5-12.001
Establishment
The Environmental Enforcement Section was created on September 10, 1980,
by Environment and Natural Resources Division Directive No. 17-80.
5-12.002
Purpose and Functions
The Environmental Enforcement Section was organized in order to provide
a specialized legal staff capable of carrying out the effective civil
judicial enforcement of laws relating to protection of the environment.
5-12.100
Area of ResponsibilityStatutes
Administered
The Environmental Enforcement Section is responsible for conducting
civil enforcement litigation arising under the following
statutes:
- Federal Water Pollution Control Act or Clean Water Act, 33 U.S.C. §
1251 et seq. (except for in rem actions against vessels, which are
supervised by the Torts Branch (Admiralty and Shipping) of the Civil
Division and except for wetlands cases under 33 U.S.C. §§ 1311(a),
1344 that are supervised by the Environmental Defense Section);
- Clean Air Act, 42 U.S.C. § 7401 et seq.;
- Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et
seq. (also known as the Solid Waste Disposal Act);
- Comprehensive Environmental Response, Compensation, and Liability Act
(Superfund), 42 U.S.C. § 9601 et seq.;
- Safe Drinking Water Act, 42 U.S.C. § 300f et seq.;
- Toxic Substances Control Act, 15 U.S.C. § 2601 < i>et seq.;
- Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. §
135(d) et seq.;
- River and Harbor Act, 33 U.S.C. § 4401 et seq., except for in
rem actions against vessels and wetlands cases. See Federal Water
Pollution Control Act;
- Marine Protection Research and Sanctuaries Act, 33 U.S.C. § 1401
et seq.;
- Noise Control Act, 42 U.S.C. § 4901 et seq.;
- The Atomic Energy Act of 1954, 42 U.S.C. § 2011 et seq.,
insofar as it relates to the civil prosecution of violations committed by a
company in matters involving the licensing and operation of nuclear power
plants and affecting the environment;
- Powerplant and Industrial Fuel Use Act of 1978 (Pub.L. No. 95-620),
National Energy Conservation Policy Act (Pub.L. 95-619), and Titles I and V
of the Public Utility Regulatory Policies Act of 1978 (Pub.L. No.
95-617);
- Uranium Mill Trailings Radiation Contr ol Act, 42 U.S.C. § 7133
et seq.;
- Section 2 of the Energy Supply and Environmental Coordination Act of
1974, 15 U.S.C. § 791 et seq.;
- The Act of June 23, 1910 (33 U.S.C. § 421 et seq.);
- The Act of June 29, 1888 (33 U.S.C. § 441 et seq.);
- Sections 3, 6, and 9 of the Act of August 30, 1961 (33 U.S.C. §§
1002, 1005, 1008);
- Sections 15 and 18 of the Deepwater Port Act of 1971 (33 U.S.C. §
1501 et seq.), insofar as a violation of the Act or the rules and
regulations promulgated pursuant thereto results in environmental pollution;
- Section 5(a)(2) of the Outer Continental Shelf Lands Act of August 7,
1953 (43 U.S.C. § 1334(a)(2)), where the violation of a rule or
regulation results in environmental pollution.
- The Oil Pollution Control Act of 1990, 33 U.S.C. § 2701 et
seq.
[cited in USAM 5-1.310;
USAM 5-12.110;
USAM 5-12.111;
USAM 5-12.120;
USAM 5-12.302;
USAM 5-12.320;
USAM 5-12.522;
USAM 5-12.523;
USAM 5-12.600]
5-12.110
General Responsibilities
The Environmental Enforcement Section prosecutes, supports, and
coordinates the prosecution of all civil cases, matters, and proceedings
arising under the statutes identified in USAM
5-12.100 or initiated under federal common law for environmental
protection.
