Avoiding investigation and prosecution ……

One of the most frequently asked questions at my 2- day seminars is this: “How do we make sure we are not targeted by the agencies for prosecution?” Another question is:”Are there specific steps we can take to keep EPA off our backs?”

To answer these two questions, one has to understand the steps an agency (such as EPA) must take before it prosecute  company or person for environmental crimes. The agency must first decide to investigate and then the prosecutor has to decide to prosecute. Both steps involve discretion  – investigative discretion and prosecutorial.

How does an agency like EPA exercise investigative discretion? There is an internal EPA memo written by the Director of Criminal Enforcement in 1994 that outlines what the agency looks for when deciding weather or not to investigate a company or person for environmental crime.

They look for “the most significant and egregious violators“. The memo also states that – as an example – the criminal provisions in the hazardous wastes laws are “not aimed at punishing minor or technical variations from permit regulations or conditions if the facility operator is acting responsibly.”

The agency generally focuses on the “presence of actual harm as well as the threat of significant harm to the environment or human health.” Examples cited in the memo include

  • illegal discharge, release or emission
  • failure to report
  • falsification of required records
  • deliberate misconduct
  • history of repeat violations
  • illegal conducts appear to present a trend
  • tempering with monitoring or control equipment
  • operating without a permit

The memo cites corporate culpability as a factor in deciding whether or not to investigate. The example EPA gives is “a company that performs an environmental compliance or management audit and then knowingly fails to remedy the noncompliance and correct any harm done“. Conversely, EPA states that “a violation that is voluntarily revealed and fully and promptly remedied as part of a  corporation’s systematic and comprehensive self-evaluation program generally will not be a candidate for the expenditure of scare criminal investigative resources.”

This post gives you a summary of what will get you on EPA’s radar for criminal investigation and what will get you off. It gives you an idea of how EPA exercises its investigative discretion.

Our next post will discuss how the Department of Justice exercise its prosecutorial discretion.

We have a one-hour webinar on how to avoid compliance nightmare.

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