, State claims are independent of Federal enforcement authorities and are not
compromised by settlement under the Federal authorities.
4Releases should also be drafted in accordance with the policy and practice of each
medium involved. In most enforcement actions, this means that the release is based upon
information known to EPA at the time of the settlement and does not extend to undefined future
violations or site conditions.
5For administrative enforcement cases which include multi-media releases, the Regions
similarly should obtain the concurrence of all EPA officials (at Headquarters or in the Region, as
the case may be) consistent with the relevant EPA delegations covering administrative
settlements under each statute included within the release. (If all authorities included within the
release are delegated to the Regions, then no Headquarters concurrence is needed.) Of course,
some administrative settlements with multi-media releases will also require approval by the
Department of Justice when a DOJ role is established by statute.
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Administrator (or any other Regional official delegated responsibility to approve the settlement
on behalf of the Region) that the Region has evaluated all possible claims under all EPA-
administered statutes included within the release and, after diligent inquiry, has determined that,
to the best of its knowledge, no claims exist, or, if any claims do exist, that it is in the best
interest of the Agency to settle the claims in the manner included in the proposed settlement. If
claims do exist, the RA's memorandum should explain why the settlement is in the best interest
of the Agency.
Lastly, the OECM Division for the program area that has the lead in the settlement must
take certain steps to ensure that the other affected OECM Divisions and their program
counterparts at Headquarters do not object to the multi-media release. The lead Associate
Enforcement Counsel should provide a copy of the settlement, the RA's cover memorandum,
and any other relevant supporting material from the Region (e.g.. in the case of a CERCLA
settlement, the Ten Point Settlement Analysis) to all other OECM Associates who are
responsible for any statutes included in the release with a request for written concurrence within
21 days. Each Associate should in turn consult with, and, if part of standard procedure, obtain
the concurrence of, his/her Headquarters program counterpart on the settlement. The lead
Associate and his/her staff should coordinate all OECM comments or requests for additional
information from the Region to help avoid presenting the Region with conflicting comments or
requests.
After all necessary concurrences have been received, the lead Associate Enforcement
Counsel will transmit the settlement to the AA-OECM for final action, with a copy of all
Headquarters concurrences attached to the package. Although OECM will strive to meet its
standard 35-day turnaround time for civil judicial settlement referrals, because multiple
Headquarters offices are involved, the Regions should expect that multi-media release
settlements may take greater time to be reviewed and approved by Headquarters than single-
medium settlements. To assist OECM in obtaining concurrences as expeditiously as possible,
the Region should actively consult with the lead OECM Division during negotiations so that
OECM will have advance notice of the cross-media release issue and will be able to consult with
other OECM Divisions before the settlement is referred to the AA-OECM.
D. DISCLAIMER
This memorandum and any internal office procedures adopted for its implementation is
intended solely as guidance for employees of the U.S. Environmental Protection Agency. It does
not constitute a rulemaking and may not be relied upon to create a right or a benefit, substantive
or procedural, enforceable at law or in equity, by any person. The Agency may take action at
variance with this memorandum or its internal implementing procedures.
If your staff has any questions on this matter, please ask them to contact Sandra Connors
of OECM-Waste at 382-3110.
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cc: Richard B. Stewart, Assistant Attorney General, Land and Natural Resources Division,
U.S. Department of Justice
David T. Buente, Chief, Environmental Enforcement Section, Land and Natural
Resources Division, U.S. Department of Justice
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