POLICY MANUAL CRIMINAL ENFORCEMENT PROGRAM ENVIRONMENTAL PROTECTION AGENCY- TABLE OF CONTENTS General Operating Procedures . . . . . . . . . . . . . Tab A Criminal Enforcement Priorities . . . . . . . . . . . .Tab B Administrative Discovery Devices The Use of in Criminal Investigations . . . . . . . . . . . . . . . . . . . .Tab C Grand Jury Inv.estigations, Participation in by Agency Personnel . . . . . . . . . . . . . . . . . . .Tab D Overflights, The Use of in Criminal Investigations . . . . . . . . . . . . . .Tab E Press Relations During Criminal Investigations . . . . . . . . . . . . .Tab F Parallel Proceedings t t ’! . . . . Tab G Jencks Act, Compliance with During Criminal Investigations . . . . . . . . . . . .Tab H Sampling, Preservation and Disposal of Technical Evidence in Criminal Investigations . . . . . . . . . . . . . . . . . . . .Tab I • , • r g cLi C 5 D U , • • • T L 4 O4 cG- cf C i r ------- A ------- IO ST. , UNITED STATES ENVIRONMENTAL PROTECTION AGENC WASHINGTON. DC. 20460 1’, L P O J L1 N 7 985 OFFICE OF I %IiRt F%lF..1 JD (O%lI•I t ’.( MO%I1ORI% MEMORANDUM SUBJECT: Functions and General Operating Procedures for the Criminal Enforcement Program FROM: Courtney M. Price 2 1 j Ic ) . .) Assistant Administrator \V To: Assistant Administrators General Counsel Inspector General Regional Administrators Regional Counsels I am pleased to transmit the final operating procedures for the criminal enforcement program. These procedures were developed after extensive coodinat ion with and comments from the Regional offices and program staffs. Your assistance has been valuable in developing procedures that will accomodate the interests and needs of the various offices of the Agency and enhance our ability to conduct a rigorous and effective criminal enforcement effort. These procedures replace the interim operating procedures which were issued in January, 1984. We have attempted in this guidance to recognize the significant role that the Regional Counsels, Regional Program Offices and the National Program Managers play in the criminal enforcement program. Active participation by all of us is essential to its success. I look forward to working closely with you. Specific questions concerning this guidance may be directed to Randall M. Lutz, Assistant Enforcement Counsel for Criminal Enforcement (FTS 382-4543; E-Mail Box EPA22O1). Attachment ------- FUNCTIONS and GENERAL OPERATING PROCEDURES for the CRIMINAL ENFORCEMENT PROGRAM ------- I. PURPOSE AND PHILOSOPHY These General Operating Procedures establish the process by which suspected criminal activity is investigated and prosecuted by the various agencies and officials involved. In addition, the functions, roles and relationships of these entities are set forth under a variety of circumstances. Because of the need in each case to involve many geographically dispersed professionals of various disciplines, this guidance emphasizes a “team” approach to the investigation and prosecution of criminal cases. The procedures set forth below are not to be rigidly interpreted. It is recognized that certain cases may require flexibility to proceed successfully. II. ROLES AND RELATIONSHIPS Most aspects of the Agency’s enforcement program have been delegated in significant measure to the Regional Offices. The critical stage in development of the criminal enforcement program, the need for specialized expertise and consistency, however, dictate a centralized management approach for the program. Hanagement of criminal legal and policy functions will be focused at Headquarters, and the management of criminal investigative functions will be focused at the National Enforce- ment Investigations Center (NEIC). It is understood that the actual enforcement efforts in each case will require a team effort which relies upon the contribution of Headquarters and regional legal and technical staff and the Department of Justice (DOJ). The Office of Enforcement and Compliance Monitoring (OECM): The Assistant Administrator for Enforcement and Compliance Monitoring The Administrator has delegated the responsibility to develop and implement this program to the Assistant Administrator for Enforcement and Compliance Monitoring (the Assistant Admini- strator). The Assistant Administrator maintains policy and operational control for this program through the Associate Enforcement Counsel for Criminal Enforcement and Special Litigation (the Associate EnforcementCounsel) and the Director, NEIC. Criminal enforcement policies and priorities are established through the Assistant Administrator. The Assistant Administrator oversees the criminal investigating program, and reviews and approves criminal referrals to DOJ. The Assistant Administrator ensures consistent and complementary use of the civil and criminal enforcement authorities available to the Agency (including, where appropriate, parallel proceedings), develops and defends the budget, and allocates investigative resources for the program. ------- -2- The Associate Enforcement Counsel for Criminal Enforcement and Special Litigation The Associate Enforcement Counsel, through the Assistant Enforcement Counsel for Criminal Enforcement (the Assistant Enforcement Counsel), is responsible for providing legal guidance to the Agency on all aspects of the criminal enforcement program, informing the Assistant Administrator of ongoing case activity and articulating investigation and litigation priorities by developing an enforcement strategy, together with the NEIC, for the program. To implement these responsibilities, the Associate Enforcement Counsel through the Assistant Enforcement Counsel, supervises the Criminal Enforcement Division (CED) which coordinates the team investigation and prosecution of criminal cases with DOJ’s Land and Natural Resources Division and local federal and state agencies; provides legal advice and support to the NEIC’s Office of Criminal Investigations (OCI) and to the Regional Counsels; reviews all criminal referrals to DOJ; participates in the prosecution of selected cases of national importance or that exceed the resources of local or regional offices; makes recommendations on the use of parallel proceedings; develops training programs for agency legal and regional program staff; issues legal updates of significant decisions by the United States Supreme Court and other courts; and reviews the legal soundness and consistency of guidances and procedures developed throughout the Agency. The National Enforcement Investigations Center (NEIC ) The Director, NEIC, through the Assistant Director for Criminal Investigations (the Assistant Director) , monitors and supervises all investigative activities arising under the criminal enforcement program through the Office of Criminal Investigations’ Area Offices (and Resident Offices), the Washington Staff Office, and the NEIC Investigative Unit. The NEIC formulates procedural and technical guidance for the conduct of Agency investigations. The Director, NEIC, assumes overall responsibility for recruiting the Agency’s investigative staff; informing the Assistant Administrator of investigative activity; and recoin- mending how investigative resources should be allocated among the Regions consistent with national enforcement strategies. The NEIC develops and implements training programs on operational aspects of criminal case development for Agency personnel. It assumes responsibility for technical support in Agency criminal investigations that have inter-regional ramifications or that exceed the resources of the technical staffs of individual Area or Regional Offices. The NEIC oversees the criminal investigative activity in each of the Area Offices. Further, while day-to-day investigative ------- -3- decisions are usually made in the Area Office under the super- vision of a Special-Agent-in-Charge (SAIC), in designated cases of national significance or of particular sensitivity, the Assistant Director has the authority to direct the investi- gative activity of any Area Office. The Assistant Director also reviews and concurs in performance evaluations of the criminal investigators (Special Agents) and conducts the performance evaluations of the SAICs. Final approval of SAIC performance evaluations is given by the Director, NEIC. Area Offices : A key component of the NEIC’s centralized management approach to the criminal enforcement program has been the development of Area Offices. Special Agents constitute Headquarters rather than regional resources and are part of the staff of NEIC. They are housed in an Area Office and are supervised by a SAIC who reports to the Assistant Director. The management of any given investigation is the primary responsibility of the Special Agent, acting under the immediate supervision of the SAIC. The SAIC in each Area Office ensures that events (witness interviews, investigative developments, opening and closing of investigations) in each of the cases and investigations are properly documented by the investigative staff utilizing standard agency forms. In certain Regions, the numbr of Special Agents assigned and the investigative caseload has not yet risen to a level justifying the presence of an Area Office. A Resident Office will be located in each such Region, directed by a Resident-Agent-in-Charge who reports in turn to the SAIC who is responsible for the Region in which the Area Resident Office is located. NEIC Investigative Unit : A Special NEIC Investigative Unit, also staffed by experienced Special Agents, is located at the NEIC headquarters in Denver. Unlike Area Offices, this unit has national jurisdiction, focusing on cases that span the jurisdiction of two or more Area Offices, that set national precedent or where investigative demands are beyond the capacity of a particular Area Office. Investigators assigned to this unit also participate; where appropriate, in investigations in which the NEIC is providing technical support. The NEIC Investigative Unit -- like the Area Offices - - is managed on a day-to-day basis by a SAIC, who reports in turn to the Assistant Director. Washington Staff Office : The Washington Staff Office serves as the OCI’s focal point at EPA Headquarters and provides a liaison with all Headquarters program offices and with law enforcement agencies located in the Washington area. This office selectively participates in investigations of national importance. ------- -4- The Office of Regional Counsel (ORC ) Special Agents will coordinate closely with Regional Attoneys throughout the investigative process and will utilize the expertise of selected Regional Attorneys for advice on specific cases and EPA’s statutes and regulations. To facilitate this consultation, each ORC will designate a Regional Attorney to serve as a contact with the criminal enforcement program. Furthermore, this Regional Attorney will be assigned to a case early in the case development process to assist as needed in the investigation, indictment, and prosecution. Both the Regional Attorney and the Special Agent coordinate and consult with the CED in resolving issues concerning the application of criminal law to the criminal enforcement of environmental statutes. The Regional Attorney may become a member of the prosecu- tion team, joining the prosecutor, the attorney from the CED, technical and program personnel and the Special Agent. The Regional Attorney may assist in evidence review or documenta- tion and statutory and regulatory interpretation and other functions as assigned by the Regional Counsel necessary for the successful prosecution of the case. The CED supports such activities by providing specialized expertise in the application of criminal law to environmental enforcement. The Regional Administrator The Regional Administrator, or his designee, will be kept apprised of criminal enforcement matters occurring in the Region. To coordinate criminal investigations with other Agency activities, notification to the Regional Administrator should occur, for example, when a decision is made to pursue parallel civil/criminal enforcement proceedings, or when inves- tigations involve companies or individuals who are also involved with the Agency on other, unrelated matters. It is the respon- sibility of the Regional Counsels (as advised by the Regional Attorney assigned to assist in a criminal investigation) to timely notify the Regional Administrators of appropriate cases and developments. The Director, NEIC, and appropriate Regional Program Division Directors will notify the Regional Administrators of appropriate investigative situations. Once apprised of a criminal enforcement activity, it is the Regional Administra- tor’s function to notify State regulatory agencies of important developments in criminal investigations as appropriate. The Program Assistant Administrators As the national program managers, the Program Assistant Administrators work with the CED in the establishment of Agency-wide and media-specific compliance and enforcement priorities. These priorities will provide a framework for decisions on the allocation of EPA’s criminal investigative and technical L-esources. ------- -5- As in other enforcement areas, Program Assistant Adminis- trators provide technical support and other resources to Head- quarters and to the regions to su port criminal investigations, case development and prosecution. NEIC and the CED will provide the Program Assistant Administrators with projections of anticipated resource needs to ensure adequate technical and legal support for such purposes. Each Program Assistant Administrator will appoint one individual to coordinate with the CED and the NEIC on criminal enforcement matters. Subject to the normal constraints on dissemination of information concerning criminal cases, consultation will occur during the referral review process to ensure that a specific case does not raise policy issues that should be brought to the attention of the Assistant Administrator prior to the referral decision. The Regional Program Division Directors The Regional Program Division Directors play an important role in the case development process by providing upon request technical support for an investigation through consultation or actual field work, as needed and as resources are available. The expertise of the technical staff in the various media is an excellent resource for case development. Also, in those cases that are prosecuted and go to trial it will often be necessary for the regional technical staff to testify as deter- mined by the prosecutor. The Regional Program Division Directors will designate a contact staff member for support of criminal investigations involving the functions of that division. The Office of General Counsel (0CC ) In criminal enforcement matters, as in other areas of Agency activity, the General Counsel is responsible for interpreting laws and regulations to ensure their consistent application. 0CC attorneys also assist in resolving legal issues involving the interpretation of environmental statutes that arise during investigations, during the review of criminal referrals, or during the prosecution of criminal cases. OGC also partici- pates in the preparation of briefs and other court documents in criminal cases, and, in consultation with CED, makes determinations whether to appeal adverse court decisions. The Department of Justice (DOJ ) DOJ and local United States Attorneys provide legal advice upon request during field investigations and obtain criminal search warrants and other court processes in support of EPA criminal cases. They direct the conduct of grand jury investi- gations and proceedings, and all prosecutions and appeals of ------- -6- federal criminal environmental cases. In consultation with EPA attorneys and investigators, DOJ prosecutors negotiate and accept plea agreements and make sentencing recommendations. In addition, DOJ monitors the exercise of law enforcement powers by EPA Special Agents. III. INITIATION AND CONDUCT OF AN INVESTIGATION This Section describes the interaction of the participating offices in the initiation and pursuit of a routine investigation. The roles described herein are for guidance and can be changed to accommodate the special circumstances of the investigation and prosecution of a specific case. Initiation of an Investigation: Preliminary Inquiry An initial “lead” or allegation of potential criminal activity may come to the Agency from any of several sources, including State agencies, routine compliance inspections, citizens or disgruntled company employees, among others. Regardless of its source, the SAIC and/or the Resident-Agent-in Charge (RAIC) should be immediately notified. The SAIC or RAIC evaluates the lead and, if necessary, assigns a Special Agent for follow-up, assigns a case number and opens an investi- gative file. If the reliability of the lead is unclear, the Special Agent conducts a preliminary inquiry to determine the credibility of the allegation and makes an initial assessment of the need for a more thorough investigation. This initial inquiry is brief, and involves no extensive commitment of resources or time. The purpose is to reach an initial determination on the need for a complete investigation. The CED is consulted if this determination concerns legal issues of criminal liability. Conduct of an Investigation Because the complexity of many environmental criminal investigations requires the skills of various disciplines, a team approach to the prosecution is necessary. If, after the preliminary inquiry, the SAIC feels that the lead warrants thorough investigation, the Special Agent will immediately contact the appropriate Regional Counsel to determine whether any civil enforcement action is pending or contemplated against the investigative target. The Special Agent contacts the designated regional program contact person for assistance and transmittal of information when necessary. The Special Agent contacts the appropriate Regional Program Division Directors to determine whether any administrative enforcement action is pending or contemplated against the target. For any particular case where technical support during the investigation is needed, ------- —7— the appropriate Regional Program Division Director will be asked to designate specific individuals to work with the Special Agent during the investigation. These activities are carried out in consultation with the NEIC. Overall management of the investigation is the sole responsi- bility of the Special Agent, acting under the supervision of the RAIC or SAIC. The Special Agent is responsible for determining the basic investigative approach, and takes the lead in conducting interviews, assembling and reviewing records, planning and executing surveillances, coordinating with the United States Attorney’s offices and other federal, state and local law enforcement agencies, obtaining and executing search warrants, communicating with informants, contacting other witnesses and performing other investigative functions. In pursuing an investigation, the Special Agent is responsible for completing all required reports and coordination and notification requirements (interview summaries, reports of investigation, etc.). As a general practice, only one member of the investigative team will record or document any stage or development in the investigation. Issues and problems concerning the use of discovery devices, the confidentiality of business information, delegations of authority within the Agency, interpretation and application of State statutes and enforcement proceedings, internal EPA policy and guidance, the impact of decisions by the United States Supreme Court and other courts, and elements of proof under EPA’s environmental criminal provisions are legal issues that will have to be resolved by the CED, ORC and 0CC contact. It is the responsibility of the Special Agent to consult with and seek the guidance of the legal contact of the ORC and the Assistant Enforcement Counsel on these and similar issues throughout the pre-referral investigative process. Parallel Investigations and Proceedings 1 / While simultaneous administrative/civil and criminal enforce- ment actions are legally permissible, they are resource-intensive 1/ Agency guidelines on parallel proceedings were issued on January 23, 1984. (See memorandum “Policy and Procedures on Parallel Proceedings at the Environmental Protection Agency”, Assistant Administrator, Office of Enforcement and Compliance Monitoring to Assistant Administrators, Regional Administrators, Regional Counsels, and Director, NEIC, January 23, 1984). Agency officials and staff should consult these guidelines prior to conducting parallel investigations or proceedings. Further guidance on specific issues concerning parallel proceedings is expected to be published. ------- -8- and fraught with potential legal pitfalls. Parallel proceedings will nevertheless be pursued where the public interest requires a dual approach, e.g., where both injunctive relief or remedial action and criminal sanctions are warranted. Where injunctive relief is not needed, and where the conduct warrants criminal sanctions, an administrative or civil proceeding seeking punitive penalties would generally be held in abeyance by the Region pending the resolution of the criminal investigation. The criminal referral and the parallel administrative/civil action of the Regional Office will each be considered to be separate referrals for Regional management reporting purposes. Where parallel proceedings are justified, the criminal investigation will be pursued in accordance with Agency guidance on the conduct of a parallel proceeding. The Assistant Administrator will approve the conduct of parallel proceedings upon the advice of the Associate Enforcement Counsel and will notify the Regional Administrator of the approval. Coordination with State/Local Enforcement It is recognized that many investigations and cases can be prosecuted at either the federal or state/local level. It is the goal under this policy over time to refer more cases more frequently to the state/local level as the abilities and resources at those levels increase and the case load at the federal level becomes more difficult to manage. Although this concurrent jurisdiction raises some issues (e.g., how to avoid duplication of effort, how to obtain the best result, should separate cases ever be brought, etc.), they do not warrant the issuance of a formal general operating policy in this area. If the need becomes apparent, a policy will be drafted for review and comment. Whatever determinations are made about the level at which environmental criminal cases should be prosecuted, it is vitally important that at the investigative level close coordination is maintained between and among federal and state! local law enforcement and regulatory agencies. SAICs are responsible for ensuring regular communication, exchanges of information under appropriate assurances of security, and coordinated actions between OCI and such agencies in investigative activities generally and with respect to specific investigations. IV. REFERRAL PROCEDURES Routine Referrals Criminal cases shall be developed as thoroughly as possible prior to referral to DOJ. During this investigative and case ------- -9- preparation process, informal coordination among the Special Agent, the CED, the Regional Attorney, DOJ and local United States Attorneys is encouraged. A referral recommendation will be developed when the field investigation has been completed. At this point, the results of the investigation are assembled in a referral package by the Special Agent. The Special Agent assigned to the investi- gation is responsible for coordinating the preparation of the overall referral package and consulting with other members of the investigative team. A separate legal analysis is drafted by the Regional Attorney. Once the referral package is prepared, it is reviewed by the SAIC and the Regional Counsel, who act as joint signatories. Technical portions of the package are also reviewed by the Region or Headquarters program office or the NEIC, depending upon the source of technical support. During this technical review, the technical resources to support the ensuing prosecution should also be identified and their availability specifically confirmed by the appropriate technical office. Following completion of the referral package and concur- rence in the referral recommendation by the SAIC and the Regional Counsel, five copies of the referral package (with all exhibits) should be directed to the Associate Enforcement Counsel, and one copy to the Director, NEIC. No copies of this referral package will be sent to the local United States Attorney or DOJ until Headquarters has reviewed the referral package and the Assistant Administrator has approved the referral. However, the Special Agent is encouraged to consult and review documents with the local AUSA or DOJ prosecutor who will be handling the case at the earliest possible time, as needed for legal advice and for case development strategy at any point in the invesigative process, even if the formal referral has not yet been made. The Headquarters review will focus on the adequacy of case development, adherence to the criminal enforcement priorities of the Agency, legal issues of first impression, consistency with related program office policy, and-overall prosecutorial merit. In cases involving particularly complex issues of law, the CED will also consult with OGC and DOJ attorneys. If, following this review process, the referral recommendation is accepted by the Assisistant Administrator, copies of the referral package will be directed simultaneously to the local United States Attorney and to DOJ. Appropriate cover letters will be drafted by the CED for the signature of the Assistant Administrator. ------- -10- Emergency Assistance from United States Attorneys In unusual circumstances, it may be necessary to secure the immediate assistance of the local United States Attorney for legal process. For example, immediate resort to the grand jury’s compulsory process may be required in investigations of ongoing illegal activity, or when there are grounds to anticipate the flight of a witness or defendant. Such situations will arise infrequently. When they arise, the SAIC, with the knowledge of the Regional Counsel, will contact the NEIC, which will in turn consult with the CED. Following approval by the Assistant Administrator, telephonic authorization to contact the AUSA for appropriate assistance will be granted in appropriate cases. Copies of all materials normally included in a referral package (which have been transmitted to the local AUSA in connection with the emergency situation) will then be directed immediately and simultaneously to NEIC, to the CED and to the Environmental Crimes Unit (ECU) of DOJ’s Land and Natural Resources Division. These copies will be sent within 48 hours. Appropriate follow-up letters to the AUSA and DOJ will be drafted by the CED confirming the emergency situation. V. POST-REFERRAL PROCEDURES Following referral to DOJ, responsibility for managing the prosecution rests with the prosecutor assigned to the case. Usually, the prosecutor is a member of the local United States Attorney’s office. In cases of national significance or beyond the resources of the local United States Attorney, the case may be managed by the ECU. The ECU monitors the progress of federal environmental criminal referrals throughout the country. Within EPA, oversight of the criminal prosecution docket is the responsibility of the CED. The Special Agent responsible for the investigation, working in close cooperation with the Regional Attorney assigned to the case, acts as primary liaison with DOJ or the local AUSA. This Special Agent performs and coordinates additional investi- gation as required and usually will be designated a special agent of the grand jury if a grand jury presentation or investi- gation is initiated. Many of EPA’s criminal cases are developed further through the grand jury. Stringent, closely-monitored rules govern the conduct of grand jury investigations. To ensure the secrecy of the grand jury process, no one may have access to information received by the grand jury without court per- ------- —11— mission or rule authorization unless otherwise permitted by law. Agency officials are responsible for familiarizing themselves completely with these rules prior to participating in a grand jury investigation. 