Procedures and Criteria for Department of Justice Concurrence in EPA Administrative Orders to Federal Agencies

U.S. Department of Justice

Land and Natural Resources Division

Office of the Assistant Attorney General
Washington, DC 20530

December 27, 1988

Dr. J. Winston Porter
Assistant Administrator for
Solid Waste and Emergency Response
Environmental Protection Agency
Washington, D.C. 20460

Dear Win:

Enclosed please find a copy of the final version of the Justice Department's Procedures and Criteria for concurrence in proposed EPA administrative orders to federal agencies. The Procedures have been modified to reflect the EPA staff comments forwarded to me in your letter of November 7, 1988.

In order to facilitate the concurrence process, I have taken the liberty of sending a copy of this letter and enclosures to the EPA Regions and other offices principally involved in waste programs enforcement and to the General Counsels of federal Executive Branch agencies.

As we together develop more experience under Executive Order 12580, I will welcome any comments or suggestions from EPA regarding implementation of this concurrence process.

Sincerely,

Roger J. Marzulla
Assistant Attorney General

Enclosures

cc: Michael R. Deland
Christopher J. Daggett
James M. Seif
Greer C. Tidwell
Valdas V. Adamkus
Robert E. Layton, Jr.
Morris Kay
James J. Scherer
Daniel W. McGovern
Robie G. Russell
Regional Administrators

Patrick A. Parenteau
Douglas R. Blazey
Bruce M. Diamond
James H. Sargent
Robert B. Schaefer
James Neet
Martha Steincamp
Thomas A. Speicher
Nancy J. Marvel
Barbara J. Lither
Regional Counsels

Thomas L. Adams, Jr.
Assistant Administrator for
Enforcement and Compliance Monitoring

Richard E. Sanderson
Director, Office of Federal Activities

Lawrence J. Jensen
Acting General Counsel

General Counsel Mailing List (Enclosed)

Mr. C. Edward Dillery
General Counsel
Department of State
2201 C Street, N.W. Room 20520
Washington, D.C. 20590

Mr. Wayne Vance
General Counsel
Department of Transportation
400 7th Street, S.W., Room 10428
Washington, D.C. 20590

Mr. Mark Sullivan
General Counsel
Department of Treasury
15th & Pennsylvania Avenue, S.W.
Washington, D.C. 20220

Mr. Ralph W. Tarr
Solicitor
Department of Interior
18th & C Streets, N.W.
Room 5100
Washington, D.C. 20220

Mr. Robert C. Mackichan, Jr.
General Counsel
General Services Administration
18th & F Streets, N.W.
Room 4139
Washington, D.C. 20405

Mr. John E. O'Brien
General Counsel
National Aeronautics & Space Administration
400 Maryland Avenue, S.W., Room 5143
Washington, D.C. 20546

Mr. Don W. Wilson
Archivist of United States
National Archives & Records Administration
7th & Pennsylvania Avenue, N.W.
Washington, D.C. 20408

Mr. Peter Powers
General Counsel
Smithsonian Institute
1000 Jefferson Drive, S.W., Room 400
Washington, D.C. 20560

FEDERAL FACILITY DOCKET MAILING LIST

DECEMBER, 1988

Mr. Russell Bruemmer
General Counsel
Central Intelligence Agency
Washington, D.C. 20505

Mr. Christopher Hicks
General Counsel
Department of Agriculture
14th & Independence Ave., S.W.,
2033 South Building
Washington, D.C. 20250-1400

Mr. Robert Brumley
General Counsel
Department of Commerce
14th & Constitution Avenue, S.W.
Room 5830
Washington, D.C. 20230

Mr. Eric Fygi
Deputy General Counsel
Department of Energy
1000 Independence Avenue, S.W.
Room 6A-245
Washington, D.C. 10585

Mr. Malcolm Sterrett
General Counsel
Department of Health & Human Services
200 Independence Avenue, S.W. Room 514G
Washington, D.C. 20201

Mr. Michael Dorsey
General Counsel
Department of Housing & Urban Development
451 7th Street, S.W.
Room 10214
Washington, D.C. 20410

Ms. Cynthia Attwood
Office of Solicitor
Department of Labor
200 Constitution Avenue, N.W.
Washington, D.C. 20210

Mr. Edward H. Christenbury
General Counsel
Tennessee Valley Authority
309 Walnut Street
Knoxville, TN 37902

Mr. Louis A. Cox
General Counsel
US Postal Service
475 L'Enfant Plaza, West
Washington, D.C. 20260

Mr. Donald L. Ivers
General Counsel
Veterans Administration
810 Vermont Avenue, N.W.
Washington, D.C. 20420

