B-205755 L/M, APR 9, 1982, OFFICE OF GENERAL COUNSEL

B-205755 L/M, APR 9, 1982, OFFICE OF GENERAL COUNSEL

PRECIS-UNAVAILABLE

JOHN D. DINGELL, HOUSE OF REPRESENTATIVES:

IN YOUR LETTER OF NOVEMBER 23, 1981, YOU REQUESTED THAT THE GENERAL ACCOUNTING OFFICE REVIEW THE IMPACT OF FISCAL YEARS 1982 AND 1983 BUDGET REDUCTIONS ON THE ENVIRONMENTAL PROTECTION AGENCY'S (EPA) PROGRAMS AND ACTIVITIES. AS PART OF YOUR REQUEST, YOU ASKED THAT WE REVIEW EPA'S ENFORCEMENT EFFORTS, INCLUDING AN OFFICE OF GENERAL COUNSEL REVIEW OF THE REASONABLENESS OF EPA'S WITHDRAWAL OF 43 ENFORCEMENT CASES AFTER THEY HAD BEEN REFERRED TO THE DEPARTMENT OF JUSTICE. OUR COMMUNITY AND ECONOMIC DEVELOPMENT DIVISION IS RESPONDING SEPARATELY TO YOUR REMAINING QUESTIONS ABOUT EPA'S ENFORCEMENT ACTIVITIES.

IN DISCUSSIONS WITH MEMBERS OF YOUR STAFF, WE ESTABLISHED THAT OUR ROLE IN REVIEWING THE 43 CASES WITHDRAWN FROM JUSTICE SHOULD BE A LIMITED ONE. WE STATED THAT IN VIEW OF THE DISCRETIONARY AUTHORITY OF BOTH EPA AND JUSTICE TO DETERMINE WHICH CASES WERE APPROPRIATE FOR REFERRAL AND LITIGATION, WE WOULD NOT ATTEMPT TO ASSESS INDEPENDENTLY THE MERITS OF THE CASES UNDER THE RELEVANT STATUTES. RATHER, WE INDICATED THAT WE WOULD REVIEW THESE CASES SOLELY ON THE BASIS OF THE REASONABLENESS OF THE PROCEDURES USED IN THEIR REFERRAL AND SUBSEQUENT WITHDRAWAL.

AFTER SOME INITIAL DELAYS IN OBTAINING ACCESS TO THE FILES, WE HAVE NOW COMPLETED OUR REVIEW OF THE 43 CASES. THE PURPOSE STATED BY EPA FOR REASSESSING ITS REFERRALS TO JUSTICE WAS TO STREAMLINE ITS DOCKET OF ENFORCEMENT CASES, AND TO GIVE GREATER ATTENTION TO ENVIRONMENTALLY SIGNIFICANT CASES. ON THE BASIS OF INFORMATION OBTAINED IN THE FILES AND PROVIDED IN OUR DISCUSSIONS WITH EPA STAFF, WE FOUND NO EVIDENCE THAT EPA'S MOTIVATION WAS OTHER THAN AS STATED, AND HAVE CONCLUDED THAT THERE WAS NO OBVIOUS IMPROPRIETY IN THE WITHDRAWAL OF ANY OF THE CASES. WE DO QUESTION EPA'S FAILURE TO PROVIDE ADEQUATE, CUSTOMARY DOCUMENTATION IN SOME OF THE FILES, HOWEVER, AS WILL BE DISCUSSED BELOW.

WE HAD NUMEROUS DISCUSSIONS WITH EPA STAFF MEMBERS TO ESTABLISH THE PROCEDURES FOLLOWED IN INITIALLY REFERRING CASES, AND THEN IN SELECTING CASES TO BE WITHDRAWN. EPA REVIEWED ABOUT 190 CASES WHICH HAD BEEN PREVIOUSLY REFERRED TO JUSTICE. APPROXIMATELY 100 OF THESE WERE CLEAN AIR ACT CASES, 60 WERE CLEAN WATER ACT CASES, AND 30 INVOLVED ALLEGED VIOLATIONS OF OTHER ENVIRONMENTAL LAWS. OF THE 43 CASES ULTIMATELY WITHDRAWN, 29 WERE CLEAN AIR ACT CASES, 11 WERE CLEAN WATER ACT CASES, AND ONE EACH INVOLVED THE SAFE DRINKING WATER ACT, THE MARINE PROTECTION RESEARCH AND SANCTUARIES ACT, AND THE NOISE CONTROL ACT.