2/ The CED and ORC attorneys are responsible for fulfilling requests for legal assistance during the litigation of the case. CED attorneys will coordinate with Regional Attorneys and 0CC in responding to these requests. Regional program offices and NEIC technical staff will be available to provide technical support as needed. VI. PLEA BARGAINING Negotiation of settlements in criminal cases (i.e., plea bargaining) is the sole responsibility of DOJ and the local AUSA although consultation with the investigative team and the Regional Administrator is strongly encouraged. Following referral of a criminal case, Agency officials should never enter into independent negotiations or discussions with the subject(s) of that referral without prior coordination with and approval from the DOJ attorney or the AUSA overseeing the case. It is, of course, entirely appropriate for Agency officials working on the criminal prosecution -- including investigators, attorneys and technical personnel -- to provide input, suggestions and advice during the negotiation process. DOJ or the AUSA conducting settlement negotiations should consult the CED before entering into any final settlement. VII. CLOSING INVESTIGATIONS A case may be closed prior to or after referral to DOJ for one or more of the following reasons: initial allegation unfounded, referral for administrative/civil enforcement action, referral to another agency or law enforcement office, lack of prosecutorial 2/ Agency guidelines on grand jury investigations were cir- culated on April 30, 1982. (See memorandum “A ency Guidelines for Participation in Grand Jury Investigations , Associate Administrator for Legal and Enforcement Counsel and General Counsel to Assistant Administrators, Regional Administrators, Regional Counsels and Director, NEIC, April 30, 1982.) Agency officials should consult these guidelines prior to participa- tion with DOJ in a grand jury investigation. ------- -12- merit, declination by DOJ or resolution of the case after the filing of charges. The decision to close an investigation (unless it occurs because of court action or a jury decision) is one which usually is made after consultation among EPA attorneys, the SAIC and the prosecutors (if it occurs after referral to DOJ). VIII. DEBARMENT AND SUSPENSION As stated at 40 C.F.R. § 32.100, “it is EPA’s policy to do business only with participants which properly use federal assistance.” To protect the interests of the Government, EPA has the authority to deny participation in its programs to those who are either debarred or suspended (listed) for their illegal or improper activities. This guidance sets forth when and how a referral for debarment is to be made. Upon Conviction Under the regulations, only convictions mandate listing. Immediately upon obtaining a conviction for the violation of either the Clean Air Act or the Federal Water Pollution Control Act concerning a “facility”, as defined in 40 C.F.R. § 15.3(1), the SAIC in the region where the conviction was obtained will telephonically notify the CED for purposes of further referring the matter for “listing” the violating facility. The CED will verify the conviction by obtaining a copy of the court’s judgment of conviction and referring the matter with the relevant information and documents to the listing official in OECM. At Other Times At any time during the investigation or prosecution of a case, but before the case is closed, the SAIC may review the facts of the case to recommend to the Assistant Director whether a referral should be made to the Director, Grants Administration Division, for debarment and/or suspension of the person or company from the opportunity to participate in EPA assistance or subagreements pursuant to 40 C.F.R. Part 32. If the decision by the Assistant Director, after reveiw by the Director, NEIC, to refer the matter for debarment is made at the time the case is to be closed, the Assistant Director will send the relevant documents along with a report (stating the reasons for the referral) to the CED, which will review those materials and, if meritorious, make a recommendation for referral through the Associate Enforcement Counsel to the Assistant Administrator. If approved by the Assistant Administrator, the matter will then be referred to the Director, Grants Administration Division. ------- -13- Any decision by the Assistant Director to refer the matter for debarment while the investigation is ongoing or while the prosecution is pending will be done in accordance with the procedures for parallel investigations set forth in Section II of these General Operating Procedures. IX. REQUESTS FOR ASSISTANCE IN CRIMINAL INVESTIGATIONS CONDUCTED BY THE JUSTICE DEPARTMENT AND THE FBI EPA may receive requests for technical, legal or investiga- tive assistance in environmental criminal cases that are initi- ated independently by DOJ or the Federal Bureau of Investigation (FBI). It is the policy of EPA to provide support for these requests to the extent resources permit. Requests for legal assistance in criminal investigations from DOJ or the FBI are reviewed by the CED and the Assistant Administrator. Requests for investigative assistance involving substantial investigative and technical resources are reviewed and determined by the Director of NEIC and the Assistant Administrator. Accordingly, Regional Offices that receive any such requests should forward the request to the appropriate Area Office SAIC. X. SECURITY OF CRIMINAL INVESTIGATIONS Information on criminal investigations must be provided with restraint, and only to persons who “need to know” the information. Additionally, special attention must be given to the care and custody of written materials pertaining to an investigation. Active criminal investigations shall never be discussed with personnel outside of the Agency except as is necessary to pursue the investigation and to prosecute the case. Agency policy is neither to confirm nor deny the existence of a criminal investi- gation. Requests for information on active investigations from the news media must be handled by the appropriate SAIC, the Office of Public Affairs or the CED consistent with the official guidance.3/ 3/ Agency guidelines on press relations concerning investigations has been circulated in draft. (See memorandum “Press Relations on Matters Pertaining to EPA’s Criminal Enforcement Program”, Assistant Administrator, Office of Enforcement and Compliance Monitoring nç1 assistant Admir)istrator.f9r External Affairs to Assistant Administrators, Regional Administrators, Regional Counsels, Director of NEIC and all SAICs). ------- -14- Finally, in the event of inquiries from Congress, the staff of the Assistant Administrator will work closely with the Congressional Liaison Office prior to releasing any information or making any public statments. The NEIC criminal investigative offices and CED offices are equipped with secure office space, filing cabinets, and evidence vaults. Similar security measures must be utilized by Regional staff assigned to an investigation. XI. RESERVATIONS The policy and procedures set forth herein, and internal office procedures adopted pursuant hereto, 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 alleged to be at variance with these policies and procedures or not in compliance with internal office procedures that may be adopted pursuant to these materials. ------- B ------- ,0 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY \ OCT I 2 LEGAL AND ENFORCCMCN? COUNSCI. MEMORANDUM SUBJECT: Criminal Enforcement Priorities for the Environmental Protection Agency FROM: Robert 11. Perry C ’ 1 Associate Administrator Cf TO: Regional Counsels, Regions I—X Criminal case development and referrals will constitute an important component of EPA’s overall enforcement effort. The success of the criminal enforcement program will depend on the Agency’s ability to act with professionalism, and with one mind, in identifying, investigating and referring cases for criminal prosecution. To achieve this objective, our Criminal Enforcement Division is currently recruiting a staff of 25 experienced criminal investigators. In addition, the Office of Legal and Enforcement Counsel, working with the assistance and guidance of EPA’s media program offices, has developed the attached “Criminal Enforcement Priorities” for the Agency. These guidelines have been drafted so that the objectives and interests of EPA’S program offices are reflected in, and furthered by, the Agency’s criminal enforcement efforts. In addition, the implementation of these guidelines will guarantee that the legal and investigative resources of the Office of Legal and Enforcement Counsel, and the technical resources of EPA’S program offices, are focussed on cases of the most serious environmental misconduct. The attached Criminal Enforcement Priorities are effective immediately, and replace any existing Agency guidance on this subject. Please ensure that these priorities are circulated with the appropriate Regional program offices. Any questions on these priorities can be directed to Peter Beeson, Director, Criminal Enforcement Division, Office of Legal and Enforcement Counsel (FTS 382—4543). Attachment cc: Assistant Administrators Regional Administrators, Regions I-X ------- CRIMINAL ENFORCEMENT PRIORITIES United States Environmental Protection Ag Effective Date: ------- TABLE OF CONTENTS PART I: THE DECISION TO PURSUE CRIMINAL SANCTIONS...... . . •.......... . . . . . . . . . • . .1 A. TheScienterRequirement................l B. The Nature and Seriousness of the Offense...... . . ......... .. . .... C. TheNeedforDeterrence.................3 D. Compliance History of the Subject. (8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 E. The Need for Simultaneous Civil or Administrative Enforcement Action......................3 PART II: CRIMINAL ENFORCEMENT PRIORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . .5 A. Investigative Priorities: Resource Conservation and Recovery Act (RcRA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5 1. Knowing Endangerment...............5 2. Illegal Transportation and Disposal of Hazardous Waste........6 3. Falsification of RCRA Records......6 4. Destruction, Concealment or Alteration of RCRA Records 6 B. Investigative Priorities: Comprehensive Environmental Response, Compensation and Liability Act (Superfund) . . . . . . . . . . . . . . . . . . . . .6 1. Failure to Notify of a Release of a Hazardous Substance...........6 2. Destruction or Falsification of Superfund Records...............7 C. Investigative Priorities: Clean Water Act (CWA)..................7 1. Violations of the NPDES Permit Program. . . . . . . . . . . . . . . . . . . . . 7 2. Falsification of CWA Records and Monitor Tampering...... . . . ... . .7 3. Unpermitted Discharges. ..... .. .... .8 D. Investigative Priorities: The Clean Air Act 1. Violations of State Implementation Plans. ... .... .. ... . .8 2. Violations of Hazardous Air Pollutant Standards............8 3. Falsification of CAA Records and Monitor Tampering..............9 ------- E. Investigative Priorities: The Toxic Substances Control Act (TsCA)............................9 1. Falsification of Data Required under a Testing Rule or the Preinanufacture Notification Program. . . . . . . . . . . . . . . . . . . . . . . . . . .9 2. Failure to Report Substantial Risk Information.. .. . . .. . ....... . .9 3. Violation of PCB or Dioxin Regulations. . . . . . . . . . . . . . . . . . . . . . .9 F. Investigative Priorities: The Federal Insecticide, Fungicide and Rodenticide Act (FIFRA)..........1O 1. Failure to Report Information on the Unreasonable Adverse Effects of a Registered Pesticide....... . . . . . . . . . . . . . . . . .10 2. Falsification of FIFRA Records. . . . . . . . . . . . . . . . . . . . . . . . . . 10 3. Violation of Suspension or Cancellation Orders.. ......... . . .10 4. Violation of Stop Sale Orders . . . . . . . . . . . . . . . . . . . . . . . . . . .10 5. Unlawful Uses of Pesticides......1l 6. Illegal Distribution of Unregistered Pesticides..........11 G. Investigative Priorities: The Marine Protection, Research, and Sanctuaries Act (MPRSA).... 11 H. Investigative Priorties: Willful Contempt of Environmental Consent Decrees. . . . . . . . . . . . . . . . . . . . . .11 ------- PREFACE A broad range of potential overlap exists among the criminal, civil and administrative enforcement options provided by most environmental statutes. Theoretically at least, the Agency is free to pursue criminal sanctions in every situation presenting evidence supporting the requisite elements of proof. As a matter of enforcement policy and resource allocation, such an unrestrained use of criminal sanctions is neither warranted nor practical. The commitment of investigative and technical resources necessary for the successful prosecution of a criminal case is high. More importantly, a criminal referral for investigation or prosecution can entail profound consequences for the subject of the referral, and should reflect a considered, institutional judgment that fundamental interests of society require the application of Federal criminal sanctions to a particular set of facts. Accordingly, criminal referrals will be confined to situations that——when measured by the nature of the conduct, the compliance history of the subject(s) or the gravity of the environmental consequences—— reflect the most serious cases of environmental misconduct. This memorandum provides guidelines for the use of criminal sanctions under all environmental statutes. It is divided into two parts. Part I sets out several general factors that Agency personnel should consider in determining whether a criminal referral is warranted in a specific situation. These factors will apply with equal force to referral decisions under each of the Agency’s statutes, thereby ensuring cross—media consistency in the use of this enforcement option. Part I has also been drafted BO as to reflect guidelines for the exercise - of Federal prosecutorial discretion found in the Justice Department’s Principles of Federal Prosecution . Following this general overview, Part II establishes investigative priorities in each of the Agency’s program areas. The purpose of this section is to focus the limited criminal investigative resources of the Office of Legal and Enforcement Counsel on the most serious cases of environnien— tal misconduct. These media—specific priorities will be fluid, and wjll be modified to reflect additional regulatory programs in the Agency as they develop. In addition, the creation of investigative priorities does not preclude the possibility of a criminal referral for conduct not falling within these priorities. Each case will be considered on an individual basis. Further——to emphasize the obvious——these guidelines relate only to the use of criminal sanctions, and do not reflect administrative or civil enforcement priorities. ------- —2— These guidelines, and internal office procedures adopted in accordance with these guidelines, are not intended to, do not, and may not be relied upon to create a right or benefit——substantive or procedutal—— enforceable at law by a party to litigation with the United States. Any attempt to litigate any aspect of these guidelines should be brought immediately to the attention of the Criminal Enforcement Division, Office of Legal and Enforcement Counsel, EPA Headquarters. These guidelines are effective immediately, and replace any existing guidance on criminal enforcement priorties within the Agency. ------- —1— PART I: THE DECISION TO PURSUE CRIMINAL SANCTIONS This Agency’s choice among its varying enforcement options-—civil, administrative and criminal——is, and must remain, a discretionary judgment that balances essentially subjective considerations. No litmus paper test exists that will reliably distinguish cases falling into each category. This section discusses the varying factors, or considerations, that should be addressed as EPA reaches an institutional decision on the appropriate enforcement option to employ in addressing a specific violation. In essence, it is a discussion of those factors that will normally distinguish a criminal case from all the others. A. The Scienter Requirement An individual who engages in conduct prohibited by statute or regulation can be prosecuted civilly or administratively without regard to the mental state that accompanied the conduct. Criminal sanctions, on the other hand, will ordinarily be limited to cases in which the prohibited conduct is accompanied by evidence of “guilty knowledge” or intent on the part of the prospective defendant(s). Referred to as the scienter requirement, this element of proof exists under virtually every environmental statute enforced by the Agency.i/ For example, falsification of records under the Resource Conservation and Recovery Act must be done Nkn ing1y,Iu (42 U.S.C. §6928(d) (3)); violation of hazardous air pollutant standards under the Clean Air Act must be done “knowingly,” (42 U.S.C. §74l3(c)(l)(c)); and failure to establish or maintain records required under the Toxic Substances Control Act must occur “knowingly or willfully,” 15 U.S.C. §2615(b). - 1/ One exception to this general rule is the Refuse Act, 33 U.S.C. §407, which has generally been interpreted as a “strict liability” statute. See, e.g. United States v. White Fuel Corporation , 498 F.2d 619 (1st Cir. 1974). In addition, a prosecution for illegal discharges under the Clean Water Act can be based on negligent or willful conduct, 33 U.S.C. §1319(c)(l). “Negligence” is not, strictly speaking, a form of scienter . ------- -2— The requirement to prove a culpable mental state, as well as a prohibited act, is certainly the clearest distinction between criminal and civil enforcement actions. Special care will be taken both in investigations, and in drafting criminal referral packages, to assemble and highlight evidence available to meet the specific statutory scienter requirement. B. The Nature and Seriousness of the Offense Resources currently available to EPA for criminal case development are limited. In addition, this Agency is only one of dozens that are making demands on the limited prosecutorial staffs of the Justice Department. As a matter of resource allocation, therefore, as well as enforcement philosophy, EPA will investigate and refer only the most serious forms of environmental misconduct. Of primary importance to this assessment is the extent of environmental contamination or human health hazard that resulted from, or was threatened by, the prohibited conduct. This determination depends in turn on consider- ations such as the duration of the conduct; the toxicity of the pollutants involved; the proximity of population centers; the quality of the receiving land, air or water; the amount of Federal, State or local cleanup expenditures; and public sentiment supporting strong enforcement action in response to a specific situation. Also of significance in assessing the seriousness of the illegal conduct is the impact——real or potential——on EPA’s regulatory functions. This factor is of particular importance in cases of the falsification or concealment of records, reports or information. For example, even if a technical falsification case can be made, criminal sanctions may not be appropriate if the distortion of information could not reasonably have been expected to have a significant impact on EPA’s regulatory process or decision—making. Where the materiality of the falsification is clear, however, criminal sanctions should be pursued. For example, falsification activity might cause EPA to register a pesticide with demonstrated carcinogenic potential; to omit effluent limitations for toxic pollutants in an NPDES permit; or to postpone necessary regulatory action. In such situations, the need for criminal sanctions should be considered. ------- —3— C. The Need for Deterrence Deterrence of criminal conduct by a specific individual (individual deterrence) or by the community at large (general deterrence) has always been one of the primary goals of the criminal law. Where the offense is deliberate and results in serious environmental contamination or human health hazard, the need to achieve deterrence through the application of strong punitive sanctions will almost always exist. The goal of deterrence may, on occasion, justify a criminal referral for an offense that appears relatively minor. This would be true, for example, for offenses that-—while of limited importance by themselves——would have a substantial cumulative impact if commonly committed. This might also be true when addressing violations by an individual with an extended history of recalcitrance and noncompliance. D. Compliance History of the Subject(s ) The compliance history of the subject(s) of a potential criminal referral is relevant, and should be considered in determining the appropriateness of criminal sanctions. As a general rule throughout Federal criminal enforcement, first offenders will be treated less severely than recidivists. Stated alternatively, criminal sanctions become more appropriate as the incidents of noncompliance increase. The occurrence of past enforcement actions against a company, or the failure of civil/administrative enforcement, is certainly not a prerequisite to a criminal referral. However, a history of environmental noncompliance will often indicate the need for criminal sanctions to achieve effective individual deterrence. E. The Need for Simultaneous Civil or Administrative Enforcement Action Simultaneous civil and criminal enforcement proceedings are legally permissible, United States v. Kordel , 397 U.S. 1, 11 (1970), and on occasion are clearly warranted. However, separate staffs will be appointed with the initiation of a grand jury investigation 1 if not before. Further, the pursuit of simultaneous proceedings provides fertile grounds for legal challenges to one or both proceedings that, even if unsuccessful, will consume additional time and resources. Thus, parallel proceedings should be avoided except where clearly justified. In this regard, it should be noted that some of the goals of a criminal prosecution, including a degree ------- —4— of deterrence and punishment, can be achieved through a civil action that secures substantial civil penalties in addition to injunctive relief. Moreover, recent exper- ience indicates that while some cases may result in periods of incarceration, criminal sentences will often be limited to monetary fines and a probationary period. In light of this reality, the use of the additional time and resources necessary to pursue a criminal investigation——as well as a civil enforcement action——is often not justified. ------- —5— PART II: CRIMINAL ENFORCEMENT PRIORITIES The previous section has discussed the general considerations that will guide this Agency’s decisions on the investigation and referral of criminal cases. Part II details the substantive investigative priorities that will be pursued in the Office of Legal and Enforcement Counsel’s developing criminal enforcement program. The priorities are listed by statute. The order of listing is random 1 and is not intended to achieve further ranking either within each statute or on a cross—media basis. Unless otherwise stated below, all listed categories of conduct are considered equally significant and worthy of investigation within the constraints of our limited criminal investigative resources. The criminal investigative staff of the Office of Legal and Enforcement Counsel, acting in partnership with the legal and technical staffs of the Agency, will focus criminal enforcement efforts in the future primarily on cases falling within the categories listed below. The issuance of these priorities is not, however, intended to preclude the possibility of a criminal referral in other cases.2/ As was indicated previously, each case will be considered on its own merits. A. Investigative Priorities: Resource Conservation and Recovery Act (RCRA) : 1. Knowing Endangerment Section 3008(e) of RCRA, 42 U.S.C. 6928(e), establishes the crime of “knowing endangerment.” The provision carries maximum penalties of up to five years of imprisonment and a $1,000,000.00 fine, and reflects a Congressional- mandate to pursue strong criminal sanctions for knowing, life—threatening conduct that violates RCRA statutory prohibitions or interim status standards and regulations. RCRA and its legislative history indicate that the “knowing endangerment” provision is intended to apply only in the most serious instances of environmental misconduct. Where the elements of proof can be met, however, EPA will give a high priority to the investigation, referral and prosecution of “knowing endangerment” cases. 2/ For example, because the enforcement provisions of the Safe Drinking Water Act, 42 U.S.C. § 30Of et. seq. , contain compara- tively mild monetary penalties-—and no potential terms of incarceration——the statute is not listed as a criminal enforcement priority. This does not, however, preclude the possibility of a criminal referral under the Safe Drinking Water Act to address aggrevated cases of non—compliance. ------- —6— 2. Illegal Transportation and Disposal of Hazardous Waste Section 3008(d)(l—2) of RCRA, 42 U.S.C. §6928(d)(l—2), carries felony penalties of two years of imprisorunent and a $50,000.00 fine for the knowing transportation of hazardous wastes to an unpermitted facility (Section 3008(d) (1)) and the knowing disposal of hazardous wastes without obtaining a permit (Section 3008(d)(2)). Both provisions are potentially applicable to midnight dumping in its various forms, i.e., in abandoned sites, company yards, open fields or waterways, or unpermitted waste disposal facilities. A high investigative priority will be placed on illegal transportation or disposal activities that result in, or threaten, serious environ- mental contamination or human health hazard. 3. Falsification of RCRA Records Section 3008(d) (3) of RCRA, 42 U.S.C. 6928(d)(3), carries misdemeanor penalties of one year of imprisonment and a $25,000.00 fine for the knowing falsification of material information in records “maintained or used for purposes of compliance” with RCRA. Emphasis will be placed on falsification activity that has——or could reasonably be expected to have-—a significant impact on EPA’s regulatory process or decision—making. 4. Destruction. Concealment or Alteration of RCRA Records Section 3008(d)(4) of RCRA. 42 U.S.C. §6928(d)(4), carries misdemeanor penalties of one year of imprisonment and a $25,000.00 fine for incidents of knowing destruction, concealment or alteration of records maintained under RCRA regulations. As in falsification cases, emphasis will be placed on conduct that has——or could reasonably be expected to have-—a significant impact on EPA’S regulatory process or decision—making. B. Investigative Priorities: Comprehensive Environmental Response, Compensation and Liability Act (Superfund) : 1. Failure to Notify of the Release of a Hazardous Substance Section 103(b)(3) of Superfund, 42 U.S.C. 96O3(b)(3), carries misdemeanor penalties of one year of imprisonment ------- —7— and a $10,000.00 fine for failure to notify the appropriate Federal agency of a release of a hazardous substance--i in amounts equal to or greater than those determine&.- pursuant to Section 102 of Superfund. The Agency will place a high investigative priority on cases where the “release” results in, or threatens, significant environmental contamination or human health hazard. 2. Destruction or Falsification of Superfund Records Section 103(d) (2) of Superfund, 42 U.S.C. 9603(d)(2) , carries misdemeanor penalties of one year of imprisonment and a $20,000.00 fine for the knowing destruction or falsi- fication of specified Superfund records. Investigative priority should be placed on conduct that has-—or could reasonably be expected to have—-a significant impact on EPA’s regulatory process or decision—making. C. Investigative Priorities: Clean Water Act (CWA) : 1. Violations of the NPDES Permit Program Section 309(c)(1) of the CWA, 33 U.S.C. §13l9(c)(1), carries misdemeanor penalties of one year of imprisonment and a $25,000.00 fine for the willful violation of conditions or limitations in NPDES permits issued by the Administrator or a State. The NPDES permit program is a mature regulatory scheme and the primary mechanism for monitoring and controlling water pollution under the CWA. The Agency will place a high investigative priority on willful NPDES permit violations that result in, or threaten, significant environmental contamination or human health hazard. 2. Falsification of CWA Records and Monitor Tampering Section 309(c)(2) of the CWA, 33 U.S.C. §1319(c)(2), establishes misdemeanor penalties of six months of imprison- ment and a $10,000.00 fine for knowing falsification of records and for tampering with monitoring devices “required to be maintained” under the CWA. Investigative priority should be placed on cases in which the falsification or tampering has-—or could reasonably be expected to have——a significant impact on EPA’s regulatory process or decision-making. ------- —8— 3. Unpermitted Discharges Section 301 and 309(c) (1) of the CWA, 33 U.S.C. § 1311, 1319(c)(1)), establish misdemeanor penalties of one year of imprisorunent and a $25,000.00 fine for willful discharges into navigable waters without an NPDES or “dredge and fill” permit.3/ A high investigative priority will be placed on willful, unpermitted discharges that cause, or threaten, Bignificant environmental contamination or human health hazard. D. Investigative Priorities: The Clean Air Act (CAA) : 1. Violations of State Implementation Plans Section 113(c)(l)(A) of the CAA, 42 U.S.C. §7413 (c)(l)(A), carries misdemeanor penalties of one year of imprisonment and a $25,000.00 fine for knowing violations of State implementation plans. SIPs are the cornerstone of a well—established and mature regulatory program and constitute the CAA’s primary mechanism for implementin and enforcing air quality standards for criteria pollutants. A high investigative priority will be placed on cases of knowing violation of SIP limitations that result in, or threaten, significant environmental contamination or human health hazard. 2. Violations of Hazardous Air Pollutant Standards Section 113(c)(l)(C) of the CAA, 42 u.s.c. §7413 (c)(l)(C), establishes misdemeanor penalties of one year of imprisonment and a $25,000.00 fine for knowing violations of standards for hazardous air pollutants. A high invest- igative priority will be placed on knowing violations of these standards that result in, or threaten, signi- ficant environmental contamination or human health hazard. 3/ Also applicable are the provisions of the Refuse Act, 33 U.S.C. 4O7 , which establish misdemeanor penalties of one year of imprisonment (including a 30—day minimum sentence) and a $2,500.00 fine. ------- —9— 3. Falsification of CAA Records and Monitor Tampering Section 113(c) (2) of the CAA, 42 U.S.C. §7413(c)(2), establishes misdemeanor penalties of six months of imprison- ment and a $10,000.00 fine for knowing falsification of records and for tampering with monitoring devices “required to be maintained” under the CAA. A high investi- gative priority will be placed on cases in which the falsification or tampering has——or could reasonably be expected to have——a significant impact Ofl EPA’s regulatory process or decision—making. E. Investigative Priorities: The Toxic Substances Control Act (TSCA) : 1. Violations of Section 4 Testing Rules or the Section 5(b) Premanufacture Notification Program Sections 15(1) and 16(b) of TSCA, 15 U.S.C. § 2614(l) and 2615(b), establish misdemeanor penalties of one year of imprisonment and a $25,000.00 fine for knowing or willful violations of any rule promulgated under Section 4 or any requirement prescribed by Section 5 of TSCA. A high investigative priority will, be placed on violations that have a significant impact on the Agency’s ability to act under Section 4(f)(1), 15 U.S.C. 2603(f)(l), and on situations of falsified test data submitted pursuant to Section 5(b). 15 U.S.C. §2604(b). and the premanufacture notification program. 2. Failure to Report Substantial Risk Information Sections 8(e), l5(3)(B) and 16(b) of TSCA, 15 U.S.C. § 2607(e), 2614(3)(B) and 2615(b), establish misdemeanor penalties of one year of imprisonment and $25,000.00 fine for knowing or willful failure to submit information to EPA which reasonably supports the conclusion that a chemical substance or mixture manufactured, processed, or distributed in commerce presents a substantial risk of injury to health or the environment. A high investigative priority will be placed on all violations of this reporting requirement. 3. Violation of PCB or Dioxin Regulations Sections 15(1)(C) and 16(b) of TSCA, 15 U.S.C. § 2614(1)(c) and 2615(b), establish misdemeanor penalties of one year of imprisonment and a $25,000.00 fine for knowing or willful ------- —10— violations of rules issued under Section 6 of TSCA. The Agency has issued regulations governing polychiori— nated biphenyls and the disposal of dioxin—contaminated pesticide wastes. A high investigative priority will be placed on knowing or willful violations of these regulations that result in, or threaten, significant environmental contamination or human health hazard. F. Criminal Enforcement Priorities: The Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) : 1. Failure to Report Information on the Unreasonable Adverse Effects of a Registered Pesticide Section 14(b) of FIFRA, 7 U.S.C. l36l(b), establishes misdemeanor penalties for the knowing violation of any provision of the Act. Section 12(a)(2)(N) provides that it is unlawful to fail to submit information required by Section 6(a)(2). This section requires a registrant to report to EPA any information regarding unreasonable adverse effects on the environment which the registrant has after the time of registration. A high investigative priority will be placed on knowing violations of this reporting requirement. 2. Falsification of FIFRA Records Sections 12(a)(2)(M) and 14(b) of FIFRA, 7 U.S.C. § l36j(a)(2)(M) and 1361(b). establish misdemeanor penalties for the knowing falsification of specified records maintained or filed under FIFRA, including registration data. A high investigative priority will be placed on falsification activity that has——or could reasonably be expected to have——a significant impact on EPA’s regulatory process or decision—making. 3. Violation of Suspension or Cancellation Orders Sections 12(a)(2)(J), 12(a)(2)(K) and 14(b) of FIFRA, 7 U.S.C. § 136j(a)(2)(J), 136j(a)(2)(K) and 1361(b), establish misdemeanor penalties for knowing violations of the terms of cancellation and suspension orders issued under Section 6 of FIFRA. A high investigative priority will be placed on knowing violations that result in, or threaten, significant environmental contamination or human health hazard. 4. Violation of Stop Sale Orders Sections 12(a)(2)(I) and 14(b) of FIFRA, 7 U.S.C. § l36j (a)(2)(I) and 1361(b), establish misdemeanor penalties for knowing violations of the terms of stop sale orders under Section 13(a). A high investigative priority will be placed ------- —11— on knowing violations that result in. or threaten, significant environmental contamination or human health hazard. 