UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460

JUNE 24 1992

OFFICE OF ENFORCEMENT

MEMORANDUM

SUBJECT:
Guidance on Coordination of Federal Facility Enforcement Actions with the Office of Enforcement

FROM:
Gordon M. Davidson
Director, Office of Federal Facilities Enforcement

TO:
Waste Division Directors, Regions I-X
Water Division Directors, Regions I-X
Air Division Directors, Regions I-X
Regional Counsels, Regions I-X

Please find attached the latest version of the guidance on coordination of Federal facility enforcement actions with the Office of Enforcement. Please review and comment as you deem appropriate by July 18, 1992. Headquarters would like to finalize the guidance this summer.

Overall, the Regions have been quite consistent at alerting OFFE prior to taking an enforcement action. OFFE commends the Regions for their cooperation and support on this matter. As you recall, the main purpose of the early warning system is to afford Headquarters an opportunity to prepare to address the questions that are inevitably posed to the Office of Enforcement by the leadership of the affected Federal agencies and the press concerning EPA's action.

Although the Regions have been coordinating well for the most part, there are, nevertheless, instances where the Office of Federal Facilities Enforcement (OFFE) was not notified in a timely manner. Headquarters believes that finalizing this guidance will help avoid these instances and help improve the coordination between the Regions and OFFE. As one Region commented-on this guidance, EPA is stronger when Headquarters and the Regions are united on a position. Coordination will help ensure effective Headquarters support.

cc: Federal Facility Coordinators, Regions I-X

Confidential Draft: June 23, 1992

GUIDANCE ON COORDINATION OF FEDERAL FACILITY ENFORCEMENT ACTIONS WITH THE OFFICE OF ENFORCEMENT

1. APPLICATION
   
   This guidance applies to civil enforcement actions against departments, agencies, and instrumentalities of the United States which arise at federal facilities under any federal environmental laws. This guidance also addresses civil enforcement actions under any federal environmental law against contractor-operators of federal facilities.
   
   This guidance also covers actions taken to address violations of interagency agreements under Section 120 of the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. § 9620, and federal facility compliance agreements or administrative compliance or consent orders under any other statute. This guidance does not apply to criminal enforcement actions.
    
2. COORDINATION WITH THE OFFICE OF ENFORCEMENT
   
   The potential national significance of many enforcement actions against agencies or departments of the Federal Government or against contractors which operate federal facilities makes it vital that the Office of Enforcement be informed before important actions are initiated or before stipulated penalties under enforcement agreements are formally assessed.
   
   This guidance will help ensure consistency in the Agency's actions against federal facilities and afford Headquarters an opportunity to prepare to address the questions that are inevitably posed to the Office of Enforcement by the leadership of the affected federal agencies and the press concerning EPA's action. It will also allow senior Agency management the opportunity, in appropriate circumstances, to directly notify the senior management of the affected federal agency of the violations to ensure that the underlying environmental problems are addressed promptly. The Director, Office of Federal Facilities Enforcement, should make the Region aware of discussions senior Agency management have with senior management of the affected federal agency.
   
   Written notice describing the action contemplated should be given to the Director, Office of Federal Facilities Enforcement, as early as possible before important actions are taken or announced against either federal agencies or their contractor-operators. This notice need not be lengthy and might only contain a description of the action to be taken, the date the action will be taken, any information relating to press releases on the matter, and the name of a Regional point of contact. Often a copy of the unsigned action letter that the Region is preparing to send to the affected federal agency or the draft press release is enough to satisfy Headquarters concerns.
   
   For example, notice should be given of large penalty actions, potentially precedent setting actions, or actions that, because of unique circumstances, can reasonably be expected to create significant interest outside EPA. The Regions should also give notice to OFFE of any other action which, in the judgment of the Region, can be expected to have national implications.
   
   This guidance will facilitate consistency and communication regarding environmental problems at federal facilities, and will assist in coordinating the Agency's enforcement activity. This guidance is not intended to discourage Regions from using their enforcement authority at federal facilities nor does it affect EPA's enforcement authority or change existing delegations of that authority in any way. It does not impose a requirement that Regions seek office of Enforcement approval for their enforcement actions. It is the policy of EPA to use its enforcement authority aggressively to ensure that federal agencies and their contractors comply with all environmental laws.
    
3. CONCLUSION
   
   This guidance and any internal procedures adopted for its implementation are intended solely as guidance for employees of the U.S. Environmental Protection Agency. Such guidance and procedures do not constitute rule making by the Agency and may not be relied upon to create a right or benefit, substantive or procedural, enforceable at law or in equity, by any person. The Agency may take action at variance with this guidance and its internal implementing procedures.