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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
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WASHINGTON. DC 20460
JUN2I 1989
9843,0
otnci of
OOCEMf NT
COMPLIANCfe MOMITOOIMC
MEMORANDUM
SUBJECT: Revised EPA Guidance for Parallel Proceedings
FSOM:
Elward E. Reich _ _
/-..ting Assistant Administrator *
TO: Assistant Administrators
Associate Administrators
Headquarters Enforcement Program Office Directors
- Regional Administrators, I-X
Deputy Regional Administrators, I-X
Regional Counsel, I-X
Attached for your use and distribution is the revised
guidance on parallel proceedings. Copies of the "Guidelines on
Investigative Procedures for Parallel Proceedings" should be made
available at once to all affected enforcement personnel, program
managers, and senior staff. Also included in the Guidelines is a
short form, two-page "Easy Access to. Parallel Proceedings
Guidance by Five Rules of Thumb" which you may wish to post
prominently in all civil enforcement offices.
Effective immediately, these Guidelines constitute Agency
policy with respect to parallel proceedings. These Guidelines,
taken together with the June 15, 1989 memorandum, "Procedures for
Requesting and Obtaining Approval of Parallel Proceedings",
(attached) supersede and replace the following five memoranda
dealing .with parallel proceedings:
—"Policies and Procedures on Parallel Proceedings at the
Environmental Protection Agency," dated January 23, 1984;
—"The Use of Administrative Discovery Devices in the
Development of Cases Assigned to the Office of Criminal
Investigations," February 16, 1984;
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• —"The Role of EPA Supervisors During Parallel Proceedings,"
March 12, 1985;
—"Implementation of Guidance on Parallel Proceedings,"
February 3, 1986; and,
—"Handling Requests for Parallel Proceedings," April 2,
1987.
This final guidance reflects all of the comments received
upon the several prior drafts circulated over the past several
months. These Agency Guidelines also reflect the comments of the
Department of Justice and correlate with their October 13, 1987,
"Guidelines for Civil and Criminal Parallel Proceedings." Your
comments were very helpful, and we appreciated your assistance in
making the guidance useful as a field reference tool.
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GUIDELINES
INVESTIGATIVE PROCEDURES FOR PARALLEL PROCEEDINGS
Issued by
Office of Enforcement and Compliance Monitoring
United States Environmental Protection Agency
Prepared by:
Paul R. Thomson, Jr.
Deputy Assistant Administrator
for Criminal Enforcement
U.S. Environmental Protection Agency
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Outline
Guidelines . on. Investigative .. Procedures
for Parallel Proceedings
Introduction , . , p. 3
I. Procedures for EPA Investigation Prior to Initiation
of any Enforcement Action p. 5
II. Procedure for EPA Investigations When Enforcement
Action Anticipates EPA Administrative or DOJ Civil
Proceeding * p. 7
A. "Usual" Case Where No Criminal Proceeding Seems
Warranted p. 7
B. "Emergency" Cases When Administrative or Civil
Remedy Must Precede Criminal Action p. 7
III. procedures for EPA Investigations when Criminal
Proceedings Are Selected as the Enforcement Action p. 9
IV. Procedures for EPA Investigations when Administrative or
Civil Enforcement Actions are to be Sought with Criminal
Enforcement - THE PARALLEL PROCEEDING. p. 11
A. When the Decision to Seek Parallel Proceedings
is Made Prior to any Enforcement Action p. 13
B. When the Decision to Seek Parallel Proceedings
Is Indicated After Administrative or Civil
Enforcement Action Begins p. 13
C. When the Decision to Seek Parallel Proceeding
Is Required by Facts Discovered After Criminal
Proceedings Begin. p. 14
v. Procedures While Awaiting Approval of Parallel
Proceedings p. 15
vi. Procedures when Parallel Proceedings are Disapproved p. 16
A. By EPA p. 16
B. By DOJ p. 17
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VII. -Procedures when Parallel Proceedings are Approved. p. 18
A. For Civil Enforcement Personnel p. is
B. For Criminal Enforcement Personnel p. is
VIII. Procedures at Conclusion of Criminal Enforcement
Action p. 20
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- INTRODUCTION -
The EPA objective to protect human health and the
environment from undue risk and harm is given teeth through
enforcement actions. The goals of enforcement are to assure that
actual violations of the statutes and environmental regulations
are detected and corrected, to punish the most serious violators
as mandated by statute, and to deter future violations.