5-12.111
Cases Brought on Behalf of the United States
- The Environmental Enforcement Section has Departmental
responsibility for civil matters initiated on behalf of the United States to
secure the control and abatement for sources of pollution or to protect the
natural environment, to the extent that such cases may arise under the
statutes identified in USAM 5-12.100 or
under the federal common law. As a matter of policy and practice, civil
prosecutions are initiated at the request of the Administrator of the
Environmental Protection Agency, the Commandant of the Coast Guard, the
Chief of Engineers of the United States Army, and other government officials
having statutory responsibility for the enforcement of laws designed to
protect the public health, welfare, and the environment. Section 12 of the
statute that authorized the Department's 1980 budget authorized the Attorney
General with the concurrence of any agency or department with primary
enforcement responsibility for an environmental or natural resource law to
investigate any violation, and bring such actions as are necessary to
enforce such laws. Except for cases initially subject to treatment as
direct referrals, see USAM 5-1.310,
the Assistant Attorney General of the Environment and Natural Resources
Division must review and approve in advance the following actions in cases
referred by or brought on behalf of the Environmental Protection Agency and
other Federal client agencies under the statutes identified in USAM 5-1.320, et seq.:
- File or amend a complaint or counterclaim;
- File a claim or otherwise initiate
process or file a counterclaim in a bankruptcy or probate matter;
- Raise issues involving statutes administered by the EPA or
other Federal agencies;
- Compromise, close or dismiss a case; or
- Modify or enforce a consent
decree or judgment.
- When apparent violations of the statutes
identified in USAM 5-1.320 et seq. are
brought to the attention of the Department of Justice by persons or agencies
other than those with statutory enforcement responsibilities, the Department
either forwards those reports to appropriate executive branch enforcement
officials for evaluation and possible referral for legal proceedings or, in
criminal cases, may itself undertake the necessary investigation and
prosecution. The practice of forwarding reports of suspected violations to
appropriate agencies has several potential benefits: (1) it allows the
agencies to bring to bear their technical expertise to determine whether
violations actually have occurred; (2) it allows the agencies to settle
cases administratively in certain circumstances; and (3) it allows the
agencies to apply technical and investigative resources in order to develop
those cases which do have merit.
[cited in
USAM 3-8.130
5-12.120
Overlapping Section Case Responsibility
Although the Environmental Enforcement Section has the primary
responsibility for actions involving the statutes identified in USAM 5-12.100 occasionally cases occur which
involve those statutes along with statutes for which another section of the
Department generally is responsible. In each such case, the chiefs of the
respective sections will designate the section which will assume the primary
responsibility. The designated section will coordinate with any other
concerned section, will furnish copies of all pertinent pleadings and
memoranda to that section, and will notify the United States Attorney of
the names and telephone numbers of attorneys in the other sections who may
be contacted for information in their areas of expertise.
5-12.121
Responsibility for Cases With New Issues and/or Altered Character
- Occasionally issues involving laws for which the Environmental
Enforcement Section is responsible may be injected into existing litigation
by way of amendment or supplemental pleadings or sua sponte by the court.
The United States Attorney should not add or raise such matters without
first notifying and receiving approval from the Chief of the Environmental
Enforcement Section. In cases where such issues have been raised by others,
the United States Attorney should immediately notify the Chief of the
Environmental Enforcement Section to assure that the section can properly
perform its responsibilities.
- On other occasions, the fundamental character of existing litigation may
change and environmental enforcement issues may become dominant issues. In
such situations, the Environmental Enforcement Section staff attorney
responsible for the case shall notify the Section Chief, who may request a
transfer of section responsibility if he/she deems it appropriate. If
Environmental Enforcement issues become dominant in a case in which no
Environmental Enforcement Section attorney is directly involved, the United
States Attorney shall notify the Environmental Enforcement Section Chief of
the situation and he/she may make a written request to the Assistant
Attorney General of the Environment and Natural Resources Division to have
the case transferred to the Environmental Enforcement Section.
