5-1.200 Litigation Involving the Environmental Protection Agency

5-1.300 Supervision and Handling of Environment and Natural Resources Division Cases -- Generally

5-1.302 Pleadings To Be Signed by the Assistant Attorney General

5-1.310 Authority of United States Attorneys to Initiate Actions Without Prior Authorization, i.e., Direct Referral Cases

AUTHORITY TO INITIATE CASES

1. Delegation to United States Attorneys

A. Land Cases.

(a) Actions to recover possession of or quiet title to property from tenants, squatters, trespassers, or others, and actions to enjoin trespasses;

(b) Actions to recover damages resulting from trespasses when the amount of the claim for actual damage based upon an innocent trespass does not exceed $1,000,000, and actions to recover amounts exceeding $1,000,000:

(i) if the actual damages are $1,000,000 or less and applicable state law permits the recovery of multiple damages, e.g., double or treble, for either a willful or an innocent trespass; or

(ii) if the actual damages are $1,000,000 or less, but the action is for conversion to obtain recovery of the enhanced value of property severed and removed in the trespass;

(c) Actions to collect delinquent rentals or damages for use and occupancy of not more than $1,000,000;

(d) Actions to collect costs of forest fire suppression and other damages resulting from such fires;

(e) Actions to collect delinquent operation and maintenance charges accruing on Indian irrigation projects and federal reclamation projects of not more than $1,000,000;

(f) Actions to collect loans of money or livestock made by the United States to individual Indians without limitation on amount, including loans made by Indian tribal organizations to individual Indians if the loan agreements, notes and securities have been assigned by the tribal organizations to the United States; and

(g) Actions in which the United States is named as a party pursuant to 28 U.S.C. §§ 2410(a)(3) and (4).

B. Other Civil Environmental Cases.

(a) Civil actions involving the filling or the deposit of dredged or fill material into, or the alteration of the channels of, the waters of the United States, in violation of section 10 of the River and Harbor Act of 1899 (33 U.S.C. § 403), or of section 404 of the Federal Water Pollution Control Act Amendments of 1972 ("Clean Water Act") (33 U.S.C. § 1344), or of both statutes;

(b) Civil actions involving the discharge of refuse into the navigable waters of the United States, and, in certain cases, their tributaries, in violation of section 13 of the River and Harbor Act of 1899 (33 U.S.C. § 407), except for in rem actions against vessels, which actions shall continue to be under the jurisdiction of the Civil Division.

(a) Cases brought on behalf of the United States Coast Guard in response to a written request from an authorized field officer, seeking federal clean up costs or civil penalties under section 311 of the Clean Water Act (33 U.S.C. § 1321); and Sections 1002 and 1017 of the Oil Pollution Act of 1990, 33 U.S.C. §§ 2702 and 2717, for the collection of federal clean up costs and/or the imposition of civil penalties;

(b) Miscellaneous proceedings, such as warrant requests, in assistance to agencies seeking investigative entry under section 308 of the Clean Water Act (33 U.S.C. § 1318); sections 114 or 206 of the Clean Air Act (42 U.S.C. §§ 7414, 7525); sections 3007 or 3013 of the Resource Conservation and Recovery Act (42 U.S.C. §§ 6927, 6934); section 11 of the Toxic Substances Control Act (15 U.S.C. § 2610); or section 9 of the Federal Insecticide, Fungicide and Rodenticide Act (7 U.S.C. § 136g).

(c) Cases under any statute listed in USAM 5-12.100 for collection of civil penalties previously assessed by the referring agency in an administrative proceeding where the amount of the penalty does not exceed $1 million.

3. Wildlife and Marine Resources Cases. United States Attorneys are authorized to act, without prior authorization from the Environment and Natural Resources Division, on behalf of any other department or agency in response to a direct request in writing from an authorized field officer of the department or agency concerned, in the following wildlife cases:

(a) Endangered Species Act of 1973, 16 U.S.C. § 1531 et seq.;

(b) Lacey Act Amendments of 1981, 16 U.S.C. § 3371 et seq., 18 U.S.C. § 42;

(c) Airborne Hunting Act, 16 U.S.C. § 742j-1;

(d) Migratory Bird Treaty Act, 16 U.S.C. § 703 et seq.;

(e) Migratory Bird Conservation Act, 16 U.S.C. §§ 715 to 715d, 715e, 715f to 715k, 715l to 715r;

(f) Bald and Golden Eagle Protection Act, 16 U.S.C. §§ 668 to 668d;

(g) Dingell-Johnson Fish Restoration Act, 16 U.S.C. §§ 777 to 777i, 777k;

(h) National Wildlife Refuge System Administration Act, 16 U.S.C. §§ 668dd, 668ee;

(i) Marine Protection, Research and Sanctuaries Act, 33 U.S.C. § 1431 et seq.;

(j) Magnuson Fishery Conservation and Management Act, 16 U.S.C. § 1801 et seq.;

(k) Whaling Convention Act, 16 U.S.C. § 981 et seq.;

(l) Atlantic Tunas Convention Act, 16 U.S.C. § 971;

(m) Tuna Convention Act, 16 U.S.C. § 951 et seq.;