Enforcement is accomplished by EPA administrative proceedings, by
civil litigation in the Federal District Court, by Federal
criminal cases, or by a combination of those enforcement actions.
Use of the broad discretion conferred by Congress on the Agency
in selection of enforcement alternatives enables EPA to achieve
the most effective correction, punishment and deterrence of
environmental violations. EPA exercises this discretion to
choose use of administrative, civil judicial and/or criminal
enforcement approaches sequentially or in combination
simultaneously. .
At some stage in the investigation process, EPA legal,
program, and enforcement personnel decide whether a confirmed
factual situation of non-compliance warrants EPA administrative
enforcement proceedings or whether the Departnent of Justice
should be involved for civil or criminal action in the Federal
courts. Use of criminal proceedings simultaneously with that of
Agency administrative or civil judicial proceedings is called a
"parallel proceeding."
Agency policy does not favor parallel proceedings because
meeting the legal requirements of the different investigative and
trial procedures can present both legal and management problems
which could jeopardize chances for success in either enforcement
action. Limited enforcement resources dictate that dual
proceedings occur only when a single approach will not achieve
all the Agency's goals. To assist EPA managers in determining
when to seek approval of parallel proceedings, this guidance
document discusses their legal and managerial requirements.
A Capsule Overview;
What ia tho parallel proceeding? The simultaneous pursuit of
criminal prosecution and civil judicial or agency administrative
enforcement actions against the same parties for the frame violation
based upon the same statute. Generally, "same parties" will be
interpreted in a common sense fashion; in an abundance of caution,
any question concerning application of these categories to parallel
proceedings should be addressed to Headquarters Office of Crininal
Enforcement Counsel to ensure national consistency in their
application among the Regions. (For exanple, situations involving a
closely held corporation as an enforcement target when the sole
stockholder is a criminal target.)
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.Why should EPA have parallel proceedings? To provide the widest
possible range of effective and timely enforcement and protection
remedies.
When is it appropriate to have parallel proceedings? Whenever
risks to human health or imminent environmental hazards (or other
strategic legal or factual circumstances) require immediate resort to
civil/administrative remedies, as well as prompt criminal enforcement
measures. The initiation of a parallel proceeding is also
appropriate when the individual or institutional conduct involved in
a civil or administrative action is so blatant or egregious as to
compel filing of a criminal case.
These brief answers are elaborated upon in the following
numbered Guidelines for Parallel Proceedings along with a
summary discussion of the actual procedures to be followed in
carrying out the Agency's enforcement program.
Guidelines cannot cover every possible investigative and
enforcement scenario. The primary objective of these Guidelines is
to provide as clear an explanation as possible of the timing for
contacts,to be made with the Agency's criminal enforcement attorneys
to confer with the administrative and/or civil enforcers. A list of
criminal enforcement contacts is attached for ease of future
reference.
These policies and procedures and internal office procedures
which are referenced by or which implement these Guidelines are not
intended to, do not, and may not be relied upon, to create a right or
benefit — substantive or procedural — enforceable at law by a party
to litigation with the United States. The Agency reserves the right
to take any action purported to be at variance with these policies
and procedures as the circumstances of any particular
investigative/enforcement case(s) warrant.
NOTE; Lawyers, like engineers, have their own jargon. Legal
proceedings are governed by specific, often very different, rules
and requirements. Failure to gather information and document the
information-gathering process correctly under applicable legal
rules can mean that the data is legally inadmissable in some,
if not all, enforcement actions. While these Guidelines have
attempted to eliminate as much as possible the use of legal
terminology, some terms have had to be used because of their
specific legal meaning.
This guidance defines and explains by whom, why, when
and to what purpose EPA uses parallel proceedings to maximize
results and to minimize legal risks to all enforcement actions
and to preserve limited enforcement resources.
