If CID determines there was culpable conduct by a facility it will begin a criminal investigation. Here’s what they are looking for.
Was Criminal Intent Present?
Criminal intent is not necessarily a component of culpable conduct. Therefore, in order to pursue prosecution EPA needs to determine if there was criminal intent. A “knowing” violation is one in which the defendant is aware of the facts underlying the violation – conscious and informed action brought about the violation, rather than accident or mistake. Further, to demonstrate that a “knowing violation” occurred, the government doesn’t have to show that a defendant knew the law and then consciously chose to break it. You can’t claim ignorance of the law; people are presumed to know the law, and cannot evade criminal liability by claiming that they did not realize they should not have engaged in illegal pollution. Thus, an intentional decision to discharge pollutants into a river without a permit, or to bypass a required air pollution control device could be “a knowing violation,” and thus criminal, without regard to the defendant’s knowledge of the law.
Having evidence of a knowing violation will not lead immediately to a CID decision to pursue prosecution. Once CID has determined that a violation of an environmental requirement is potentially criminal in nature, the Agency seeks prosecutorial assistance from DOJ (or EPA’s state and local prosecution partners, an attorney general’s office, a district attorney’s office, etc.).
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Factors that Could Lead to Prosecution
Ultimately, determinations as to whether to present a case to be indicted, initiate plea negotiations, or decline prosecution are within DOJ’s discretion. Several factors are important to the prosecutor in deciding whether the conduct warrants formal prosecution.
These factors include:
- The severity of the actual or potential harm
- Whether the appropriate level of intent has been documented
- Whether the violator was cooperative
- Whether there is a history of similar violations
- The priorities and available resources of the prosecutor’s office.
For example, let’s say that CID has evidence that information in facility plan submitted under the Clean Air Act’s risk management program (RMP, Section 112(r)) has been falsified. Technically, this is a “paper” violation since no environmental harm has actually occurred. However, the potential for harm to the community could be great should an accident occur at the facility and emergency responders are ill-prepared because of the false information in the plan. While this will not constitute a smoking gun, enforcers may view it as a loaded gun pointed toward the community.
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Prosecute or Pass? You Could Be a Scapegoat
Which factors will play into the decision to pursue prosecution or take a pass? As with determining culpable conduct, the compliance history of the reporting entity will be examined. If the RMP violation is only the latest in a series of alleged violations, it may be the final element in pursuing a case against an entity that both EPA and DOJ have been scrutinizing for some time.
Also, if there has been a rash of similar RMP violations around the country or within a certain sector, the enforcement authorities may decide to target one unlucky violator to set an example of what the consequences can be. On the other hand, if the compliance record of the facility is clean or if the violation can be traced only to a single middle-management staff member, it may be difficult to build a case or to establish the desired deterrent effect even if a conviction is won. DOJ may also look at non-environmental allegations to build a strong case. In other words, an otherwise clean environmental record may not be sufficient to avert criminal charges.
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