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Entering Post Final Order Activities (04.02.2008)

Entering Post-Final Order Activities to ICIS

Purpose:  As part of ICIS release 2.8 in January 2008, the enforcement action module in ICIS was modified to better accommodate entry of “post-final order” enforcement activities (e.g., consent decree enforcement actions) and the results obtained through these activities.  ("Results" are the outcomes of our enforcement cases.  For ICIS measurement purposes, results take the form of:  injunctive relief value, environmental benefits, penalties, cost recovery value, and SEP value.)  This change was made to ICIS because, in FY 2007, the Regions and other offices in OECA raised a series of examples in which substantial outcomes were being achieved through activities that occurred after a case had been concluded.  Accommodating this data in ICIS was awkward.  So, to make entry of post-final order activities and results easier to enter to ICIS we made changes to both the “Final Order Type” drop-down list in ICIS, adding several new final order types, and to the “Sub Activity Type” drop-down list, adding two new sub-activities.  By using this new ICIS functionality, we will be able to better enter different types of post-final order enforcement activities into ICIS and to extract the data in order to count and record the results from these activities.

 

Data Entry:

a)   First, the new sub activities that have been added to ICIS are slightly different for civil judicial and administrative cases.  For judicial cases they are:  1) Motion to Enforce Consent Decree, and 2) Order on Motion to Enforce Consent Decree. For administrative cases they are: 1) Motion to Enforce Consent Agreement, and 2) Order on Motion to Enforce Consent Agreement.  These choices were added so that we can identify when an action to enforce a Consent Decree/Consent Agreement is initiated (via filing of a motion with the court or ALJ) and when the court or ALJ issues an order on the motion concluding the CD/CA enforcement action.  This creates a way to record the same set of critical milestones in ICIS for post-final order enforcement activities that exists now for new enforcement activities:

 

Civil Judicial Enforcement Milestones:

 

Milestone Dates For New Enforcement Actions

Sub activity Dates For Post-Final Order Enforcement Actions

Transmittal to DOJ Requesting Initiation of Enforcement Action

Referral

Supplemental Referral

Case Filing

Complaint Filed with Court

Motion to Enforce CD

Case Conclusion

Final Order Entered

Order on Motion to Enforce CD

 

 

 

Administrative Enforcement Milestones:

 

Milestone Dates For New Enforcement

Actions

Sub activity Dates For Post-Final Order Enforcement Actions

Case Filing

Complaint/Proposed Order

Motion to Enforce CA

Case Conclusion

Final Order Issued

Order on Motion to Enforce CA

 

So, for post-final order enforcement activities the Region should enter into ICIS the date that the motion to enforce the Consent Decree was filed with the court or ALJ, and the date that the court/ALJ issues its final order on that motion, using the new sub activities in ICIS.  (The Regions should continue to use the supplemental referral sub activities to identify the dates that supplemental referrals were transmitted to DOJ.  The Regions should also keep in mind that the sub activities “Consent Decree Amendment” (judicial) and “Amended CAFO” (administrative) are available where an amendment to the CD/CA is the result of the CD/CA enforcement action.  Finally, the Regions should continue to enter any stipulated penalties to ICIS in accordance with existing guidance.)

 

b)  The new final order types (which we will refer to as “post-final order types”) added to ICIS are:

New Judicial Post-Final Order Types

New Administrative Post-Final Order Types

Judicial Order Amending or Enforcing Consent Decree

Amendment to Administrative Order or Consent Agreement

Post-Final Order Record of Decision

Post-Final Order Record of Decision (not Federal Facility)

Enforceable Final Order Activity Producing Results

Federal Facility Record of Decision

Enforceable Final Order Activity Producing Results

 

Use of new “Post-Final Order” types:

 

      Judicial

1)   Judicial Order Amending or Enforcing Consent Decree:  use this post-final order type to record the activity and any results from a final order that concludes a motion to enforce or amend a Consent Decree.

 

2)   Post-Final Order Record of Decision:  use this final order type to record the activity and results from a post-final order CERCLA Record of Decision (ROD) (These will be rare.) (Note, we are not asking that every ROD be entered to ICIS - only those that post-date the final order and allow for the calculation of results (injunctive relief value/clean up commitment cost/environmental benefits) that were not calculable at the time the CD was finalized.)

 

3)   Enforceable Final Order Activity Producing Results:  Use this type to record the results from other post-final order activities that produce results.  To be eligible for entry to ICIS under this post-final order type, the activity that produced the results must be required by and enforceable under the consent decree.  (An example of an “Enforceable Final Order Activity Producing Results” is a situation in which results that were not calculable at the time a CD was entered, e.g., a CD requires that a study be undertaken to determine what is the best treatment or management solution for an environmental problem.  The study is done and at that point it becomes possible to calculate the environmental benefit.  We want to be able to take credit for this result even though we could not calculate it at the time the CD was entered.)

 

Administrative

1)   Amendment to Administrative Order or Consent Agreement:  use this post-final order type to record the activity and any results from a final order that concludes a motion to enforce or amend a Consent Agreement.

 

2)   Post-Final Order Record of Decision (not Federal Facility):  use this final order type to record the activity and results from a post-final order non-federal facility related CERCLA ROD. (These will be rare.) (See note under Judicial, 2) above.) 

 

3)   Federal Facility Record of Decision:  use this final order type to record the activity and results from a federal facility related post-final order CERCLA ROD.  (See note under Judicial, 2) above.  See also p. 21, “Federal Facility Superfund Actions.”)

 

4)   Enforceable Final Order Activity Producing Results:  Use this type to record the results from other post-final order activities that produce results.  To be eligible for entry to ICIS under this post-final order type, the activity that produced the results must be required by and enforceable under the consent agreement.  (See example under Judicial 3), above.)

 

It is very important that when entering post-final order results to ICIS using these new final order types, that no double counting occurs.  This means that only results that are in addition to those obtained through the initial final order be counted and attributed in ICIS to the new post-final order.  Finally, the post-final order types are not to be used to correct errors in earlier results calculations.

 

Data Retrieval:  All post-final orders and their associated results will be captured in the Injunctive Relief, Penalty, SEP report posted in ICIS.  A separate Ad Hoc report will be built and posted in ICIS to capture counts of the various post-final order activities.  The new post-final order types will not be included in our reports that count conclusions from new enforcement actions.

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