5-12.200
Organization
- The section is administered by a Chief, two Deputy Chiefs, and six
Assistant Chiefs. Within the section, work is assigned among staff
attorneys by the Assistant Chiefs, under the supervision of the Chief and
Deputy Chiefs, according to experience and workload. General information
relating to the Section or cases within its supervision may be obtained by
calling the Chief or Assistant Chiefs at FTS (202) 514-5271 or 514-4353.
Information on a specific case should be requested from the staff attorney
assigned to that case. When the staff attorney's name is unknown, the
docket clerk of the section (FTS (202) 514-5245 or 514-5246) may furnish
that information. (Note that a quicker response to inquiries may be
forthcoming if the requestor can cite a departmental file number, e.g.,
90-5-1-2-40 or 62-81-2, which generally appears in the upper left-hand
corner of correspondence originating from the Department.)
5-12.300
Supervision and Handling of Environmental
Enforcement Section CasesRequests for Instructions
- All requests for instructions and guidance relating to the prosecution
of actions under the jurisdiction of the Environmental Enforcement Section
shall be referred to the Chief of the Environmental Enforcement Section of
the Environment and Natural Resources Division of the Department of Justice,
P.O. Box 7611, Washington, D.C. 20044-7611, or to the section attorneys
known to be handling such actions.
5-12.302
Transmittal of Papers to Environmental
Enforcement Section and Client Agencies
- In any case arising under the statutes identified in USAM 5-12.100 one copy of each letter sent or
received by a United States Attorney as well as one copy of each pleading
and paper filed by any party or by the court, shall be forwarded promptly to
the Environmental Enforcement Section and one copy shall be forwarded to the
referring client agency.
5-12.311
Exigent Circumstances
- Whenever the United States Attorney becomes aware of a recently
developed situation in his/her district not previously the subject of any
report or referral, which merits a temporary restraining order or
preliminary injunction, he/she should contact both the regional legal office
of the client agency and the Chief of the Environmental Enforcement Section
directly by telephone. An example might be the United States Attorney's
learning of a company's intention to burn hazardous material in an
uncontrolled incinerator thereby endangering the lives and health of those
living near the incinerator. To prevent such action a temporary restraining
order or a preliminary injunction may be in order.
- Under circumstances which involve immediate threats to life or health,
the Chief of the Environmental Enforcement Section may give authorization by
telephone for the filing of a complaint and application for a temporary
restraining order. If the Section Chief, Deputy Chief, the Assistant Chiefs,
the Deputy Assistant Attorney, and the Assistant Attorney General, cannot be
reached by telephone, the United States Attorney may seek a temporary
restraining order to prevent threats to life or health without prior
approval.
5-12.320
Direct Referral Civil Cases Not Requiring Prior Approval by the
Assistant Attorney General
- The following groups of cases arising under the statutes identified in
USAM 5-12.100 may be handled by the United
States Attorneys as direct referrals, i.e., as not requiring specific
authorization by the Assistant Attorney General of the Environment and
Natural Resources Division:
- Cases referred by the United States Coast Guard for the collection of
federal clean up costs or civil penalties under 33 U.S.C. § 1321;
- Miscellaneous proceedings, such as warrants, in assistance to agencies
seeking investigative entry under the Clean Water Act, 33 U.S.C.
§ 1318; Clean Air Act, 42 U.S.C. §§ 7414, 7525;
Resource Conservation and Recovery Act, 42 U.S.C. §§ 6927,
6934; Safe Drinking Water Act, 42 U.S.C. § 300(j) (4); Toxic
Substances Control Act, 15 U.S.C. § 2610; and Federal
Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. § 136(g);
but not the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980 (CERCLA), 42 U.S.C. § 9601 et seq.
- All other enforcement cases arising under these statutes identified
in USAM 5-1.320 require the approval of
the Assistant Attorney General before they can be filed, with the
exception of warrants under CERCLA which may be approved by the
Environmental Enforcement Section Chief or his/her designee.
