EPA’s Criminal Enforcement Division (CID) has changed priorities in recent years and has been seeking prosecution of individual defendants as high up the corporate hierarchy as there is evidence. For this the Agency offers one simple reason–corporate managers will think twice about deliberately breaking the law if they understand that they face jail time and personal criminal fines for criminal conduct rather than consequences that will be borne solely by the company.
As an EHS manager you need to know exactly what EPA means when it’s talking about an environmental crime.
What’s the Level of Intent?
When EPA conducts a criminal investigation, one of the main things Agency inspectors are looking for is the level of intent. Most of the environmental crimes that EPA investigates involve “knowing violations” of the law, which are classified as felonies. By contrast, civil liability arises simply through the existence of an environmental violation, without regard to what the responsible party knew about the matter. Negligent violations are misdemeanors under the Clean Water Act and Clean Air Act. Other statutes like Federal Insecticide, Fungicide, and Rodenticide Act and the Toxic Substances Control Act have no felony provisions.
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Was There Culpable Conduct?
Before seeking prosecution and establishing intent, the CID will decide if an investigation is worth the effort by determining if there was culpable conduct. According to a memo first circulated by the Clinton EPA and still operable at the Agency, it is not necessary to show that there was criminal intent in an action to establish culpable conduct. According to the memo, culpable conduct may be indicated at the time of case selection by four factors:
1. History of repeated violations. A history of repeated violations is not a prerequisite to a criminal investigation. But when repeated enforcement activities or actions, whether by EPA or other federal, state, and local enforcement authorities, have failed to bring a violator into compliance, criminal investigation will be a more inviting course of action. As EPA criminal investigators see it, any person or corporation with a history of repeated violations is probably aware of regulatory requirements and is familiar with notices of violation. This raises the probability that an action was taken in deliberate disregard of regulations.
2. Concealment of misconduct or falsification of required records. EPA relies on data received from the regulated community. Conduct indicating the falsification of data may serve as a basis for proceeding with a criminal investigation.
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3. Tampering with monitoring or control equipment. These types of actions lead to the generation of false data that otherwise appears to be accurate. According to the memo, “the consequent submission of false data threatens the basic integrity of EPA’s data and, in turn, the scientific validity of EPA’s regulatory decisions.” Such an “assault” on the regulatory infrastructure calls for the enforcement leverage of criminal investigation.
4. Business operation of pollution-related activities without a permit, license, manifest, or other required documentation. Conducting “dangerous and strictly regulated business operations” absent government permissions and oversight should prompt pursuit by investigators of environmental crimes.
In tomorrow’s issue of the Advisor we will discuss more of the investigative process including what happens after CID decides to pursue a criminal investigation.