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Entering access orders into ICIS

Access Order Referral Definition

            A referral to DOJ, usually under CERCLA/Superfund, requesting that the court order the defendant/PRP(s) to allow EPA access to their property.  

 

Information entered into ICIS at this stage should be supported by one of the following source documents:

–          Referral Letter that is signed by the Regional Administrator or designee; or

–          Transmittal Memo that is signed by the Regional Administrator or designee.

 

ICIS Milestone: Referred to Dept. of Justice

ICIS Milestone Date: Enter the date that Regional Administrator signs the Referral Letter as the "Referred to Dept. of Justice" actual date.

 

Access Order Complaint Definition

            A formal document presented by DOJ to the court requesting that the court to issue an access order.

 

ICIS Milestone: Complaint Filed With Court

ICIS Milestone Date: Enter the date that DOJ files a complaint in court requesting the access order as the "Complaint Filed With Court" actual date .

 

Final Order Definition

            A court order ordering the defendant/PRP(s) to allow EPA access to their property.

 

ICIS Milestone: Final Order Entered

ICIS Milestone Date: Enter the date that a judge issues the access order as the "Final Order Entered" actual date.

 

(If the court concurrently files a settlement at the same time that a complaint is filed then the dates can be the same, otherwise they are different dates.)

 

Process Overview:

- First, a Region typically requests access from the PRP via letter or orally (pursuant
to CERCLA section 104(e)(3) and/or (e)(4)).  A Region is not required to
do this as a first step, but this happens virtually 100% of the time.  ICIS does not track these relatively-informal requests. (This activity is not required to be reported in ICIS.)

- Second, if the informal request is ignored or rejected (and can't be
resolved via a settlement), then a Region may issue a Unilateral Administrative Order(UAO), pursuant to CERCLA section 104(e)(5)(A).  (EPA does not issue a lot of these administrative orders.)  Although UAO-issuance is not necessarily required before proceeding to court, this happens the vast majority of times.  (Required data entry in ICIS  - as an Administrative Compliance Order.)

- A Region can issue a referral to DOJ.  The referral may be to DOJ to ask the judge to enforce the Unilateral Administrative Order.  Alternatively, if a Unilateral Administrative Order hasn't been issued, the referral can be for DOJ to ask the judge to order access directly.  Both routes are authorized by CERCLA section 104(e)(5)(B)(i).  EPA rarely needs to get this far, since most of these matters are resolved via settlements, prior to referral.

In cases where a referral is sent to DOJ, DOJ may subsequently file a complaint in court pursuant to CERCLA section 104(e)(5)(B)(i).

Absent an accompanying settlement, the date that DOJ files such a complaint and the date that a judge issues an order would usually be different dates (e.g., the complaint would get served on the defendant, there'd be discussion about whether any discovery is needed, there'd likely be a motion for summary judgment, then the judge would decide the matter and issue an order.)

 

Process for Obtaining a Warrant:

The process for obtaining a warrant is not very different.  Reporting dates for obtaining a warrant would be the same:

1.  Referral from Regional Administrator
2.  Complaint filed by U.S.
3.  Order signed by court

For administrative warrants:
1.  Referral from Region (not necessarily from RA, has been
delegated to ORC, BCs)
2.  Application for Warrant filed with the court
3.  Court signs warrant

 

Refer to Appendix III - Enforcement Action Field Definitions and Guidance for definitions and guidance specific to each field.

See Also

            Referral Definition

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