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First Guideline
PROCEDURES FOR EPA INVESTIGATIONS PRIOR TO INITIATION OF ANY
ENFORCEMENT ACTION
During an initial inquiry, EPA is receiving and gathering
information to confirm suspected noncompliance in an area
regulated by EPA. Although there may be enough preliminary
information to indicate existence of a violation, at this time
no decision at the program level should exist as to the method
of correction for the noncompliance or as to any needs to achieve
the other agency goals of punishment or deterrence. The office
of Regional Counsel (ORC), the Regional Program Development Manager
or Divisional Chief in the program or media area affected by
the inquiry, and the Special Agent in Charge (SAIC) will coordinate
all enforcement efforts in order to identify initial inquiry
situations involving the same facts and to focus investigations.
They shall, within Agency policy standards, set priorities for
enforcement and for investigations to select appropriate
administrative, civil, and criminal cases, and to differentiate among
enforcement actions for investigations conducted. The aims of
investigative consultation and coordination are:
to minimize duplication of effort,
to select the most appropriate information gathering
techniques and enforcement mechanisms, and
to assure observance of Constitutional and other legal
requirements for information, information-gathering,
and enforcement actions, whether administrative, civil
or criminal.
Under usual circumstances, the initial inquiry constitutes
the EPA administrative fact gathering, begins investigative
processes, and may be performed by "civil11 inspectors.*/ The
investigation may also involve information volunteered by third
parties or gathered by contractors. There may also be
information gathering by criminal investigators as part of this
initial process. Informal investigation information gathering
techniques include interviews and inspections, information
requests, subpoenas, and administrative warrants.
1 Since all data gathered by the Agency's "civil1* or
regulatory inspectors, obtained in the normal course of their
performance of their duties at EPA, is fully adoissible in any
subsequent criminal prosecution, their designation as "civil
inspectors" can be needlessly misleading.
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'To preserve information as legally admissible evidence and
to facilitate effective enforcement, EPA investigators - whether
regulatory or criminal - and their technical support should
always:
where possible, obtain information by methods other
than through the Federal Grand Jury process; for
example, by consent to inspect and by interview;
observe requirements for any warrants — whether
administrative, civil, or criminal — since information
obtained may be used as evidence in any enforcement
action; in particular, they shall follow agency
procedures for investigations and inspections;
summarize and place in separate files investigative
information intended to be used as evidence in any
subsequent enforcement action and obtained prior to, or
independent of, a Federal Grand Jury; and,
_ never jeopardize any subsequent criminal - or civil -
enforcement by assuring anyone that criminal action is
not possible or declaring that the sole use of the
information is for administrative or civil purposes, or
other non-enforcement related Agency activity.
During the initial investigative processes, information will
continue to be gathered by regulatory and criminal investigators
and be fully exchanged and shared.2/
2 The exception to the sharing of investigative
information by criminal investigators with civil investigators is
limited to rare circumstances where wide distribution may not be
appropriate in order to protect an informant or to preserve the
secrecy of an ongoing undercover operation. The Special Agent-
in-Charge of the Region where such confidential OCI investigation
is occurring shall document the reasons for limiting information
sharing in each such event. Th«r« i« no g«n«r»l naad to Moarate
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Second Guideline
PROCEDURES FOR EPA INVESTIGATIONS WHEN ENFORCEMENT ACTION
ANTICIPATES EPA ADMINISTRATIVE OR DOJ CIVIL PROCEEDINGS
At some point, an EPA inquiry into facts will become a more
formalized investigation. Investigation nay involve regulatory
investigators only, or it may include the involvement of criminal
investigators either from EPA or from State or other Federal
agencies.
In accordance with established policy governing EPA
inspections, no assurances as to the use of any information or
the degree of enforcement action possible may be given to anyone
by any EPA investigative person, including inspectors. There is
no requirement to give the so-called "Miranda Warning0 to any
person fron whoa information is sought in an investigation unless
that person has been taken into physical custody as part of a
criminal enforcement action. Decisions concerning selection of the
appropriate enforcement methods are neither the responsibility of,
nor a .proper subject of comment by, an investigator or inspector
to members of the public. Investigative and inspection personnel
are encouraged to coordinate actions and to seek informal assistance
from EPA staff attorneys, including Criminal Enforcement Counsel, in
order to ensure that enforcement elements are timely and correctly
identified and that procedures to safeguard the investigation are
followed.
