EPA’s Landmark Civil-Criminal Enforcement Policy (Part I)

Where Knowing Is Only Half the Battle

Last week, the EPA announced a landmark policy change regarding the intersection and overlap of criminal and civil investigations/enforcement actions. EPA’s new policy represents one of the most dramatic and important changes in EPA enforcement policy in decades.

The new Strategic Civil-Criminal Enforcement Policy (pdf) supersedes the 2019 Civil-Criminal Enforcement Coordination Policy and regional screening guidance issued in 1990, but reinforces the still-applicable 2007 OECA Parallel Proceedings Policy (pdf). EPA’s Strategic Civil-Criminal Enforcement Policy is effective immediately and applies to all pending investigations.

As with all major policy changes at any government agency, EPA’s pronouncement is a mélange of opportunity, risk, and uncertainty.

This article will be published in at least two parts, but perhaps more. I can guarantee this will not be a 19-part series (à la Dickens’ David Copperfield), but there are several aspects of the new EPA policy that merit particular attention and which I, or some of my colleagues at WRVB, may decide to cover. Part I focuses on summarizing and explaining EPA’s new policy because “knowing is half the battle” and no one wants to be confronted with “unknown unknowns.”

The following is an effort to summarize and explain the essential parts of the new policy, with particular emphasis on the mandate to coordinate. In Part II, I plan to provide some commentary through the eyes of a recently-returned-to-private-practice former federal prosecutor who has investigated and defended companies and individuals with the EPA and DOJ’s Energy and Natural Resources Division (ENRD).

A Mandate to Cooperate

The policy speaks to four key aspects of enforcement actions, each of which aim to better coordinate investigations and enforcement actions between civil, criminal, and administrative processes.

1. Civil and criminal enforcement programs must collaborate to develop and implement EPA’s national and regional enforcement priorities. EPA agents, attorneys, investigators, etc., are required to consult with other strategic partners (both civil and criminal) including the Department of Justice and other federal and state agencies that enforce environmental laws.
2. EPA management is now required to implement civil-criminal enforcement meetings on a regular basis at the regional level to discuss open matters, enforcement priorities, repeat actors, emerging trends, etc. These meetings are mandated monthly, but EPA lists several factors that merit more frequent meetings, including volume of incoming matters, the current docket of cases, the type of environmental media involved in the matters, and other external factors such as environmental justice initiatives and state/local enforcement priorities.
3. EPA is mandating the creation and implementation of a more comprehensive national case tracking system across regions, so EPA will have a complete database of regulated entities, including any prior investigations (even if no enforcement action was ever taken), compliance history, etc. This has major implications as the civil/criminal divide often hinges on whether a regulated entity has prior enforcement actions.
4. EPA is mandating internal training regarding strengthening relationships between criminal and civil, with a focus on appropriate sharing of information across investigations while ensuring programmatic integrity.

Structured Civil-Criminal Enforcement Meetings

While each of these areas are important and merit attention, for most regulated entities, the second key aspect—structured consultations/meetings between civil and criminal investigations—is particularly important.

This new policy gives subjects or targets of federal environmental investigations a genuine policy-based opportunity to advocate for civil or administrative resolutions over criminal actions. EPA’s policy specifically provides “the criminal enforcement program must be alert to situations when civil enforcement may be appropriate … when an investigation establishes a violation of law, but there is insufficient evidence of a criminal mental state.”

Every yin, however, has its yang, so civil and administrative investigations can turn criminal as well. The risk a civil or administrative investigation pivots criminal has always been present, but with monthly (and perhaps more frequent) civil-criminal meetings, there is the inherent risk a civil matter will pique the interest of a criminal investigation team, resulting in criminal investigations that otherwise may never have been referred by the civil or administrative team.

While this approach may not be new in some jurisdictions, what is new is EPA’s mandate for civil and criminal to coordinate/meet regularly. In turn, if EPA’s civil and criminal investigative teams are coordinating monthly, it is inevitable that EPA’s civil and criminal investigative teams will coordinate as frequently with their enforcement partners at DOJ and across the 93 U.S. Attorney’s offices across the country.

More coordination generally means more oversight, more action, and more accountability.

Path to Resolution

While I will address the practical implications of what it means for EPA and DOJ teams to meet more regularly in Part II, it bears emphasis that EPA’s new policy also provides a list of factors (oh, how we love our factors) for decisionmakers to consider as part of those meetings.

These factors, as will be discussed in Part II, provide an opportunity for effective advocacy on behalf of a subject or target to actively steer an investigation towards a particular resolution.

But, before we can drive, we must first study the map. In Appendix A to the new policy, EPA sets out a plethora of factors that guide us along a path to resolution:

• The significance of the violation
  • Assessment of environmental harm, harm to human health, the imminence and any substantial of any risk of endangerment to the human health or the environment
  • Assessment of whether there was any requirement to report a violation
  • Whether the conduct involved violation of a permit or failure to obtain a permit
• The level of culpability of the parties involved
  • Assessment of whether conduct at issue was done willfully, knowingly, or negligently, or whether the party involved was willfully blind or deliberately ignorant to the conduct
  • Evaluation of whether there is any concealment of information, records, test results, etc.
  • Other red flags: conflicting stories, suspect documents, lack of data or unsubstantiated data, data that is “too good to be true,” conflicting records, and poor management/intentional decentralization of management to avoid knowledge
• Compliance history of the parties
  • Results of prior EPA, regional, state, local, etc. inspections and compliance reviews
  • Any prior compliance orders, violations, penalties, etc., with state or federal agencies
• Size/sophistication of the alleged violator
  • Size matters and managerial involvement matters
  • The economic benefit alleged violator received or expected to receive
• National or regional strategic priority
  • If part of a priority at national or regional level, criminal prosecution is more likely

Next Steps

To sum up, spotting issues of exposure as well as opportunities to mitigate risk is only half the battle. What is certain is that more frequent coordination means more potential risk and more potential opportunity to eliminate risk if counsel for companies and individuals under investigation are attune to the playbook the EPA and DOJ are using to make life-altering decisions.

Stay tuned for Part II, where I will share some observations about how this policy might work in practice and offer some predictions about how counsel, companies, and individuals can mitigate risk and obtain palatable results.

While you wait for the next installment, meet the team that can help you or your company with all things government investigations.