- The Assistant Attorney General and his/her designee retain the authority
to direct that any case within the responsibility of the Environment and
Natural Resources Division shall be handled in whole or in part by Division
attorneys.
| 5-12.321
Notification to Environmental Enforcement
Section of Intention to File Actions
- Prior to filing a civil complaint in a case authorized for direct
referral, the United States Attorney shall notify the Chief of the
Environmental Enforcement Section of the proposed action and shall furnish
the section with a copy of the written request from the respective client
agency for the initiation of the action. Thereafter, the Environmental
Enforcement Section shall be furnished with copies of all pleadings filed in
any direct referral case.
5-12.340
Cooperation and Coordination with Environmental Protection Agency
- Pursuant to a Memorandum of Understanding with the Environmental
Protection Agency, within 60 days of receipt from the Environmental
Protection Agency of a formal request to file a suit, the Chief
Environmental Enforcement Section is required to decide whether an
enforcement action is to be filed.
- If a determination is made by the Section Chief not to file a
complaint, he/she shall report this determination promptly to the
Assistant Attorney General and, upon the approval of the determination by
the Assistant Attorney General, to the official of the Environmental
Protection Agency requesting the initiation of the action.
- If a determination is made by the Chief to file an action, the
complaint, signed by the Assistant Attorney General, shall be filed
within 20 days of the determination to file. In the event that any United
States Attorney or Environmental Enforcement Section attorney does not
file such a complaint, he/she shall submit a report to the Assistant
Attorney General explaining why such complaint has not been filed, and
shall continue to submit such reports at two-week intervals until the
complaint is filed or a decision is reached not to file the complaint.
- If the Department of Justice fails to file a complaint within 120
days of its receipt of a request for litigation and a civil litigation
report by the agency to the Attorney General, then the Administrator may
request the Attorney General, to file a complaint within 30 days. Failure
of the Department thereafter to file a complaint within the said 30 days
may be considered by the Administrator or his/her delegate to be a
failure of the Attorney General to notify the Administrator within a
reasonable time that he/she will appear in litigation for purposes of
Section 305 of the Clean Air Act, 42 U.S.C. § 7605; Section 506 of the
Federal Water Pollution Control Act, 33 U.S.C. § 1366; or Section 1450 of
the Safe Drinking Water Act, 42 U.S.C. § 300(j)(9). If such a failure
occurs, attorneys of the Environmental Protection Agency may represent
the Administrator without the United States Attorney or Department
attorneys. However, the failure
of the Attorney General to file a complaint within the time period
requested by the Administrator in a case in which the Administrator
requested immediate action to protect public health under §§ 311(e) and
504 of the Federal Water Pollution Control Act, 33 U.S.C. §§ 1321(e) and
1364; Section 303 of the Clean Air Act, 42 U.S.C. § 7603; or Section 1450
of the Safe Drinking Water Act, 42 U.S.C. § 300(i), may also be
considered by the Administrator to be a failure of the Attorney General
to notify the Administrator under 42 U.S.C. § 7605; 33 U.S.C. § 7603; or
42 U.S.C. § 300(j)(9).
| 5-12.500
District Court Procedures Generally
- The general instructions set forth in USAM
5-1.100 et seq., with respect to the handling of litigation under
the jurisdiction of the Environment and Natural Resources Division apply to
litigation within the responsibility of the Environmental Enforcement
Section.
5-12.520
Investigation and Administrative Processing of
ViolationsResponsibility for Detecting and Investigating Violations
- The primary responsibility for detecting and investigating suspected
violations of statutes rests with the federal agencies which are charged by
statute with administering those acts. After investigating reports of
suspected violations, the respective agencies generally evaluate them
internally under their own procedures to determine which matters merit
referral to the Department of Justice for prosecution. Generally, whether
it goes directly to the United States Attorney or to the Environment and
Natural Resources Division, a referral will be accompanied by a litigation
report describing the alleged violation and the evidence available to the
agency to support a prosecution.
- While primary responsibility for investigating violations of an
environmental enforcement statute may reside with the agency administering
the act, this does not mean that other agencies, including United States
Attorneys' offices, should not have a role in th is phase of enforcement.