A. THE USUAL CASE IS ONE ffflgRg TUB COORDINATED INVESTIGATIVE
FOR CRIMINAL PROCEEDINGS.
For many violations, there will be no readily apparent
criminal potential. New evidence will continue to be gathered by
the regulatory investigators. The Special Agent- in-Charge should
share with them all relevant non-confidential information.
The regulatory investigator must be conscious of the fact
that newly developed information may initiate or revive criminal
aspects of any investigation.
B. TUBES ARE SITUATIONS FOR UHICH. DESPITE VIABLE CRIMINAL
EKPOBtCBMBHT ISSUES. CIVIL OR ADSHMISTRATrVB
LO PROCD THOUT DKTAY.
For example, when danger to human health is immediate, the
need to stop activities posing the substantial risk or to compel
action by a regulated entity to protect hunan life or health
requires either prompt EPA administrative action or DOJ
application for an expeditious civil remedy through the Federal
Courts. In this instance, the Agency's ultimate goals of
punishment or future deterrence are secondary. Only after
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effective administrative or civil action is taken to protect
human health or the environment should criminal enforcement
proceed.
Also, there »ay be environmental or other fact situations in
which the risk of harm is so great, so immediate, and/or
irremediable that administrative or civil action prior to
criminal enforcement efforts may be warranted. These fact
situations requiring civil precedence will be determined on a
case-by-case basis by the coordinated review and consultation
processes in the Region. Disagreements should be resolved by the
discussions between and concurrence of the Deputy Assistant
Administrators for Criminal and for Civil Enforcement. In the
event that the Deputy Assistant Administrators do not concur, the
matter shall be referred to the Assistant Administrator for
Enforcement and Compliance Monitoring for decision.
All EPA enforcement personnel should remember that
appropriate administrative action or civil remedies to obtain
environmental compliance may strengthen or support subsequent
criminal enforcement.
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Third Guideline
PROCEDURE FOR EPA INVESTIGATION WHEN CRIMINAL PROCEEDINGS ARE
SELECTED AS THE ENFORCEMENT ACTION
Criminal prosecution becomes the EPA selected enforcement
action by two means:
1. During the consultation and coordinated review by EPA
in the initial inquiry and threshold investigative processes,
Regional counsel, and program personnel agree with the Special
Agent In Charge that a full criminal investigation is warranted
and the best use of agency enforcement resources; or,
2. There is disagreement on the part of Regional
personnel3 concerning the desirability, need for or merit of
criminal prosecution as an enforcement mechanism under the
existing facts and the matter is elevated ultimately to the
Assistant Administrator for Enforcement and Compliance Monitoring
through the Deputy Assistant Administrator for Criminal
Enforcement, who determines if a criminal referral to the
Department of Justice (DOJ) is then appropriate. When a
violation(s) is determined to be appropriate for formal criminal
investigation and has been referred through channels for review
by the United States Attorney's office and by the Department of
Justice, the matter is then officially an EPA criminal
investigation and is under the direction of DOJ (including an
office of a United States Attorney) with assistance of EPA legal
staff.
Once a decision to refer a case to the Department of Justice
has been made — or a case is opened in response to a request
from a United States Attorney or the DOJ — the Special Agent-in-
Charge will advise the affected Regional program or media chief
and civil enforcement of the action, providing information as to
the name(s) of the violator(s), location and sufficient subject
3 These Guidelines do not affect or supersede existing
Agency General Operating Procedures, policies, management
documents or studies providing authority to special agents to
investigate or refer criminal matters or describing the
responsibility of Agency personnel concerning reporting crimes.
Those procedures and policies, especially the memorandum dated
September 21, 1987, from the Assistant Administrator, Office of
Enforcement and Compliance Monitoring to all Assistant
Administrators (and any subsequent memoranda), remain in effect.