5. Unlawful Uses of Pesticides Sections 12(a)(2)(G) and 14(b) of FIFRA. 7 U.s.c. § 136j(a)(2)(G) and 1361(b), establish misdemeanor penalties for the knowing use of a pesticide in a manner inconsistent with its labelling. If referred by a State with primary use enforcement responsibilities, a high investigative priority will be assigned to misuse cases that result in, or threaten, significant environmental contamination or human health hazard. 6. Illegal Distribution of Unregistered Pesticides Sections l2(a)(1)(A) and 14(b) of FIFRA, 7 U.S.C. § 136j(a)(1)(A) and 1361(b), establish misdemeanor penalties for the knowing distribution, receipt etc. of an unregistered pesticide. The pesticide registration process outlined in Section 3 of FIFRA, 7 U.S.C. Section 136(a), is the Cornerstone of EPA’s program to monitor and regulate the safety of pesticides. A high investigative priority will be placed on illegal transactions involving unregistered pesticides that result in, or threaten, significant environ- mental contamination or human health hazard. G. Investigative Priorities: The Marine Protection, Research, and Sanctuaries Act (MPRSA ) 1. Unauthorized Ocean—Dumping Section 105(b) of the MPRSA, 33 U.S.C. §1415(b), establishes misdemeanor penalties of one year of imprisonment and a $50,000.00 fine for the knowing violation of regula- tions or permits issued under the ocean—dumping program. The Agency will place a high investigative priority on violations that result in, or threaten, significant environ- mental contamination or human health hazard. H. Criminal Enforcement Priorities: Willful Contempt of Environmental Consent Decrees 18 u.s.c. §401(3) establishes criminal sanctions for contempt of court resulting from “disobedience or resistence to (the court’s) lawful writ, process, order. ------- —12— rule, decree, or command.” The punishment, which may be by fine or imprisonment, is left to the discretion of the court. Historically, most of the EPA’s civil litiga- tion referrals have been settled in judicially—enforceable consent decrees containing requirements for plant modifi- cation, upgrading or installation of pollution control equipment, and other forms of injunctive relief. Insuring compliance with the terms of these consent decrees will be a significant element of this Agency’s enforcement program. A high investigative priority will, therefore, be placed on incidents of willful or deliberate noncompliance with the terms of environmental consent decrees that result in, or threaten, significant environmental contamination of human health hazard. ------- C ------- €0 ST 4 , UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON. DC 20460 ‘ t pRo c.c FEB U 1984 OFFICE OF ENFORCEMENT COUNSEL MEMORANDUM SUBJECT: The Use of Administrative Discovery Devices in the Development of Cases Assigned to the Office of Criminal Investigations ) A — ().. FROM: Courtney M. Price Assistant Admiriistra or Enforcement and Compliance Monitoring TO: Assistant Administrators Regional Administrators Regional Counsels Introduction Most of the environmental statutes for which the U.S. Environmental Protection Agency (EPA) has responsibility contain one or both of the following information—gathering provisions: (1) provisions which empower EPA to require responses to requests for information; and (2) provisions conferring upon EPA the right to enter and inspect physical premises. This document has been prepared to provide guidance concerning the use of these provisions in the investigation of cases assigned to EPA’s Office of Criminal Investigations. This guidance supersedes any previous EPA document which addresses the issues arising from the use of administrative discovery devices in the development of a criminal case. This guidance was developed through an examination of the use of administrative discovery devices in cases that have resulted in criminal prosecutions. Because there is currently very little case law concerning such provisions in environmental statutes, a review was made of cases under similar statutory schemes. The guidance is a rather conservative application of the broad principles established in these decisions. The use of administrative discovery devices in parallel proceedings——that is, instances in which both a criminal investi- gation and a civil or administrative proceeding concerning the same circumstances take place simultaneously——is not addressed in this document. This issue is addressed in separate guidance on parallel proceedings. ------- —2— The importance of this guidance cannot be over—stated. Where the use of administrative discovery devices is found to be improper, the ultimate remedy may be suppression of evidence in the subsequent criminal prosecution. This guidance is strictly advisory in nature. It is not intended to create or confer any rights, privileges or bene- fits. This policy is not intended to, does not, and may not be relied upon to create any rights, substantive or procedural, enforceable at law by any party in any matter, civil and criminal. Any attempts to litigate any portion of this guidance should be brought to the attention of the Criminal Enforcement Division, Office of Enforcement and Compliance Monitoring, EPA Headquarters. I. USE OF EPA’S INFORMATION REQUEST AUTHORITY Background For purposes of this guidance, the term “information request authority” will be used to describe those provisions contained in EPA—administered statutes which provide the Agency with the authority to compel the production of information. Sections 308 of the Clean Water Act and 11(e) of the Toxic Substances Control Act are typical of such provisions. Courts have upheld the u se of such provisions both in cases where the information sought is relevant to investigations into pending charges and where it is relevant to investigations into whether charges should issue.l/ Information requests pursuant to these provisions are enfo-rce— able upon a showing that the information is relevant to a purpose properly authorized by Congress. 2/ The enforcement provisions of environmental statutes contain both civil and criminal provisions. Therefore, evidence obtained through the use of such information request authority may subse- quently be used in a criminal prosecution. This fact raises concerns that such summons authority will be used, in some instances, solely for purposes of gathering evidence for a criminal prosecution; such a use has been viewed as infringing upon the role of the grand jury. Issue To what extent can the information request authority granted to EPA under the environmental statutes be utilized to gather evidence of statutory violations in cases under develop- ment by EPA’S Office of Criminal Investigations? 1/ Oklahoma Press Publishing Company v. Walling , 327 U.s. 186 (1946). 2/ United States v. Morton Salt Company , 338 U.S. 632 (1950). ------- —3— Guidance EPA’s information request authority may properly be used in cases being developed by EPA’s Office of Criminal Investigations until the case is referred to the Department of Justice. The decision to refer a case, however, may not be artificially delayed solely to pursue further evidence through the use of this authority. Where an investigation is being directed by the Justice Department even though no formal referral from EPA has been made, EPA’s information request authority should not be used as an investigative tool. This situation, however, should be distinguished from the situation where the Justice Department has merely been advised of an investigation and has not exhibited any control over its course. The various environmental statutory provisions which grant authority to request information from members of the regulated community also contain limitations on the type of information which may be obtained through the use of this authority. Care should be taken to draft any request to conform to these limita- tions. In addition, it should be noted that a request based on this statutory authority may only be made by an Agency employee to whom the authority has been delegated by the Administrator. Reference should be made to a properly updated EPA Delegations Manual to ensure that any request is made by an employee with proper authority. Finally, each such request should contain a notice indicating that violations of the particular statute may be the subject of either civil or criminal penalties. Discussion The starting point for a discussion on the proper use of information request provisions is a review of instances where the Courts have found the use to be absolutely improper. The Supreme Court has made it clear that information requests may not be used to gather evidence in a criminal investigation once the case has been referred to the Department of Justice for criminal prosecution.3/ La Salle involved the use of an administrative summons in a tax fraud investigation by a Special Agent of the IRS Intelligence Division. Although the statute provides both civil and criminal remedies for violations, the agent testified that the purpose of his investigation was to uncover any criminal violations of the IRS code. During the course of his investiga- tion and prior to referral of the case to the Department of Justice, the agent issued an administrative summons for records. The bank challenged the use of the summons as improper claiming that the summons was issued solely to aid in a criminal investigation. 3/ United States v. La Salle National Bank , 437 U.S. 298 (1978). ------- —4— Although the Supreme Court held that the summons should be enforced, it used this case as an opportunity to elaborate on the bounds of such summons authority. An administrative summons must be used in good faith and for a Congressionally authorized purpose. Use solely to pursue a criminal investigation is not good faith. However, a case may not be considered criminal until an “institutional decision” is made to prosecute criminally. The intent of the individual agent is not dispositive of this issue. This institutional decision generally occurs at the point of referral to the Department of Justice. However, the Court made it clear that a delay in submitting a case to the Department of Justice merely to gather additional evidence for the prosecution through use of administrative discovery devices would not be tolerated. The Court also indicated the Agency cannot use this administrative authority merely to become an information gathering tool for other agencies regardless of the referral status of the criminal case. Although the wisdom of the La Salle decision has been ques- tioned, the results have been followed in all other cases addressing this issue succeeding that decision. Therefore, the “institutional decision” to prosecute criminally should signal the end to a use of all administrative discovery devices in any EPA case. As a matter of policy, no use of administrative discovery devices. to secure evidence should be made once a case has been referred to the Department of Justice. A more difficult issue, within EPA’s context, is whether an “institutional decision” to use criminal sanctions may occur at a point before referral to the Department of Justice. It is clear that merely bringing an allegation of misconduct to the attention of the Office of Criminal Investigations for investi- gation does not constitute an “institutional decision” in favor of criminal prosecution. Many of these investigations will, in fact, become the basis for administrative or civil sanctions, where initial allegations cannot be substantiated, or where the case is otherwise lacking in prosecutorial merit. Further, EPA’s referral procedure for criminal cases requires review at Headquarters before a case is referred. The final decision rests with the Assistant Administrator for Enforcement and Compliance Monitoring. Until that point is passed, the Agency may yet choose to proceed by civil action. Accordingly, this policy adopts the La Salle holding that an “institutional decision” occurs at the point of criminal referral, not before. Information request authority may not be used in situations where the Agency is perceived as merely an information gathering tool for another agency. The Supreme Court in La Salle has made it clear that where this is the case, evidence obtained may be suppressed at trial. Of particular concern are those instances where EPA has been requested to assist in an ongoing criminal investigation by the Justice Department. Accordingly, a decision by EPA to participate in such an investigation constitutes an ------- —5— “institutional decision” to proceed criminally that requires approval by the Assistant Administrator for Enforcement and Compliance Monitoring, and precludes thereafter any use of information request authority in that case. Justice Department involvement in an investigation prior to referral does not necessarily negate the Agency’s ability to use administrative discovery devices. Where the Justice Department has merely been advised of the investigation and exhibits no control over it, administrative discovery devices may be used. However, where the Justice Department attorney has assumed the role of prosecutor and is directing the investigation, EPA should refrain from making use of these tools. This will be the case whether the investigation is initiated by EPA or whether the Justice Department requests assistance with an ongoing investigation. It is necessary to remember that the character of the information request authority does not change when utilized to gather evidence in cases assigned to EPA’s Office of Criminal Investigations. Any limitations on the use of this authority and the type of information which may be sought continue to apply. The individual statute and Agency guidance on the use of such authority should be consulted before information request authority is utilized. Additionally, most environmental statutes grant such authority directly to the Administrator. The Administrator has delegated this authority to various Agency employees. Reference should be made to a properly updated EPA Delegations Manual to ensure that any request is made by an Agency employee with appropriate authority. Finally, each information request made in a case being developed by the Office of Criminal Investigations should contain a notice indicating that the statute under which the request is made contains both civil and criminal sanctions for violations. Such notice will negate any argument that the individual receiving the request was misled into believing that only civil or administrative sanctions could be imposed. II. USE OF ADMINISTRATIVE INSPECTIONS AND ADMINISTRATIVE SEARCH WA RRA NT S Background Each of the statutes enforced by EPA provides the Admini- strator with the authority to conduct inspections to determine, inter alia , the state of compliance with statutory requirements. Statutory inspection authority is enforceable, where consent is withheld, through the use of an administrative search warrant. ------- —6— The Supreme Court has determined that the Fourth Amendment guarantee against unreasonable searches and seizures has equal force for searches authorized by such regulatory schemes as for those necessary to obtain evidence of a crime.5/ In making this determination, however, the Court has also recognized the inherent differences between criminal searches and regulatory inspections of commercial enterprises. The enforcement of regulatory schemes such as those created by environmental statutes require regular inspections. These inspections are limited in scope, and involve business premises rather than private homes. Therefore, compliance inspections are considered to pose a lesser threat to expectations of privacy. To require a showing of probable cause in the tradi- tional criminal law sense for an administrative warrant would frustrate the enforcement of these systems. As a result, the Supreme Court established a new standard for administrative warrants, which can best be termed “administra- tive probable cause.” This standard requires a balancing of interests. “If a valid public interest justifies the intrusion contemplated then there is probable cause to issue a suitably restrictive warrant.”6/ The issuance of an administrative warrant can be justified upon a showing that the premises to be inspected were selected on the basis of a “...general administrative plan for the enforcement of the [ statute in qu s— tiori],” or upon specific evidence of an existing violation of regulatory requirements.7/ The Supreme Court was also willing to create an exception from the need for even an administrative warrant in the case of certain “pervasively regulated” industries such as mining, firearms and liquor.8/ That exception, however, is very narrow. The issues addressed by this guidance arise from the fact that most enforcement provisions of environmental statutes contain both civil and criminal penalties for violations. Therefore, most inspections conducted to determine compliance with a particular statute or regulation may result in the discovery of evidence subsequently offered in a criminal prosecution. Because inspections may be conducted pursuant to an administrative warrant requiring a less demanding showing of probable cause, there is concern that such inspections will be used to circumvent the traditional standards for criminal search warrants. 5/ Camera v. Municipal Court , 387 U.S. 523 (1967); See v. City of Seattle , 387 U.S. 541 (1967). 6/ Camera v. Municipal Court, supra at 539 (1967). 7/ Marshall v. Barlow’s Inc. , 436 U.S. 306 (1978). 8/ Donovan v. Dewey , 452 U.S. 594 (1981); Colonnade Catering Corp . v. United States , 397 U.S. 72 (1970) and United States v. Biswell , 406 U.S. 311 (1972). ------- —7— Issue To what extent may administrative search warrants, based on EPA’s statutory inspection authorities, be used to gather evidence in cases developed by the Office of Criminal Investigations? Guidance Administrative inspections may be conducted to gather evidence of statutory violations until probable cause exists to believe that a crime has been committed and it is clear that the predominant purpose of such an inspection is to gather evidence of a crime. This does not preclude the use of such inspections to substantiate allegations. Rather, it limits the use of this administrative discovery device once there is actual evidence of a crime rising to the level of probable cause and further use of inspections are for purposes of developing various aspects of the governments criminal case. Once this point is reached, entry must be gained only through pure consent (i.e. consent gained without the assertion of statutory inspection authority) or a criminal warrant. Administrative inspections and warrants should not be used to gather evidence for a criminal inquiry directed by the Dep rt— ment of Justice even though no formal referral of the case has been made by EPA. Discussion Although the La Salle decision (see discussion in previous section concerning Information Request Authority) deals with the administrative summons authority of the IRS rather than inspection authority, the rationale of that case is of value in inspection situations as well. This position appears to have support in case law regarding statutory schemes similar to the environmental statutes. Although most of the cases examined were decided prior to La Salle , evidence gathered during administrative inspections has been found to be admissible in criminal trials only where the inspections were properly conducted prior to the referral decision by the Agency. Thus, as a starting point, the guidelines adopted for use of information request authority as a result of the La Salle decision also apply to administrative inspections. At a minimum, administrative inspections——either by consent or under administrative warrants——should not be conducted once a case has been referred to the Department of Justice with a recommendation for criminal prosecution. Similarly, if a criminal investigation is being directed by an attorney from the Department of Justice, administrative inspections should not be conducted to gather evidence for the case even though the case has not yet officially been referred to the Department. ------- —8— Where the institutional decision to prosecute has not yet been made——i.e., where the case is under development by the Office of Criminal Investigations prior to the initiation of the referral process——courts have permitted the use of adminis- trative inspections within particular parameters. Evidence gathered during the execution of an administrative warrant may be admissible during a criminal trial provided that the inspec- tion under the warrant was properly limited to the scope of authority provided by the statute.9/ This has been the case even though the administrative inspection was conducted as a result of allegations of criminal misconduct.lO/ However, where the evidence in question could not be discovered in a properly limited inspection, these cases require the government to obtain the informed consent of the facility or a criminal warrant based on traditional criminal probable cause, prior to conducting a search. Both Goldfine and Consolidation Coal were decided prior to La Salle . These cases each involve the admissibility of evidence gained during searches conducted pursuant to an adminis- trative warrant based on administrative inspection authority nd administrative probable cause. Each search occurred ‘prior to referral to the Justice Department for criminal prosecution. In Go].dfine , the broader of these cases, the evidence was obtained during an audit by a DEA Compliance Officer. The defendants, owners of a pharmacy, were not informed at the time of the audit that their activities were under investigation. The investigation at that point included reports of large orders of controlled substances, surveillance of the pharmacy and arrests of some of its customers. Consolidation Coal involved the validity of an inspection based on an administrative warrant supported by an affidavit which recited an allegation by an unnamed ex—employee that the company was systematically evading the respirable coal dust concentration standards. The company claimed that the criminal standard of probable cause should have been used to judge the affidavit. The company was indicted 16 months after this inspec- tion for violations of the Coal Mine Health and Safety Act of 1969. 9/ United States v. Goldfine , 538 F2d 815 (9th Cir.) cert. ‘enied 439 U.s. 1069 (1977). 10/ United States v. Consolidation Coal Company , 560 F2d 214 (6th Cir. 1977) vacated and remanded 436 U.S. 942 (for further consideration in light of Marshall v. Barlow’s Inc., supra] judgment reinstated 579 F2d lOll (6th Cir. 1978) cert. denied 439 U.S. 1069 (1979). ------- —9— In these cases, each court concluded that the inspections were sanctioned by the statutes pursuant to which they were undertaken. The fact that these inspections were based upon a suspicion of criminal misconduct did not erase their regulatory character. Each statute, like environmental statutes, contained both civil and criminal sanctions and no final decision had been made to choose one type of sanction over another. The real issue was the scope of the search. Thus, the courts concluded that, in order for the evidence to be admissible, the search must retain the character of an administrative inspection. It cannot extend beyond the bounds authorized by the statute. This result has been supported in at least one case since the La Salle decision. 11/ An administrative inspection may not change in character when it is conducted in support of an investigation assigned to the Office of Criminal Investigations. The authority granted is that belonging to any EPA inspector conducting a compliance inspection. The person conducting the inspection must have properly delegated authority. Care should be taken to follow the Agency procedures for administrative inspections. This includes such practices as the splitting of samples. Finally, if a criminal investigator accompanies the inspection team, credentials will be presented so that the facility is aware of the participation of the Office of Criminal Investigations. The next case which has impact on this issue is Michigan v. Tyler.12/ This case raises the issue of whether a criminal warrant is required once an investigation has progressed to the point where probable cause to obtain such a warrant has been gained. It does not address the use of administrative inspections and administrative search warrants in criminal investigations. It is included here because other courts have referred to this opinion in cases involving the administrative inspection issue. Michigan v. Tyler involves the admissibility of evidence of arson gained during a number of warrantless, non—consensual searches of the burned premises both during and after the fire. The Supreme Court concluded that while in the building to put out the blaze, firefighters may seize any evidence of arson which 11/ In United States v. Prendergast , 585 F2d 69 (3d Cir. 1978), the Court considered its decision in light of La Salle . It concluded that no violation of the La Salle standard had occurred because DEA had not made a commitment to a criminal prosecution prior to obtaining a warrant. 585 F2d at 71 n.l. 12/ 436 U.s. 499 (1978). ------- —10— is in plain view. Officials may remain in the building for a reasonable period after the fire has been extinguished to investigate the cause. However, if during the investigation they discover probable cause to believe that arson was committed and they wish further entry after the fire has been extinguished to gather evidence, a warrant upon a showing of traditional criminal probable cause must be obtained.13/ The Supreme Court’s decision was based on its view of the privacy expectations of an owner of a burned building. Initially, the owner’s expectation of privacy must give way to a need of entry by firefighers to fight a blaze. However, once the fire is extinguished an expectation of privacy returns despite the condition of the building. From that point on, the Court concluded, a search warrant is required for further entry onto the premises. In United States v. Lawson,14/ the District Court for Maryland turned to Michigan v. Tyler while reviewing the admissibility of evidence gained during an administrative search conducted by DEA agents. The Court found that the agent applied for the warrants at the request of the Assistant United States Attorney after the Agency had made an “institutional commitment” to a criminal prosecution. In reviewing the case law on use of administrative warrants, the Court cited Michigan v. Tyler as requiring a criminal search warrant for entry whenever “the purpose behind the search shifts from administrative compliance to a quest for evidence to be used in a criminal prosecution.”lS/ Clearly, once a case has been referred to the Department of Justice for a criminal prosecution, this point has been reached. However, the Lawson Court left open the question of whether this point can be reached at an earlier stage in the investigation prior to the institutional decision to refer the case for criminal prosecution. In United States v. Jamieson—McKames Pharmaceuticals,l6 / the Eighth Circuit also reviewed the application of Michigan v. Tyler . This case concerned regulatory inspections by DEA agents prior to referral of the case for prosecution. The Court concluded that Tyler did not have application to a pervasively—regulated 13/ Michigan v. Tyler, supra at 508. 14/ 502 F. Supp. 158 (MD, 1980). 15/ United States v. Lawson, supra at 165. 16/ 651 F2d 532 (8th Cir. 1981). ------- —11— industry such as drug manufacturing.17/ In a pervasively—regulated industry, there is a limited expectation of privacy. Therefore, the rationale for the Tyler decision was inapplicable. The Court concluded that a criminal warrant was not required despite the fact that. evidence was available prior to the inspection to indicate that a criminal violation may have occurred. The Court returned to the rationale of Goldfine and Consolidation Coal and held that the warrants based on administrative probable cause were valid in this situation as long as the intrusion was limited to the purpose specified in the statute. This result has also been supported by the Sixth Circuit.18/ The full impact of Michigan v. Tyler on administrative inspection cases is not yet clear. Although La Salle seems to limit use of administrative discovery devices in investigations of criminal misconduct only after an institutional decision to prosecute is made, Michigan v. Tyler can be read as a limit on the use of these devices prior to referral, at that point where probable cause exists to believe a crime has been committed. Where an investigation focussing on potential criminal violations has progressed to a stage where there is probable cause to believe that a crime has been committed and the predominant purpose for an inspection is to gather evidence of the crime, administrative inspection authority should not be utilized. Rather, entry should be obtained by pure consent (i.e., consent obtained without the assertion of statutory inspection authority) or by use of a criminal search warrant obtained under Rule 41 of the Federal Rules of Criminal Procedure. III. WARRANTLESS INSPECTIONS Background The language of the inspection provisions of environmental statutes can be read to grant authority to conduct inspections without a warrant where entry is denied. Although the Supreme 17/ The Eighth Circuit in this case determined that the drug manufacturing industry falls within the exception to a warrant requirement created in Colonnade Catering Corp . v. United States, supra and United States v. Biswell, supra . This is not necessarily the case with environmental statutes. See discussion on warrantless inspections, infra . 18/ United States v. Acklen , 690 F2d 70 (6th Cir. 1982). ------- —12— Court has sanctioned warrantless inspections for certain pervasively—regulated industries,19/ this has not been the case for every regulatory program. In Marshal] . v. Barlow’s Inc. , the Supreme Court held that an OSHA inspector was not entitled to enter the non—public portions of a work site unless he received the owner’s consent or possessed a warrant. The Court indicated that warrantless entry would be upheld only in very rare cases—— pervasively—regulated industries with a long history of government regulation or where the government could demonstrate that a warrant requirement would substantially impair the regulatory scheme. Issue Are warrantless inspections authorized under environmental statutes where entry is denied following the assertion of statutory inspection authority? Guidance and Discussion At least one Court has indicated that the result of the Barlow’s decision was equally applicable to environmental statutes.20/ The Court commented that in light of Barlow’s a warrant was required for entry pursuant to the Clean Air Act absent consent by an authorized individual. The Agency has also taken this position in guidance to Agency inspectors after the Barlow’s decision.2l/ We will not deviate from that guidance. Where consent to inspect is not granted, an administrative warrant should be sought. This applies to all statutes including the Federal Insecticide, Fungicide and Rodenticide Act. 19/ Donovan v. Dewey, supra (mining facilities), United States v. Biswell, supra (firearms), and Colonnade Catering Corp . v. United States, supra (liquor). 20/ Public Service Company v. EPA, 509 F. Supp. 720 (S.D. md. 1981). 21/ One possible exception recognized in Agency guidance is an inspection conducted pursuant to authority under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA). There is a long history of federal regulation concerning pesticide manufacture. The first federal statute in this area was enacted in 1910. In addition, these regulations are limited to one industry rather than applying a set of regulations to industry across the board. Finally, in an administrative case decided after Barlow’s , a civil penalty was assessed against the owner of a FIFRA regulated establishment for refusal to allow a warrantless inspection, N. Jonas & Co . Inc., I.F.