01/11/88

Procedures for Modifying Judicial Decrees

MEMORANDUM                             January 11, 1988

SUBJECT:  Procedures for Modifying Judicial Decrees

FROM:     /s/ Thomas L. Adams, Jr.
              Assistant Administrator for Enforcement and Compliance
                Monitoring

TO:       Regional Administrators
          Regional Enforcement Contacts
          Regional Counsels
          Regional Program Division Directors
          Program Office Enforcement Directors

    The purpose of this memorandum is to clarify procedures for modifying
consent decrees and other judicial orders entered in EPA enforcement cases.

    Consent decree  "modifications" are changes to a consent decree proposed
jointly to the court by the Federal government and a defendant, largely to
address circumstances which have arisen since the entry of the consent
decree ( such as force majeure events or other unanticipated
circumstances ).  Thus, these "modifications" are distinct from Federal
government unilateral enforcement actions requiring the violator to comply
with the terms of the decree and imposing sanctions.  Consent decree
modifications should be addressed as follows:

    *  As soon as the need to modify a consent decree is discovered, the
       Region should send a letter to the appropriate OECM-AEC and DOJ-
       Environmental Enforcement Section Chief notifying them of the intent
       to open negotiations with the defendant.  The letter should contain
       summary information sufficient to apprise OECM and DOJ of relevant
       facts, issues, and proposed solutions.

    *  Consistent with appropriate consultation procedures with OECM or DOJ,
       the Region ( along with OECM or DOJ, as appropriate ) may proceed to
       negotiate a modification of the consent decree in the manner
       described in the letter.

                                    -2-

    *  OECM retains authority for approving any modifications on behalf of
       EPA.  DOJ retains authority for approving any modifications on behalf
       of the United States.

    *  After OECM and DOJ officials have approved the modifications, the DOJ
       attorney will present the proposed consent decree modifications to
       the appropriate court for approval.

SPMS CONSENT DECREE TRACKING MEASURE

    A consent decree violation handled through modification will be
considered addressed under the SPMS consent decree tracking measure when a
modified consent decree is signed by the AA-OECM and DOJ representative.
Until these officials approve the modification, the Region will report the
consent decree in the "in violation with action planned" category.

    If you have any questions regarding these procedures, please contact
Lisa Oyler, Compliance Evaluation Branch, OECM, at 475-6118.

cc:  Roger J. Marzulla, DOJ
     David Buente, DOJ
     Gerald A. Bryan, OCAPO
     Thomas Gallagher, NEIC
     Deputy Assistant Administrators, OECM
     Associate Enforcement Counsels, OECM