Agencies such as the Fish and Wildlife Service of the Interior Department
and the National Marine Fisheries Service of the Commerce Department may
have personnel in the field who can be important sources of information on
suspected illegal activities. Also, some United States Attorneys' offices
have employed legal technicians, whose duties include assisting the Army
Corps of Engineers, Environmental Protection Agency, and Coast Guard in
investigating activities proscribed by environmental statutes and preparing
cases for litigation.
- Because of his/her function as representative of the various federal
agencies in legal matters, the United States Attorney is in a position to
coordinate the investigative efforts of those agencies the violations of
environmental statutes. Such coordination can result in more thorough and
efficient case development with fewer resources devoted to duplicative
efforts. The United States Attorneys, therefore, a re encouraged to
establish contact with the investigative agencies which operate within
their districts, to render to them useful advice regarding sound case
development, and to take a lead in creating a cooperative federal effort.
The Environmental Enforcement Section is prepared to assist the United
States Attorneys in establishing contact with personnel of the federal
agencies who operate within the various districts.
5-12.522
Transmittal of Reports of Unauthorized
Activities
- Notwithstanding the source, all reports of violations of environmental
enforcement statutes should be referred to the enforcement agencies charged
with administering the acts. There are numerous reasons for this policy.
In addition to the fact that prompt referral may avert wasteful duplication
of federal effort, under certain of the statutes identified in USAM 5-12.100 administrative consideration
may be a prerequisite to civil enforcement. See, e.g., 42 U.S.C.
§ 7413(a)(1). In some instances, such matters may be resolved
administratively without resort to litigation.
5-12.523
Coordination With State Programs
- Most states have environmental enforcement programs which overlap, in
whole or in part, with federal programs. United States Attorneys should
familiarize themselves with state environmental enforcement laws and state
enforcement officials. Frequently a particular, unauthorized activity
constitutes a violation of both federal and state law. United States
Attorneys should remain advised of pending state environmental enforcement
prosecutions. If it appears that all federal interests in the case will be
vindicated in the state court proceeding, action in federal court may be an
unnecessary duplication of effort. On the other hand, if federal interests
will not be protected completely in state court, federal proceedings may be
warranted. A key policy question in determining the source of federal
environmental enforcement proceedings is often whether the unauthorized
activity would have been permitted if the violator had sought permission in
adva nce. The regulation of federal en forcement agencies, such as
that of the Army Corps of Engineers, frequently requires that a
permit-applicant obtain all necessary state permits, licenses, easements,
etc., before a federal permit will be issued. In some cases, the only
substantive objections to an authorized activity may be those which are
raised by state authorities. Federal legal proceedings therefore may be
directed, in substance, toward vindicating a state interest. In certain of
these cases, it might be more appropriate to defer to state prosecution.
But even where legal action in federal court appears warranted, the United
States Attorney will have to maintain close ties with state authorities
during all stages of the litigation. Some of the statutes identified in USAM 5-12.100 e.g., 33 U.S.C. §
1319(b) and 42 U.S.C. § 7413(b), specifically require that notice of any
federal civil action be given immediately to a ppropriate state officials.
At least one statut e, 33 U.S.C. § 1319(e), requires that a state
be made a party to any enforcement action against one of its
municipalities.
5-12.524
Administrative Disposition of Violations
- By statute or by regulation, most environmental enforcement agencies
have administrative procedures which can result in the disposition of
environmental enforcement matters. Generally, United States Attorneys
should defer legal action until those administrative proceedings have been
completed. Court proceedings should be regarded as an adjunct to, and not
substitute for the administrative process.
5-12.530
Litigation Procedures; Draft Complaints
- Referral packages from the environmental agencies frequently include
draft complaints. In direct referral cases (see USAM 5-1.310), the United States Attorney is
not bound by the form of such a draft complaint, but a well drafted
complaint can be helpful in expediting the initiation of an action. In
order to avoid the necessity of redrafting complaints in such cases, United
States Attorneys should cooperate closely with local agency counsel and
advise them as to local practice and the customary local forms of
complaints. In cases requiring the approval of the Assistant Attorney
General, a draft complaint furnished by the client agency also may be used,
or a new draft may be prepared by the Environmental Enforcement Section.