&R. Docket No. III—121C (July 27, 1978). Despite this fact, the Agency has taken the position that inspections under FIFRA should be conducted pursuant to a warrant where consent is not given. ------- —13— IV. APPLICATIONS FOR ADMINISTRATIVE WARRANTS IN CASES ASSIGNED TO THE OFFICE OF CRIMINAL INVESTIGATIONS Background As indicated in the previous section, unless consent is granted, an administrative warrant will be necessary in order to gain entry to conduct an administrative inspection under any of EPA’s statutes. The Supreme Court in Marshall v. Barlow’s Inc . offered guidance on the type of showing necessary to justify the issuance of an administrative warrant. Probable cause to support the issuance of an administrative warrant may be based upon a showing either (1) that there is specific evidence of an existing violation of regulatory requirements or (2) that the decision to inspect is based on a neutral inspection scheme.22/ This showing must demonstrate that the public interest in conducting the inspection outweighs the invasion of privacy which the inspection may entail.23/ Issues When should such warrant be obtained? What type of showing must be made in order to obtain an administrative search warrant? How should the inspection be characterized? Guidance - On routine inspections, EPA generally has not sought an administrative warrant until an inspector has been refused entry. The law, however, does not preclude the Agency from seeking a warrant before entry is denied. Where surprise is crucial to the inspection or prior conduct makes it likely that warrantless entry will be refused, a warrant should be sought prior to inspection. Neutral inspection schemes should be used as a basis for administrative warrants only where there is no evidence of an existing violation. Since cases assigned to the Office of Criminal Investigations will almost invariably involve specific allegations of misconduct, the neutral inspection scheme rationale will normally be inapplicable. Once evidence of a potential violation has been discovered, this evidence should be used as 22/ Neutral inspection schemes are those which are non—discri- minatory, such as a scheme which requires the inspection of every third facility on the list of facilities with NPDES permit. 23/ Camera v. Municipal Court, supra . ------- —14— the basis for obtaining a warrant. The evidence available should be described with specificity in the affidavit supporting the warrant. For example, if the warrant is sought on the basis of an employee’s complaint, the affidavit should set forth in detail the substance of the complaint, the circumstances in which the complaint was provided and the relationship of the complainant to the facility to be inspected. In addition, the application should include all corroborative evidence available. The applica- tion must also describe the alleged violation. Simply stating that there are reasonable grounds to believe that some violation of an environmental statute had occurred will not be sufficient. Both potential civil and criminal violations should be listed. Finally, the application should also state with specificity the objects of the search. This should be done with the same degree of detail that would be used if applying for a criminal warrant. However, the scope of the search described must be limited to the traditional scope of an administrative inspection. The objects of the search may not be outside of that authority. In addition, where an alleged violation is the basis for a warrant, the objects of the search must relate to that violation. The use of administrative discovery devices in investigations assigned to the Office of Criminal Investigations also raises an issue regarding the appropriate characterization of the investi- gation. Because an institutional decision to refer the case for criminal prosecution has not been made, the case is not exclusively criminal in nature. However, care must be taken not to mislead the individual to believe that criminal charges will not be contemplated. If the issue is raised, EPA officials should indicate that environmental statutes contain both criminal and civil penalties, and that the Agency considers all enforcement options open. Discuss ion Recent cases concerning administrative inspections under OSHA have raised issues concerning the standard of probable cause required for the issuance of administrative warrants and the scope of an inspection where the warrant is based on a complaint rather than a neutral inspection scheme. The rationale used by the courts in these decisions arguably also has application in the area of inspections under environmental statutes. ------- —15— Several circuit courts have concluded that where a complaint alleging a violation is the basis for an administrative warrant, the information necessary to establish probable cause for such a warrant will be more extensive than that required for a warrant based upon a neutral inspection scheme.24/ This showing, however, is still significantly less than that necessary to establish probable cause for a criminal search warrant. These decisions are based on the view that questions of reliability of evidence and probability of violation are not raised when a warrant is issued pursuant to a neutral inspection scheme since the subject of the inspection is chosen through the application of neutral criteria. The magistrate need only ensure that the inspection comports with the legislative or administrative guidelines con- cerning such inspections. Where the inspection is based upon evidence of a violation, there are no assurances that the target was not chosen for purposes of harassment. Therefore, these courts require that the affidavit contain sufficient information to allow the magistrate to make an independent assessment of the reliability of the claim that a violation exists. For example, in cases involving employee complaints, the ideal affidavit would indicate the person who had received the complaint, the relationship of the complainant to the target facility——i.e., employee, customer, competitor——the underlying facts and any steps taken to verify the complaint.25/ If the complaint was made in writing, a copy should be attached. Although this requirement has not yet been adopted in all circuits or by the Supreme Court, it may be assumed that such a requirement may be placed on EPA in a number of jurisdictions. Therefore, affidavits for administrative warrants issued in conjunction with a case assigned to the Office of Criminal Investigations should set forth in detail the substance of the 24/ Donovan v. Sarasota Concrete Co. , 693 F2d 1061 (11th Cir. 1982); Marshall v. Horn Seed Co., Inc. , 647 F2d 96 (10th Cir. 1981); Burkart Randall Division of Textron Inc . v. Marshall , 625 F2d 1313 (7th Cir. 1980). 25/ Marshall v. Horn Seed Co., Inc., supra at 103. ------- —16— violation and provide all corroborative evidence available. The application should also specifically describe the alleged v 01 at ion. 26/ The scope of an administrative inspection also presents an issue. As previously noted, such inspections do not lose their administrative character simply because their purpose is, in part, to corroborate an allegation that may become part of a criminal prosecution. Any limitations contained in the statutes apply with equal force and must be observed. A further issue is raised where inspections are conducted pursuant to an administrative warrant issued as a result of an allegation of a violation. The Eleventh Circuit, in an OSHA case, concluded that where an administrative warrant was obtained as a result of a complaint regarding a localized condition at the facility, the search should be limited to that localized area.27/ The thrust of this opinion is that the scope of the inspection should be limited to what is reasonably related to the violation which is the basis for the warrant. Although there are other decisions to the contrary,28/ as a matter of policy such inspections should be limited to those areas which bear a relationship to the violation alleged. 26/ Weyerhaeuser v. Marshall , 592 F2d 373, 378 (7th Cir. 1979) In that case the Court concluded that a showing of probable cause had not been made where the warrant application contained the following language: “2. On June 24, 1977, the Occupational Safety and Health Administration (OSHA) received a written complaint from an employee of Weyerhaeuser Company, a corporation. This complaint alleged, in pertinent part, that violations of the Act exist which threaten physical harm or injury to the employees, and an inspection by OSHA was requested. Based on the information in the complaint, OSHA has determined that there are reasonable grounds to believe that such violations exist, and desires to make the inspection required by Section 8(f) l) of the Act.” 592 F2d at 378 n.l. 27/ Donovan v. Sarasota Concrete Co., supra at 1069. The complaint dealt with improper maintenance of cement—mixer trucks. However, OSHA inspectors used the administrative warrant issued on the basis of this complaint to inspect the entire facility including the trucks. 28/ See, e.g., Hem Iron Works, Inc . v. Donovan , 670 F2d 838 (9th Cir. 1982); In re Establishment Inspection of Seaward International v. Marshall , 510 F. Supp. 314 (W.D. Va. 1980) aff’d without opinion 644 F2d 880 (4th Cir. 1981). ------- D ------- IO Sr 4 I UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 2 ‘ WASHINGTON. D.C. 20460 ‘:q pRO1 C MAR13 1984 OFFICE OF ENFORCEMENT AND COMPLIANCE MONITORING MEMORANDUM SUBJECT: Agency Guidelines for Participation in Grand Jury InvestS ations FROM: Courtney M. Price A Assistant Administrator Off ice of Enforcement and Compliance Monitoring TO: Assistant Administrators Regional Administrators, Regions I—X Regional Counsels, Regions I—X Director, National Enforcement Investigations Center Federal grand juries are almost always used to develop EPA’S criminal cases following referral to the Justice Department. Frequently, EPA employees——including investigators, lawyers and technical personnel——assist in these grand jury investigations under the supervision of the Justice Department. The conduct of Agency employees involved in grand jury investigations is frequently subjected to close judicial scrutiny, since defense counsel routinely challenge aspects of the grand jury presentation during post—indictment motions. Accordingly, Agency employees who assist the Justice Department during grand jury investigations must be familiar with, and abide by, the rules of conduct established for this institution by case law and the Federal Rules of Criminal Procedure. The attached “Agency Guidelines for Participation in Grand Jury Investigations” have been drafted to provide Agency employees with a general knowledge of the most important rules surrounding grand jury investigations. Please take steps to ensure that personnel working within your offices who are assigned to assist in grand jury investigations are familiar with the details of this guidance document. ------- —2— Questions on any matter raised in this document may be directed to the legal staff of EPA’S Criminal Enforcement Division. cc: F. Henry Habicht, II Assistant Attorney General Land and Natural Resources Division ------- AGENCY GUIDELINES FOR PARTICIPATION IN GRAND JURY INVESTIGATIONS United States Environmental Protection Agency Effective Date: jJ j 3 1984 ------- TABLE OF CONTENTS I NTRODtJCTION. . . . . . . . . . . . . . . . . . . . . . . . . 1 I. BACKGROUND: THE ROLE OF THE GRAND JURY .....2 II. THE OPERATION OF THE GRAND JURY................3 Authorized Persons Before the Grand Jury.......4 The Statutory Recording Requirement. ...........5 The Indictment Process... ......... . .. ... ... ... .5 III • GRAND JURY SECRECY..... . . . . . • . . . . . . . . . 6 The Rule and its Exceptions. ........ ...........6 Disclosure of Grand Jury Materials to Agency Supervisors . . . . . . . . . . .9 Disclosure of Grand Jury Materials in Parallel or Subsequent Civil! Regulatory Proceedings . 1.0 Media Inquiries Concerning Grand Jury Proceedings .12 IV. CARE AND CUSTODY OF GRAND JURY MATERIALS......1.2 V. CONCLUSION 13 ------- AGENCY GUIDELINES FOR PARTICIPATION IN GRAND JURY INVESTIGATIONS INTRODUCTI ON This guidance document is written to provide a general understanding of the grand jury process, and of the particular responsibilities born by EPA employees involved in grand jury investigations. In drafting this document, the Agency has coordinated closely with the Department of Justice, since its participation in grand jury investigations will occur only in partnership with attorneys of the Justice Department and the offices of its local United States Attorneys. The guidance contained within is not intended to supplant rules of procedure for the conduct of grand jury investigations contained in the United States Attorneys’ Manual, or developed within the Offices of the specific United States Attorneys. It will, however, provide internal guidelines for EPA employees where no specific Justice Department rules exist. This document will replace any previous Agency guidance on this subject. Finally, this guidance is strictly advisory in nature, and is not intended to create or confer any rights, privileges or benefits on prospective witnesses or defendants. It is not intended to, does not, and may not be relied upon to create any rights, substantive or procedural, enforceable at law by any party in any matter, civil or criminal. Any attempt to litigate any portion of this guidance should be brought directly to the attention of the Criminal Enforcement Division at EPA Headquarters. I. BACKGROUND: THE ROLE OF THE GRAND JURY The grand jury serves two basic functions: investigative and protective. In cases where traditional field investigation techniques have failed to produce adequate evidence to support a criminal prosecution, the grand jury’s compulsory process, in conjunction with statutory immunity grants, can be used to compel testimony and the production of documents. ------- —2— This is particularly important in white collar crime cases, in which the loyalty of the investigative targets, together with the private——often inaccessible——settings of the suspect activity, often frustrate more traditional field investigative methods. The grand jury also acts as a check on independent and overzealous prosecutorial decision—making. The Fifth Amendment to the nited States Constitution guarantees that Federal felonies —/ will be charged by grand jury indictment. Misdemeanors can and often will be charged by indictment. This is not a constitutional requirement, however, and they are sometimes charged in an “information” filed independently by the prosecutor without prior consideration of the underlying evidence by a grand jury. It is the function of the grand jury to determine whether there is probable cause to believe that a Federal offense has been committed in the Federal district where the grand jury is sitting by the defendant(s) named in the proposed indictment. The Supreme Court has described the dual functions of the grand jury as “both the determination whether there is probable cause to believe a crime has been committed and the protection of citizens against unfounded criminal prosecutions.” United States v. Calandra , 414 U.s. 338, 343 (1974). Stated alternatively, the purpose of the grand jury is “to provide a fair method for instituting criminal proceedings” by a body that is “independent and informed.” Costello v. United States , 350 U.S. 359, 362 (1956). 1/ A felony is defined at 18 U.S.C. Section 1 as “any offense punishable by death or imprisonment for a term exceeding one year.” Any other offense is a misdemeanor, id. In EPA’s statutes, felony provisions are found in Section 3008(d—e) of the Resource Conservation and Recovery Act, 42 U.S.C. Section 6928(d—e), and for second offenders under Section 309(c)(l) of the Clean Water Act, 33 U.S.C. Section 13l9(c)(1.), and Section 1l3(c)(1)(A) of the Clean Air Act, 42 U.S.C. Section 7413(c)(1)(A). ------- —3— In Berger v. United States , 295 U.S. 78, 88 (1935), the Court described the responsibilities of a prosecutor appearing before a grand jury: (A) prosecutor who presents a case to a grand jury has the obligation of preserving the fairness, impartiality, and lack of bias of this important governmental investigative body. He can not inflame or otherwise improperly influence grand jurors against any person...; and he must always remember that he is a representative not of an ordinary party to a controversy but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all.... The obligation placed on the prosecutor is shared by all government personnel assigned to the investigation. II. THE OPERATION OF THE GRAND JURY Background : Regular grand juries can be empanelled for up to 18 months, see Rule 6(g), Federal Rules of Criminal Procedure (FRCP). In many districts, terms of regular grand juries are far shorter. “Special” grand juries—— normally empanelled to hear a particularly complex and lengthy investigation——sit for a term of 18 months and may be extended for an additional 18 months. 18 U.s.c. Section 3331. Federal grand juries consist of not less than sixteen nor more than twenty—three members. Rule 6(a), FRCP. The grand juries are empanelled before the district court, who will then appoint one member to be Foreman, and one to be Deputy Foreman. The Foreman administers oaths to all witnesses, signs all indictments, and generally acts as spokesperson on behalf of the grand jury. Rule 6(c), FRCP. An indictment may be found with the concurrence of twelve or more jurors. Rule 6(f), FRCP. Sixteen or more jurors must be present for the grand jury to conduct business. Thus, before beginning any session the prosecutor will insure that at least sixteen grand jurors are present. ------- —4— Authorized Persons Before the Grand Jury : The only persons allowed to be present at a session of the grand jury are “attorney(s) for the government”; the witness under examination; an interpreter if necessary; a stenographer or operator of a recording device; and the grand jurors. Rule 6(d), FRCP. The presence of unauthorized persons before the grand jury is a per se basis for dismissal of an indictment, without a demon- stration of prejudice. United States v. Phillips Petro- leum , 435 F. Supp. 610 CD. OkI. 1977); United States v. Braniff Airways, Inc. , 428 F. Supp. 579 CD. Tex. 1977); United States v. Echols , 413 F. Supp. 8 CD. La. 1975). Adherence to the terms of Rule 6(d) is mandatory. In the context of Rule 6(d), the phrase TM attorney for the government” does not include EPA or other Federal agency attorneys. See Rule 54(c), FRCP. 2/ See also , In re Grand Jury Proceedings , 359 F. 2d 440, 443 (3d. Cir. 1962) (FTC attorney); In re Grand Jury Investigations , 414 F. Supp. 476 (S.D.N.Y. 1976) (SEC attorney); United States v. General Electric , 209 F. Supp. 197, 202 (E.D. Pa. 1962) (TVA attorney). Thus, unless a special appoint- ment is made, 3/ EPA attorneys will appear before the grand jury only as witnesses, and only during those sessions when their testimony is presented. 2/ Rule 54(c), FRCP, defines “attorney for the government,” in pertinent part, as: ...the Attorney General, an authorized assistant of the Attorney General, a United States Attorney, an authorized assistant of the United States Attorney.... 3/ In those cases in which the particular expertise and experience of an EPA attorney is considered necessary to the successful investigation and prosecution of a criminal case, that attorney can be appointed an authorized assistant of the Attorney General pursuant to 28 U.S.C. Section 515(a), or of the United States Attorney pursuant to 28 U.S.C. Section 543. In either case, the EPA attorney would meet the definition of “attorney for the government” found at Rule 54(c), FRCP. Such appointments may only be made at the request of the Justice Department attorney overseeing the investigation. ------- —5— At least two courts have held that a prosecutor presenting evidence to a grand jury who also testifies as a witness before that grand jury is an “unauthorized person in the grand jury room” in violation of Rule 6(d). United States v. Gold , 470 F. Supp. 1336, 1351 (N.D. Ill. 1979); United States v. Treadway , 445 F. Supp. 959 (N.D. Tex. 1978). In addition, this conduct has been found to violate the ABA’s Code of Professional Responsibility. United States v. Birdman , 602 F.2d 547, 551—555 (3d. Cir. 1979). Under no circumstances should an EPA attorney appointed to act as a Special Assistant United States Attorney testify before a 9rand jury to which that attorney is also presenting evidence as a prosecutor. The Statutory Recording Requirement : As of August 1, 1979, “all proceedings (before a grand jury), except when the grand jury is deliberating or voting” must be recorded. Rule 6(e)(l), FRCPS In the absence of decided case law to the contrary, this rule should be interpreted strictly. Beyond the exchange of pleasantries——i.e., personal greetings, observations on the weather, etc.——EPA employees should not engage in conversations with grand jurors unless that conversation is being recorded as part of a formal grand jury session. If a grand juror asks a question prior to or after a formal session, Agency employees should politely advise the grand juror that it is not proper to respond at that time, and request that the question be raised again after a recorded session begins. In the case of an inadvertarit breach of this rule, Agency employees should immediately notify the prosecutor supervising the investigation, who may in turn wish to ask that the conversation be repeated on the record before the entire grand jury. The Indictment Process : At the end of an investigation, the prosecutor will ask a grand jury to vote on a re- commended indictment. The indictment itself will have been drawn up in advance, and will be presented unsigned to the grand jury for consideration. Procedures on the ------- —6— records and witness transcripts are available for review if necessary. The deliberations of the grand jury are not recorded; in addition, no one is present during deliber- ations except members of the grand jury itself. If the grand jury votes to indict, the indictment is signed by the Foreman, as well as the United States Attorney, and is returned to a judge in open court. 4/ III. GRAND JURY SECRECY Confidentiality is often crucial to the success of a criminal investigation. In addition, the Agency has a responsibility to protect the targets of criminal investi- gations from the adverse publicity that can result from the premature disclosure of a criminal inquiry. Under no circumstances should agency officials discuss the existence of a criminal investigation either within or outside the agency except on a need—to—know basis. This rule applies with equal force during EPA’S dealings with Federal, State and local officials. Given the provisions of Rule 6, FRCP, confidentiality is particularly important during grand jury investigations. The Rule and its Exceptions : Rule 6(e)(2) of the Federal Rules of Criminal Procedure establishes an overall bar to the disclosure of “matters occurring before the grand jury” except as in compliance with the terms of Rule 6(e). Grand jury secrecy is of crucial importance to the preservation of the grand jury as an investigative agency. Grand jury secrecy exists to encourage complete and willing testimony by witnesses; to minimize the risk of flight by prospective defendants; to safeguard the grand jury from extraneous pressures and influences; and to avoid prejudicial disclosures concerning investigative targets. See United States v. Proctor and Gamble , 356 U.s. 677 (1958). A breach of grand jury secrecy is punishable by contempt of court. Rule 6(e) of the Federal Rules of Criminal Procedure establishes strict procedures to ensure the secrecy of grand jury proceedings. For purposes of this document, we are concerned with the following portions of Rule 6(e): 4/ In appropriate circumstances the indictment can be “sealed”, i.e., kept secret, until some future date. This procedure is often used when the defendant is not in custody and may flee. ------- —7— (2) General Rule of Secrecy — A grand juror, an interpreter, a stenographer, an operator of a recording device, a typist who transcribes recorded testimony, an attorney for the govern- ment, or any person to whom disclosure is made under paragraph (3)(A)(ii) of this subdivision shall not disclose matters occurring before the grand jury, except in accordance with this rule. A knowing violation of Rule 6 may be punished as a contempt of court . (3) Exceptions. (A) Disclosure otherwise prohibited by this rule of matters occurring before the grand jury, other than its deliberations and the vote of any grand juror, may be made to—— Ci) an attorney for the government for use in the performance of such attorney’s duty; and (ii) such government personnel as are deemed necessary by an attorney for the government to assist an attorney for the government in the performance of such attorney’s duty to enforce Federal criminal law. (B) Any person to whom matters are disclosed under subparagraph (A)(ii) of this paragraph shall not utilize that grand jury material for any purpose other than assisting the attorney for the government in the performance of such attorney’s duty to enforce Federal criminal law. An attorney for the government shall promptly provide the district court, before which was empanelled the grand jury whose material has been so disclosed, with the names of the persons to whom such disclosure has been made. (Emphasis supplied) In sum, the general rule of secrecy established in Rule 6(e) has two exceptions of particular interest to EPA personnel involved in grand jury investigations: (1) disclosure to an “attorney for the government” (which requires no judicial authorization) and (2) disclosure to government personnel assisting the attorney for the government in the enforcement of Federal criminal, law (which requires timely notification to the district court supervising the grand jury investigation). ------- —8— As was indicated earlier, EPA attorneys do not fall automatically within the category of “attorney(s) for the government.” Rule 54(c), FRCP. Thus, except in those cases in which the Agency attorney is appointed an authorized assistant of a Justice Department prosecutor under 28 U.S.C. Sections 515(a) or 543, the first exception is inapplicable to EPA employees. Of far greater significance within EPA’S context is Rule 6(e)(3)(A)(ii), which authorizes disclosure to government personnel assisting an attorney for the government in the enforcement of Federal criminal law. For example, agents assigned to EPA’S Office of Criminal Investigations will almost invarialsly work closely with Federal prosecutors during the grand jury process. EPA technical personnel will also frequently be asked to review scientific documents received pursuant to grand jury subpoena and to analyze them for the grand jury. Similarly, EPA attorneys familiar with Agency regulations may be asked to determine whether the facts developed in a grand jury inquiry constitute violations of specific regulatory programs. Decisions on the scope of disclosure to government personnel under this exception are vested, under Rule 6(e), with the prosecutor supervising the grand jury investigation. The identity of these government personnel must be disclosed to the court that empanelled the grand jury. There is no statutory obligation to give the court prior notice of such disclosure, see In re Grand Jury Proceedings (Larry Smith) , 578 F. 2d 836 (3d. Cir. 1978); however, prior notification is the preferable practice where feasible. Finally, the purpose of the disclosure must be to assist in the enforcement of Federal criminal law. Rule 6(e) (3) (A) (ii). Rule 6(e)(3)(A)(ii) disclosures will be used with restraint and will be limited to situations in which they are necessary for the furtherance of the criminal investigation. Under no circumstances can information disclosed under this provision be communicated——in any form——to any Agency employee not specifically authorized to receive this information under the provisions of Rule 6(e). The bar imposed by Rule 6(e) is total. ------- —9-. Disclosure of Grand Jury Materials to Agency Supervisors In the past, the question has arisen whether an Agency employee assigned to a grand jury investigation and authorized to review grand jury materials must there- after cease all discussions of his or her work with supervisory personnel. Strict confidentiality is required for “matters occurring before the grand jury.” This phrase should be read to include, at a minimum, the substance of grand jury testimony and any transcripts or memoranda reflecting that testimony; the substance of documents subpoenaed by the grand jury; the identities of witnesses appearing before the grand jury; and the identity of investigative targets, corporate or individual, developed during the grand jury investigation. On the other hand, grand jury secrecy does not preclude necessary discussion within the Agency of publicly—filed motions relating to the grand jury investigation (i.e., motions to quash grand jury subpoenas); or the discussion of legal issues arising during grand jury investigations, if they can be discussed in the abstract, without reference to evidence developed before the grand jury. Of course, where there is doubt about whether a matter is protected by grand jury secrecy, the question should always be raised with the “attorney for the government” overseeing the investigation prior to disclosure. On occasion, when unexpected and significant Agency resource commitments are required during the course of a grand jury investigation, limited disclosure of grand jury materials to EPA managers not actively involved in the case may be appropriate. However, such disclosure will be made by, and with the prior approval of, the Federal prosecutor ------- —10— supervising the investigation; further, it will be limited to the facts necessary for the supervisor to make an intelligent decision on the use of his or her resources. In addition, care must be taken to ensure that the manager receiving this information is not supervising a simul- taneous civil, administrative or regulatory proceeding involving any of the investigative targets. Of course, appropriate notification to the Court under Rule 6(e) must occur at the time of the disclosure. Disclosure of Grand Jury Materials in Parallel or Sub- sequent Civil/Regulatory Proceedings : The grand jury’s sole legitimate investigative purpose is to determine whether probable cause exists to believe that Federal criminal law has been violated. Thus, it has been held that it is an abuse of the grand jury to continue presenting evidence once a decision has been made not to seek an indictment. United States v. Proctor and Gamble Co. , 175 F. Supp. 198, 199 (D.N.J. 1959). In a variation of the same theme, the District Court for the Southern District of New York has held that the government may not use the grand jury to inquire into civil as well as criminal liability: The grand jury’s role is properly confined, and amply respected, when it is held empowered to conduct investigations that are in their inception exclusively criminal . To hold other- wise——to confer court approval upon the kind of concurrent criminal and civil inquiries projected by the instant application-— would expand the already awesome powers of the grand jury beyond tolerable limits. United States v. Doe , 341 F. Supp. 1350, 1352 (S.N.D.Y. 1.972) (emphasis supplied). These holdings do not mean that evidence acquired by the grand jury in a good faith criminal investigation can not subsequently be used in a civil action. Rule 6(e)(3)(C)(i) establishes that disclosure of matters before the grand jury may also be authorized by court order when that disclosure is preliminary to or in connection ------- — ii— with a judicial proceeding.” 