02/28/86
Direct Referrals; Correspondence between Thomas L. Adams and F. Henry Habi
cht, II
AUG 28 1986
Honorable F. Henry Habicht, II
Assistant Attorney General
Land and Natural Resources Division
U.S. Department of Justice
Washington, D.C. 20530
Re: Direct Referrals
Dear Hank:
During the past year OECM has been holding discussions with the
Headquarters program offices and with the 10 Regional Counsels on how to
improve and expand the direct referral program, wherein certain cases are
referred directly from the Regional Administrator to your office. Because
the program is working well, the consensus of the Associate Enforcement
Counsels, the program compliance division directors and the Regional
Counsels is to expand the classes of cases subject to direct referral. We
have also consulted with members of your staff and understand that they
acquiesce in this concept insofar as the classes of cases set forth herein
are concerned.
This letter, when signed by you, will serve as an amendment to our
September 29, 1983, agreement which set forth the conditions of the
initial direct referral pilot project. It will also amend the June 15,
1977, Memorandum of Understanding between our respective Agencies.
The following 8 classes of cases will be added to the direct referral
program:
1. All collection actions in which the relief requested is solely
for unpaid administratively or judicially assessed penalties
under any statute, except for actions to assess penalties under
CERCLA and cases where there is little prior experience in civil
judicial enforcement ( i.e., the Ocean Dumping Act, underground
injection control regulation under RCRA/SDWA, Clean Air Act
NESHAPs other than vinyl chloride and asbestos ).
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2. All actions in which the only relief sought is contempt for
violation of any consent decree or other enforceable order,
and/or to enforce the terms of any consent decree or other
enforceable order. 1/
1/ All modifications of consent decrees which result from
any action ( direct referral ) in this paragraph shall
continue to require OECM approval and program office
approval, where appropriate, prior to submission to DOJ
for entry by the court.
The preceding types of actions against governmental entities
shall continue to be referred to OECM.
3. Clean Air Act cases involving asbestos and vinyl chloride
National Emissions Standards for Hazardous Air Pollutants.
4. All Clean Air Act post-1982 date cases except those involving
steel producers, smelters, and lead sources. 2/
2/ OECM approval will also be required when major changes are
made to SIPs due to a future change in the related NAAQS.
5. All Clean Water Act cases involving NPDES permit violations by
industrial dischargers, except those involving violations
relating to or determined by biological methods or techniques
measuring effluent toxicity.
6. All judicial actions alleging interim status violations under
RCRA Section 3008(a) except cases involving loss of interim
status or closure. This authority will take effect in each
Region upon the successful referral by the Region of two cases
in order to demonstrate the requisite experience. This authority
does not include corrective action cases under Section 3008(h).
7. All RCRA judicial actions seeking penalties only, except for
underground injection control regulation cases.
8. All actions to enforce final federal orders issued under RCRA
Section 3008(a). This authority will take effect in each Region
upon the successful referral by the Region of two cases in order
to demonstrate the requisite experience.
We will add these expansion cases to the 5 classes of cases currently
included in the direct referral program listed below:
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1. Cases under Section 1414(b) of the Safe Drinking Water Act which
involve violations of the National Interim Primary Drinking Water
Regulations, such as reporting or monitoring violations or
maximum contaminant violations. ( Note: This category does not
include any causes of action under Section 1414(b) established by
the SDWA Amendments of 1986. )
2. The following cases under the Clean Water Act:
a. cases involving discharges without a permit by industrial
dischargers;
b. all cases against minor industrial dischargers;
c. cases involving failure to monitor or report by industrial
dischargers;
d. referrals to collect stipulated penalties from industrials
under consent decrees;
e. referrals to collect administrative spill penalties under
Section 311(j) of the CWA.
3. All stationary source cases under the Clean Air Act except the
following:
a. cases involving the steel industry;
b. cases involving nonferrous smelters;
c. cases involving NESHAPs;
d. post - 1982 date cases.
4. All TSCA & FIFRA collection actions for unpaid
administratively assessed penalties.
5. All mobile source tampering and fuels cases ( except
governmental entity cases ) arising under the Clean Air
Act, Sections 203 and 211 respectively.
OECM will continue to play a substantive role in these cases,
especially in view of the increases size of the Agency's case load and the
need to ensure that our cases reflect the Agency's priorities. OECM and
DOJ will simultaneously review these referrals.
Within 35 days of receipt of a copy of the direct referral package,
the appropriate AEC will comment on the merits of the referral to DOJ and
to the originating regional office. He may ask the Assistant
Administrator of OECM to recommend to DOJ that the case be further
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developed before filing or returned to the regional office. OECM will
also continue to oversee the progress and development of these direct
referral cases and will continue to approve all judicial settlements on
behalf of EPA. All other agreed-upon conditions and procedures regarding
direct referrals and case management will remain in effect.
In order to allow sufficient time prior to implementation of the
expansion and to make the U.S. Attorneys, the regional offices and our
staffs aware of its provisions, it is agreed that this agreement shall
become effective for cases referred from a Region on or after September 2,
1986. I will distribute a memorandum to the Regions, the Headquarters
program offices and within OECM explaining the expansion and how it will
be implemented.
I appreciate your cooperation in arriving at this amendment to our
agreement. If this direct referral case expansion meets with your
approval, please sign in the space provided below and return a copy of the
letter to me for our files.
Sincerely,
Thomas L. Adams, Jr.
Assistant Administrator
Approved:
_______________________________
F. Henry Habicht, II
Assistant Attorney General
Land and Natural Resources Division
U.S. Department of Justice
cc: Richard H. Mays
Senior Enforcement Counsel
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