08/20/87

Policy on Invoking Section 9 of the EPA / DOJ Memorandum of Understanding

MEMORANDUM                             AUGUST 20, 1987

SUBJECT:  Policy on Invoking Section 9 of the EPA / DOJ Memorandum of
          Understanding

FROM:     /s/ 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

  POLICY INVOKING SECTION 9 OF THE EPA / DOJ MEMORANDUM OF UNDERSTANDING

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 Attorneys 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 cases "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.

                                    -2-

    (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 preparation 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.

                                    -3-

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
MOU.

    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.

                                    -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 the Assistant Administrator or his
delegatee, 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 Region  */  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.

  */ 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 Clean Air Act, the Office of Air and Radiation and the Assistant
    Administrator for Air and Radiation, respectively.

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
information 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 Administrative may decide to invoke Section 9.  If so, prior to
the Agency's sending a letter under 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

                                    -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
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 attorney 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.