5/ Courts are split on the scope of this exception,and disclosure will not, by any means, follow automatically on the heels of a motion. In any event, the government must demonstrate three things to be entitled to a disclosure order: First, that the grand jury investigation was conducted to ascertain whether or not violations of criminal law had occurred, and not as a subterfuge to obtain grand jury records for a civil investigation or proceedings, In re Grand Jury Subpoenas, April 1978 , 581. F. 2d 1103, 1110 (4th Cir. 1978); second, that disclosure of grand jury records would be preliminary to a judicial proceeding, Rule 6(e)(3)(i), FRCP; and third, that there is a “particularized need” for the records, United States v. Sells Engineering, Inc. , ______ U.S. , 77 L.Ed. 2d 743, 103 S Ct.____________ Rule 6(e) motions will be made only with the author- ization and assistance of the prosecutor who supervised the grand jury investigation. To avoid both the appearance, as well as the potential, that a grand jury investigation will be misused to accumulate evidence for a noncriminal purpose, employees assigned to work on or review materials accumulated in grand jury investigations should have no responsibilities, either staff or supervisory, on other simultaneous or subsequent civil or regulatory proceedings involving the subject(s) 5/ One court has observed, in this regard: Nothing said herein is meant to overlook the Supreme Court’s realistic observation that evidence acquired in a legitimate grand jury inquiry may later be usable even though it has been concluded that no indictment should issue. See United States v. Proctor and Gamble , 356 U.S. 677, 684 (1958). That is wholly different from the proposition that the inquiry may start out or continue with the explicit purpose of discovering evidence for civil claims. United States v. Doe , 341 F. Supp. 1350, 1352 (S.D.N.Y. 1972). ------- —12— of the grand jury investigation. Exceptions to this general prophylactic rule may well be appropriate in certain cases——as, for example, where the subject matter of the grand jury investigation is unrelated to the civil/regulatory matter. However, exceptions should not be made without prior discussions with the Criminal Enforcement Division, EPA Headquarters, and the Justice Department prosecutor supervising the investi- gation. Media Inquiries Concerning Grand Jury Investigations : EPA personnel should never confirm the existence of an ongoing grand jury investigation in response to press inquiries. Questions may be referred to the Justice Department or local United States Attorney. IV. CARE AND CUSTODY OF GRAND JURY MATERIALS This final section recommends procedures to be employed by EPA personnel granted access to and custody of grand jury materials during the course of a criminal investigation——as, for example, when documents are subpoenaed and transferred to EPA personnel for review. 6/As a general rule, procedures for the care and custody of these materials should first be discussed with the Justice Department prosecutor. If local rules or procedures exist, they should be followed. In the absence of such specific local guidance, however, the following procedures, if followed, will provide adequate assurance against breaches of security and subsequent allegations of grand jury abuse. 1. The identity of all Agency employees who will have access to grand jury materials should be inc Luded in a notice to the Court pursuant to Rule 6(e)(3)(B). If additional Agency personnel later prove necessary, these additional names should be provided to the Court in a timely fashion. 2. If grand jury materials are to leave the Federal district in which they are subpoenaed (for example, to be transported to a Regional office of review) consideration should be given——along with the prosecutor——to seeking the prior approval of the grand jury. The anticipated transportation of materials from the district might also be included in the 6(e)(3)(B) notice to the Court. 6/ Grand jury subpoenas will always be authorized in advance y the Federal prosecutor overseeing the investigation. As a general rule, they will also be authorized in advance by the grand jury. Subpoenas will be served by agents of the Office of Criminal Investigations, who have extensive experience in the conduct of Federal grand jury investigations. Service will, be in accordance with guidelines of the appropriate Federal district. ------- —13— 3. Grand jury materials should be transported personally where feasible (rather than by mail). If the postal system is used, the materials should be sent by certified mail, return receipt requested. 4. Grand jury materials should be totally segregated from the regular files of the Agency. Where possible, a separate room should be used, since this allows both control of access and a private working space for personnel authorized to review these materials. Finally, the materials should be clearly labelled to avoid inadvertant disclosures. 5. Grand jury materials, once segregated, should be secured, either in locked file cabinets, behind locked doors, or both. Access to the materials should thereafter be limited solely to personnel on the 6(e) list. 6. A system of accountability for grand jury materials should be established. The system should allow the government to demonstrate, if challenged, the materials that were received, and those that have been returned. Any indexing system that is workable for the prosecutor is acceptable. One traditional system uses the number of the grand jury subpoena, followed by sequential numbers for the documents or exhibits received in response to that subpoena. N.B. This indexing should occur before the substantive review begins and documents are taken out of their original order. If this is done, it will always be possible to identify the order and date on which documents were received, and the subpoenas to which they responded. It will also facilitate response to subsequent allegations that documents have been lost. V. CONCLUSION This document will assist Agency personnel to perform effectively and responsibly in the context of grand jury investigations. Agency employees assigned to grand jury investigations should be thoroughly familiar with its contents before they begin their work. Questions should be directed to the Criminal Enforcement Division (FTS 382—4543) ------- E ------- r UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON, DC 20460 E C A L A ND EN FORC EM ENT C OUNSE MEMORANDUM SUBJECT: Overflights Initiated by the Criminal Enforcement Division FROM: Peter C. Beeson - Associate Enforcement Counsel Criminal Enforcement Division \ TO: All SAICs * This is written to discuss the law on the use of over- flights in criminal investigations and prosecutions and to establish uniform procedures within our Division. The use of overflights as an investigative technique can require prior approval and the issuance of a search warrant by a Federal magistrate in certain circumstances. Consideration of Fourth Amendment issues prior to requesting an overflight, is, therefore, a necessity. Background: Pre—Dow Chemical Case Law Until the recent case of the t nited States v. Dow Chemical Co. , 536 F. Supp. 1355 (E.D. Mich. 1982) (hereinafter referred to as Dow and discussed in detail below), the few courts which had ruled in this area had upheld warrantless overflights using photographic and sense—enhancing equipment so long as the flights were at lawful altitudes. The ir itial question as to whether the overflight is a search ——and therefore subject to Fourth Amendment analysis——is governed t the decision in United States v. Katz , 389 U.S. 347 (19 4). In Katz , the Supreme Court hEld that attaching an electronic listening device to the outside of a telephone booth is a search because (1) a person has an actual (subjective) expectation of privacy pertaining to private telephone conversations and (2) this expectation is one that society is prepared to recognize as reasonable. ------- —2— In pre—Dow decisions, courts looked at the physical layout of the property to determine whather there appeared to have been an attempt to protect the facility, or its internal operations, from public view or aerial inspection. Solid fencing, roofs and other coverings obviously reflect a subjective expectation of privacy pertaining to land—based as well as aerial aur ,eil1ance. The location of the site (commercial or residential, rural or urban) and the nature of the property (buildings, land) determine whether the expectation of’ privacy is reasonable. If’ the overflight path encompasses open fields 1 /, yards outside housea 2 /, farms 3 /, or areas generally open to public view /, courts have normally not found a privacy interest that would trigger the protection, and the warrant requirement, of’ the Fourth Amendment. Overflights that include the use of’ sense—enhancin devices (binoculars, telephoto lenses) can change the character oran overflight because of the intrusiveness of the equipmen Similarly, flights which gre at lawful altitudes are different t om those in which helicopters or other small aircraft are used to hover direr’tiy over the airspace of private proorty Peopre v. Sneed , 32 Cal. App. 3d 535, 1UW Ca1. Rptr lJ16 (Ct. App. 1973). Finally, an overflight which would not ordinarily appear to violate privacy interests may become violative if repetitive. The Dow Decision The Dow decision, which is now on appeal, analyzed the Fourth Amendment issues raised by EPA’s use of overflights to photograph Dow’s facility in Michigan. After Dow denied EPA’s request to enter its facility to inspect and to take photographs, EPA contracted to have an airplane fly over the facility and take approximately 75 color photographs using sophisticated photographic equipment. The facts surrounding these overflights clearly had a significant effect on the Court’s ultimate analysis of the Fourth Amendment issues. 1.1 Dean v. Superior Court , 35 Cal. App. 3d 112, 110 Cal. Rptr 585 (Ct. App. 1973). 2/ People v. Superior Court , 37 Cal. App. 3d 836, 112 Cal. Rptr 76 i (Ct. App. 19711). 3/ People v. Lashmett , 389 N.E.2d 888 (Ill. Ct. App. 1979). 11/ Dean v. Superior Court, supra . ------- —3— First, the Court was so impressed with the “vivid detail and resolution” of the photographs thab it found the pictures to “more closely approximate a view of the interior of the plant than the exterior. ” Dow, 536 F. Supp. at 1357 n.3. The Court also noted the significant evidence of Dow’s subjective expectation of privacy. Specifically, Dow had an eight foot high chain link fence encircling its facility, gates with guards at the entrances and exits, closed—circuit television surveillance, alarm systems, motion detectors, roving patrols, identification requirements, a prohibition against cameras on the facility, a pass system and a multi—million dollar security budget. In finding that EPA had intruded upon Dow’s privacy, the Court gave considerable weight to Dow’s obvious attempts to conceal itself from unauthorized observation. Dow’s efforts to maintain the confidentiality of its operation were based on a concern that trade secrets would otherwise be available to competitors. The Court held that Dow’s attempts to shield its interior from competitors were reasonable, and that EPA’s overflights were a “search”. Since the search was not consensual and not executed pursuant to a search warrant, it was held to be in violation of the Fourth Amendment. The Court went on to find that Cong ess has not authorized aerial searches under the Clean Air Act (CAA). Therefore, even if such overflights had been constitutional, EPA is not, according to Dow, authorized by statute to use them as part of a CAA inspection or search. Whether or not Dow is followed by other districts, the opinion highlights the ! iz analysis which must be made before an overflight is initiated, and demonstrates the hazard (of suppression of’ evidence) which can result from a non—consensual, warrantless overflight. Overflights Initiated Within the Division Within the Criminal Enforcement Division, overflights will not be used within the Eastern District of Michigan to investigate potential violations of’ the Clean Air Act. This policy is subject to review following a decision by the Sixth Circuit on the Dow appeal. ------- —4- Ln addition, search warrants sh uLdbe obtained fr r consensual overflights throuahout the eountry whenever thgy will be used to search private facilities at which the owner has manifested a reasonable expectation of privac _ y . As a general rule, warrants will not be required for overflights involving open fields, woods, yards, or other areas visible to the land—based public. Prior to initiating an overflight, the SAIC or the case ____ agent must consult with the local United States Attorney and the Criminal Enforcement Division legal staff on the need for a warrant. Questions on the Dow decision, or the issue of overflights generally, can be directed to Betsy Berman (FTS 557—7410). Attachment ------- DOW CELMICAL CO. V. U. Sq BY AND THROUGH GORSUCH 1355 CU. as $35 F3upç . 135$ (INS) 6. Sid J. White is hereby dismissed as a larty defendant to this cause. Ccrda y. O s J. WIlson ‘is. aori. J s ’t ore prisoner among t:i i The Ca rt Till never know v- ’ r o1 O is ‘W2.ion had a valid r Indeed, it is unlikcly e Cr .n W ca w ever know. .L.x 1 be enterto in accordance ‘ n OP.DEE with the opinion entered Is - e ‘e carn ’s proçceed plan for cn- air g n..g_] to the courts on ii b the custody of the Tiirjs at Corrections is, for Zne s ’i i (:r in L opinion aceom- la1 ,.r. j ..r . disapproved. Z. .Lxr pLan for ensuring _____ o t& courts on behalf of a 5 n S the c stuiy of the Florida f Correc oi TTIU5t, for the iec f cth the cpLaion accompany- .ns r cr. ru’ride for the assistance of 0 I —4- r ’c injunction entered ‘w cr 5. . as dar ed by order of . 5. Z3 , shall coat.nue in full force an a ptable plan has been iy the &. ? - -tto2 T2..S C. 1. b), the i this order and aceom. sg ç n as apeniahle. specifically a.. (a) this order and opinion a -c ag qo tion of law as to ‘t :t z s si a.n al ground for differ. f c n; ar4 (b) an immediate ap- “ &• c and opinion will mate- 2 i .7 the uhL-ae terTnination of -na, Defendant is advised that. .5 t!.C. 1. b). he must make ‘Ii cm n the Caw’t of Appeals within (I1 of the entry of this order. . as cided in paragraph S of T1 cr . a! prv eed s in this cause are i e r —e pe ’r.g opportunity for de- : a,p J from this order and ac- ran ’rg p! o. QT InTI. The DOW CHEMICAL COMPANY, Plaintiff, V. UNITED STATES of America, By and Through Anne M. GORSUCH. Adminis- trator, Environmental Protection Agen. cy, Defendants. Clv. No. 78-10044. United States District Court, C. D. Michgun, N. D. April 19, 982. Chemical manufacturing company brought suit against the Environmental Protection Agency challenging the Agen- cy’s use of a warrantlcss aerial phothg ’aphy of it chemical manufacturing plant.. Upon cross motions for summary judgment, the District Court, James Harvey. J., held that: (1) Environmental Protection Agency’s use of warrantless serial photography of a chemical manufacturing plant constituted an unreasonable search in violation of Fourth Amendment: (2) chemical manufac- turing company had reasonable expectation of prtvaey which was violated by Environ. mental Protection Agency’s flyover and warrantless aerial photography of its plant; (3) material issues of genuine fact existed as to whether Environmental Protection Agency’s use of warrantless aerial photog- raphy of chemical manufacturing plant con- stituted a taking of property, trade secrets and other proprietary information, without due process of law, precluding summary judgment in favor of EPA; and (4) EPAs use of varrantless aerial photography of chemical manufacturing plant was not au- thorized by the Clean Air Act. 3] __ i - ‘ 1 I 1T . . -‘Qt -r ,¼ r ) c 1 .1 .1. ;• I L I ‘I ------- 1356 536 FEDERAL SUPPLEMENT Chemical company’s motion for partist su. mary judgment granted and EPA’s ‘ns.s motion for summary judgment denied. L Searches and Seizure. 7(1O) Environmental Protection Agency’s usc of warrantless aerial photography of a cheical manufacturing plant constituted an unreasonable search in violation of Fourth Amendment. U.S.C.A.Const. 2. Searches sad Seizure. ‘7(1) Wam .ntjess administrative searches sot per se unreasonable. U.S.C.A. CoeaLAmend.4. . -. 3. Searches and Seizures ‘7(10) Chemical manufacturing company had reasonable expectation of privacy which was violated by Environmental Protection Agency’a flyover and warrantless aerial pbo ograpby of its plant., which revealed a ie’w of interior areas. US.C.A.Const. Amend. 4. 4. Searche, and Seizures 7(l0) Extent of any claimed privacy expect.a. tioo must be evaluated in light of identity of the party seeking to invoke protections of Fourth Amendment. U.S.C.A.Const. Amend. 4 5. Searches and Seizures 7(10) While expectation of privacy that own- er of cotnmermal property enjoys differs dg ificanUy from sanctity accorded an mdi- id al’s home, a commercial establishment may possess a proteetable privacy expecta. on under Fourth Amendment. U.S.C.A.. Comt.Amend. 4, . 4 Searches and seizures 7(1O) In determining whether one possesses a protectable privacy expectation under Focrth Amendment, courts must look to the ob ’ective manifestations of any claimed pri- Va 7 expectation. US.CACortsLAmend. 4. 7. Swthe. and Seizure. 7fl0) Ownership of property alone is insuffi- dent to claim an expectation of privacy protectable under Fourth Amendment; owner must demonstrate that the premises were kept in a closed and secured condition. U.SC.A.Const.Amend. 4. 8. Searches and Seizures 7(1) As government’s arsenal of technologi. cally advanced surveillance equipment cx. pands, so too the protections of Fourth Amendment should broaden in response. U.S.C.A.Constjanend. 5. 9. Federal Civil Procedure 2481 Material issues of genuine fact existed as to whether Environmental Protection Agency’s use of warrantless aerial photog- raphy of chemicai manufacturing plant con- stituted a taking property, trade secrets and other proprietary information, without due process of law, precluding summary judgment in favor of EPA in suit brought by chemical manufacturing company chal- lenging the Agency’s actions. U.S.C.A. Const.Amend. 5; Fed.Rules Civ.Proc.. Rule 56(c), U.S.C.A. 10. Health and Environment 25.6(S) Environmental Protection Agency’s use of warrantless aerial photography of chemi- cal manufacturing plant was not authorized by the Clean Air Act. Clean Air Act, § 114 as amended 42 U.S.C.A. 7414. Jane M. Gootee, John Gleeson, Bernd W. Samlt., Haskell H. Shelton, Midland, Mich., for Dow Chemical Co. Jose R. Allen, Dept. of Justice, 3. Daniel Berry, EPA, Washington, D. C., for EPA. MEMORANDUM OPINION AND ORDER JAMES HARVEY, District Judge. I. Introduction This case involves a constitutional and statutory challenge to the use of warrant. less aerial photography of a chemical manu- facturing plant by the’ Environmental Pro- tection Agency (EPA). The Dow Chemical Company (Dow) asserts that this activity by the EPA constitutes an unreasonable search in violation of the Fourth Amendment, a taking and misappropriation of trade se- a’ets in violation of the Fifth Amendment, and the use of an inspection tool which is outside the scope of EPA’s statutory au- thority under Sections 113 and 114 of the Clean Air Act, 42 U.S.C. § 7413-7414 ------- DOW CHEMICAL CO. v. U. S., BY AND THROUGH GORSUCH 1357 r. p Ott se 535 F.S ip . 1333 (1112) L (1980). Dow seeks a declaratory judgmcnL (Abrams), a private company located in and injunctive relief. Lansing, Michigan, to take aerial photo- graphs of the Dow plant. EPA specifically II. Fact., _ informed Abrarns as to the altitude, I • The Dow Chemical Company owns and tion, and direction from which the photo- I operates a 2000 acre manufacturing plant in r i were lo be taken. I Midland, Michigan. In the latter part of In the afLernoon of February 7, 1978 1937 EPA, the governmental agency pri. Abrams flew over Dow’s plant as directed. manly charged with administering and en- The aircraft made at least 6 passes over the — .1. forcing the federal pollution laws, was con- plant at altitudes of 12,000, 3,000. and 1200 . i ducting an investigation of Dow to check feet. Abrams used a sophisticated Vild i nns from the power houses located RC—10 aerial mapping camera to take ap- inside Dow’s facility for possible violations proximately 7$ color photographs of various - I of federal air quality standards. parts of the Dow plant . • In September of 1977, EPA made an on- The Court has carefully examined all of I site inspection of the power houses at Dow’s the photographs and has been struck by I plant. A.fter the inspection EPA requestoti, their vivid detail and resolution. As amply and latar received, schematic drawin demonstrated by Dow at a hearing before I the power houses from Dow. the Court. some of the photographs taken I from directly above the plant at 1,200 feet In December of 1971 EPA again contact- are capable of enlargement to a scale of 1 I ed Dow and requested a subsequent entry inch equals 20 feet or greater, without sig. for purposes of inspecting the power houses. nificant loss of detail or resolution. When 1 Prior to making this request EPA had al- enlarged in this manner, and viewed under ready begun preparations for a planned en- magnification, it is possible to discern forcement action against Dow.’ EPA in- equipment, pipes, and power lines as small formed Dow that as part of the inspection as inch in diameter. Many of these mm- “ it would be taking photo phs of the Dow ute, but obse able items are located in layout and facility. Dow objected to EPA’s jntcrior rvgions of the plant which are sur- intention to take photographs and therefort rounded by buildings and other structures “ fr denied EPA’s request for entry. In re- which make observation from anywhere but £ f sponse, EPA suggested to Dow that it dirvcUy above, a near physical impossibili- would consider seeking a search warrant to ty. 2 gain entrance to the plant. Dow was not aware of the EPA flyover I Rather than institute a civil action or either before or during its occurrence. seek a search warrant, EPA decided to oh- When it subsequently became aware of this tam aerial photographs of Dow’s facility, event a few weeks later, from sources other On February 6, 1978, EPA contracted with than EPA, Dow immediately instituted this t Abrams ‘Aerial Survey Corporation action. 1: 1. A clean air act enforcement action was even. 00000 and is described by the company as the tually fIled and Is presently pending before the ‘flnest precision aerial camera available.” Ed. Honorable Stewart A. Newbialt of this District The camera was mounted to the floor inside the Urated State, v. Dow Chemical Company, No. aircraft arid was capable of taking several pho. 10-10011 (ED Micb.. flIed January 2 , 1980). tographs In precise and rapid succession. Id. 2. It Ii important to an understanding of this 3. Throughout Its brief, EPA has used the term j case to provide a descripUen of the highly ef. exterior to describe the areas depiaed in the fictive equipment used by Abrams. The air. photographs. Dow has implied that I -. craft used was a tww engine Beechcrah. which same photograph . depict anterior areu of the Abram, describes as able to ‘provide photo. plant. While none of the photographs are actu- graphic stability, last mobility and flight etidur. ally x.rays of the inside of buildings or struc ance required for precision photography.” lures, based on Its examination, and for the Handbook on Aerial Surveys & Photogramme- reasons stated above, the Court finds that the i ta ’y—Abrams Aerel Survey Corporation. The photographs more closely approximate a view t camera used by Abram. cost in excess of $22.. of the Inter ior of the plant than the exterior. C x - , . •- ---. - ,. .r ’. . S - S .. S I. - ‘ k’ .i’. ------- III. Jurisdiction and Issue, Presented The Court has jurisdiction over the sub- ject matter herein pursuant to 28 U.S.C. § 1331, 5 U.S.C. § 702, and 28 U.S.C. § 2201- 0t This action presents 3 central issues for the Court’s consideration: I. Whether the EPA flyover and aeri- al photography of Dows facilities constitutes an unreasonable search in violation of the Fourth Amend- merit; II. Whether aerial photography of Dow’s plant by EPA constitutes a taking of property (trade secrets) without due process in violation of the Fifth Amendment; arid III. Whether EPA exceeded its statuto- - ry authority under Sections 113 and 114 of the Clean Air Act in using warrantleu aerial photography as an investigatory tool. The matter is presently before the Court on cross motions for summary judgment. Dow seeks summary judgment on the Fourth Amendment and statutory issues, and EPA seeks entry of summary judgment on all issues. This case is appropriate for summary judgment on the Fourth Amendment and Clean Air Act questions, since the material facts reLative to these claims are not in dispute, and a decision thereon can be ren- dered as a matter of law. F.R.Civ.P. 56(c). See Felix v. Young. 536 F.2d 1126. 1130 (CA 6, 1976). As to the Fifth Amendment claim, however, and for reasons more fully described later in this opinion, infra, genu- ine issues of material fact exist which ren- der dispceition of that question by summary judgment inappropriate. See Willetts v. Ford Motor Co., 583 F24 852, 855 (CA 6, 2978). 4. EPA was admittedly attempting to gather evi. device for a planned enlorcement proceeding against Dow. An action was later filed and Is still pending, See note 1 sup,.. 1. Paradoxically, EPA later asserts that the opea fieldj” exception of Hester v. United States 265 U.S. 57, 44 S.Ct. 445, 68 LEd. 888 For the reasons stated below, the Court concludes that the EPA flyover and aerial photography violated Dow’s rights under both the Fourth Amendment and the Clean Air Act. Partial summary judgment on these issues will therefore be entered in favoti of Dow and against EPA. IV. Discussion FOURTH AME DMENT [ 1J The first clause of the Fourth Amendment to the United States Constitu- tion provides that, “the right of the people to be secure in their persons, houses, papers. and effects, against unreasonable searches and seizures, shall not be violated...” As the very language of this amendment make., clear, the Constitution does not pro- scribe all governmental searches and sei- zures, only those that are unreasonable. Dow puts forth at least 3 analytical argu- ments in support of its position that the overhead flight and aer.al photography by EPA constituted an unreasonable search: first, under Coolidge v. New Hampshire. 403 U.S. 443,91 S.Ct. 20Z . 29 L.Ed2d 564 (1971). that a warrantless search is per se unrvasonable; second, under Marshall v. Barlow’s Inc., 436 U.S. 3 T, 93 S.CL 1816, 56 L.Ed.2d 305 (1918) thai. this wa.s an unvea- sortable warrantle.ss inspection; and third. under Katz v. United State,, 389 U.S. 347, 88 S.Ct. 507, 19 LEd.2d 576 (1967), that EPA violated Dow’s reasonable expectation of privacy. The Court will separately ad- dress each of these contentions. Before turning to Dow’s first assertion, the Court wishes to point out that the EPA has admitted, both in its briefs and at oral argument, that the flyover constituted both a “quest for evidence” 4 and a “saarcW ’ of Dow’s plant (EPA Brief at 9; Transcript of oral argument at 44).1 EPA has also admitted that the search was conducted (1924) applies to this case. inalcing EPAs Ic. lions a ‘ oon’staivh’ and Labng ii outside the protecuon of the Fowth Amendment, (EPA Brief at 13—IS). The Court., however, rejects the applicability of the “open fields” exception to thts case and therefore independently con- dudes that a search occurred. See Discussion, Section IV(D) in Ira. ------- without first securing a warrant. Id. With these two premises established, the Court need only determine whether the search was unreasonabi. within the meaning of the Fourth Amendment. £ Per Se Unrwonable [ 2) Subject ocly to “a few specifically established and well-delineated exceptions,” varrantless searches have been recognized as per se unreasonable and therefore viola- tive of the Pow’th Amendment. Katz v. United States, 889 U.S. 347, 357, 88 S.Ct. 507,514, 19 L.Ed2d 576 (1967); &hneekloth v. Busl.awoote, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043, 36 L. .Ed.2d 854 (1973); Coolidge v. New Hampehire, 403 U.S. 443, 454—455, 91 S.Ct. 20fl, 2031-2032, 29 LEd.2d 564 (1971). On the basis of this principle, Dow asserts that EPA’s aerial search of its facili- ty, without prior judicial scrutiny or over- sight, is per ae unreasonable.’ Relying upon Donovan v. Dewey, 452 U.S. 594, 101 S.Ct.. 2534, 69 LE&2d 262 (1981), EPA re- sponds that warrentless searches of corn- mercial establishments are not per se pro- hibited by the Fourth Amendment, but arc only impermisaible if they volate a legiti- mate expectation of privacy. In the ares of administrative inspections, wherein this case “roughly” fits, the Su- preme Court appears to have retreated somewhat from the hard and fast conclu- sion that warrantless searches are per se unreasonable.’ In Marc hail v. Barlow’s Inc., 436 U.S. at 313, 98 S.Ct. at 1820. the S. Dews position b this regard Is not without sound policy considerations to support It. As the Supreme Court gated In Katz. 389 11.3. at 359. 58 S.Cz. at S1& Wherever a man may be. be Is entitled to Iaiov thai be will remain free from umeaaor,- able searches and seizures. The government gmts he,e i iord ‘the procedure of ante cadeol Justh catIon .. that Is central to the Fourth Amendment,’ a procedure that we .hold to be a constitutional precondition of the bnd of electronic sw’veillance Involved in this se. See also Marsball v. Barlow ’s inc.. 436 U.S. at 323, 98 5.Ci. at 1823. ThIs constltutionsl pie- condiuon ’ is the genesis of this Courts ulti. mate conclusion In this case that at a runi. mum. EPA ibould have secured an cx porte warrant before carrying out the aenal search. See note 20 and acoornp.nyth$ teat, Infra. 1359 Court., in tracing some of its earlier deci- sions, used the phrase “generally unreason- able” to describe warrantl .s administrative searches. Later in the same opinion the Court stated that “the reasonableness of a warrantless search ... will depend upon the specific enforcement needs and privacy guarantees of each Statute.” Id. at 3 , 98 S.Ct. at 1825. In its most recent decision in this area, the Court in Donovan v. Dewey, 452 U.S. at 599, 101 S.Ct. at 2538, 69 LEL2d at 269470, announced that: the Fourth Amendment protects the interest of the o*ner of property ip being free from unreasonable intrusions onto his property by agents of the govern- ment. Inspections of commercial proper. ty may be unreasonable if they are not authorized by law or are unnecessary for the furtherance of federal interests. a warrant may not be constitutonal- iy required when Congress has reasonably determined that warrantless searches are necessary to further a regulatory scheme and the federal regulatory presence is sufficiently comprehensive and defined that the owner of commercial property cannot help but be aware that his proper- ty will be subject to periodic inspections undertaken for specific purposes. On the basis of this authority, the Court agrees with EPA that, under the facts of this case, the Fourth Amendment inquiry does not end—with a decision adverse to 7. The Sixth Circuit, however, continues to ad- here to the principle that warrp.nijegs adrywus. tTstlve searches are per se unreasonable. L.’nft. ed States v. Blue Diamond Coal Co.. 667 F.2d 510 (CA 6, 1981). I. This Court’s dtation of the language above is not to suggest that the Court finds a pa.ralJel between the authority of the EPA under the Clean Air Act. 42 U.S.C. § 7401 er seq.. and the Department of Labor under the Federal Mane Safety and Heaith Act, 30 U.S.C. j 801 et seq. b does not. The language Is quoted only as support for the Courts determination that a warrantiesa adminisuative inspection is not per se imreasonable. and that a more sensitive reading of the Fourth Amendment Is required In this case. DOW CHEMICAL CO. v. U. S BY AND THROUGH GORSUCH CtI.aII3AFSwpp. 