04/08/88
Enforcement Docket Maintenance
MEMORANDUM APRIL 8, 1988
SUBJECT: Enforcement Docket Maintenance
FROM: /s/ Edward E. Reich
Acting Deputy Assistant Administrator
for Civil Enforcement
TO: Regional Counsels, Regions I - X
Associate Enforcement Counsels
As was discussed in Tom Adams' memo of February 8, entitled
"Responsibilities for Assuring Effective Civil Judicial Enforcement" primary
responsibility for the timeliness, accuracy and completeness of information
contained in the Enforcement Docket lies with the Offices of Regional
Counsel. Specifically:
(1) Regions are responsible for accurate updates, at least monthly;
(2) Headquarters is responsible for accurate monthly update of
Headquarters - initiated data fields ( e.g., "checklist
completed" );
(3) Headquarters will not amend regional data entry;
(4) Headquarters will continue to monitor overall data quality, on a
monthly basis for the balance of FY'88, and thereafter on a
quarterly basis; discrepancies will be brought to the attention of
the Regional Counsel;
(5) Docket maintenance will be considered as part of the annual
performance assessment discussion with Regional Counsels.
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To insure that all parties understand their responsibilities, we have
developed detailed procedures, which are attached. I request that you
distribute copies to all attorneys in your office.
If you or your staff have any comments or questions, please let me know,
or contact Sally Mansbach or Bruce Rothrock at 8-382-3125.
My thanks for your cooperation.
Attachments
GUIDELINES AND PROCEDURES FOR THE ENTRY AND
UPDATE OF CIVIL JUDICIAL CASES IN THE
ENFORCEMENT DOCKET SYSTEM
I. INTRODUCTION
"Responsibilities for Assuring Effective Civil Judicial Enforcement" is
the subject of a Tom Adams memorandum, FEB 08, 1988, which gives the Regions
increased authority and responsibility in the judicial enforcement process.
One of these responsibilities pertains to the maintenance of the Enforcement
Docket System.
The Regions also will take the lead in the critical function of
maintaining the Agency's Enforcement Docket System. Except in national
lead case or where this responsibility is undertaken by a Headquarters
attorney and this is so noted in the case management plan, Offices of
Regional Counsel will be solely responsible for ensuring that accurate
and up-to-date information on each case is maintained in the System.
OECM attorneys will no longer make separate docket entries as a matter
of course; instead we will rely on the Regionally-entered case status
information. OECM will retain an oversight responsibility to ensure, to
the extent possible, that accurate information, consistent across the
Regions, is available from the Docket System....
This document describes the procedures and responsibilities for entering
cases in the DOCKET and for the regular, monthly review and update of the
Case Status Report. As stated in Mr Adams' memorandum, this responsibility
is almost entirely that of the Regional Attorney, who in most instances is
designated the Lead EPA Attorney.
II. DEFINITION OF A CASE
A. DOCKET Design and Assigning a Case Number.
The Enforcement Docket has been designed primarily as a system for
tracking civil judicial enforcement cases. A case is a matter which is
developed and referred with the intent that it will be filed in court as a
separate and independent entity, will receive its own court docket number
and not be joined with any other case. With this in mind, an enforcement
matter which involves multiple facilities, multiple statutory violations, or
multiple defendants is entered as one case if it is intended and believed at
the time of case development and case referral that it should be handled as
one action, filed in court as one case,
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and negotiated or litigated as one case. The Docket system has been
designed to handle and report on multiple law / section violations, multiple
facilities and multiple defendants, all linked to the parent case.
B. Amendments to Ongoing Cases.
It may be necessary once a case has been initiated to prepare and refer
a related matter with the intent of amending the original case. An example
might be an additional statute violation or other defendants. These matters
should not be entered as separate cases but as amendments. There is a
separate record in the Docket System that allows for entry and tracking of
amendments.
C. Use of DOCKET for SPMS, Accountability, and with the Workload
Model.