Regional policy review and discussion of enforcement actions are
directed toward resource allocation, and scheduling decision
making, and is not a limitation upon or an interference with the
law enforcement authority of investigative personnel or the
responsibility to report or investigate criminal conduct.
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natter so that on-going civil investigations can be identified,
coordinated with, and distinguished as appropriate from the
criminal case.
NOTE: Special Agents-in-cnarge and Resident Agents-in-Charg«
are responsible for immediate notification of civil enforcement
personnel when any criminal investigation is declined by the
Department of Justice or United States Attorney for criminal
prosecution, is returned, or is closed as an EPA criminal
investigation by other than official judicial action. Subject
to the exceptional limitations noted concerning protection of
witnesses, of undercover operations, or for segregation of
information protected as a result of Grand Jury development,
all relevant information gathered by Office of Criminal
Investigations shall be made available for civil enforcement use
when a criminal investigation is declined, returned, or closed.
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Fourth Guideline
PROCEDURES FOR EPA INVESTIGATIONS WHEN ADMINISTRATIVE OR CIVIL
ENFORCEMENT ACTIONS ARE TO BE SOUGHT WITH CRIMINAL ENFORCEMENT —
THE PARALLEL PROCEEDING
The true "parallel proceeding" occurs when an EPA
administrative or Department of Justice civil enforcement action
occurs at the same time that a DOJ criminal enforcement action is
also ongoing. Different rules of legal procedure, standards of
evidence and proof, and statutes of limitations during which it
is legally permissible to bring specific enforcement actions
apply to each type of proceeding.
When there is an immediate risk to human life or health or a
significant environmental hazard, there exists a need for
immediate action to abate a hazard or to stabilize a physical
structure to prevent imminent deterioration which, unless
addressed, will result in an immediate environmental harm. The
fact of immediate hazard is one of the times when both EPA and
the DOJ recognize that it is appropriate to have parallel
proceedings. Such abatement or stabilization usually occurs in
the context of a Federal court civil action but may also be
accomplished through EPA administrative enforcement. Obviously,
there is a question as to who decides when the situation
constitutes a risk to human life or health or when an
environmental hazard is sufficiently significant to warrant
immediate administrative or civil judicial action. EPA as the
agency responsible for administering the statutes and regulations
which are to protect the environment and human health from undue
risk, is the appropriate initial determiner of when a hazard or
risk exists and its degree of environmental or health
significance. The DOJ decides when a matter may be judicially
brought and maintained in the Federal courts. An enforcement
matter which EPA views as appropriate for a parallel proceeding
may be rejected for legal or DOJ policy reasons; however, the
initial decision concerning requesting and referral of
enforcement matters as parallel proceedings is that of EPA.
Therefore, agency policies within the programs and media provide
guidance to staff on recommending enforcement measures and
seeking abatement or other remedial action; these guidances
should be followed.
Facts other than immediate environmental hazard or risk to
human health may also justify application for parallel
proceedings. Examples of facts which would be appropriate for
parallel proceedings requests are those which would properly seek
or result in the following:
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—administrative order to stop-sale, stop-use, remove,
cease and desist, or other similar equivalents to injunctive
relief which are directed toward the preservation of financial
assets or property, maintaining a factual situation status quo,
or preventing physical alteration of existing circumstances.
—administrative order to modify, suspend, or revoke a
permit, registration, or similar license or certification which
is issued or approved by EPA discretionary action authorizing
activities related to regulated, controlled, or hazardous
substances or activities.
—administrative order to list or delist, to suspend,
or debar from government contracts, grants or loans by which an
entity receives money from or a right to benefit from financial
activities with the United States.
—any order requiring remedial assessment, study or
cleanup planning directed toward environmental protection or
restoration.
—any order to prevent dissipation of assets or
activity which is designed to result in bankruptcy or legal
reorganization of a business or in dissolution of a corporation,
association, partnership, company or activity licensed, chartered
or .registered under law.
—existence of an immediate statutory limitation
deadline which might prevent future administrative or civil
action to protect or restore environment or to seek punishment or
financial compensation or damages.
