04/13/88
Process for Conducting Pre-Referral Settlement Negotiations on
Civil Judicial Enforcement Cases
MEMORANDUM APR 13 1988
SUBJECT: Process for Conducting Pre-Referral Settlement Negotiations on
Civil Judicial Enforcement Cases
FROM: /s/ Ed E. Reich, for
Thomas L. Adams, Jr.
Assistant Administrator for Enforcement and Compliance
Monitoring
TO: Regional Administrators
Deputy Regional Administrators
Regional Counsels
Associate Enforcement Counsels
HQ Compliance Office Directors
This memorandum transmits to you an agreement between EPA and the
Department of Justice on an authoritative process for conducting pre-
referral settlement negotiations of non-Superfund civil judicial enforcement
cases. A separate process, reflecting the same basic concepts but
recognizing the unique features of Superfund, is being developed jointly by
OECM, OWPE and the Department of Justice.
This agreement addresses one of the judicial enforcement streamlining
initiatives identified by EPA's newly-formed Enforcement Management Council
at recent meetings in Easton, MD. The major objective of this initiative is
to promote efficient and expeditious resolution of civil enforcement cases
on appropriate terms. The mechanism developed for doing this is the
attached set of protocols, which establish a process for providing a
Regional office with pre-authorization to negotiate settlement with a
potential defendant on behalf of the United States before resorting to a
full-scale referral / litigation process. Typically, a Region will have the
option of deciding whether to invoke this procedure for a given case or to
proceed immediately to the referral process.
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Please note that Regional Counsels will receive workload credit for a
case which a Region has opened for negotiation with a mini-lit report under
these protocols, even if EPA has not formally referred the case with a full-
scale lit report to DOJ for filing. Regional Counsels, however, are
responsible for having their docket clerks make appropriate case entries on
EPA's Enforcement DOCKET system in the "Cases Opened" category. These cases
would move to the "Cases Initiated" category once the Region forwards to DOJ
a full lit report or settlement document for filing.
Naturally, as an Agency we will have to pay close attention to
implementation of this process to ensure that it is successful in achieving
settlements on appropriate terms more expeditiously. Thanks in advance for
your cooperation as we move forward to implement these procedures.
Attachment
cc: Jim Barnes, EPA HQ
Roger Marzulla, DOJ
David Buente, DOJ
Jerry Bryan, EPA HQ
Tom Gallagher, EPA-NEIC
Sally Mansbach, EPA HQ
MAR 09 1988
Honorable Roger J. Marzulla
Acting Assistant Attorney General
Land and Natural Resources Division
U.S. Department of Justice
Washington, DC 20530
Dear Roger:
This letter requests your concurrence in the enclosed "Process for
Conducting Pre-Referral Settlement Negotiations" which EPA and the
Department of Justice will employ as part of our joint efforts to streamline
the United States' civil judicial environmental enforcement program.
This initiative is intended to build on successes we have seen in pilot
projects using pre-referral settlement negotiations. More specifically, the
primary intent of establishing in a formal manner these joint procedures is:
1. to expedite the resolution of civil enforcement cases on
satisfactory terms which support the public interest, and
2. to allow the United States to accomplish this objective in a
resource-efficient manner.
To these ends, the procedures established here identify appropriate
milestones and timetables for conducting pre-referral settlement
negotiations which are reasonable management targets in straightforward
environmental enforcement cases. */
*/ This process does not apply to Superfund cases. Pre-referral
negotiations procedures, taking into account specific statutory
requirements, will be developed separately. EPA and the Department have
agreed to evaluate the potential for adapting these procedures to the
Superfund context.
The more routine the case ( i.e., no complicated factual issues or unusual
terms of settlement ), the more likely the government will be able to apply
this framework for expeditious, efficient case resolution.
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The guidance identifies the areas which a Region must address in a mini-
lit report to initiate the pre-referral negotiation process. All
participating offices will need to work together to strike an appropriate
balance in deciding how much detail this information should cover to
facilitate informed review or quick filing if negotiations break down, yet
still allow for productive negotiations to commence quickly. In most cases,
Regional submission of a draft consent decree based upon available program-
specific models is likely to produce easier, quicker approval of proposed
settlement terms and final consent decrees.
It will remain important for representatives of all participating office
to maintain continuous, open lines of communication to permit these
procedures to attain their objectives. Offices still will work out their
respective roles on a case-by-case basis, although this guidance sets out
norms to help make these determinations. Furthermore, the appropriate
Assistant Section Chief at DOJ will be responsible for working negotiations
activities consistent with these procedures and time lines. In any event,
it remains crucial for EPA and the Department to monitor the use of these
procedures diligently to affirm that they indeed result in a more effective,
efficient enforcement effort. We nevertheless understand that because we
have pressed to institute these new procedures quickly, both EPA and the
Department will need additional time to modify computer systems to track
adequately adherence to these protocols.
Thank you for the Department's support of our mutual work in this area.
Please indicate your approval of this process in the signature blank below
and return a copy of your signed approval to me, or give me a call if you
have any questions.
Sincerely,
Thomas L. Adams, Jr.
/s/ ____________________
THOMAS L. ADAMS, JR.
Assistant Administrator for
Enforcement and Compliance
Monitoring
Enclosure
I concur in the enclosed "Process for Conducting Pre-Referral Settlement
Negotiations."