1333 (1552) -- -.;. .. 7 — .- - , - -. ------- LiiDU 536 FEDERAL SUPPLE IENT the it is established that a waj administrative search oc- curred. The question must turn on whether EPA’s Lithority under the Clean Air Act meets the “Sufficiently comprehensive and defined” criteria of Donovan v. Dewey, su. pra, or whether the search violated a rca. sonable expectation of privacy. See United States v. Taboyrja, 635 F.2d 131, 136 (CA 2, 1980); United States v. DeBacker, 493 FSupp. 1078, 1081 (WD Mich., 1980). B. Administrative Inspection The question of the reasonableness of a esmmer entity’s expectation of privacy is necessarily intertwined with, and must be considered in the context of, the Supreme Court’s decisions in the area of admjnjstro- tive iflspectiori ,’ Most recent in this rela- tively short line of authority is Marshall v. Bar/ w’j Inc ., supra, and Donovaj v. Dew. ey, supra. Dow assert.s that Barlow’s, wherein the Court held that a warTantJ adrninjstr . tive inspection under the Oceupaijonal Safety and Health Act, U.S.C. &5 7 (a) (1970) (OSHA) violated the Fourth Amend. men?., controls this case. EPA, on the other hand, maintains that Dewey, which upheld a warranU administrative search under the Federal Mine Safety and Health Act, 108(a), 30 U.S.C. § 813(a) (1977) (FMSHA), controls the present facts. For the reasons expressed below, the Court holds that this ease is governed by the principles arid rationale of Barlow’s. The Fourth Amendment’s prohibition against unreasonable searches was extend- ed to admirüstrative inspections of private commercial property nearly a deesde and a half age. Camera v. Municipa) Court 387 U.S. 5 , 87 S.Ct. 1727, 18 LEd.2d 930 (1967); See v. City of Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 LEd.2d 943 (1967). The reason for this extension was found in the basic purpc of the amendment, which is “to sfeguaj ’d the privacy and security of individuals against arbitrary invasions by government officials.” Camera, 387 U.S. at 5. As the Cowi stated in Ma,,hali V. Barlow’, lee., 43$ U.S. c i 313. 98 S.d. at 1820, citing Katz i United State, , siapra, “ceitain Indu ,. 528, 87 S.Ct. at 1730. Unlike searches of private homes, however, which generaJlv must be conducted pursuant to a warrant in order to be reasonable, “legislative schemes authorizing warrantless administrative se rehes of commercial property do not nec- essarily violate the Fourth Amendmen ’ Dewey 452 U.S. at 598, 101 S.CL at 2538. 69 LEd.2d at 268. The touchstone of any decision on the legality of a warrantless administrative search is a consideration of the type of business involved, and an analysis of the “pervasiveness and regularity” of the apoU. cable legislative scheme. Dewev supra, 452 U.S. at 604, 10] S.Ct. at 2541, 69 LEd.2d at 273. Barlow’s arid its progeny, Camara and See, created the general rule that absent Conseffi ., a warrant is constitutionally re- quired before an adminisu ati e inspect ion may he conducted. From this general rule, certain narrowly defined exceptions have been carved out. In Colonnade Catering Corp. v. United Stat , 397 U.S. 72, 73, 90 S.Ct. 774, 775, 25 LEd.2d 60 (1970), the Supreme Court recognized that because the alcoholic beverage industry had long been “Subjeet to close supervision and inspee. tion,” Congress enjo ed “broad power to design such powers of inspection ... as it deems necessary to meet the evils at hand.” Id. at 76—77,90 S.Ct. at 776.-777. Similarly, in United States ;. Biswell, 406 U.S. 311,92 S.Ct. 1593, 32 LEd.2d 87 (1972), the Court concluded that the federal statute regulat- ing firearms provided a sufficiently comnpre. heitsjve and predictable Inspection scheme that the warrantl s inspections mandated under the statute did not violate the Fourth AmcndmenL Id. at 316, 92 S.Ct. at 1596. Most recently, in Donovan v, Dewey, supra, the Court held that warrantle inspee- tions required by the Mine Safety and Health Act do not offend the Fourth Amendmej ” Id 452 U.S. at 602, 101 S.Ct. at 2539, 69 LEd2d at 27]. The Court explained that: the Mine Safety and Health Act applies to industrial activity with a no- torious history of serious accidents and uies have such a history of goverTtJn nt over. Jght that no reasonable expectation of privacy could exist ------- —. S - p - a urihealthful working conditions. The Act is specifically tailored to address those concerns, and the regulation of mines it. imposes is sufficientiy perva- sive and defined that the owner of such a fa ity cannot help but be aware that he ‘will be subject to effective inspec- First, the Act requires inspec- tion at all mines and specifically defines the frequency of inspection. Second, the standards with which a mine operator is required to comply are all specifically set forth in the Act or in Title 30 of the Code of Federal Regula- tio s . Thus, rather than leaving the fro- quency and purpose of inspections to the unchecked discretion of govern- cient offie rs, the Act establishes a pro- dictable and guided federal regulatory presence. Like the gun dealer in Bis- well, the operator of a mine ‘is not left to wonder about the purposes of the inspector or the limits of his ts ik.’ Id. 452 U.S. at 603, 101 S.Ct. at 2540, 69 LEd.2d. at 272 (citations omitted).” EPA relies heavily on the language of Dewey” but makes no argument thut EPA’s authority to regulate the chemical Industry under the Clean Air Act consti- tutes a sufficiently predictable and guitkd federal regulatory presence” as to include it as an exception to the general rule prohiliit- ing warrantless administrative inspections. This is understandable, since it is clear to this Court that no such plausible argument can be made, 1361 which the Supreme Court reviewed in &r low’s. The Court des&ibed that authority as follows: (OSHA) imposes health and safety standards on all businesses engaged in or affecting interstate commerce that have employees ... and authorizes rep- resentatives of the Secretary to con- duct inspections to ensure compliance with the act ... However, the Act fails to tailor the scope and frequency of such administrative inspections to the particular health and safety concerns posed by the numerous and varied busi- nesses regulated by the statute. Donovan v. Dewey 452 U.S. at 601, 101 S.Ct. at 2539, 69 L.Eci2d at 270 (citations omitted). As one commentator, himself a former As- sistant Regional Counsel for the EPA, accu- rately observed: EPA, like OSHA, regulates all kinds of industries. Once again, the test is not whether the industry is regulated, but whether it is pervasively regulated. Although certain environmental stat- utes, the Federal Water Pollution Con- trol Act (FWPCA), for example, are licensing statutes in the very broadest sense, such licensing and regulation is distinguishable from that, which was present in Colonnade or in Bi.swe)L The scope of the FWPCA is mueb more akin to the kind of regulation that ex- ists under the auspices of OSHA. Both OSHA and EPA regulate a broad spec- t,rum of different industries pursuant to legislative mandates. However, these myriad businesses are not necea- .arily highly regulated industries which may be said by implication to consent to warraritless inspections. In that sense, Barlow’s, Inc. s finding of the non-applicability of this exception in an OSHA context also applies to EPA. 1• ‘4, - - . —p... a r 2 DOW CHEMICAL CO. v. U. S., BY AND THROUGH GORSUCH Cftau53IF.Supp . 1233 (1512) LI i . Unlike the government’s control over the :: alcohol, firearms, and mining industries, thc ‘. chemical industry is not “pervasively egu- lated” by EPA under the Clean Air Act. p EPA’s authority to regulate entities such s Dow is more closely akin to the authority of the Department of Labor under OSHA I *0. Even puce to the Supteine Court’s dedsion II. EPA’s reliance on Dewey appeals to be for In Dewey, the Sixth Circuit had upheld a gnu, the proposition that the lesser degree of Fourth lar wirranllesa inspection of a sand and gravel Amendment protection accorded commercial quarry. Marshall v. Noliclwckey Sand Co. premises in general, and the federal regulation Inc., 606 F.24 693 (CA 6, 1979), cut denied, of the chemical Indugry In particular, under. 446 U.S. 908, IQO S.Cu. 1835, 64 LEL2d 261 cuts and thereby dimmithei Dow’s reasonable ‘ (1980). - - pectation of pnvsey. This assertion is ad. dressed by the Cowl later in this opinion. See - Discussion. Section IV(C) Infra. 4 ------- 1362 536 FEDERAL SUPPLEMENT Martin, EPA and Administrative Inspec- tions, 7 Fla.St.LR.ev., 123, 131—132 (1979). The only statutory provision authorizing administrative inspections in the Clean Air Act is Section 114, 42 U.S.C. § 7414.’ This provision potentially applies to any number of different industries. By its terms it nei- ther requires or defines the type or fre- quency of inspections, nor contains stan- dards by which they are to be conducted. In fact, on its face, this provision does not appear to allow breed entry without some form of prior judicial oversight.’ 3 The Su- preme Court baa already recogntzed this limitation in the Clean Air Act in its Bar- low’s decision wherein it observed: Some statutes already envision resort to federal.court enforcement when entry is refused, employing specific language in some cases (an) example is the Clean Air Act. which grants federal district courts jut- isdiction “to require compliance” with the Administrator of the Environmen- tal Protection Agency’s attempt to in- spect under 42 U.S.C. § 7414. when the Administrator ha ,, cpmmenced ‘a civil action” for injunctive relief or to ro v. er a penalty. 436 U.S. at 321 n.1S, 98 S.CL at 1825 n.38 and aceompanying text. 1st addition, the legislative history of the Clean Waler Act, 33 U.S.C. § 1251—1376. also supports the observation that foreed entry, or warrantless inspection, is not con- templated under the Clean Air Act. The Senate Report to the Act states that ‘As 12. SectIon 114 of the Oe m A ir Act provides in pertinent part that: (a) For the purpose ... ( II ) of determining whether any person La in violation of any such standard or any requirement of such a plan, or (ill) carrying out any provision of this chapter. . (2) the Administrator or his authorl:ed rep. re.ettutive, upon presentation of his ereden- hale— (A) shall have a ri gin of entry to. upon, or through any premises of such person or in which any records required so be maintained under paragraph (1) of this section are locat- ed,and (B) may at reasonable times have access to and copy any records. Inspect any monitoring under the Clean Air Act, the Committee expects that authority to enter will be used judiciously and upon any challenge to entry the Committee expect.s the Administrator to obtain the ne sary warrant.” S Rep. No.92-44, 92d Co4, 1st Sess 62, reprinted in (1972] U.S.Code Cong. & Ad. ,News 3668. 3729 (emphasis added). The inescapable conclusion of the forego- ing judicial and legislative pronourseemenLs is that the holding and rationale of Barlow’s controls this case. Therefore, EPA’s war- rantless aerial search of Dow’s plant cannot withstand Fourth Amendment scrutiny. The repugnance of this form of warrantless inspection activity was well stated by the Supreme Court in Barlow’s, 438 U.S. at 323423. 98 S.CL.at 1825—1826: The authority to make iarrantless searches devolves almost unbridled dis- cretion upon executive and administra- tive officers, particularly those in the field, as to when to search and whom to warch A warrant, by cont.rast, would provide assurances from a neutral officer that the inspection is reasonable under the Constitution, is authorized by statute, and is pursuant to an administrative plan containing a specific neutral criteria. Also, a warrant would then and there advise the owner of the scope and objects of the search, beyond which limits the inspector is not expected to proceed. These arc important functions for a war- rant to perform, functions which underlie the Court’s prior decisions that the Var- rant Clause applies to inspections for compliance with regulatory sta t utes’ 4 equipment or method reqtdred under pan. graph (1). and sample any erruu cns which such person is requited to sample under paragraph (I). 13. See note 27 and accompanying text, Infra. 14. It ii indeed curious that In the present case EPA argues that Its warranties, iemrch of Dow was not incon stent with the Barlow’s deci- sion, when a published EPA memorandum sug. gests that as a matter of agency policy. Its position Is oth wtse: Barlow’s clearly establishes that the owner does have the right to ask for a warrant under normal circumstances. Therefore, re- fusal to allow entry (or Inspecuoitai purposes ------- For these reasons, the Court condudes that EPA’s aerial photography of Dow’s facili- ties, in an admitted quest for evidence, con- stituted an unseasonable search in violation of the Fow’th Amendment. In the typical administrative inspection case the Court’s Fourth Amendment in- quiry would halt at this point. This case, however, is not Mtypical in any sense of the word. We are not here dealing with an ordinary on-site administrative search, nei- ther aie we faced with one of the more common Fourth Amendment challenges. Indeed, the Court’s research suggests that, considering the facts before it, it is ventur- ing into unehartered constitutional territo- ry. Both Dow and EPA devoted most of their attention, in briefing and arguing this case, to an analysis of the present facts under the Supreme Court’s decision in Katz v. United States, 889 US. 347, 88 S.Ct. 6 7, 19 L.Ed.2d 576(1967) and subsequent interpre- tive decisions. This Fourth Amendment analysis, as applied to this case, focuses on the question of whether Dow had a reasona- ble expectation of privacy which was violat- ed by EPA’s Ilyover and photography of Dow’s plant. The Court is fairly certain that the Fourth Amendment issue raised in this case is properly resolved on the basis of an ad- ministrative inspection analysis alone. Giv- en, however, the atypical nature of this case, the fact that the parties have explored the Kate analysis at length, and the addi- tional fact that this analysis raises several important sub-issues and policy considera- tions, the Court will alternatively review will not lead to clvtl o cilminal penalties II the refusal Is based on the Inspector ’s lack of a warrant and one of the exemptions dis. cussed in Part C does net apply. If the owner were to allow the inspector to enter his estabbshtnent only In response to a threat of enforcement liability. It Is quite possible that any evidence obca ned in such an inspec- tion would be Inadmissible. An inspector may. however, Inform the owner who refuses entry that he intends to seek a warrant to compel the Inspection In any event, when entry Is refused, the inspector should leave the premises immediately and telephone the C. Expectation of Pnvacy [ 3] In Katzv United States, 389 U.S. at 851-352,88 S.CL at 511-512, the Supreme Court observed that: the Fourth Amendment protects people, not places. What a person knowingly exposes to the public even in his own home or office, is not a subject of Fourth amendment protection ... But what he seeks to preserve as private, even in an area accessible to the public, may be con- .stitutionally protected. Justice Harlan, in a concurring opinion which has since become the prevailing for- mulation for evaluating the legality of a search, scc Rnkas v, Illinois, 439 U.s. 128. 99 S.Ct. 421, 58 LEd.2d 387 (1978); United St.atos v. Bailey, 628 P.2d 938 (CA 6, 1980): erected a twofold requirement to determine whether one possesses an expectation of privacy which is protectable under the Fourth Amendment. This test was best described by Justice Blackmuri in Smith v. Mar,’land, 442 U.s. 735, 736, 740, 99 S.Ct. 2577, 2578, 2580, 61 LEd.2d 0 (1979): -. the application of the Fourth Amend- ment depends on whether the person in- voking its protection can claim a ‘justifia- ble,’ a ‘reasonable,’ or a ‘legitimate expec- tation of privacy’ that has been invaded by government action ... This inquiry, as Mr. Justice Harlan aptly noted in his Katz concurrence, normally embraces two discrete questions. The first is whether the individual, b,v his conduct, has ‘exhib- ited au actual (subjective) expectation of p,’nacy,’ 389 U.s., at 361 [ 88 S.d 507 at designated Re iorial Enforcement Attorney as soon as possible for further i nstruc t ions The Regional Enforcement Attorney should contact the U. S. Attorney’s Office for the Diszrtct in which the establzshmeni desired to be inspected a located and explain to the appropriate Assistant United States Attorney the need for a warrant to conduct the panic. ular Inspection. EPA Memorandum en Inspection Procedures, 41 Esivar.Rep. (BNA) 2451. 2452 (April I I, 1979) It is undisputed that in this ease. Dow speclricatly refused EPA’S request tot entry pn. or to the flyover. DOW CHEIbTICAL CO. v. U. S., BY AND THROUGH GOR3UCH 1363 as. sssars, 335 (I S I S) the facts before it under the framework of ‘ Katz. 1 k . C —‘ I Ii !1 ‘i; .____ ____ I ‘ _____________ I — _____ ___ — :. : . I V I E , 4 ------- I LU 536 FEDERAL SUPPLEMENT 516, 19 LEd.2d 5763—whether. in the worth of the Katz majority, the indivirlu. ai has shown that ‘he seeks to preserve [ something) as private.’ Id. at 351 [ 88 S.Ct. 507 at 511, 9 L.Ed.2d 576]. The second question is whether the individu. a1 s subjective expectation of privacy is ‘one that society is prepared to recog-nize as ‘reasonable.’ id:, at 361 (88 S.Ct. 507 at 516, 19 L.Ed .2d 576)—whether, in the words of the Katz majority, the individu. a l ’s expectation, viewed objectively, is ‘justifiable’ under the circumstances. (ci- tations omitted; emphasis added . This Court must now apply this two-part test to the facts before it- t. Dow’s Privacy Expectation [ 4. 5] The extent of any claimed privacy cli.4c’.atioa must be evaluated in light of z .e identity of the party seeking to invoke t e protections of the Fourth Amer idmenL Dor,o an v. Dewey, supra; GM Leasing C ep v. United States, 429 U.S 338. 97 S-C _ 619, 50 L Ed.2d 530 (1977). While the expectation of privacy that the owner of co .raerc iai property enjoys “diffcrs signifi. ca tly from the sanctity accorded an mdi- s-cars home , ” Id., it is clear that a corn- teal establishment may possess a pro- t .able privacy expectation under the For.b Amendment. Marsha!! v. Barlow ‘ t supra . (5) The first part of the Katz test ap- to require that a party’s actual state of mind be determined. Various courts. bewever, have interpreted this aspect of the test as an “objective” rather than a “subjec- t e r uirement. United States v Tabor- d a, 5 F .2d 131, 131 (CA 2, 1980). United Szz es ,‘. Kim, 415 F.Supp. 1252. 1256-1257 (D.? &w.. 1976); accord United States v. & . ey, 628 F.2d 938, 942—943 (CA 6. 1980) Tc. a Court agrees with this interpretation, aec concludes that the essence of the first pr.:g of the test is that the party “must hare w ,ad in such a way that it would have been reasor ,able for him to expect that he ‘wo ’iW riot be observed.” United States v. Te. . .,rda, supra. Therefore, the Court must look to objectise manifestations of any cia rne4 privacy expectation. (7 Thu first and most obvious indicia of a privacy e .pccLation is ownership. Wilson v. Health anti Hospital Corpora Cio1 of Mari- on City, 620 F.Zd 1201, 1212—1213 (CA 7, 1980). Dow ’s ownership of the Midland complex is undisputed. Ownership of prop- erty alone, however, is insufficient to claim an expectation of privacy. The owner must demonstrate that the premises were kept in a closed and secured condition. Id. Dow cites the following measures as evi- dence that it has manifested and exhibiwd an expectation of privacy in its plant: L A chain-link fence at least 8 feet high installed completely around the produc. lion faeiiity 2. gates for ingress and egress at vari- ous intervals in the fence hate an at- tendant (guard) on duty when any gi- en g’.ite is in operation to admit or allow people to leave the facility; 3. closed-circuit television surveillance for continuously monitoring the various entrance and e dt gates and to monitor the area along the fence surrounding the facility; 4. al rrn s) tcms which will indicate un- uuthorized entry at various locations; 5. motion detectors at strategic loca- tiozm to inthcate movement of person- nd in certain restricted areas within the facility; 6. roving patrols which travel through- out the facility and guard the perime- ter to augment the other security sys- tems; 7. liaison with local public law enforce- ment officials including radio commu- nication to assist in the apprchension of engaged in unlawful activities relating to the production facility; 8. a requirement that employees enter- ing the facility mu exhibit iii identi- fication bdde in every instance of en try; 9. a reqtiirement that non-employees who wish to visit the facility must be a 1 iproved and must obtain a sisitors liass including a bade which must be exhibited at all times while in the facil. ity; ------- 10. a requirement that non-employees who have been approved to visit be greatJy restricted in their movements and that some areas of the facility re- main off-limits to all non-employees: 1L a requirement that cameras by any- oae other than an authorized represent- a v, at Dow are prohibited at all times and in all pla in the facility: 12. a requirement that persons visiting for technical reasons must obtain a techniesl pass which provides among other things that the visitor will not disclose any technical information learned as an incidence to his visit; 13. a staffing program such that securi- ty personnel are on duty twenty-four bows a day and seven days a week with at least twenty-five such Peol)Ie on duty at all times and with about fifty people on duty during normal duty hours; 14. a security budget whereby Dow spent at least 3.25 million dollars in each of the last ten years on the securi- ty of the Midland production facility; and 15. a disposal or drawings etc. that re- quires that, in the event the engineer- ing drawings and/or blueprints of a specific production plant were to be disposed of, for example, at the conclu- sion of construction, the drawings and/or blueprints would be packaged arid incinerated under the direction of security personnel who would also wit- ness th incineration. In addition, Dow points out that its employ- ees and contractors sign secrecy agree- ments, and that its plant layout is designed in such a way that the more sensitive, pro- prietary areas are not visible to persons on the public right-of-way outside the fence. (Dow Brief at 11—12). EPA responds to these assertions by ar- guing that Dow has sought only to restrict acc to its plant arid to protect its trade ecreLs from the eyes of its competitors, it has not attempted to conceal the exterior of its plant from view. Therefore, EPA main- 15. 5 . , noie 3 and accompanying test. supra. Uins that Dow has failed to satisfy the first prong of KSLL This Court cannot agree. As previously explained, ’ EPA’s refer- ence to the exterior of Dow’s plant ischar- acterizes what was actually captured in the aerial photographs. The photcgrapá de- pict internal regions of the plant such vivid detail, capable of further en1ar ement and magnification, as to defy simply being described as views of the exterior of the facility. When these photographic rits are combined with the uncontrover.ed fact that Dow designed its plant so as to con I the more sensitive, proprietary a.r in the inner regions of the complex, EPA ’s posi- tion loses its persuasive weighL The Court in Katz, 389 U.S. at 351-352, 88 S.Ct. at 511—512, specifically stazed that what a person “seeks to preserve as private, even in an area accessible to the public, may be const.itutionally protected.” (enphasis added). Dow would never be able to show that it possesses a legitimate priva.y expec- tation in its cnti,e plant. Obviousy, n uch of the plant is observable by the general public, both from the ground and from the air. But what is visible to the piblic are areas which Dow. either purpcaely or due to some commercial or architectural impracti- cability, has decided to allow the general public to see. Notwithstanding this com- mon sense limitation, Dow may sti 1 po ess an expectation of privacy with respect to interior regions of its facility. The Fourth Amendment shota d not. be row! as to require the citizens or businesses of this nation to take unreasonable mess- ures to protect themselves from surrepti- tious governmental searches. This Court is not prepared to conclude that Dow must build a dome over its entire plant before it can be said to have manifested or exhibited an expectation of privacy. See United Sto les v. A lien, 633 P.2d 1282. 1 S (CA 9, 1980). cert. denied, — U.S. —, 102 S.Ct. 133, 70 LEd.2d 112 (1981). Rather, what Dow “seeks to preserve as private.w and then takes reasonable precautioca to safe. guard, is entitled to the protect on of the Fourth Amendment. Katz r. United DOW CHEMICAL CO. v. U. S., BY AND THROUGH GORSUCH 1365 Cit. u 33$ FSupç *555 (*5(3) I- 5. j . , l _ ; l 4’ ------- 1366 536 FEDERAL SUPPLEMENT States, supra. On this basis, the Court find.s that Dow has satisfied the first prong of the Kits test.. 2. Reasonableness of Dow’s Privacy Ex- pectation The more difficult question to decide in this esse is the second prong of Katz: whether Dow’s expectation of privacy is one that society is prepared to accept as reason- able. EPA proposes several factors which should b. considered in resolving this in- quiry On the basis of these factors, EPA’s position is that even if Dow has exhibited an expectation of privacy, it is not one that society accepts as reasonable. Some of the factors proposed by EPA pertain either to the issue of whether Dow rr.anifested a privacy expectation or whether the “open fields” exception to the Fourth Amendment, Hester v. United Ststes, 265 U.S. 57, 44 S.Ct. 445, 68 LEd. 898 (1924), is applicable to this case. t ’ Sor e of its suggested factors, however, do go to the question of reasonableness cml therefore merit some discussion. In describing the “type” and “nature” of the location observed as 2 factors to be considered, EPA argues that “it is hard to imagine anything larger or more conspicu- pus than a 2000.aere chemical manufactur- ing plant located in an urban area of a city.’• (EPA Brief at a)). As stated previ- ously. the Court would agree that Dow could not possess a reasonable expectation of privacy in its entire plant. It may, how. ever, exhibit such an expectation with re- spect to internal areas of the plant. While not a Fourth Amendment case, the holding of the Fifth Circuit in EL duPont de Xemour, & Co. Inc. v. Christopher, 431 F.2d 1012 (CA 5, 1970), cert. denied, 400 tJ.S. 1024, 91 S.Ct. 581, 27 L.Ed.2d 637 (19 ’Tl), which the Supreme Court cited ap- 38. The factors proposed by EPA include: 1. Lawfulness of L.ocaUon From Which Ob. len’aUon made 2. EquIpment Used to Mali, the Observi. on 3. Type of Location Observed 4. •Natuze of Objects or Activities Observed 5. Effort, to Conceal Objects or Acilvicles train Vi,w pruvingly in Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470, 476 ii. 5, 94 S.Ct_ 1879, 1883 n. 5, 40 LEd.2d 315 (1974), is instruc- tive. duPont filed an action against a com- petitor, under Texas law, for using serial surveillance and pht .ography to obtain its trade secrets. In ruling in duPont s favor that aerial photography was an improper method of discovering trade secrets, the Court reasoned that: we realise that industrial espionage of the sort here perpetrated has b me a popular sport in some segments of our industrial community. However, our de- votion to free wheeling industrial compe- tition must not force us into accepting the law of the jungle as the standard of morality expected in our commercial rela- tions. Our tolerance of the espionage game must cease when the protec’ ons ruquired to prevent another’s spying cost so much that the spirit of inventivenmo is dampened. Commercial privacy must be protected from espionage which could not have been rcasonabl ,v anticipated or pry- vcnt. L We do not mean to imply, how. ever, that everything not in plain view is within the protected vale, nor that all information obtained through every extra Optical extension is forbidden. Indeed, for our industrial competition to remain healthy there must he breathing room for observing a competing industrialisL A competitor can and must shop his compe- tition for pricing arid examine his prod- ucts for quality, components, and meth- oda of manufacture. Perhaps ordinary fences and roofs must be built to shut out incursive eyes, but we need not require the discoverer of a trade secret to guard r&guinst the unsnticipii ted, the undetect.a- bk’, or the unprevent4ible methods of es- pionogv now cvailulik 6. Frequency of Overflights 17. ThIs Ii rue of factors 3 through 6. IS. This ii true of at least (actors I and 2. and perhaps all of theDi. See Discussica. Section lV(D) infra. ------- require DuPont to put a roof over the .inished plant to guard its secret would impose an enormous expense to prevent nothing more than a school boy’s trick. We introduce here no new or radical ethic since our ethos has never given moral sanction to piracy. The market place must not deviate far from our mores. We should not require a person or corpo- ration to take onxeasonable pecautions to prevent anot u tiara doing that which he ought not to do in the flint place. Reasonable precautions against predatory eyes we may require, bat an impenetrable fortress is an unreasonable requirement, and we are not disposed to burden indus- trial in entors with such a duty in order to protect the fruits of their efforts. Id. at 1016—1017 (emphasis added). This statement of policy reasons in support of a state tort law decision nonetheless pr vides guidance to the Court here. As in duPont., the present case also involves claims of trade secret appropriation. The rationale of duPont supports this Court’s belief that commercial privacy may be . ‘ct.ed and exhibited, and may be deemed isonable and legitimate by society. Just 4uPont need not be required to take easonable precautions” to prevent aeri- photography of its plant as a prerequisite to a tort action, likewise Dow should not be so required in order to claim the protection of the Fourth Amendment. Society ha spoken in this area through Congress, the State Legislatures, and the courts. Federal Law, under the Trade Se- mets Act, 18 USC. § 1 05, makes it a esisne for government employees to disclose trade secret information. The Clean Air teL itself, in Section 114(c), 42 U.S.C. § 7414(c), addresses this concern for propri- ety information. Moreover, EPA has adopted regulations providing for protec- tion of trade secrets. 40 CFR 2.201-2.309. Michigan law, in addition to recognizing a tort action, also makes it a crime to appro- priate trade secrets, M.C.L.A. § 752.772, as well as to invade one’s privacy by means of surveillance. M.C.L.A. § 750.539a-.539h. These legislative and judicial pronounce- 39. aupra note 2. 