5-12.002 Purpose and Functions

5-12.100 Area of Responsibility -- Statutes Administered

1. 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);

2. Clean Air Act, 42 U.S.C. § 7401 et seq.;

3. Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et seq. (also known as the Solid Waste Disposal Act);

4. Comprehensive Environmental Response, Compensation, and Liability Act (Superfund), 42 U.S.C. § 9601 et seq.;

5. Safe Drinking Water Act, 42 U.S.C. § 300f et seq.;

6. Toxic Substances Control Act, 15 U.S.C. § 2601 et seq.;

7. Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. § 135(d) et seq.;

8. 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;

9. Marine Protection Research and Sanctuaries Act, 33 U.S.C. § 1401 et seq.;

10. Noise Control Act, 42 U.S.C. § 4901 et seq.;

11. 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;

12. 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);

13. Uranium Mill Trailings Radiation Control Act, 42 U.S.C. § 7133 et seq.;

14. Section 2 of the Energy Supply and Environmental Coordination Act of 1974, 15 U.S.C. § 791 et seq.;

15. The Act of June 23, 1910 (33 U.S.C. § 421 et seq.);

16. The Act of June 29, 1888 (33 U.S.C. § 441 et seq.);

17. Sections 3, 6, and 9 of the Act of August 30, 1961 (33 U.S.C. §§ 1002, 1005, 1008);

18. 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;

19. 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.

20. The Oil Pollution Control Act of 1990, 33 U.S.C. § 2701 et seq.

5-12.110 General Responsibilities

5-12.111 Cases Brought on Behalf of the United States

1. 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 environment al 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.:
   1. File or amend a complaint or counterclaim;
   2. File a claim or otherwise initiate process or file a counterclaim in a bankruptcy or probate matter;
   3. Raise issues involving statutes administered by the EPA or other Federal agencies;
   4. Compromise, close or dismiss a case; or
   5. Modify or enforce a consent decree or judgment.

2. 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.

5-12.120 Overlapping Section Case Responsibility

5-12.121 Responsibility for Cases With New Issues and/or Altered Character

1. 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.

2. 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

5-12.300 Supervision and Handling of Environmental Enforcement Section Cases -- Requests for Instructions

5-12.302 Transmittal of Papers to Environmental Enforcement Section and Client Agencies

5-12.311 Exigent Circumstances

1. 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.

2. 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

1. 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:
   1. 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;

   2. 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

5-12.340 Cooperation and Coordination with Environmental Protection Agency

1. 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.

2. 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.

3. 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.

4. 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

5-12.520 Investigation and Administrative Processing of Violations -- Responsibility for Detecting and Investigating Violations

5-12.522 Transmittal of Reports of Unauthorized Activities

5-12.523 Coordination With State Programs

5-12.524 Administrative Disposition of Violations

5-12.530 Litigation Procedures; Draft Complaints

5-12.531 Lis Pendens and the Recording of Judgments

5-12.532 Pleadings

5-12.533 Trial Assistance

5-12.600 Settlement and Dismissal of Cases

5-12.611 Transmittal of Settlement Offers

5-12.612 Solicitations of Agency Views

5-12.613 Settlement Policy in Suits Brought on Behalf of the Administrator of the Environmental Protection Agency

1. 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.

2. Defendants should be advised that only the Department of Justice and the attorneys specifically designated may bind the United States to any agreement.

3. 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;

4. 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;

5. 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.

6. 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.

5-12.620 Consent Decrees; Public Notice Policy

1. 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.

2. 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.

3. 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.

4. 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.

5. 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.

6. 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.

7. 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:

Case Management Unit
Environmental Enforcement Section
Environment and Natural Resources Division
Department of Justice
P.O. Box 7611
Washington, D.C. 20044-7611

UNITED STATES ATTORNEY OFFICES LOCATED IN THE FOLLOWING STATES	SHOULD SEND DECREES TO THE FOLLOWING EPA REGIONAL OFFICES
Maine, New Hampshire, Vermont, Mass., R.I., Conn.	Regional Counsel EPA-Region I John Fitzgerald Kennedy Federal Bldg. Room 2203 Boston, MA 02203
N.Y., N.J., P.R., Virgin Islands	Regional Counsel EPA - Region II 290 Broadway New York, NY 10007
Pa., Del., Md., Va., W.Va., D.C.	Regional Counsel EPA - Region III 841 Chestnut Building Philadelphia, PA 19107
N.C., S.C., Ga., Tenn. Ky., Fla., Miss., Ala.	Regional Counsel EPA - Region IV 345 Courtland Street, N.E. Atlanta, GA 30365
Ill., Ind., Ohio, Minn., Wis., Mich.	Regional Counsel EPA - Region V 230 South Dearborn Street Chicago, IL 60604
Tex., La., Okla., N.M., Ark.	Regional Counsel EPA - Region VI 1445 Ross Avenue 12th Floor - Suite 1200 Dallas, TX 75202
Kan., Mo., Iowa, Neb.	Regional Counsel EPA - Region VII 726 Minnesota Avenue Kansas City, KN 66101
Col., Utah, Wyo., Mont., N.D., S.D.	Regional Counsel EPA - Region VIII 999 18th Street - Suite 50 Denver, CO 80202-2405
Cal., Ariz., Nev., Hawaii	Regional Counsel EPA - Region IX 75 Hawthorne Street San Francisco, CA 94105
Wash., Ore., Idaho, Alaska	Regional Counsel EPA - Region X 1200 Sixth Avenue Seattle, WA 98101