Roger J. Marzulla MAR (Illegible) 1988
/s/ _________________
ROGER J. MARZULLA
Acting Assistant Attorney General
Land and Natural Resources Division
U.S. Department of Justice
PROCESS FOR CONDUCTING PRE-REFERRAL
SETTLEMENT NEGOTIATION
I. Should a Region wish to use this process, the RA or his/her
delegate will initiate the process as is done presently for
referrals by sending simultaneously to OECM, the HQ Program
Compliance Office and DOJ a mini-lit report / case summary
( typically 5-10 pages ) which summarizes:
a. defendant and its enforcement history
b. summary of violation(s) at issue or cause of action
( including known environmental impact )
c. summary of available evidence
d. noteworthy legal and equitable defenses
e. significant contacts with defendant ( by EPA and/or the
State )
f. any legal or other significant action by the State, local
agencies, or citizen groups
g. proposed terms of settlement--present view of bottom line,
( including up-front and stipulated penalties, scope of
relief, compliance schedule and any releases of liability )
supporting rationale, and penalty calculation in accordance
with the penalty policies
h. legal, policy or other issues / strategic considerations of
primary significance to the government or bearing on
appropriate terms of settlement or the conduct of litigation
i. milestones for negotiation and filing, covering all parties to
the lawsuit
j. potential for criminal prosecution or investigation
k. what participation the Region requests from HQ and DOJ in
negotiations beyond what these procedures call for.
A proposed draft consent decree to use to open negotiations must
accompany the mini-lit report. EPA's computer DOCKET system will
begin tracking these cases once the Region sends its mini-lit
report to HQ and DOJ. 1/
1/ As an alternative to filing a mini-lit report at the start of this
process and a full lit report later on if negotiations do not reach a
timely settlement, a Region may choose instead to file a full lit report
at the start of the process, and follow that with a simple update if
pre-referral negotiations do not produce a settlement.
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II. DOJ, OECM and the Program Office will provide comments on the
proposed case, their interest in participating because of national
issues, terms of settlement, further contact point, and a
negotiation / litigation strategy to the Region within 21 days 2/
of receipt.
2/ All time periods are in calendar days.
Participating offices should initially convey or subsequently
confirm their comments in writing. If necessary, comments will
also address whether unique circumstances in a case indicate that
the proposed pre-referral settlement negotiation process is not
appropriate for the case. HQ Offices will coordinate during their
review and wherever possible, OECM will consolidate the comments
into a coordinated response. A simultaneous discussion among all
litigation team members may be particularly helpful to identify and
resolve outstanding issues. Upon response, the Region will have
authority to negotiate a settlement consistent with pre-approved
terms.
a. The region will keep HQ and DOJ apprised of changes in the
course of negotiations to the extent there is a desire to deviate
from key pre-approved terms ( e.g. bottom-line penalty, scope of
relief, compliance schedule and requirements, releases of
liability ) and will circulate to the HQ and DOJ contacts for
clearance successive re-drafts of the decree before forwarding
these redrafts to opposing counsel, consistent with present
practice for post-filing negotiations. HQ and DOJ contacts will
have a seven-day target, but sooner if possible, for responding to
re-drafts in which the Region has clearly identified changes from
prior versions. Regions should also keep HQ and DOJ generally
informed of the status of ongoing negotiations.
b. If settlement in principle is not reached within 90 days of
the latter of DOJ / HQ responses to the mini-lit report, the Region
will, within 30 days, submit a full lit report to DOJ ( copy to
OECM and HQ program office ), unless otherwise agreed. The
Regional Counsel, in consultation with the appropriate Regional
Division Director, may invoke a 30-day extension to the 90-day
period in exceptional cases upon consultation with the appropriate
OECM Associate Enforcement Counsel. Moreover, at any point in this
90-day period, the Regional Counsel, in consultation with the
appropriate Regional Division Director, may "remove" a case from
this process for the purpose of placing it on a filing track. In
such a situation, the case will be handled as a normal referral and
the Region will submit the full litigation report.
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c. DOJ will have a management target of filing the case within 45
days of receipt of a complete lit report unless new issues emerge
based upon more complete case development or unless the case is
settled in principle before that deadline.
d. If settlement in principle is reached, the Region will within
20 days submit a final draft consent decree to HQ and DOJ for
review. HQ / DOJ will review and comment to the Region within 15
days of receipt. Within 45 days of HQ / DOJ response ( unless
otherwise agreed ), the Region will submit a signed consent decree
with cover letter explaining the rationale supporting the
settlement to HQ ( copy to DOJ ) for approval.
III. EPA HQ will, within 21 days from receipt of a signed consent decree
with supporting documentation / rationale, act on ( approve or
disapprove ) civil settlements which are within preapproved terms
as initially set forth or as modified over the course of
negotiations.
IV. Simultaneous with submission to EPA HQ, Regions will send a copy of
the consent decree to DOJ to initiate a simultaneous review. DOJ
will have a management target of 21 days from receipt of a signed
consent decree from EPA HQ to act on ( lodge or disapprove ) civil
settlements which are within pre-approved terms as initially set
forth or modified over the course of negotiations.
V. DOJ will have a management target of 45 days from the date of
lodging to move a court for entry of a consent decree, assuming no
significant public comment. If 45 days cannot be met because of
significant public comment, DOJ and EPA will agree on a process and
timetable for response.
A flow chart of the proposed time lines is attached to assist the reader.
The procedures set out in this document are intended solely for the guidance
of government personnel. They are not intended and may not be relied upon
to create any rights, substantive or procedural, enforceable by any party in
litigation with the United States. The United States reserves the right to
act at variance with these procedures and to change them at any time without
public notice.
Attachment
Attachment, "Pre-Referral Settlement Negotiations Timeline," is omitted.
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