The numbers used in the SPMS and Accountability process are based on
cases, the fundamental ingredients of the Docket System. These are the
numbers that we also report to Congress and the public. The numbers used in
the workload model are based on cases and their component parts, such as
amendments, number of facilities, etc. The Docket structure allows for
tracking all these separate activities for workload model counts, even
though they are included under a single case name and number.
III. INITIAL CASE ENTRY
A case should be entered in the system ( Opened ) as soon as possible
after the Regional program office refers the matter to the Regional Counsel
for civil litigation, and an attorney is assigned and begins case
development. The Regional Attorney is responsible for completing the
following and giving them to the Regional data analyst for assignment of a
case number and initial data entry:
1. Case Data Form ( APPENDIX A ). Complete all items as required.
2. Facility Data Form ( APPENDIX B ). Complete a separate form for
each violating facility.
3. Case Summary ( APPENDIX C ). Develop a case summary that contains
the following information:
- Case Name: The name of the case as specified in the
litigation report.
- Facility Name: The name of the facility and location where
the violation(s) occurred.
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- Nature of case and violation(s) upon which the case is based.
Include the laws and sections violated.
- Proposed relief and remedy, including injunctive and proposed
penalty to be sought at settlement. Enter penalty fields on
the Case Data Form.
- Significant national or precedential legal or factual issues.
- Previous enforcement actions ( date, type ).
- Recent contacts with defendant(s) ( nature, outcome ).
- Other significant aspects.
These paragraphs will be entered in the DOCKET as narrative under the
heading "Case Summary." See APPENDIX C for an example.
The Regional Attorney is responsible for entering a new case as soon as
possible after case development is begun. While the case is under
development and prior to being referred ( Initiated ) the case is in an
overall status of "Opened." The earlier the case is entered as an "Opened"
case the sooner it will appear on the DOCKET for use in case management.
This procedure reduces the end-of-quarter data entry crisis to record cases
initiated ( a large proportion of which appear at the very end of the
quarter ). If the case has been entered during case development it is
necessary to enter only the "Date Initiated" at the time the case is
referred. This eliminates the risk that a case might not be counted because
all of the appropriate information could not be entered before
accountability reports are run. Entry of "opened" cases also facilitates
management of actions which are the subject of pre-referral negotiation.
IV. CASE STATUS REVIEW PROCEDURES
The Lead EPA Attorney has primary responsibility for the review and
update of all active cases. This is done at a minimum monthly by reviewing
the Case Status Report and making any changes or updates directly on the
report. The Lead EPA Attorney receives update forms for all his/her cases
from the Regional data analyst once each month. The Lead EPA Attorney is
responsible for annotating the update forms. These forms are returned by
the Lead EPA Attorney to the data analyst for entry by the last work day of
the month. The data analyst completes corrections and updates and returns
revised forms within five work days to the Lead EPA Attorney for the next
month's review and update.
The Lead EPA Attorney should pay particular attention to the
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following areas:
Case Information.
Major Milestone and Miscellaneous Events.
Staff, Attorney Names.
Results.
Penalties.
Case Status Comments.
An entry must be made in the attorney comment area every month. Any
issues which have been discussed or significant events which occurred during
the past month since the last update must be included in the comments. An
example of the nature and method of entering status comments is contained in
APPENDIX D. If there has been no development or no activity in the case,
"No Change" must be entered by the Lead EPA Attorney. The lead EPA attorney
gives the annotated monthly reports to the data analysts for data entry and
data base update. If the analyst does not receive an update for an active
case by the time the review period has ended, he/she will enter "NO UPDATE
RECEIVED."
Except in cases where the Headquarters attorney is the Lead EPA
Attorney, Headquarters attorneys will be responsible only for updating HQ-
specific data ( e.g., received at EPA HQ, checklist completed, for direct
referrals and referred to DOJ for other than indirect referrals ).
