Justice Manual § 5-12.340

Pursuant to a Memorandum of Understanding with the Environmental Protection Agency, within 60 days of receipt from the Environmental Protection Agency of a formal request to file a suit under the Clean Air Act, the Clean Water Act, or the Safe Drinking Water Act, and the submission of a civil litigation report, Department attorneys are required to either file a complaint or report to the Chief of the Environmental Enforcement Section why a complaint has not been filed. Thereafter, the Department attorney shall submit periodic reports to the Chief of the Environmental Enforcement Section until a complaint is filed or a decision is reached that a complaint will not be filed.

If the Department of Justice fails to file a complaint within 120 days of its receipt of a request for litigation and a civil litigation report by the agency to the Attorney General, then the Administrator may request that the Attorney General file a complaint within 30 days. Failure of the Department thereafter to file a complaint within 30 days may be considered by the Administrator or his/her delegate to be a failure of the Attorney General to notify the Administrator within a reasonable time that he/she will appear in litigation for purposes of Section 305 of the Clean Air Act, 42 U.S.C. § 7605; Section 506 of the Federal Water Pollution Control Act, 33 U.S.C. § 1366; or Section 1450 of the Safe Drinking Water Act, 42 U.S.C. § 300j-9(f). If such a failure occurs, attorneys of the Environmental Protection Agency may represent the Administrator without the United States Attorney or Department attorneys. However, the failure of the Attorney General to file a complaint within the time period requested by the Administrator in a case in which the Administrator requested immediate action to protect public health under §§ 311(e) and 504 of the Federal Water Pollution Control Act, 33 U.S.C. §§ 1321(e) and 1364; Section 303 of the Clean Air Act, 42 U.S.C. § 7603; or Section 1450 of the Safe Drinking Water Act, 42 U.S.C. § 300(i), may also be considered by the Administrator to be a failure of the Attorney General to notify the Administrator under 42 U.S.C. § 7605; 33 U.S.C. § 1366; or 42 U.S.C. § 300j-9(f).