—misconduct by individual persons or other entities
which may be the object or subject matter of one enforcement
action but has only marginal factual connection with a separate
enforcement action of a different type.
In any situation where facts, in the judgment of Regional
Program Managers for affected media, appear to warrant
administrative or civil action, and if there is an identified,
ongoing criminal investigation which has been referred formally
to the Department of Justice, the request for parallel proceeding
shall be prepared by the Office of Regional Counsel and forwarded
to the Office of Enforcement and Compliance Monitoring for
approval and referral to the Department of Justice. If there is
an open criminal investigation vhich has not yat been referred to
the Department of Justice, the decision concerning priorities of
enforcement will be considered and handled within the Region and
any disagreement among the affected media, Regional Counsel, and
enforcement personnel (including the Special Agent-in-Charge)
shall be ultimately elevated to the Assistant Administrator for
Enforcement and Compliance Monitoring for decision.
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A. 'WHEN THE DECISION TO SEEK PARALLEL PROCEEDINGS IS HADE PRIOR
TO ANY ENFORCEMENT ACTION being selected by EPA there are
requirements which must be observed. Among the required actions
are the following:
1. Civil/administrative investigative staff,
including supporting technical and legal personnel, will be
separate from criminal investigation personnel.
2. Ongoing criminal investigations continue.
Criminal investigators may receive information from existing
civil or administrative investigations BUT MAY NOT DIRECT THE
COURSE OR FOCUS OF ANY CIVIL OR ADMINISTRATIVE ACTION.
3. Ongoing civil or administrative investigations
which are "good faith" or are only peripherally or marginally
related to the criminal investigation, as determined by the
Office of Regional Counsel, may continue. No information
gathering techniques should be used solely for the purpose of
developing evidence to be used in subsequent criminal action.
_ 4. Since eventually it may be necessary to
demonstrate the separation of criminal and civil or
administrative staffs and their respective evidence or
information gathering sources, the Region should begin
formulating and shall maintain personnel lists and document the
exchange of any information among.the existing staffs.
5. The memorandum requesting parallel proceedings
shall be prepared by the Office of the Regional Counsel, signed
by the ORC and by the affected Regional Program Manager, and be
directed to the Assistant Administrator, Office of Enforcement
and Compliance Monitoring, Washington, for review and referral to
the Department of Justice. The memorandum request for parallel
proceedings shall include a brief factual outline of each of the
proposed civil or administrative and criminal actions, including
the goals which are to be obtained through the civil or
administrative action, and shall specifically state the grounds
for the request — that is, the reason why civil or
administrative action is needed at the sane time as criminal
enforcement. When the memorandum request is forwarded,
simultaneous information copies shall be sent to the Deputy
Assistant Administrators for Criminal and for Civil Enforcement
and to tho Chiefs of the Environmental Enforcement Section (EES)
and Environmental Crimes Section (ECS), DOJ.
B. WHEN THE DECISION TO SEEK PARALLEL PROCEEDINGS IS INDICATED
AFTER ADMINISTRATIVE OR CIVIL BHFORCEHENT ACTION BBGIHS the same
requirements apply as to when the docision is made before any
enforcement action is selected. However, since tho existing
civil action may have been the focal point for disclosing
possible criminal violations, all relevant information should be
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turned over immediately to the SAIC in the affected Region. The
Office of Regional Counsel and the Regional Program Chief(s) will
ensure that existing investigative and enforcement staff are not
involved in the criminal investigation.
C. WHEN THE DECISION TO SEEK PARALLEL PROCEEDINGS IS REQUIRED
BY FACTS DISCOVERED AFTER CRIMINAL PROCEEDINGS BEGIN the course
of action will be dictated by factual circumstances indicating a
need for speedy, if not immediate, action. Under most
situations, this option of seeking parallel civil or
administrative enforcement action simultaneously with criminal
action will be because of factual findings of immediate human
health risks or environmental hazard. Occasionally, factors such
as an indication of the wasting of assets needed for expected
fines or dissolution of a company may warrant the initiation of a
parallel proceeding after a criminal case has .been referred by
EPA to the DOJ. In this situation, the same requirements apply
for immediate separation of staff.
