In April 2006, meetings between the Office of Compliance and the Office of Civil Enforcement brought to resolution concerns involving data entry for two civil judicial enforcement case: U.S. v. Morton and U.S. v. Silgan. Both are multi-regional cases.
In Morton, the original consent decree concluding the case was entered in January of 2001. One facility located in Region 4 was involved, but the settlement also required Morton to retain an independent third-party auditor to conduct multimedia environmental compliance audits at 23 Morton facilities located in eight Regions: Region 1-3; Region 3-3; Region 4-2; Region 5-11; and one each in Regions 2, 4, 9 and 10. The purpose of the audits was to identify federally-enforceable environmental requirements that the company violated since January 6, 1995, using EPA’s Multimedia Investigation Manual (March 1992). In addition, the audits were intended to determine if facility activities had resulted in environmental harm.
In December 2005, the DOJ, EPA and Morton reached agreement on the payment of a $900,000 civil penalty for all of the violations disclosed in final audits reports required under the 2001 agreement. The audits at the 23 facilities revealed violations such as inadequate SPCC, SWPPP and RCRA contingency plans, failure to conduct inspections of hazardous waste storage areas, failure to maintain inspection records, NPDES effluent monitoring exceedances, and improper EPCRA hazardous substance reporting.
The issue raised by these circumstances was whether the 2005 settlement and the results of the settlement should be attributed solely to Region 4, entered under the existing case record in ICIS, or should be distributed among the Regions that have facilities involved in the settlement. Executing the second option in ICIS would require creation of a new case record in ICIS for each of the Regions involved (except Region 4 which already has a record for the case). Factors weighing in favor of executing the second option were: 1) the results of the settlement would be distributed to the Region (and the facilities in the Region) where the results accrued rather than all to Region 4; and 2) each Region that would need to monitor the settlement would receive their portion of the credit for the settlement. Factors weighing against were: 1) the need to create "false" record in ICIS for cases that don't truly exist.
The OCE/OC decision as to Morton was to create "dummy" records ICIS for each Region involved in the settlement allowing distribution of the results of the settlement to each Region involved. The records will use the referral and complaint filed dates from the original Region 4 Morton referral. The Morton settlement will be treated as other National Case settlements - the case conclusion count will be manually subtracted for all Regions involved except Region 4.
The Silgan case originated with a February 2006 referral by OCE to the Department of Justice. The referral results from self-disclosed Clean Air Act violations made by Silgan at 28 of its facilities located in four Regions. Region 5 plans to submit a referral for the violations that were disclosed concerning the Silgan facilities located in Region 5. The other three Regions involved had not announced an intention to make a referral.
The issue here was whether each Region with Silgan facilities that was part of the OCE referral needed to make a referral to DOJ in order to create a record for the Silgan case in ICIS and receive credit for the case. Weighing in favor of requiring a referral from each Region was the desire that every case record/referral created in ICIS be supported by an actual referral made to DOJ; and the general policy that Regions receive credit for cases when they do actual work on the case - it is not enough that the Region merely has a facility located in it that is part of a national enforcement case. Weighing against requiring a referral from each Region was the concern that requiring each Region to write a referrals of no real value given that the OCE referral covers all the Silgan facilities/violations at issue and DOJ does not require a referral from each Region in order to file a comprehensive complaint.
The decision in Silgan was to require that each Region that wishes to obtain credit for the Silgan case (both output and outcome credit) must make a referral to DOJ. A "letter" referral by the Region will suffice.