1367 ments are reflective of a societal acceptance of Dow’s privacy expectation as reasonable. There is some dispute in this case as to whether use of sophisticated sei al photog- raphy equipment constitutes visially en- hanced surveillance.” Dow suggests that “a sophisticated aerial camera, in the hands of a government agent, is even more consti- tutionally repugnant than a telescope be- caiae it enables the searcher to permanent- ly capture the image for later detailed study at leisure.” (Dow Brief at 42). EPA, on the other hand, posits that this equip- snent captures nothing more than that which is already visible to the naked eye. (EPA Brief at 17—18; Transcript of oral argument at - .32). Having examined the photographs, the Court is unable to agree with EPA’s posi- tion that Uthe camera can’t see what the eye can’t see.” id. On the contrary, when flying at 1,200 or 5,000 feet, the eye can discern only the basic sizes, shapes, outlines, and colors of the objects below. In this case, the finest precision aerial camera available was used to take the EPA photo- graphs. The camera successfully captured vivid images of Dow’s plant which EPA could later analyze under enlarged and magnified conditions. In doing so, the cam- era saw a great deal more than the human eye could ever see. The Court therefore would agree with Dow that the use of a sophisticated aerial camera is, at a mini- mum, on a par with other methods of visu- ally enhanced surveillance in terms of its intrusiveness. In United States v. Taborda, 635 F.2d 131 (CA 2, 1980), the Second Circuit was faced with the issue of whether observation by means of a high-powered telescope consti- tuted the type of intrusion against which the Fourth Amendment protects. Consist- ent with Katz, the Court concluded: observation of objects and activities inside a person’s home by unenhanced vision from a location where the observer may properly be does not impair a legiti- mate expectation of privacy. However. any enhanced viewing of the interior of a DOW CHEMICAL CO. v. U. S., BY AND THROUGH GORSUCH C li. sas F.SUpp. i3 ( 1553) ------- 536 FEDERAL SUPpLE 1ENT 1368 borne doe, impair a legitimate expecLo t.ion of privacy and encounte,., the Fourth Amendmen ’ warraifl requireme un- less circumstan creat ,e a traditional ex- ception to that requiremefl Id. at 139 (emphasis added). See also United States v. Kim, 415 FSupp. 12.52, 1254—1256 (D.Hawaii, 1976). Since the present, ease involved an intrusion into the interior of Dow’s plant, as the Court has Previously defined that term, the enhanced viewing in this ease similarly encounters the Fourth Amendment’s warrant require. meat. (8) Turning the question of ‘reasonable.. ness” around for a mome,,t.....; looking at the reasonableness of the governrne t,’ 5 ac- tions—it is likely that society would view mant’ forms of visually enhanced survej l- lance by the governrne as unreasonabI This is particuiariy so when it is used in a r.oncnmjna l contexL See United States Bailey, 628 F.2d 938, 944 (CA 6, 1981). In this age of ever-advancing and potentially ur.limj technology the governrn should be made aware that it does not carte blanche authority to utilize .sphistjca surveillance methods to watch over Citizens or businesses not sus- pected of any criminal activity. As thi governme t,’ 5 arsenal of teehnoiog’icallyad. var.eed surveillance equipment expands, so too the protections of the Fourth Amend. ment should broaden in response. UnhlLy! Ste Les v. Holmes, 521 F.2d 859, 866 (CA 5, 1975), United States v. Kim, 415 F.Supp. at 1287. The Court is reminded of the powerfully eicquent dissent of Justice Douglas in Un, i- ed States V. V 7i,te, 401 U.s 745, 756, 760— 761, 91 S.Ct. ii , 1128, 1130—1131, 28 LEd.2 453 (1971): Electronic surveillance is the greatest le- veler of human privacy ever known How most forms of it can be held ‘reason- able’ within the meaning of the Fourth Amendment is a mystery. To be surv, the Constitution and Bill of Rights are not to be read as cowering only the tech. nolog-v known in the 18th century. 0th. erwise its concept of ‘commerce’ would be hopeless when it comes to the manage. men’s of modern affairs, At the same time the concepts of privacy which the Founfiers enshrined in the Fourth Amendment vanish completej - when ‘ e slavishly allow an all.powerful gnvern. ment. proclaiming law and order, effi- ciency, and other benign purposes, to pen. etrate all the walls and doors Which men need to shield them from the pre_ssu of a turbulent life around them and give them the heaith and strength to carry on. Electronic aids add a wholly ne- dimension to ea .esdropping They make it more penetrating, more indiscriminate, more truly obno cious to a free society. Electronic Sui eillaz ce, in fact, makes the police omniscient; and police omniscience is one of the most effective tools of tyr- anny. Tbest same concerns are not entirely absent from this case. Vhile the EPA did not engage in any form of “Scar Wars” surveil. lance, and only used equipment which was commercially a ailable, if this arranU invcstigato . method is countenan in this case, where will courts draw the line? In this regard the Court finds merit in the language of Dean v. Superior Ct, 35 Cal. App.3d 112. 110 Cal.Rptr. 585, 588—539 (1973) Expectatio 5 of privacy are not earth- bound. The Fourth Amendment guards the privacy of human activity from aerial no less than terrestrial invasion. At a recent but relati ely primitive time, an X—2 plane could Spy on ground activities from a height of 50,000 feet.. Today’s sophisticated technology permits over flights by vehicles orbiting at an altitude of several hundred miles. Tomorrow’s sophistica technology will supply optic and photographic devices for minute ob. servations from extended heights. Judi- cial implementations of the Fourth Amendment need constant accomrnoda_ tion to the ever.intensif .ing technology of surveillance. In analyzing claims of immunity from aerial survei;lance b agL ’nts of governmefl the observer’s alti- tude is a minor factor. Horizontal exten- sions of the occupant’s terrestrial actn icy ------- DOW CHEMICAL CO. v. U. S., BY AND THROUGH GORSI.CH 1369 O1.531F.Supp. 1333(1332) .-, ‘-. form a more realistic and reliable meas- whcn the photographs would be taken by _____ ure of privacy than the vertical dimension Abrams, and no knowledge of whether of altitude ... Reasonable expectations there would be any emissions at the mo- of privacy may ascend into the airspace ment they ‘ 3 ’ere taken. and claim Fourth Amendment protection. A secc)nd reason militating against EPA’s ____ The conclusion of this brief turn-around position is that it is difficult to justify a of the “reasonableness” question is that a need for the agency to conduct warranties, _____ soaety which views certain forms of visual, aerial searches. It appears to the Court ly enhanced governmental surveillance as that at a minimum, an ax parte warrant _______ ioreasonable, would likely accept as reason- procedure would best strike the balance be. _______ ab1e Dow’s expectation to be free from this tween Dow’s expectation of privacy and form of intrusion. . . EPA’s asserted need to conduct surprise - A final argoment raised by EPA, which, inspections of this sort See generally at first blush, is not without a good deal of Note, Rationalizing Ad,ninisLrative merit, is that the public interest in effective Searches, 77 Mich.L.Rev 1293., 1329 n. 184 pollution control outweighs any privacy ex- (1979) As well stated y one commentator, pectatiort which Dow may have. United “since the normal inspection procedure for States v. Martinez-Tuerte , 428 u.s. s EPA requires some advance preparation 555. 96 S.Ct. 3074. 49 LE .2d 1116 and advance decisions concerning hich fa- (1916). In this regard EPA emphasizes the cilities to inspect, the additional step of uti of wamntless aerial ove ights and ob ning a search war nt does not seem photography as a tool to monitor compli- to be a tremendous burden in light of the EPA and Adminis tive Inspections, 7 n. ance with the federal pollution laws. constitutional rights involved.” Martin, All of us certainly recognize the need for SLL.Rev. 123, 130 (1979); see also EPA aggressive and effective pollution control. Memorandum on Inspection Prccedures, 41 1 a EPA to possess all the tools necessary Envir.Rep. (BNA) 2451. 2352 (April 11, In this regard we, as citizens, certainly ile- 1979) to carry out its legislative mandate to effec- tuate and enforce the federal pollution In terms of policy considerations, the laws. For 2 reasons, however. EPA’s “pub . public interest in governmental compliance I, lie interest—pollution control” argoment with constitutisnal and statutory provzsions 1’ does not outweigh Dow’s expectation of pri- is also involved in this case. United States vacy under the facts of this es . , v. Mar tinez-Fuerte, supra. This considers- First, the Court finds very little pollution tion would appear to lend support to Dow’s It control utility in the investigatory method assertion that its privacy expectation is one used by EPA in this case. EPA asserts that which society is prepared to accept as rea- it bad 2 purposes for the overflight: to get photographs of the “general layout of the For all these reasons, the Court finds that plant in relation to the power houses,” and Dow has exhibited an actual e. pectation of I to confirm “excess emissions from the pow. privacy, and that that expectation is one er houses,” (EPA Brief at 21). The facts the society is prepared to recognize as - 1 are uncontroverted, however, that Dow had sonable. Therefore, under a KaLz analysis, 1 ’’ ’ - earlier given schematic drawings of the the Court again concludes that EPA’s aerial power houses to EPA voluntarily. EPA photography of Dow’s plant constituted an could have made further requests for simi- unreasonable search in violation of the lar drawings, maps, or even photographs, of Fourth Amendment. the general layout from Dow. Further- ‘. - I : more, it is difficult to place credence in D. “Open Fields?” EPA’s assertion that a goal of the aerial In Hester v. United States, 265 U.s. 57, photography was to confirm excess emis- 59, 44 S.Ct. 445, 446. 68 LEd. 898(1923) the r sions. EPA had little or no control over Supreme Court held that “the special pro- 20. .See a. 27 Ln*a • . ‘• - ,,.: - — , . -t . “I c:-: . — ------- 536 FEDERAL SUPPLEMENT 1370 teCT.iOn aecorded by the Fourth Amendment is not extended to the open fields.” In other words, a visual observation of some- thing is plain view—i.e. observable by members of the public—does not constitute a search within the meaning of the Fourth Aecdment 2 ’ This ruling wa.s fo’lowed in Air Pollution Variance Bd. v. Western Al- faiJ’a Corp., 416 u.s. 861, 94 S.Ct. 2114, 40 LEd.2d 607 (1974), which involved a consti- t t3oral challenge to a health inspector’s wamntless observation of “plumes of maoke being emitted from ... chimneys” on the premises of a corporation. Id. at 863. 94 S.Ct. at 2115. The Court held that, ‘the field inspector did not enter the plant of offi ... He had cited what anyone in the city who was near the plant could see in the s cy—plurnes of smoke .. . (thereforv] he was well within the ‘open fields’ excop- ton ... approved in Hester.” ItL at 864- 865. 94 S.Ct. at 2115—2116. EPA asserts that the “open fields” excep- tion applies in this case and therefore vail. dates its actions. In addition to the forego- ing a hority, EPA cites 2 recent fedtr ,il cases. United States v. Allen, 633 F.2d 1288 (CA 9. 19S0) , can. denied, — U.S — . 102 S Ct. 133, 70 LEd.2d 112 (1931), anil Ueited States v. DeBacker, 493 FSupp. 1078 (WD Mich., 1980). and 9 state cases in r port of its position. This Court finds the cases cited either distinguishable or nondLtpositive, and concludes that the “open fieldf exception does not apply in this caac. In Uci’ ed States v. Oliver, 657 F.2d 85 (CA 6, 1981), the Sixth Circuit relying upon the rationale of Katz, held that “the ‘open fle!ds exception to the warrant require- ment can no longer be automati ally in- voted so validate a warrantless search anti 21, ‘T plain view” doctrine of Coolidge v. •\ew Hampshire. 403 U.S. 433. 464-465. 93 £.Ci. 20fl, 2037—2039.29 LEd.2d 564 (3971) is n involved In this case Thai doctrine is not a je i5caeen to search, but a reason to extend an eewue valid search See Wilson v HeL and Hospital Corporation of Manon Ca); 0 F.2d 1201, 1209 (CA 7, 3980). fl - Prcçle V. St. Amour, 304 Cal App 3d 886. 1 Ca.LRpir. 387 (1980). People V. Lasl,meu, 71 jipp.3d 429. 27 IU Dec. 657. 369 N.E.2d 888 (1979), Burkholder v. Superior Court. 96 seiaure . . . — Id. at 87—88. The Court cx- plained that “Katz shifted the emphasis of the test (for determining the legality of a warrantless search) from an inquiry into commonlaw property distinctions to an in- quiry itt which the ... reasonable expecta- tions of privacy became-the focal poinL” Id. It then concluded that: Oliver’s expectation of privacy was objectively reasonable. Society’s interest in law enforcement is not unduly ham- percd by requiring a warrant prior to searching a private field which has been rvached through a private road exhibiting several “No Trespassing” sigas and blocked by a locked gate, unless there is an imminent threat of destruction of the evidence or there e’cist.s a high probability that the evidence will cause serious bodily harm. We are presented with no such emergency situation here. Id. at 87. (emphasis added). See also Unit- ed States v. Mullinex, 503 F.Supp. 512, 514 (ED K 1 ., 1980). The Court ha already found that Dow’s c).pcctation of privacy was objectively rea- sonable. In accordance with Olirer, there- fore, society’s interest in the enforcement of pollution laws is not unduly hampered by requiring a warrant prior to EPA’s aerial search of a private manufacturing plant which is reasonably secured, especially after EPA is specifically refused entry. Other factors take this ease out of the “open fields” exception as well. As previ- ously stated, the exception has the effect of making a plain view observation a non- search. Such a result. however. would be anomalous in this case. EPA has already admitted that it was engaged in a “search” and a “quest for eviclence.” Therefore, Csl.App.3d 421. 158 Cal Rptr 86 (1979): State v Brighter, 569 P.2d 527 (Haw.1979). State v Stachier, 570 P.2d 1323 (Kaw.1977). Piunkert v. City of Lakewood. 2 Civ. 49610 (unreported decision tiled Nov. IS. 1977. CaLCLApp.2d Dist.), cers. denied 436 U.S. 945. 98 S.Ct. 2S48. 56 LEd.2d 787 (1973): People V. Superior Court. 37 CaLApp 3d 836. 112 CaJ.Rptr. 764 (1974). Dean v Superior Ct. 35 Ca l.App3d 112, 110 Cal.Rptr. 585 (1973) 23. See note 4 and text accompan),ng. supra. ------- the question before this Court is really urn. lied to whether that admitted search was &inreasonable under the Fourth Amend. meat, The Court ha, already described why it finds that the EPA serial photographs snore dosely approximate a view of the intar*r of the plant than the eiterior ““. This di ,w ’ a .n is relevant to the “open field? Inquiry. See Wilson v. Health & HcopiraJ Ceeporation of Marion City, 620 T.2d 1201, 1210 (CA ‘T, 1980). EPA was able to observe a great. deal more than “what anyone is the city who was near the plant could see,” Air Pollution Variance Bd.. supra. in it detailed aerial photo- graphs. Granted, other aircraft fly in the vicinity of the Dow plant on occaalon. The persons in those aircraft are likely able to observe Dow’s plant below. But it is un- likely that those persons are able to see minute, internal details of the plant, with- out the type of equipment used by EPA. One commentator, writing specifically bout this case, made the following otx.cr- ation: The eeenUy filed Dow Chemical case .against EPA seems to involve a fact situ- ation where the open fields exception may have some applicability. However. aerial surveillance would seem to push the exception too far. Although El. du- Pont de Nentow, and Co. Inc. v. Christ o- pher, 431 F.2d 1012 (5th Cir., 1970), ct.’rt. denied 400 U.S. 1024 (91 S.Ct. 581, 27 I_E&2d 627,] rehearing denied, 401 U.S 967 [ 91 S.Ct. 968, 28 L.Ed.2d 250] (1971), involved industrial espionage carried out by means of serial surveillance, what the court said there would seem to apply at • least in spirit to the Dow Chemical case: 34. Sce note 3 and text accompanying. ipra 33. Neither do the state cues. supra note 22. All of the case. involved aenal observation of contraband. The Sixth Circuit has stated that, •‘for Fourth Amendment purpose,, there Is a clear distinction between contraband and other property.” United Stairs v. Bailey. 628 F.2d 938, 944 (CA 6. 1980). but see United States v. Tabo, a, 625 F.2d 131, 138—139 n. 10 (CA 2. 1980). The Court has no quarrel with the hold. big of these cases that, as a general proposition of law. “a subjective desire to hide contraband 1371 (We] realize that industrial espionage of the sort here perpetrated has become a popular sport th some segments of our industrial community. However, our devotion to free wheeling industrial competition must not force us into ac- cepting the law of the jungle as the standard of morality expected in our commercial relations .431 P.2d at 1016. The important question that has to be faced is what is constitu- tionally offensive scrutiny. It would be fallacious to extend the open fields excep- tion to the fact.s in Dow because if it were, advanced technology has given us microphones and cameras that can make an enclosed room an “open field.” Spa- tially based criteria of eligibility for fourth amendment protection gnore the pertinent question as to what it is we wish to see preserved from the offensive scrutiny. Martin, EPA and Administrative Inspec- tions, 7 FIaSLLRev. 1ZI, 134 n. 50 (1919). This viewpoint is in accord with the holding of United States v. Oliver, supra, and this Court’s factual findings under Katz. See also United SL.iites v. Taborda, 635 F.2d 131. 139 (CA 2, 1980). The federal cases cited by EPA do not coritrul this case.a While both involved aerial surveillance, both are legally and fac- tually distinguishable. In United States i Allen, 633 F.2d 1282, 1290 (CA 9, 1980), cert. denied, — U.S. — , 102 S.CL. 133, 70 LEd.2d 112 (1981), the Court found that “the defendants did not have a reasonable expectation (of privacy)” due to the follow- ing factors: The Allen Ranch is virtually on the United States aea.coast border .. and from aerial surveillance Is not suffloent to es- tablish the rrqwslte reasonable expectation of privacy.” Peopie v St Amour. 162 CaLRptr. at 191. N applied to the fscU of this not criminal case, however, that proposition cannot withstand conaututional scrutiny. Rather, tius case fits within the holding that. “in order to be constitutionally protected from overfbglit.s. the person must show that the land in quesuon is expected to be private according to he corn. mon habits of persons engaged in jbuziness)” Id. Clearly, Dow has made such a showing. DOW CHEMICAL CO. v. U. S.. BY AND THROUGH GORSUCH .as534F.5epp 1335 (lWZ) ,.1 :“: 1 . t: I,. , S Hr lI Ii I t i ; Ii ; Ii ti , ‘1 .fi I, I- - , - F ____ ___ ___ ___ ____ ‘ I t -pi :1 ------- 536 FEDERAL SUPPLEMENT duct was Ut — P11 [ 9) Do Amendment sUrreptitious Dow’s Midland photographs tal its contractor co ty (i.e. trade sec information) wit, (Dow Response factual and juristh moved for sumrc claim. In its Reply Brief “not disagree with disputed issues of ‘eg’artl to the questk fact has any tr ide sec such trade secrets ar aerial photographs obt (EPA Reply Bncf at 1 thc Court hereby DE for 5umm Lrv judgmentt Civ.P. 56(c) CLEAN AIR (10) Do ha raised 2 ry iwh.issue in this case EPA is authorized under Sc Clean Air Act., 42 U.s.c. aerial photography as an un and seco ul, whether EPA’s sire remedy when refused er injunctive relief under Sectic Clean Air Act, 42 U.S.C § position is that Section 114 imp rizes it to use aerial photogr. p. •1’ . 11. 3) Photographs taken by the I aenal reconnaissance are avail public and hence. will lead to and loss of Dow uade secrets. The Court rejects EPA’s claim ilt subject matter junsdiction to issue a tory and injunctive relief sought by I Court Is vested with such junsdicuon U S.C. 1331. 5 U.S C. 702. and §* 2201—2202 See eg PubI,c Ser.’, Ind iana v. U.S.EP.A.. 509 F.Supp. 720. md.. 1981) 1 ‘) LU — Court’s earlier conclusion c ”•” 6 s Te ”Y Coast Guard helicopters routinely ti’s- v r e the nearby air space for several I .soris, including law enforcement. The resident. of the Allen Ranch would, no doc bt, ha’e been aware of these routine fl gbu and any reasonable person, cogni. zant of the ranch’s .proximity to the sthne and the Coast Guard’s well. known function of sea -coast patrol and sc..—:eillance, could expect that govern- mcrt officers conducting such flights wouid be aided by sophisticated electronic eqi.!prnent. As such, the residents could ot raasonably bear a subjective expecte. (iou of privacy from the Coast Guartf’s aJ.’ rae telephoto raphk scrutiny, par- ti i v where, as here, the objects oh- serred were large scale modifications of the Alien Ranch landscape and barn. I d. (emphasis added). Further discussion of ..4J en is unnecessary. Likewise, United States v. DeBacker, 493 F Supp. 1078 (WD Mich.. I9SO) is also distinguishable. There the Cix rt found that, “defendant’s relative- ly i:or expectations of privacy do not o e gb the value to society in permitting such non•inIJ -usive surveillance.” Id. at 1 L Unlike this case, the aerial observa- in VeBacker was unenhaneed by visual aic cb as a sophisticated camera. Also, the Court specifically noted that “airpl4ne fIjg. .j over local farm lands at low alti. wdes (XO feet) are not infrequent.. .“ liL The same cannot be said of flights over Dow’s chemical manufacturing facility. Aeror E. nited States v. Mulline 4 c, 508 F.Supp. 512, 514-515 (ED Ky., 1980). For these reasons, the Court finds that the open fields” exception neither takes this care out of the purview of the Fourth Amenü’.ent, nor in any way alters this 11” art Do’ $. As the Court reads the complaint regarding the rdth Asnendmern da.irn, the following ma- Serial facts, as alleged by Dow, are suil an 1) Dow kas procectable trade seen., In Its M4 a. d plant and consequently, Dow has eaerctsed the necessary reasonable degree of sececy for the protection of such trade ae- 2) Tb. photographs taken by the EPA in Its aerial surveiUacce of the Dow facility gave ti.. A possess:on of valuable trade secrets ciDaw. — V. 1 ’ - . ------- also contends that the agency is not re- quired to seek injunctive relief when entry is refused, and need only secure an ex parte warrant.. The Court finds that only the former question—as to EPA’s authority un- der Section ‘114—is ripe for decision in this case. 21 Therefore the Court will leave the latter issue or another day. L Use pfAeriatPhotography Section 114 of the Clean Air Act, 42 U.S.C. § 7414, governs the authority of EPA to enter and eonduct inspections of emissions sources. In relevant part. Section 114 provides: (a) For the purpose ... (ii) of determin- ing whether any person is in violation of any such standard or any requirement of such a plati, or (iii) carrying out any provision of this chapter (2) the Administrator or his authorizt.’d representative, upon presentation of his credentials—’ (A) shall have a right of entry to, uixni or through any premises of such person or in which any records required to be maintained under paragraph (1) or this section are located, and (B) may at reasonable times have ac- to and copy any records, inspect any monitoring equipment or method required under paragraph (1) and sam- ple any emissions which such person is required to sample under paragraph (1). This statute expressly authorizes EPA to enter a facility to determine whether the applicable Clean Air Act requirements are being complied with, to have to rec- ords and reports, to inspect any emissions 1373 U . -S -. ..: V. t ,t’&t - - I; -, ;i I I ; ’ 4c! - Ii “1: I — I. 37 1981) The Appeal in Si autkr Chemical is from a Diatnet Court deasion holding that the Clean Air Act authonzes EPA to use an ex pane warrant procedure when entry to inspect : ‘ is refused. 511 F.Supp 744. 749-750 (MD ,. I l’enn.. 1981) U. At the outset EPA maintains that its actions did not constitute an “entry - This Court . - agrees The real issue, however, is not wheth. ec the aerial surveillance constituted an entry. but whether Section 114 authorizes EPA to use ove fiighta as an investigalory tool -a -a’: “ - - ‘ ,L p DOW CHEMICAL CO. v. U. S.. BY AND THROUGH GORSUCH Ci. u 135 F.Supp. 1335 (1 113) monitoring equipment, and to sample eniis. sions. The question before the Court in this case is what implied authority is granted to EPA under the statute. EPA asscrt..f that where Congress has del- egated broad authority to an agency to implement a statute, such delegation carries with it the implicit authority for the agency to use all means and measures to effectuate the legislatively mandated end. American Trucking Assoc. v. United States, 344 U.S. 298, 308413, 73 S.Ct. 307, 313416, 97 LEd. 337 (1952). Dow responds that the legisla- tive scheme established in the Clean Air Act us expressly and narrowly tapered to consist primarily of self-reporting and consented-to in slL ’etiOflL As intimated previously, this Court be- lieves that EPA shoulil be granted broad authority to carry out its legislative man- date to enforce the federal pollution laws. Congress recognized this need hen it amended the Clean Air Act in 1970: The purpo .e of the legislation ... is to sl c(l up, expand, and intensify the war against air pollution in the United States with a view to assuring that the air we breathe throughout the Nation is whole- some once ap in. Thu Air Quality Act of 1967 (Public Law 90—148) and its prede- ces .or acts have been instrumental in starting us off in this direction. A re- view of achievements to date, however. - make abuncluntly clear that the strategies which we have pUrsued in the war against air pollution hive been inade- quate in several important respects, and the methods employed in implementing those strategies often have been slow and less effecuve than they might have been. 27. Undar the facts of this case, an “actual con- troveny” regarding the Section 113 issue has not been presented within the meaning of the Declaratory Judgment Act, 28 U.S.C. § 2201 See Lake Curlers Auoc. v. MacMullan, 406 U.S 498. 506, 92 S.Ct. 1749, 1755, 32 LEd.2d 257 (1972). Had EPA secured, or even at. tempted to secure, an ex per le waImnt prior to the flyover, the Issue would be jusuclable. The agency, however, did neither. Coincidently. this very Issue is about to be decided by the United States Cew ’t of Appeals toe the Sixth CIscult In United States v. Stautfer Chemacai Co.. no. 81—5311 (oral argument held December ------- H.R.Rep.No. 91—fl46, 91st Cong. 2d Seas. 116, repru,j in [ 1970] U.S.Code Cong. & Ad.New , 5356. Despite this reeognj , and statement of purpose Congre,, did not amend the statute to authorise EPA to use “all means and rneasu ” to monitor and enforce compliance with the Act. Nothing in the plain language of the stat. ate, or its sparse legislative history, sug. gesta that Cong intended that EPA be given authority to utilize aerial surveillance and PhOtography, In fact: 3 literal aspect,, of Section 114 reveal a legislative will that £PA investigatory powers be limiterl to examination of emission SOU1 t Section ll 4 (aX2XA) grant, to EPA, or it,, “autho representative... —a right of entry; —to, UPon, or through any prem ise ,; —Upon Presentation of credentials An analysis of each of these phrases coin. pets the conclusion that aerial surveillance a.nd Photography by EPA is not autho, ’i (f nnder the statute, even by reason !e impli. cation. A “right of entry” cannot be viewed as synonom , with a “right to search,” Ha&l Congress intended that EPA be allowed to use aerial searej techniques, it could have considered granting the agenry a broad “right to searel ,” or could have specifically enumera aerial surveillance as among the perrIth ,ible methoth of monitoring and IflspeetJo, , But a “right of entry,” in liter- al term,, is something quite different. The noun “entry” denotes the physica; act of admission or ingress into a given area. The fact that Congress used the phrase “right of entry,” suggests to this Court a common sense inter !etat or1, leading to the conclu- sion that EPA’s intended inspection author. Ity is land.ba , ,eej. The phrase “to, upon or through any premises,” further defines the nature of EPA’S statutory right of entry. In conjune. tion with the term “entry,” the adverb, “to, upon, or through” more logically reveal that 29. No Lssu has been ri sed in thu case II 10 wh th ’ Abruas was EPA’S “auchor zed repro. aentst,ye,” See 0.3 Bunker Hill v 658 F.2d 1280 (CA 9. 1981), Scauffer Chen,, j Co. v. LP,.t, 647 F.2d 1075 (CA 10, 1981); Congress had in mind an earthbc,und inspec. Lion scheme (or EPA, rather than one from above looking down. Finally, it would be Paradoxical for this Court to Find an implied right to use Sw -rep. titJ u . , Overflight,, in a statute erpr glv requiring the “presentation of .,, creden. tials” by the inspecting EPA official, The Court is not prepai-ed to ratify a procedure whereby &fl EPA official appear, at the gate of a facility, present, his credentials and then direct, the inspee party’s aLien. lion to the aircraft flying overheat Again, this clear legislative expression support, the conclusion that EPA exceeded its statuto ’ authority under Section 214 in carrying out the flyover and aerial photograph ) . of Dow’s piant. EPA relies on 2 recent cases, In Re Clean Air Ac e Inspection of Bun/ce, ’ Hill, 15 ERC 1063 (D Idaho, 1980) affirmed sub. norn, Bunker HI!! Co. v. U.SE p 658 F.2d 12S0 (CA 9, 1981) and Pub/ic Service Co. of md ,. ana Inc. v. US ’ E.P.A.. 509 F.Supp. 720 (SD 2nd., 1981), for the proposition that “EPA implicit authority to take photographs of a facility ... necessarily arises out of i s explicit authority in Section 114 of the Act.” (EPA Brief at 32—33). EP.4 ,’. posi. Lion, and the authorft 3 ’ on which it relies, are sound. Sc tjo 114 can and should be read as implicci ly authorizing the use of Photography of a facility which is the sub. jeet of an on.31te inspection Neither Sec- tion 124, nor the cases cited, however irn-’ pliedly autho,4 surreptitious aerial pho. tog i -aphy. Both the Bunker Hill and Publj &P *ip Company ca_ses involved the taking of pho- tcgrapl during on-site, land-based inspev. lions by EPA, I i i separate conclusions of law the Court in Bunker liii! held that: 10. The Environmental Protection Agency has authority under Section 114 of the Clean Air Act to take Photographs of the facilities and equipment it inspect,, United Stages v. Sti fj’ 0 p Co • 513 F.$upp. 744 (MD leiin, 1983), appeaj doCkO(ed flO. 83—533 I (CA 6, May 4. 198 I) , Pu b / ic Sea. P 1CC Co of Indja 3 v, U.S.L PA 509 F.S pp flO(SDJnt 1983) 1374 536 FEDER. SUPPLE 1ENT ------- F ------- .f 0 SP 4 ____ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON. DC 20460 2 DEC 1982 orr ,c or LEGAL AND ENFORCCM(Ny COUNSCI. MEMORANDUM SUBJECT: Media Inquiries Concerning Active Criminal Investigtions FROM: Robert M. Perry Associate Administrator and G neral Counsel TO: Associate Administrator Assistant Administrators Regional Administrators Staff Office Directors Recently, a significant number of press inquiries have been received concerning matters on EPA’S active criminal docket. The manner in which Agency officials respond to these inquiries can either establish——or undermine——the profession- alism of our program. I would, therefore, like to bring to your attention the following paragraphs contained in my October 29, 1982 memorandum entitled General Operating Procedures for the Criminal Enforcement Program. A breach in security (during the criminal case development process) can threaten the success of the investigation and the safety of the investigator . In addition, it can destroy EPA’S credibility with other law enforcement agencies. Finally, premature disclosure of a criminal investigation can unfairly prejudice the investigative target(s), since the public often perceives the fact of an investigation as tantamount to guilt. (See page 1, emphasis supplied.) * * * V.8.