A chart display of roles and responsibilities is contained in Appendix
E. Summary "case code" tables are included in Appendix F.
V. QUALITY ASSURANCE
The Lead EPA Attorney is responsible for assuring the accurate,
complete, and timely entry of all cases and for the ongoing, monthly update
and verification of case data. Regional Counsel are responsible for
periodic review of the Docket for accuracy and completeness of all data
elements, including Attorney Comments.
Repeated problems with accuracy of data entry should be brought to the
attention of the Regional Counsel. The Regional Counsel should notify Sally
Mansbach or Bruce Rothrock if problems merit further attention.
OECM Headquarters will review the overall Docket for accuracy and
completeness, on a monthly basis for the balance of FY 1988 and quarterly
thereafter. Obvious errors or omissions will be brought to the attention of
the Regional Counsel, for appropriate Regional action. Headquarters data
entry will be restricted to those data elements which are Headquarters
responsibility. No amendment of Regional data will be made by
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Headquarters staff.
Comments or questions regarding Docket update and maintenance procedures
should be addressed to Sally Mansbach or Bruce Rothrock.
OMITTED TEXT: Appendix A - Enforcement Case Data Form; Appendix B -
Facility Data Form. See Data Analyst for form.
APPENDIX C
CASE SUMMARY CONTENT AND FORMAT
The following is an example of a Case Summary. The summary is written
by the Regional Attorney and provided to the Regional Data Analyst along
with the Case Data Form and Facility Data Form at the time the case is
initially entered. The summary includes: Case Name, Facility Name, Nature
of case and violation(s) upon which the case is based, Proposed relief and
remedy, Significant national or precedential legal or factual issues,
Previous enforcement actions, Recent contacts with defendants, Other
significant aspects.
- EXAMPLE -
CASE SUMMARY:
THIS IS A PROPOSED ACTION AGAINST THE ACME DISPOSAL CORP ( ADC ) ET AL.,
UNDER SECTION 107 OR CERCLA TO RECOVER PAST COSTS AND TO ESTABLISH LIABILITY
AS TO FUTURE COSTS TO BE INCURRED UNDER SECTION 104.
THIS CASE INVOLVED THE ADC SITE, LOCATED IN MODELTOWN, MA. THE SITE WAS
LISTED ON THE NPL ON 04/01/84. THE SITE IS A 100-ACRE LANDFILL WHICH HAS
BEEN OWNED BY ADC SINCE 03/05/75. NUMEROUS INDUSTRIAL WASTES HAVE BEEN
DISPOSED OF AT THIS FACILITY SINCE 1942.
EPA CONDUCTED ON-SITE GROUNDWATER SAMPLING ON 05/01/85. ANALYSIS
REVEALED THE PRESENCE OF HAZARDOUS SUBSTANCES INCLUDING METHYL ISOBUTYL,
KETONE, AND TOLUENE. A NOTICE LETTER WAS SENT TO THE SITE OWNER / OPERATOR
AND TO THE TEN KNOWN GENERATORS ON 05/20/87. NO RESPONSES WERE RECEIVED.
THE 1ST IMMEDIATE REMOVAL WAS COMMENCED ON 06/01/85 AND WAS COMPLETED ON
06/25/85. ONE HUNDRED DRUMS AND 500 CU YDS OF SOIL WERE REMOVED AND
DISPOSED OF AT A RCRA-APPROVED FACILITY. THE 2ND IMMEDIATE REMOVAL ACTION
WAS STARTED ON 08/01/85. FIFTY DRUMS AND 100 CU YDS OF SOIL WERE REMOVED
AND DISPOSED OF AT A RCRA-APPROVED FACILITY. TOTAL FEDERAL GOVT COSTS AS OF
11/01/87 ARE $1,524,000.
A DEMAND LETTER FOR PAST COSTS WAS SENT TO ADC ON 12/01/87. THE STATUTE
OF LIMITATIONS MAY RUN ON 06/25/88. GENERAL NOTICE LETTERS WERE SENT TO 143
PRP GENERATORS ON 09/01/87.