Because formats vary from district to district, Environmental Enforcement
Section attorneys often will seek guidance from the United States Attorney
prior to drafting a complaint. W hether an agency draft is used or a
new draft is generated by the Environmental Enforcement Section, once a
complaint has been approved and signed by the Assistant Attorney General, it
may not be altered prior to filing without the express approval of the
Chief of the Environmental Enforcement Section.
5-12.531
Lis Pendens and the Recording of Judgments
- In civil environmental enforcement actions for prohibitory or mandatory
injunctive relief, complications may arise if the ownership of the property
in question changes hands during the pendency of the action. Where there is
a threat of transfer of ownership, the United States Attorney should
consider filing a notice of the pendency of the action, of lis pendens. The
steps necessary for the filing of such a notice are determined by the law of
the particular state. See 28 U.S.C. § 1964.
- The final judgment in a civil environmental enforcement prosecution may,
in effect, place a permanent burden on the property which was subject to
the unauthorized activities. In order to protect the future interests of
the United States, the judgment should be recorded in accordance with the
requirements of local law and the provisions of 28 U.S.C. § 1962 et
seq.
5-12.532
Pleadings
- The Environmental Enforcement Section maintains files of pleadings which
have been employed successfully in past cases. Upon request to the staff
attorney, United States Attorneys may obtain pertinent, sample papers or
other assistance in preparing for a particular case.
5-12.533
Trial Assistance
- In cases in which United States Attorneys have primary litigating
responsibilities, they are encouraged to request assistance in trial
preparation from the Environmental Enforcement Section staff attorney
assigned to a case. Section staff attorneys often are in a position to
obtain legislative histories, archive materials, and technical information
which is not readily available in United States Attorneys' offices.
Memoranda, trial briefs, information on unreported cases, and other material
relevant to environmental cases also can be obtained through the staff
attorneys. Additionally, the section keeps a file on expert witnesses used
in various cases and is able to procure the services of expert witnesses
through the headquarters of a number of different agencies in Washington,
D.C.
5-12.600
Settlement and Dismissal of Cases
- The United States Attorneys are authorized to compromise any case
referred to them by the Coast Guard for the collection of a civil penalty
imposed pursuant to 33 U.S.C. § 1321. (Checks submitted for the payment
of civil penalties should be forwarded to the referring agency for
disposition.) The United States Attorneys are not authorized to settle or
dismiss any case arising under any of the statutes identified in USAM 5-12.100.
-
[cited in USAM 5-8.600]
5-12.611
Transmittal of Settlement Offers
- Any offer to settle or dismiss an action which the United States
Attorney is not authorized to compromise shall be transmitted to the
Environmental Enforcement Section attorney assigned to the case for
consideration and disposition at the appropriate level. Such offers should
be accompanied by the written comments and recommendation of the referring
United States Attorney and of the referring agency. In emergency
situations, such as with settlement offers received during trial or
settlement offers dealing exclusively with monetary damages or penalties,
those offers may be communicated to the Chief or one of the Deputy Chiefs
of the Environmental Enforcement Section by telephone.
5-12.612
Solicitations of Agency Views
- United States Attorneys should remain in continuing communication with
the referring agency prior to and during settlement negotiations. This will
insure that the proposals being discussed are compatible with agency
policies and regulations and facilitate agency approval.
- Additionally, agencies other than the referring agency may have
statutory review responsibilities in connection with work in navigable
waters. For example, the Fish and Wildlife Service has the responsibility
to review, comment on, and make recommendations as to such work under the
Fish and Wildlife Coordination Act of 1958, 16 U.S.C. §§ 661 to
666. In the interests of inter-agency cooperation, the views of these
agencies should at least be considered before an offer in compromise is
accepted or transmitted to the Environmental Enforcement Section.