EPA'S ENFORCEMENT CASES ARE DEVELOPED IN THE AGENCY'S REGIONAL OFFICES, ON THE BASIS OF TECHNICAL AND LEGAL ANALYSES OF THE ALLEGED VIOLATIONS. LITIGATION REPORT IS PREPARED, WHICH ESTABLISHES THE LEGAL CAUSE OF ACTION, AND CONTAINS TECHNICAL INFORMATION TO SUPPORT THE ALLEGATIONS. THESE REPORTS ARE SENT TO EPA HEADQUARTERS, WHERE THE BASIS FOR THE CAUSE OF ACTION AND THE SUPPORTING INFORMATION ARE REVIEWED AND APPROVED, AND THE PACKAGE OF MATERIALS IS THEN REFERRED TO JUSTICE. WE DO NOT KNOW HOW THOROUGH A REVIEW HEADQUARTERS STAFF GIVES THESE REPORTS, BUT WE HAVE BEEN ADVISED INFORMALLY THAT NO ATTEMPT WAS MADE TO LIMIT REFERRALS TO ONLY THE STRONGEST POSSIBLE CASES. RATHER, ALL CASES WITH LEGALLY SUPPORTABLE ALLEGATIONS WERE REFERRED TO JUSTICE.

DURING THE SUMMER OF 1981, THE DEPUTY ASSOCIATE ADMINISTRATOR FOR ENFORCEMENT POLICY ASKED THE PROGRAM OR DIVISION MANAGERS AND LEGAL STAFF RESPONSIBLE FOR ENFORCEMENT MATTERS TO REVIEW AND ANALYZE THE APPROXIMATELY 190 REFERRALS THAT WERE THEN PENDING AT JUSTICE, TO DETERMINE WHETHER THEY ALL HAD SUFFICIENT MERIT TO WARRANT FILING OR WHETHER SOME MIGHT MORE APPROPRIATELY BE WITHDRAWN.

REGIONAL AND HEADQUARTERS STAFF REVIEWED THEIR FILES AND DISCUSSED THE MERITS OF THE VARIOUS CASES, BUT THE SUBSTANTIVE ASPECTS OF THESE CONVERSATIONS WERE NOT, IN ALL CASES, COMMITTED TO WRITING. THE CLEAN WATER ACT CASE FILES CONTAIN INTERNAL EPA MEMORANDA, AS WELL AS MEMORANDA TO THE FILES AND WRITTEN NOTATIONS OF TELEPHONE CONVERSATIONS, ALL OF WHICH PERTAIN TO THE DECISIONS TO WITHDRAW OR CONTINUE ACTION ON A PARTICULAR CASE.

IN CONTRAST, THE CLEAN AIR ACT CASE FILES LACK ANY SIMILAR INTERNAL SUPPORTING DOCUMENTS RELATED TO WITHDRAWAL DECISIONS. AN AUGUST 6, 1981 MEMORANDUM ANALYZING THE CLEAN AIR ACT CASES WAS PREPARED AND USED AS A BRIEFING DOCUMENT, HOWEVER, AND IT APPEARS TO BE THE ONLY WRITTEN EVIDENCE OF THE ANALYTICAL PROCESS THAT TOOK PLACE WITH RESPECT TO THE CLEAN AIR ACT CASES. FN1

FOR BOTH GROUPS OF CASES THE ENSUING STAFF RECOMMENDATIONS WERE SIMILAR. WITHDRAWAL WAS RECOMMENDED FOR A FAIRLY SMALL PROPORTION OF CASES, AND THE REST WERE TO REMAIN AT JUSTICE FOR ACCELERATED FILING, FOR NORMAL PROCESSING TO FILING, OR FOR SETTLEMENT, VERIFICATION OF COMPLIANCE, OR FURTHER ANALYSIS.

AT ABOUT THE SAME TIME EPA WAS REASSESSING ITS CASES, JUSTICE ALSO WAS REVIEWING THE EPA REFERRALS, AND SENT EPA SUMMARY ASSESSMENTS OF THOSE CASES THAT JUSTICE BELIEVED WERE CANDIDATES FOR WITHDRAWAL. THE SUMMARIES WERE ENCLOSED WITH AN AUGUST 4, 1981 LETTER TO EPA, AND WHEN READ IN CONJUNCTION WITH THE SUMMARIES PREPARED BY EPA, AND INTERNAL MEMORANDA, WHERE AVAILABLE, PROVIDE THE JUSTIFICATION FOR EACH PROPOSED WITHDRAWAL. THE STATED BASIS FOR EACH DECISION APPEARS RATIONAL AND APPROPRIATE. SOME TYPICAL EXAMPLES INCLUDE OFFENDERS WHO CURRENTLY ARE IN OR ABOUT TO BE IN COMPLIANCE WITH APPLICABLE STANDARDS, WITH MINIMAL ESTIMATED PENALTIES INVOLVED; OFFENDERS WHO ARE NO LONGER OPERATING; NEW OWNERS OF OFFENDING SOURCES WHO HAVE COME INTO COMPLIANCE WITH STATE OR FEDERAL REGULATIONS; VIOLATIONS WHICH HAVE CAUSED NO ENVIRONMENTAL HARM; AND OFFENDERS WHO ARE SUBJECT TO STATE LEGAL PROCEEDINGS.