Ms. Kathleen Buck
General Counsel
Department of Defense
The Pentagon Rm. 3E980
Washington, D.C. 20301-1600

Lt. General Vincent Russo
Defense Logistics Agency
DLA-W Cameron Station
Alexandria, VA 22304-6100

Honorable Robert C. Costello
Assistant Secretary
Environment, Safety & Occupational Health
Department of the Air Force
The Pentagon Room 4L916 SAF/RQ
Washington, D.C. 20330-1000

Mr. Lewis Walker
Assistant Secretary
Installation & Logistics
Department of the Army
The Pentagon, OASA INL, Room 2E577
Washington, D.C. 20330-0104

Mr. Frederick S. Sterns
Director for Installation & Facilities
Department of the Navy
OASN (Ship Building & Logistics)
Washington, D.C. 20360

U.S. Department of Justice

Land and Natural Resources Division

PROCEDURES AND CRITERIA FOR DEPARTMENT OF JUSTICE CONCURRENCE
IN EPA ADMINISTRATIVE ORDERS TO FEDERAL AGENCIES

1. Purpose -- The purpose of these Procedures and Criteria is to implement the responsibilities of the Attorney General (as delegated to the Assistant Attorney General for the Land and Natural Resources Division) under section 4(e) of the Superfund Executive Order (EO 12580, Jan. 23, 1987) to review any administrative order ("AO") that the Environmental Protection Agency ("EPA") proposes to issue to a federal agency under sections 104(e)(5)(A) or 106(a) of the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. 9604(e)(5)(A), 9606(a).

2. Procedure -- The EPA Assistant Administrator for Solid Waste or, if delegated, the EPA Regional Administrator, should submit the proposed AO and a referral letter to:

Assistant Attorney General
Land and Natural Resources Division
Department of Justice
Washington, D.C. 20530

with a copy to:

Chief
Policy, Legislation and Special Litigation Section
Land and Natural Resources Division
Department of Justice
Washington, D.C. 20530

The referral letter should include the following information:

-- A statement of the technical basis for the AO, including all necessary findings that support the existence of an imminent and substantial endangerment from an actual or threatened release (for an order issued pursuant to CERCLA § 106(a)), or the basis for believing that there may be a release or threatened release (for an order issued pursuant to CERCLA § 104 (e)(5)(A));

-- A statement of EPA's prior dealings with the agency and the efforts that have been made to resolve the matter;

-- A statement of the objections raised by the agency in objecting to compliance and EPA's response to those objections;

-- A statement of whether there are non-federal PRPs or government contractors responsible for the facility and the status of any EPA enforcement efforts against such persons;

-- The name and telephone number of both the EPA attorney with line responsibility for the AO and the EPA Headquarters contact in the Federal Facilities Hazardous Waste Compliance Office within the Office of Waste Programs Enforcement.

Upon receipt, the Policy, Legislation and Special Litigation Section ("PLSL") will promptly (i) enter the proposed AO onto its docket; (ii) review the proposed AO and advise the EPA line attorney and the Federal Facilities Hazardous Waste Compliance Office contact at EPA Headquarters if additional information will be required; (iii) evaluate the proposed AO according to the criteria listed below and prepare a recommendation for the Assistant Attorney General. PLSL will then forward the proposed AO and its recommendation to the Assistant Attorney General for a decision if the proposed AO and referral letter include all the necessary information, the Assistant Attorney General will make his or her decision within two weeks of receipt of the proposed AO. The decision will be provided to the Assistant Administrator for Solid Waste or the Regional Administrator, as the case may be, in a letter stating the Assistant Attorney General's concurrence, concurrence subject to conditions, or objection to the proposed AO.

In situations where faster action is required (for instance, where there may be an emergency that presents a direct and immediate threat to the public health), PLSL and the Assistant Attorney General will attempt to review the proposed AO within 24 hours. To obtain expedited review, the EPA line attorney or the Federal Facilities Hazardous Waste Compliance Office contact at EPA Headquarters should contact PLSL by telephone at FTS 633-1442 at the earliest possible time.

3. Criteria -- In deciding whether to issue the proposed AO, the Assistant Attorney General will consider the following factors:

-- whether the proposed AO is consistent with EPA's statutory authority;

-- the extent of prior consultation with the affected federal agency at the appropriate levels of authority;

-- whether any non-federal PRP has responsibility that affects the appropriateness of the issuance of an AO to the federal agency.

In addition to the foregoing, EPA and the Department of Justice may raise, and the Assistant Attorney General may consider, any other factors that may be relevant under the circumstances.

ROGER J. MARZULLA
Assistant Attorney General

DATED: December 27, 1988