5-12.613
Settlement Policy in Suits Brought on Behalf
of
the Administrator of the Environmental Protection Agency
- Frequently, cases brought on behalf of the Administrator of the
Environmental Protection Agency results in agreed judgments or consent
decrees. Copies of consent decrees in previously settled cases are
available from the Environmental Enforcement Section.
- To assist United States Attorneys' offices in understanding the types
of settlements and language in decrees which are acceptable, the following
general guidance is provided:
- Defendants should be informed that any settlement must be approved by
the Assistant Attorney General of the Environment and Natural Resources
Division and by the Assistant Administrator for the Office of Enforcement
and Compliance Assurance of the Environmental Protection Agency or his/her
delegate, and are subject to review by them. This is a requirement of the
Memorandum of Understanding with the Environmental Protection Agency.
- Defendants should be advised that only the Departme nt of Justice and
the attorneys specifically designated may bind the United States to any
agreement.
- The pendency of settlement negotiations should not cause a cessation of
litigating activities. Defendants in enforcement cases often are more
amenable to settlements favorable to the United States when discovery and
trial preparations proceed in parallel with settlement negotiations;
- In no civil settlement agreement will the Environment and Natural
Resources Division compromise the ability of the United States to undertake
criminal prosecutions in appropriate circumstances;
- All correspondence and other communication pertaining to the case from a
defendant must come through the United States Attorney, the Environmental
Enforcement Section, or client agency counsel who are assigned to assist in
the litigation of the case.
- Defendants should be advised that the United States is bound only by the
provision actually set forth in any consent decree, and that no alleged
agreement, written or oral, with any client agency representative or with
anyone else, which does not appear on the face of a decree, in any way
alters the actual terms of that decree.
- [cited in
USAM 3-8.130
5-12.620
Consent Decrees; Public Notice Policy
- Consent judgments in actions in which the complaint seeks to enjoin
the discharge or emission of pollutants, after being approved by the
Assistant Attorney General, are to be lodged with the court and made
available for public inspection for a period of 30 days prior to their
entry. This is required by Departmental Order No. 529-73, 38 Fed.Reg.
19029, dated July 17, 1973, 28 C.F.R. § 50.7.
- Criminal actions, suits brought solely for the imposition of civil
penalties, and actions pursuant to 33 U.S.C. § 403 for injunctive relief
are not covered by this policy.
- The purpose of the provision is to allow the public to comment and to
allow the Executive Branch to receive the benefit of such input, and to
allow it to withdraw or modify its consent to the decree based upon such
information.
- Whenever a proposed consent decree is lodged with the court pursuant
to 28 C.F.R. § 50.7, the United States Attorney shall notify the
Environmental Enforcement Section of that fact immediately, in order that
the section may have notice of the proposed settlement published in the
Federal Register.
- In some instances district judges have proceeded to enter consent
decrees prior to the expiration of the public notice and comment period.
If this should occur, the United States Attorney must notify the
Environmental Enforcement Section of that fact immediately.
- When the public comment period has expired, the Environmental
Enforcement Section will notify the United States Attorney as to whether
any comments have been received by the Division and will forward such
comments for filing with the court. If the Environmental Enforcement
Section or the respective client agency intends to respond to any
material public comments, the Environmental Enforcement Section will
notify the United States Attorney of that fact.
- After the court has approved the consent decree, the United States
Attorney should provide copies of the file-stamped and court-signed
decree to the Environmental Enforcement Section of the Environment and
Natural Resources Division and to the appropriate regional EPA office.
The mailing list for these offices is as follows:
- Copies of all court-approved consent decrees on behalf of the
Environmental Protection Agency should be addressed as follows:
Case Management Unit
Environmental Enforcement Section
Environment and Natural Resources Division
Department of Justice
P.O. Box 7611
Washington, D.C. 20044-7611 | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |