In Clean Water Act (CWA) Section 309(g) Class I and II cases, CWA Section 311(b)(6) Class II cases, and Safe Drinking Water Act (SDWA) Section 1423(c) cases, EPA is required to give public notice (PN) and accept comments prior to entry of the final order assessing penalties. The Administrative Law Judge (ALJ) may not sign the CA/FO until after the public notice and comment has expired; and the CA/FO is not final until the judge signs it.
Pursuant to the regulation, Part 22.13(b) cases are simultaneously initiated and concluded. Regions cannot report the case in ICIS as initiated until it is concluded with a final order and in the case of the CWA and SDWA sections listed above, until the public notice and comment period has expired. One cannot use the date the CA/FO is filed with the judge instead of the date the judge signs the order. One must wait for the public notice and comment period to expire and use the date the judge signs the order as the conclusion date regardless of the delay caused by the public notice and comment period. The concluded date is entered in ICIS as both the initiation date (complaint/proposed order) and conclusion (final order issued) date. These actions receive OECA reporting accomplishment credit for the complaint and final order.
OECA's October 2003 guidance on case counting takes a firm stance on truth-in-accounting. In the case of administrative enforcement actions brought pursuant to 40 CFR 22.13(b), what makes it official is the signing of theCA/FO by the ALJ. Therefore, we will continue to use the date the order is signed as the date that the 22.13(b) administrative enforcement action is initiated and concluded.
This situation is largely analogous to lodging of a consent decree in the judicial forum. The consent decree is lodged and then the court is required to wait at least 30 days, to receive and review any comments from the public before entering the consent decree. Neither EPA not DOJ are in control of when the decree will be entered and lodging may well occur in one fiscal year, a year when most of he work on the case was done, but not be entered until the next fiscal year. EPA has never counted its cases based on date of lodging, but rather always has counted them based on the date of entry, the date when the judge signs the order making the consent decree official. OECA doesn't count judicial consent decree lodgings; we don't count administrative consent agreement "lodgings."