THESE SUMMARIES FORMED THE BASIS OF DISCUSSIONS BETWEEN EPA AND JUSTICE TO IRON OUT THE DIFFERENCES OF OPINION THAT EXISTED, AND EVENTUALLY TO WINNOW OUT THE 43 CASES AT ISSUE. WE WERE INFORMED THAT THESE DISCUSSIONS WERE INFORMAL, TELEPHONIC EXCHANGES OF INFORMATION WHICH GENERALLY RESULTED IN RAPID AGREEMENT BEING REACHED AS A RESULT OF THE ADDITIONAL FACTS EACH SIDE PROVIDED. HOWEVER, NO WRITTEN RECORD WAS MADE OF THE REASONS FOR THE DISAGREEMENTS WITH JUSTICE OR OF THEIR RESOLUTIONS, OR OF ANY FOLLOWUP INFORMATION THAT OBVIOUSLY MUST HAVE BEEN PROVIDED IN SOME OF THESE CASES.

ALL OF THE EPA STAFF MEMBERS WE TALKED WITH EMPHASIZED THAT THE LACK OF WRITTEN DOCUMENTATION AT ALL STAGES OF THE WITHDRAWAL PROCESS FOR THE CLEAN AIR ACT CASES WAS THE RESULT OF THE INFORMALITY THAT PREVAILED, AND OF POSSIBLE LACK OF FORESIGHT, AND NOT THE RESULT OF ANY INSTRUCTIONS OR PRESSURE PUT ON THEM TO REACH PREDETERMINED CONCLUSIONS. WE SAW NO EVIDENCE THAT CONTRADICTED THEIR STATEMENTS. WE ARE CONCERNED, NEVERTHELESS, ABOUT THESE FAILURES TO PROVIDE CUSTOMARY, ADEQUATE DOCUMENTATION IN THE CLEAN AIR ACT CASE FILES - PARTICULARLY SO SINCE THE CLEAN WATER ACT AND OTHER CASE FILES WE REVIEWED ARE THOROUGHLY DOCUMENTED. IN THE FUTURE, WE WOULD SUGGEST THAT EPA TAKE GREATER CARE TO MAINTAIN APPROPRIATE RECORDS IN SUPPORT OF ALL WITHDRAWAL ACTIONS.

WE ARE SATISFIED, HOWEVER, THAT THE PROCEDURES USED BY EPA FOR INITIAL REFERRAL TO JUSTICE AND FOR SUBSEQUENT WITHDRAWAL APPEARED REASONABLE. FURTHER, IT APPEARED THAT SUFFICIENT INFORMATION WAS PRESENTED IN THE LITIGATION REPORTS PREPARED FOR THE INITIAL REFERRALS, AND IN THE JUSTICE AND EPA SUMMARIES MENTIONED ABOVE, TO SUPPORT EPA'S DETERMINATION THAT THE CLEAN AIR ACT CASES, AS WELL AS THE WATER CASES, WERE IN FACT REASONABLY WITHDRAWN, AND THAT NO OBVIOUS PROCEDURAL IMPROPRIETIES TOOK PLACE.

YOUR STAFF ALSO INFORMALLY REQUESTED THAT WE REVIEW ADDITIONAL CASES BELIEVED TO HAVE BEEN WITHDRAWN BY EPA SUBSEQUENT TO THE 43 CASES WE REVIEWED. WE WERE UNIFORMLY ADVISED THAT NO FINAL DECISIONS HAVE BEEN REACHED IN THIS REGARD, ALTHOUGH SOME ADDITIONAL WITHDRAWALS ARE NOW UNDER CONSIDERATION AT EPA.

WE HOPE THIS INFORMATION IS USEFUL TO YOU.

FN1 COPIES OF THIS MEMORANDUM, AND OTHERS WE OBTAINED FROM EPA ARE ENCLOSED, WITH THE CASES WE REVIEWED IDENTIFIED ON EACH BY THE CODE PREVIOUSLY USED BY EPA. INCLUDED WITH THESE ENCLOSURES ARE LISTS AND SUMMARIES OF CASES FOR WHICH WITHDRAWAL HAS NOT BEEN CONTEMPLATED BY EPA OR JUSTICE. BECAUSE THEY WERE NOT PART OF THE MATERIAL WE WERE ASKED TO EXAMINE, WE DID NOT INCLUDE ANY OF THESE CASES IN OUR REVIEW.