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Fifth Guideline
PROCEDURES WHILE AWAITING APPROVAL OF PARALLEL PROCEEDINGS
When parallel proceedings have been requested, EPA
personnel should act under the assumption that they will be
approved, observing those policy and organizational requirements
pertinent to each type of proceeding requested - administrative,
civil and/or criminal.
As noted earlier, it is necessary to divide and segregate
personnel — investigative, legal and technical — who are to be
associated with the respective criminal and civil judicial or
administrative proceedings once there is a request to refer any
matter to the Department of Justice. The required division and
separation of personnel should be instituted while awaiting
approval within EPA and by DOJ of the request for parallel
proceedings.
Preparation of each action — criminal and civil or
administrative — should continue on its own separate course.
There is no requirement to suspend good faith civil or
administrative investigations while awaiting approval; however,
no information-gathering techniques should be used solely for
the purpose of developing evidence to be used in subsequent
potential criminal action.
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Sixth Guideline
PROCEDURES WHEN PARALLEL PROCEEDINGS ARE DISAPPROVED
There are tw> authorized actions necessary for any use of
parallel proceedings: ;
First, the request must be approved by EPA as meeting
Agency policy and resource capabilities, and, second, after EPA
approval, the request for parallel proceedings must also be
approved by the Dapartcant of Justice, when the request is for
both criminal and civil judicial action. If EPA determines upon
pursuit of the criminal action simultaneously with Agency
administrative enforcement measures, the Department of Justice
must indicate approval of the proceedings only to the degree that
the proposed administrative action will not adversely impact ".pon
Department of Justice conduct of the criminal action; the
Department of Justice cannot veto Agency administrative efforts
but may decline or refuse to pursue further criminal action or to
initiate civil judicial proceedings.
Hhat if EPA refuses to approve a request for parallel
proceedings?
;—If there is an ongoing criminal investigation which has
reached Grand Jury or otherwise been undertaken by the
Department of Justice, EPA civil and administrative
investigations must be temporarily halted pending coordination
with the criminal action. Information and evidence gathering
activities by criminal investigators and by personnel associated
with the criminal investigation shall continue. No additional
civil or administrative action by EPA, except for routine or
scheduled inspections or monitoring activities or for protection
of emergency human health needs, may occur in the absence of
criminal investigation coordination and concurrence.
--If there is no ongoing criminal investigation which has
entered Grand Jury or is being directed by the Department of
Justice, the Agency selects the preferred enforcement option
after consultation among the Regional media program director(s)
affected, the Office of Regional Counsel, and the Special Agent
in Charge. The enforcement action selected by the Agency shall
have priority and shall receive the benefit of all information
gathered by any Agency effort to date.
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What if EPA approves parallel proceedings, but: the
Department of Justice does not?
—If there is an ongoing criminal investigation and EPA
wishes to pursue administrative action in support of Agency
policies, environmental or public health needs, then the Agency
shall maintain separate legal and investigative staff and
personnel and may pursue its administrative action. The
consequence of this election is that DOJ may refuse, or it may
continue, to pursue criminal prosecution; if the criminal action
continues, the Agency oust ensure that there is no interchange of
protected information from the criminal investigation to the
administrative proceeding. Information and evidence gathering by
criminal investigators and personnel associated with the criminal
investigation continues under the prosecutorial direction of DOJ.
Careful coordination and consultation at the upper management
level is necessary to guarantee that the two actions proceed
separately. Note, while information properly gathered by Agency
personnel, including contractors and administrative inspectors or
investigators, may be subsequently used by criminal investigators
and in-a criminal enforcement action, in no event may criminal
investigators or personnel direct or select administrative
information-gathering or enforcement efforts.
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Seventh Guideline
PROCEDURES WHEN PARALLEL PROCEEDINGS ARE APPROVED
In general, once parallel proceedings are approved, the
respective criminal and civil (including administrative)
enforcement efforts proceed in their individual courses.