APPENDIX D
CASE STATUS COMMENTS
The following are examples of attorney case status comments, provided as
part of the monthly review of active cases. Comments are written by the
attorney directly on the Case Status Report directly below or in the margin
beside the previous months entry.
- EXAMPLE -
HEADQUARTERS CASE STATUS:
REGIONAL CASE STATUS:
01-30-88: COMPLAINT FILED IN DIST. CT ( EDMA ) ON 01/15/88 AGAINST ADC,
CITY OF MODELTOWN, GENERAL DISPOSAL CORP., ET AL.
02-28-88: ADC FILED ANSWER ON 02/15/88; GENERAL DENIALS. ADC FILED
MOTION TO DISMISS ON 02/15/88.
03-30-88: ADC MOTION TO DISMISS DENIED ON 03/20/88. STATUS CONF
SCHEDULED TO BE HELD ON 04/18/88.
04-29-88: STATUS CONF HELD ON 04/18/88. GENERAL DISPOSAL CORP REQUESTED
TREATMENT AS DE MINIMIS GENERATOR. LITIGATION TEAM PLANS TO MEET ON
05/20/88. GOVT PLANNING TO FILE MOTION FOR SJ.
(1) It is important to add precise dates to update comments both to be
specific and to avoid confusion between the date of the docket entry and the
date of the event.
(2) It is important to follow up on stated planned events in subsequent
monthly updates with comments as to whether or not the planned event took
place and, if so, when.
(3) Case status comments should reflect the general content of
settlement proposals and draft and final consent decrees, including final
construction deadlines, final compliance deadlines, penalties, duration of
the decree, and whether or not stipulated penalties are included.
(4) If there are no updates during a month, enter "NO CHANGE".
OMITTED TEXT: Appendix E - Civil Judicial Enforcement Docket Entry
Maintenance Verification Responsibilities and Procedures; Appendix F -
Violation Table; Appendix F - Pollutant Table. See Data Analyst for current
table.
APPENDIX F
RESULT TABLE
------------
RESULT RESULT RESULT
LEVEL CODE REASON
--------------- ----------------- --------------------------
1- Before WR - Withdrawn by
Referral to Region.
DOJ DE - Declined by HQ.
2- After WE - Withdrawn by HQ.
Referral to DJ - Declined by DOJ.
DOJ / US Atty, DA - Declined by US
Before filing attorney.
of Complaint
or CD.
3- After filing LN - Litigated w/no
of Complaint Penalty.
or CD CN - CD w/no Penalty.
CP - CD w/ Penalty *RO - Penalty under RCRA.
LP - Litigated w/ Penalty *CO - Penalty under CERCLA.
*BO - Penalty under both
RCRA & CERCLA.
*CR - CD / Cost Recovery *OC - Cost Recovery under
CERCLA.
*LR - Litigated / Cost *OT - Cost Recovery w/
Recovery treble damages under
CERCLA.
*CB - CD w/ Penalty & Cost *RC - Penalty under RCRA
Recovery & Cost Recovery
under CERCLA.
*LB - Litigated w/ Penalty *CC - Penalty and Cost
and Cost Recovery Recovery under
CERCLA.
*CT - Penalty under CERCLA,
Cost Recovery w/
treble damages under
CERCLA.
*RT - Penalty under RCRA,
Cost Recovery w/
treble damages under
CERCLA.
*BC - Penalty under both
RCRA & CERCLA, Cost
Recovery under
CERCLA.
*BT - Penalty under both
RCRA & CERCLA, Cost
Recovery w/ treble
damages under
CERCLA.
DC - Dismissed by Court.
VD - Voluntarily Dismissed.
CO - Combined.
*/ Result code and Result reason apply only to RCRA / CERCLA cases.
APPENDIX F
REFERRAL INDICATOR TABLE
------------------------
REFERRAL
INDICATOR DESCRIPTION
--------- -----------
RH Region to Headquarters.
RD Region to DOJ.
RU Region to US Attorney.
HD Headquarters to DOJ.
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