(n) Marine Mammal Protection Act, 16 U.S.C. § 1361 et seq.; (o) Sockeye Salmon or Pink Salmon Fishing Act, 16 U.S.C. § 776 et seq. [repealed];

(p) Fur Seal Act of 1966, 16 U.S.C. § 1151 et seq.;

(q) Protection of Sea Otters on the High Seas Act, 16 U.S.C. § 1171 et seq.;

(r) Wild Free Roaming Horses and Burros Act, 16 U.S.C. §§ 1331 to 1340;

(s) Fish and Wildlife Coordination Act, 16 U.S.C. §§ 661 to 667e;

(t) Animal Damage Control Act, 7 U.S.C. § 426 et seq.;

(u) Sponge Act, 16 U.S.C. § 781 et seq.;

(v) Northern Pacific Halibut Act, 16 U.S.C. § 773 et seq.;

(w) North Pacific Fisheries Act, 16 U.S.C. § 1021 et seq. [repealed];

D. Delegated Cases.

(a) cases under the Safe Drinking Water Act, 42 U.S.C. § 300(f) et seq., and § 300h-2, the Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et seq., the Clean Air Act, 42 U.S.C. § 7401 et seq., the Clean Water Act, 33 U.S.C. § 1251 et seq., the Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. § 136 et seq., the Toxic Substances Control Act, 15 U.S.C. § 2601 et seq., the Oil Pollution Act of 1990, 33 U.S.C. § 2701 et seq., and Section 104 (e) of the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. § 9604(e), where the amount of the civil penalty to be paid to the United States by a defendant, together with the cost of any Supplemental Environmental Projects (SEPs) does not exceed $1 million and, in addition, either (i) the penalty (not including any SEPs) is equal to or greater tha n the economic benefit of non-compliance, or (ii) the settlement results from an inability to pay analysis as confirmed by a qualified financial analyst;

(b) cases under Sections 112 and 113 of the Clean Air Act, 42 U.S.C. §§ 7412 and 7413, for violations of the national emission standards for asbestos hazardous air pollutants;

(c) cases under Section 17(a)(1) of the Toxic Substances Control Act, 15 U.S.C. § 2616(a)(1) and Section 1018(b)(2) of The Residential Lead-Based Paint Hazard Reduction Act, 42 U.S.C. § 1018(b)(2), for violations of the duty to disclose the presence of lead-based paint and information concerning its hazards to prospective buyers and renters of residential property;

(d) cases under Section 311 of the Clean Water Act, 33 U.S.C. § 1321, and Sections 1002 and 1017 of the Oil Pollution Act of 1990, 33 U.S.C. § 2702 and 2717, for recovery of costs expended by the United States to remove oil or hazardous substances discharged into or upon the navigable waters or adjoining shorelines, or into or upon the continuous zones or exclusive economic zones, where such costs do not exceed $5 million, exclusive of interest, and the difference between the gross amount of the United States' claim and the proposed settlement does not exceed $1 million.

(e) cases under any statute listed in USAM 5-12.100 to enforce requests for access to information, entry and/or inspection and samples, or for civil penalties for noncompliance with such requests.

E. Limitations On Delegations

(a) For any reason, the proposed action, as a practical matter, will control or adversely influence the disposition of other claims totaling more than the respective amounts designated in the above paragraphs;

(b) Because of a novel question of law or a question of policy presented, or for any other reason, the proposed action should, in the opinion of the officer or employee concerned, receive the personal attention of the Assistant Attorney General, Environment and Natural Resources Division;

(c) The agency or agencies involved are opposed to the proposed action, settlement or compromise; or

(d) The Assistant Attorney General, Environment and Natural Resources Division, so directs.

F. Authority To Approve Federal Register Notices

(a) To approve all Federal Register Notices under 28 C.F.R. § 50.7 and under any statute enforced by the Division, and to transmit those notices to the Assistant Attorney General, Office of Legal Counsel, for publication;

(b) To determine on a case-by-case basis whether a modification to a previously entered consent decree which had previously been noticed for public comment, requires additional public comment; and

(c) To approve motions to enter consent decrees after public comment.

G. Litigation Involving The Environmental Protection Agency

All litigation involving the Environmental Protection Agency must be conducted in accordance with the 1977 Memorandum of Understanding between the Department of Justice and the Environmental Protection Agency (including the time frames set forth in paragraphs 8, 9 and 10 of that document), and with the guidance and policies established by the Environmental Protection Agency, the Environment and Natural Resources Division and the Environmental Enforcement Section regarding litigation of civil environmental cases. The Environmental Enforcement Section will provide the United States Attorneys with copies of all pertinent guidance and policies. In addition, United States Attorneys will promptly report on the status of cases under these delegations whenever information is needed for required reports to client agencies, Congress, etc., or for docket reviews with Department and Division management or with client agencies.

H. Memorandum By United States Attorney Explaining Action

5-1.320 Actions Not Subject to Direct Referral to United States Attorneys

5-1.321 Prior Authorization Needed to Initiate Action

5-1.322 Assignment of Actions Generally

5-1.323 Cases Assigned to United States Attorneys

5-1.324 Cases Assigned as a Joint Responsibility

5-1.325 Cases for Which the Division Is Assigned Responsibility

5-1.326 Review and Change of Case Assignments