Personnel should conduct business as usual and perform their
assigned duties. However, certain specific information may be
helpful:
A. For Civil Enforcement Personnel ~
— If, at any time, any person asks about the
existence or protection of individual rights (such as the right
to counsel, to freedom from self-incrimination, etc.), the
appropriate and proper response front an EPA employee is that "it
is inappropriate for government personnel to offer advice on such
matters, and you are free to consult your own attorney regarding
them."
— If, at any time, any person asks about the
possibility of criminal culpability or prosecution, EPA employees
shall respond that "the United States is free to choose civil,
administrative or criminal enforcement, and any decision to take
one type of action does not preclude another type of action."
NOTE: When a parallel civil or administrative proceeding has been
approved (or the request for approval is pending either before
EPA or DOJ), and EPA personnel are gathering information from a
target or subject common to both the EPA administrative or civil
and DOJ criminal investigations, EPA personnel should volunteer -
- without unduly emphasizing — the availability to the United
States of criminal as well as civil or administrative enforcement
capability for violations. This comment should be stated exactly
as the response to a request for such information and should be
that "the United States is free to choose civil, administrative
or criminal enforcement, and any Decision to take one type of
action does not preclude another type of action.1*
— EPA employees will not speculate, conjecture, or
give assurances to anyone with respect to the use or non-use of
any of the enforcement alternatives available to the Agency.
B. For Criminal Enforcement Personnel
— any EPA Special Agent accompanying an EPA employee,
other than another Special Agent, who is conducting a civil
inspection or administrative fact gathering shall present his or
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her badge and credentials and shall identify himself or herself
as an EPA criminal investigator.
— no Special Agent shall assume direction of or
influence the focus of any civil or administrative enforcement
action or information gathering process once approval for
parallel proceedings has been requested.
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Eighth Guideline
PROCEDURES AT CONCLUSION OF CRIMINAL ENFORCEMENT ACTION
When criminal proceedings are completed, the case file will
be closed by the criminal enforcement personnel and all pertinent
information which was not derived by Grand Jury proceedings shall
be provided to civil or administrative personnel for their use,
if civil or administrative actions remain pending or have been
suspended pending completion of the criminal matter.
NOTE: Although information gained through use of the Grand
Jury processes is generally not available, there are special
rules which may be invoked to allow subsequent civil or
administrative access to and use of such information.
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EASY ACCESS TO PARALLEL PROCEEDINGS GUIDANCE
THRU FIVE RULES OF THUMB
1) Civil/administrative and criminal enforcement actions may
be conducted simultaneously whenever deemed necessary by
the Assistant Administrator for OECM in order to seek
immediate relief to protect human health or the
environment.
2) Until the Agency refers a matter to the Department of
Justice for possible criminal prosecution, all EPA
employees should continue to collect information (data)
from potential defendants with the understanding that it
may be used for either a civil or a criminal enforcement
action. Civil staff may always share information with
criminal staff, subject only to "good faith" determinations.
Criminal staff nay share information with civil staff up to
the time of Grand Jury proceedings, protecting confidential
informants or covert investigation; after Grand Jury or
official case referral by EPA, criminal staff Bay share
information only with approval of the prosecutor.
3) No EPA employee should ever tell a person or entity from
whom information is being sought that it will not be used
by the Agency as evidence in a criminal prosecution.
"Miranda" warnings are not required during civil or
administrative fact gathering, including use of the
information request, personal interview, inspections,
presentation and execution of the subpoena, administrative
warrant, or during administrative or civil discovery
actions.
4) Once the Agency has referred a matter to the Department of
Justice for possible criminal prosecution, all EPA
employees who continue to collect information/data from
potential defendants (unless acting as an investigator for
the prosecutor's office or Office of Criminal
Investigations) must have a clear need to obtain such data
for an existing regulatory purpose that is wholly separate
and independent of the criminal investigation.
5) Questions concerning ANY ISSUE relating to Parallel
Proceedings can be ANSWERED by:
HQ - OCEC Keith A. Onsdorff 475-9666
Associate Enforcement Counsel
HQ - OCEC Kathleen King 475-9667
Attorney/Advisor
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