-i ------- —2— Active criminal investigations shall never be discussed with personnel outside of the Agency except as is necessary to pursue the investigation and to litigate the case. Accordingly, requests for information on active investigations from the news media should be politely but firmly denied. More- over, Agency officials should never confirm the existence of an ongoing field or grand jury investigation in response to outside inquiries. ( See page 21, emphasis supplied.) The importance of these procedures can not be over- stated. Moreover, they should not, and will not, vary simply because a press inquiry is made on an Noff_the_recordu, “backgroun&, or not—for—attribution M basis. When receiving inquiries concerning an active criminal investigation or referral that has not yet resulted in formal public charges, there is only one acceptable response: It is the policy of EPA neither to confirm nor deny the existence of a criminal investigation or referral. Please ensure that your respective staffs understand, and adhere to, this simple procedure. Questions can be directed to Peter Beeson, Associate Enforcement Counsel, Criminal Enforcement Division, at FTS 382—4543. Thank you for your cooperation. V. B. —2 ------- “ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY \, / WASHINGTON. D.C. 20460 DRAFT O6F(I OF ENFORC ML ’ AP . , COMP. At.. L MOI . O .t. . . MEMORANDUM SUBJECT: Press Relations on Matters Pertaining to EPA’s Criminal Enforcement Program FROM: Courtney M. Price Assistant Administrator Office of Enforcement and Compliance Monitoring Jean Statler, Director Office of Public Affairs TO: Regional Administrators Assistant Administrators Regional Counsels Director, NEIC All SAICs, Office of Criminal Investigations A significant amount of media attention is being received by the Agency’s developing criminal enforcement program. This memorandum, which is based to a significant extent on current Justice Department guidelines found at 28 C.F.R. 550.2, establishes Agency—wide policy for responses to press inquiries on active criminal cases. In developing this guidance, the Agency has been cognizant of its dual responsibility to provide accurate information to the public on Agency activities while at the same time respecting the rights of individuals and organizations facing criminal investigations and prosecutions. Accurate reporting of charges brought and convictions obtained in EPA cases is an important component of the deterrent effect that criminal cases are expected to have upon unlawful conduct in these areas. On the other hand, great care must be taken to ensure that the reputations of targets are not unfairly prejudiced and that the Constitutional right to a fair trial is respected. Further, investigative sources and techniques, as well as continuing or related investigative activities, must not be revealed or compromised. ------- —2— I. Inquiries Before The Lodging Of Formal Charges As a general rule, the existence of any criminal investi- gation being conducted within the Agency should not be acknowledged or commented upon. Agency personnel should neither confirm nor deny the existence of a criminal investi- gation. The reasons underlying this policy are obvious. To acknowledge even the existence of an investigation may harm the rights of an individual or prejudice a case. To facilitate uniform adherence to this policy, Agency personnel are encour- aged to direct all inquiries regarding criminal investigation activity to the appropriate Special—Agent—in—Charge of the Office of Criminal Investigations for response. In a rare situation (e.g., where a representative of another organization or agency has acknowleged the existence of and/or commented upon such an investigation, and has publicly stated that EPA is conducting an investigation), it may be necessary to make a very limited response in order to prevent further unwarranted damage to the investigation and/or the privacy or reputation of the individual(s) involved. However, such exceptions will be made only on a case by case basis, and should be approved in advance by the Assistant Administrator for Enforcement and Compliance Monitoring and the Director of the Office of Public Affairs, or their respective designates. II. Inquiries After Formal Charges are Filed After formal charges are lodged, EPA personnel will not issue a press release or comment on a case without prior coordination with and approval of the Public Information Office of the Department of Justice. See United States Attorney’s Manual, Title 1—5.570. Accordingly, press inquiries on the case will normally be forwarded to the Justice Department prosecutor (in Washington or in the local office of the United States Attorney) assigned to the case. This rule is of particular importance during the period immediately prior to trial, during trial, and prior to sentencing. Comments by the Justice Department will be consistent with guidelines found at 28 C.F.R. S50.2 (attached). ------- —3— III. Media Relations During Active Investigations EPA personnel will at no time encourage or assist the media in photographing or televising an accused person, any aspect of an active investigation, or any facility involved in an Agency investigation, The Agency will not make available photographs of an accused except to the prosecutor or to another law enforcement agency. Exceptions to this rule may be made in situations involving fugitive defendants, and following authorization by the Assistant Administrator for Enforcement and Compliance Monitoring and the Director of the Office of Public Affairs, or their respective designates. On occasion, EPA personnel will encounter members of the press during the pursuit of active investigative operations, as for example, during the execution of a criminal search warrant. Agency personnel should not obstruct or prevent representatives of the media from the conduct of their professional activities, so long as these activities are lawful and do not improperly interfere with the carrying Out of investigative functions by the Agency. Moreover, a brief statement may be provided by the appropriate Special—Agent—in—Charge, or the lead Special Agent, concerning the nature of the investigative activity, i.e., “The Agency is involved in the execution of a search warrant”. Beyond a simple statement confirming investigative activity witnessed by the media, no further comments should be made by any Agency personnel. In appropriate cases, reporters should be referred to the Justice Department or local United States Attorney for further comment. On occasion, the Agency’s criminal investigative activity will be focussed on environmental problems that are also the subject of Agency remedial activity. Nothing in this guidance should be construed to preclude necessary statements by appro- priate EPA personnel informing the public of potential environ- mental hazards, or of the remedial response anticipated or undertaken by the Agency to address a hazard. These statements should, however, be limited to avoid discussion of any related criminal inquiry. They also should be cleared with the appropriate Special—Agent—in—Charge and the Justice Department and/or the local United States Attorney to insure that information is released in a manner that does not adversely affect the criminal inquiry. ------- —4— Information which is authorized to be disclosed to the media should be provided equally to all members of the media, subject to any limitations imposed by law or court order. IV. Press Inquiries on the Criminal Enforcement Program Generally The Agency will continue to encourage good press relations and accurate press coverage of the Agency’s criminal enforcement program generally, as in all other aspects of the Agency’s activities. To ensure the accuracy of responses to these inquiries, and to protect against inadvertent prejudice to the rights of defendants in active cases, these inquiries will be directed to EPA’S Press Office (382—4355) or to the Assistant Administrator for Enforcement and Compliance Monitoring (382—4143) for response. Attachment ------- 1—5.5:•u P f .!5 In:efl a: 4 ,.rn Cuid ] nes in Civil Ca ec me GLi lires f r c:vil cases in 28 CF 50.2 follow: Pe ’r.,’ ] f thc Dtpa:?ment cf Justice associa d with a civil acriot s .all n t its investigation or litigation make or p3rticipare in making an cxtr: u i_i 1 st tement, other than a quotati ,n fr or reference to public reor , which a reasonable person would expect to be disse tnated by means of puhli. co mi nication If there is a reasonable likelihood that such disse:. r at ’ wfll interfere with a fair trial and which rela:es to: (1) Evi:r.c.c rcgarding the occurrence or transaction involved. (2) Tr-. character, credibility, or criminal records of a party, witness, or pro wctive witness. (3) T r erfcr an:e or results of any exar inations or tests or t ia refusal or f i1 r of a party to submit to such. (4) Ai ‘ 1r. on as to the merits of the clalcs or defr se oi a a:ty, e. .cept . % ‘ s .ItT. J b’ 1.iw or ad lnistrative ru!... (5, u r ,tter reasoriabl l!h ’ c i itrrfere i: a faS tri . ‘ . t • ! i — j ‘ I .‘ Pr s :e eese! . . c s with . iiia! d aiid r , nor l3ul( a ree]ent C ‘TUC’. 1i”t( t ( .r—!Ir r t i ...t tn i .! uC a p:ess ff — Lr c r et dr ree r• tiat .,:ts n’,t in ssu a !e se. nor to !-clrJe a y :. rt!c .ir f:er !nt or lar gud in a press rciease. 1— .57O Discussion of Press Relcases with Other Ag:ncies i:h th . exception of tL:t Internal evenue Service, no other agency snc.uld issue a press release or con e t on a case involving the Department f JucUct withe ’t specific per’1ssicr from the Public lnfor atiort Office. -i no : cases where another agency of government wishes to have a simul— tafl Ct! release, the PL:blic Infornation Office will make arrangements to povide theci a copy of the release being made by the Department of Justice in Washington. T . purpose of this practice is to avoid inadvertent prei i:i to ot;; r rarties In the case. .li. t J, C . , p. 3 ------- Chapter I—Department of Justice Act, but such material shall, upon rea- sonable notice to the Custodian, be made available for examination b the person ho produced such material or his duly authorized representative during regular office hours established for the Department of Justice. Exami- nation of such material at other times may be authorized by the Assistant Attorney General or the Custodian. 119.1 Deputy Custodians. Deputy Custodians may perform such of the dutirs assigned to the Cus- todian as ma be authorized or re- Quired by the Assistant Attorney Gen- eral. PART 50—STATEMENTS OF POLICY See. 50.2 Release of information by personnel of the Department of Justice relating to criminal and civil proceedings. 50.3 Guidelines for the enforcement of Title VI, Cit II Rights Act of 1964 50.5 Notification of Consular Officers upon the arrest of foreign nationals. 50 6 AntItrust Division business revle pro- cedure. 50.7 Consent judgments in actions to enjoin discharges of pollutants 50 8 Policy with regard to criteria for dis- cretionary access to Investigator) rec- ords of htstoriciil interest 50.9 Policy ith regard to open Judicial proceedings 50 10 Polic> with regard to the issuance of iubpoena.s to members of the netta media, subpoenas for telephone toll rec- ords of members of the news media, and the interrogation. Indictment, or arrest of. members of the news media. 50.12 Exchange of FSI identification records. 50.13 Procedures for receipt and considera- tion of written comments submitted under subsection 2(b) of the Antitrust Procedures and Penalties Act. 50.14 Guidelines on employee selection procedures. 50.15 Representation of Federal officlais and employees b) Department of Justice attorneys or by private counsel fur. fished by the Department in civil and Congressional proceedings, and in state criminal proceedings in which Federal employees are sued or subpoenaed In their Inditidual capacities. 50.16 Representation of Federal employees by private counsel at Federal expense. 50 17 Lx parte communications in informal rulemaking proceedings. Sec 50 18 Criminal ditision rc ie under the Foreign Corrupt Practices AcL of 1977 50.19 Procedures to be fol)o . cc i b guvern. ment attorneys prior to fil.ng recusal or disqualification motions. § 50.2 Release of information b , perbon. ad of the Depurtment of iu tice relat- ing to criminal and civil proceedrng . (a) General. (1) The availability to news media of Information in criminal and civil cases is a matter which has become Increasingly a subject of con- cern In the administration of Justice. The purpose of this statement Is to formulate specific guidelines for the release of such information by person- nel of the Department of Just Ice. (2) While the release of information for the purpose of influencing a trial Is. of course, always improper, there are valid reasons for making available to the public information about the administration of the law. The task of striking a fair balance between the protection of individuals accused of crime or Involved in civil proceedings with the Go ernment and public un- derstandings of the problems of con- trolling crime and administering gov- ernment depends largely on the exer- cise of Sound judgment by those re- sponsible for administering the law and by representatives of the press and Other media. (3 Inasmuch as the Department of Justice has generally fulfilled its re- sponsibilities with awareness and un- derstanding of the competing needs In this area, this statement, to a consid- erable extent, reflects and formalizes the standards to which representatives of the Department have adhered In the past. Nonetheless, It will be help- ful In ensuring uniformity of practice to set forth the following guidelines for all personnel of the Department of Justice. (4) Because of the difficulty arid Im- portance of the questions they raise, It Is felt that some portions of the mat- ters covered by this statement, such as the authorization to make available Federal conviction records and a de scriptlon of Items seized at the time of arrest, should be the subject of con- tinuing review and consideration by the Department on the basis of experl. §50.2 . I, - ‘ i v4 I I ‘I I— ’• ip 1 41: . (i , t i ; ‘ I. l . . -. ;.;; 4 . iI J,it- It di e ‘i! I i” . PS- .,- ; a-; . -. I, 1 ! ‘ —‘ -rg ;:‘ : W’fr. I Lu, - frê S.t 5i. .‘ -, 421 - 1 •_,il’ ‘p.. - ‘: -- 1 ’;; - ‘- : , , ------- - —. •, ‘.- :_,, .•— . -.---- _ - =.__..I_ k.__ . ‘7. . __ - -- -- — - - §50.2 ence and suggestions from those within and outside the Department. (b) Guidelincs lo criminal actions. (1) These guidelines shall apply to the release of information to news media from the time a person is the subject of a criminal in estigation until any proceeding resulting from such an in. vestlgation has been terminated by 1a.l or otherwise. (2) At no time shall personnel of the Department of Justice furnish any gatement or information for the pur- pose of influencing the outcome of a defendant’s trial, nor shall personnel of the Department furnish any state- ment or information, which could rea- sonably be expected to be disseminat- ed by means of public communication. If such a statement or information may reasonably be expected to Influ- ence the outcome of a pending or future trial. (3) Personnel of the Department of Justice, subject to specific limitations Imposed by law or court rule or order. may make public the following infor- mation: (1) The defendant’s name, age, resi- dence, employment, marital status. and similar background information. ( Ii) The substance or text of the charge, such as a complaint, indict- merit, or information. (iii) The Identity of the investigating and/or arresting agency and the length or scope of an investigation. (i v) The circumstances Immediately surrounding an arrest, Including the time and place of arrest, resistance. pursuit, possession and use of weap. ons. and a description of physical Items seized at the time of arrest, Disclosures should include only Incon- trovertible, factual matters, and should not include subjective observa- tions. In addition, where background Information or information relating to the circumstances of an arrest or In- vestigation would be highly prejudicial or where the release thereof would serve no law enforcement function. such Information should not be made public. (4) Personnel of the Department shall not disseminate any information concerning a defendant’s prior crimi nal record. Title 28—Judicial Administration (5) Because of the particular danger of prejudice resulting from statements In the period approaching and during trial, they ought strenuously to be avoided during that period Any such statement or release shall be made only on the infrequert occasion when circumstances absolutely demand a disclosure of Information and shall in- clude only Information which is clear- ly not prejudicial. (6) The release of certain types of In- formation generally tends to create dangers of prejudice without serving a significant law enforcement function. Therefore, personnel of the Depart- ment should refrain from making available the following: (I) Observations about a defendant’s character. (ii) Statements. admissions, confes- sions, or alibis attributable to a de- fendant, or the refusal or failure of the accused to make a statement. (III) Reference to iritestigative proce- dures such as fingerprints, polygraph examinations, ballistic tests, or labora- tory tests, or to the refusal by the de- fendant to submit to such tests or ex- arninations. (iv) Statements concerning the Iden- tity, testimon . or credibility of pro- spective witnesses. Cv) SLatements concerning evidence or argument In the case, whether or not it. is anticipated that such evidence or argument will be used at trial. Cvi) Any opinion as to the accused’s guilt, or the possibility of a plea of guilty to the offense charged, or the possibility of a plea to a lesser offense. (7) Personnel of the Department of Justice should take no action to en- courage or assist news media in photo- graphing or televising a defendant or accused person being held or trans- ported in Federal custody. Depart- mental representatives should not make available photographs of a de- fendant unless a law enforcement function is served thereby. C8) This statement of policy Is not intended to restrict the release of in- formation concerning a defendant who is a fugitive from justice. (9) Since the purpose of this state- ment Is to set forth generally applica- ble guidelines, there will, of course, be situations in which it will limit the re- 422 4.— ------- • . . . , — . — --- . . .. — - _. . -.. ._. . — — IF Chapter I—Department of Justice § 50.3 1 .I lease of information which would not Title VI rests with the head of each be prejudicial under the particular cir- department and agency administermg cumstances. If a representative of the programs of Federal financial assist. Department believes that in the inter ance. Title VI itself and relevant Presi. a. est of the fair admiriistra:ion of justice dential directives preserve In each and the law enforcement process In- agency the authority and the duty to formation beyond these guidelines select, from among the available sanc- should be released, In a particular tions, the methods best designed to case, he shall request the permission secure compliance in individual cases. of the Attorney General or the The decision to terminate or refuse as. ‘ Deputy Attorney General to do so. slstance is to be made by the agency I (C) Guidchnes to civil actions. Per- head or his designated representative. 1 sorinel of the Department of Justice Cc) This statement is intended to :: associated with a civil action shall not provide procedural guidance to the re- . during its investigation or litigation sponsible department and agency offl ‘I make or participate In making an cx- daIs In exercising their statutory dis- ,,! t trajudicial statement, other than a cretion and in selecting, for each non ‘ F quotation from or reference to public compliance situation, a course of records, which a reasonable person action that fully conforms to the would expect to be disseminated by letter and spirit of section 602 of the means of public communication Act and to the implementing regula- there is a reasonable likelihood that Lions promulgated thereunder. I it t such dissemination will Interfere with u A fair trial and which relates to: I. ALTERNATIVE Coussas or AcTIoN (1) Evidence regarding the occur- I rence or transaction involved. A ULTIMATE SANCTIONS (2) The character, credibility, or The ultimate sanctions under Title VI are criminal records of a party, witness, or the refusal to grant an application for as- I ’ prospective witness. sistanee and thc’ termination of assistance (3) The performance or results of beinc rendered Before these sanctions may. any examinations or tests or the refus be invoked, the Act requires completion of ‘ the procedures called for by section 602. ? al or failure of a party to submit to That section require the department or (4) An opinion as to the merits of compliance cannot be secured by voluntary such. agenc> concerned (1) to determine that the claims or defenses of a party, means. (2) to consider alternative courses of trative rule. objectncs of the 5tatutes authorizing the except as required by lau or adminis- action Consistent with achievement of the (5) Any other matter reasonably particular financial assistance. (3) to afford likely to interfere with a fair trial of the applicant an opportunity for a hearing. the action, and (4) to complete the other procedural steps outlines in section 602. including noti. (28 U.S.C. 509 fication to the appropriate committees of (Order No. 469-71. 36 21028. Not. 3 the Congress. 1971. as amended by Order No. 602-75. 40 In some instances, as outlined below, it Is FR 22119, May 20, ia s legally permissible temporarily to defer action on an application for assistance. 850.3 Guidelines for the enforcement of pending Initiation and completion of section Title VI, Civil Rights Act of 1961. 602 procedures—including attempts to secure voluntary compliance with Title VI. (a) Where the heads of agencies Normally, this course of action is appropri- having responsibilities under Title VI ate only with respect to applications for of the Civil Rights Act of 1964 con- noncontinuing assistance or Initial applies. elude there is noncompliance with reg. tions for programs of continuing assistance. 1 ulations issued under that title, sever. It is not available where Federal financial 1 a) alternative courses of action are assistance is due and payable pursuant to a open. In each casc, the objective pret lously approved application. ii ‘ Whenever action upon an application is should be to secure prompt and full defe d pending the outcome of a hearing a. IL ,;. compliance so that needed Federal as- and subsequent section 602 procedures, the I ‘j.- sistance may commence or continue, efforts to secure voluntary compliance and ‘ (b) Primary responsibility for the hearing and such subsequent proce. prompt and vigorous enforcement of dures. If found necessary, should be con- 423 I I.i .’•, O— I— ’ _______ ______________ 4b . ____ ‘1 ‘ ‘ ‘: ‘ - .- • _____ Sc .—--‘ .. ‘---I- _____ ------- UNITED STATES ENVIRONMENTAL PROTECTION AGENCY \, / WASHINGTON. D.C. 20460 DRAFT OFFICE or ENcOac ML 4’ A COMP ,. k MOE. 0”J.u MEMORANDUM SUBJECT: Press Relations on Matters Pertaining to EPA’S Criminal Enforcement Program FROM: Courtney M. Price Assistant Administrator Office of Enforcement and Compliance Monitoring Jean Statler, Director Office of Public Affairs TO: Regional Administrators Assistant Administrators Regional Counsels Director, NEIC All SAICs, Office of Criminal Investigations A significant amount of media attention is being received by the Agency’s developing criminal enforcement program. This memorandum, which is based to a significant extent on current Justice Department guidelines found at 28 C.F.R. §50.2, establishes Agency—wide policy for responses to press inquiries on active criminal cases. In developing this guidance, the Agency has been cognizant of its dual responsibility to provide accurate information to the public on Agency activities while at the same time respecting the rights of individuals and organizations facing criminal investigations and prosecutions. Accurate reporting of charges brought and convictions obtained in EPA cases is an important component of the deterrent effect that criminal cases are expected to have upon unlawful conduct in these areas. On the other hand, great care must be taken to ensure that the reputations of targets are not unfairly prejudiced and that the Constitutional right to a fair trial is respected. Further, investigative sources and techniques, as well as continuing or related investigative activities, must not be revealed or compromised. ------- —2— I. Inquiries Before The Lodging Of Formal Charg _ es As a general rule, the existence of any criminal investi- gation being conducted within the Agency should not be acknowledged or commented upon. Agency personnel should neither confirm nor deny the existence of a criminal investi- gation. The reasons underlying this policy are obvious. To acknowledge even the existence of an investigation may harm the rights of an individual or prejudice a case. To facilitate uniform adherence to this policy, Agency personnel are encour- aged to direct all inquiries regarding criminal investigation activity to the appropriate Special—Agent—in—Charge of the Office of Criminal Investigations for response. In a rare situation (e.g., where a representative of another organization or agency has acknowleged the existence of and/or commented upon such an investigation, and has publicly stated that EPA is conducting an investigation), it may be necessary to make a very limited response in order to prevent further unwarranted damage to the investigation and/or the privacy or reputation of the individual(s) involved. However, such exceptions will be made only on a case by case basis, and should be approved in advance by the Assistant Administrator for Enforcement and Compliance Monitoring and the Director of the Office of Public Affairs, or their respective designates. II. Inquiries After Formal Charges are Filed After formal charges are lodged, EPA personnel will not issue a press release or comment on a case without prior coordination with and approval of the Public Information Office of the Department of Justice. See United States Attorney’s Manual, Title 1—5.570. Accordingly, press inquiries on the case will normally be forwarded to the Justice Department prosecutor (in Washington or in the local office of the United States Attorney) assigned to the case. This rule is of particular importance during the period immediately prior to trial, during trial, and prior to sentencing. Comments by the Justice Department will be consistent with guidelines found at 28 C.F.R. S50.2 (attached). ------- —3— III. Media Relations During Active Investigations EPA personnel will at no time encourage or assist the media in photographing or televising an accused person, any aspect of an active investigation, or any facility involved in an Agency investigation. The Agency will not make available photographs of an accused except to the prosecutor or to another law enforcement agency. Exceptions to this rule may be made in situations involving fugitive defendants, and following authorization by the Assistant Administrator for Enforcement and Compliance Monitoring and the Director of the Office of Public Affairs, or their respective designates. On occasion, EPA personnel will encounter members of the press during the pursuit of active investigative operations, as for example, during the execution of a criminal search warrant. Agency personnel should not obstruct or prevent representatives of the media from the conduct of their professional activities, so long as these activities are lawful and do not improperly interfere with the carrying out of investigative functions by the Agency. Moreover, a brief statement may be provided by the appropriate Special—Agent—in—Charge, or the lead Special Agent, concerning the nature of the investigative activity, i.e., “The Agency is involved in the execution of a search warrant”. Beyond a simple statement confirming investigative activity witnessed by the media, no further comments should be made by any Agency personnel. In appropriate cases, reporters should be referred to the Justice Department or local United States Attorney for further comment. On occasion, the Agency’s criminal investigative activity will be focussed on environmental problems that are also the subject of Agency remedial activity. Nothing in this guidance should be construed to preclude necessary statements by appro- priate EPA personnel informing the public of potential environ- mental hazards, or of the remedial response anticipated or undertaken by the Agency to address a hazard. These statements should, however, be limited to avoid discussion of any related criminal inquiry. They also should be cleared with the appropriate Special—Agent—in—Charge and the Justice Department and/or the local United States Attorney to insure that information is released in a manner that does not adversely affect the criminal inquiry. ------- —4-. Information which is authorized to be disclosed to the media should be provided equally to all members of the media, subject to any limitations imposed by law or court order. IV. Press Inquiries on the Criminal Enforcement Program Generally The Agency will continue to encourage good press relations and accurate press coverage of the Agency’s criminal enforcement program generally, as in all other aspects of the Agency’s activities. To ensure the accuracy of responses to these inquiries, and to protect against inadvertent prejudice to the rights of defendants in active cases, these inquiries will be directed to EPA’S Press Office (382—4355) or to the Assistant Administrator for Enforcement and Compliance Monitoring (382—4143) for response. Attachment ------- 1—5.5.U Pu s tncrratlon Cuid 1 nes in Civil Ca ec I::e GL 1jr s for c vil cases in 28 CFR 50.2 follow: Per cn-v 1 f th D pa:roent cf Justice associa.ed with a civil action s all n t !ur r.; its i!v:escigation or litigation o ke or participate in naking an Ctr:JU I..i sL&’tcment, other than a quo!ati n froD or reference to public re...or , wi ich a reasonable person would expect to bedissentnated by means of pu li co munication !f there is a reaso ab1c likelihood that such disse:.:natl’)’: wfll Interfere with a fair trial and which relates to: (1) EvF:r.ce r garding the occurrence or transaction involved. (2) rr- character, credibility, or crininal records of a party, witness, or pro rctive wit’ ess. (3) Th’ erfornan:e or results of any examinations or tests or the rcfusal or fr 1 rc of a party to sub it to such. (4) An r 1n on as to the nerits of the clalts or defr se of a oa:ty, e ’c’pt ‘ ri.. . J b 1.iw or adninlstrative ruT (5, .\- c.u’ r .itter reasoriabl’ l ’ .’ c iitrrfere w .i. a fai tn t.’ 1’.. i’ . ! c ;i. ir”i o Prt. P i r ::t I • nt” Pr s reeases ‘_.. -.. c. with t .t i to! d itd r’ , nor h ul c- v a;ree ent e m u’ ‘i ) n .“tc —t ::. d( -!Ir !. r : to i tic a p:ess rt c3 ’:. o offer e :n c r e d ec ri t!Ct s not to ssu a rre—s !e se. nor to !-iclt c ;ar.y :artLcLLir t: te r ’t or iarigua. in a prc!s rc] ose. 1—5.570 DIscussion of Press Releases with Other Ag :ncies th th . exception of the Internal Revenue Service, no other agency Snc.Uld issue a press release or co eit on a case involving the Departnent of Ju t1ct withot t specific per 1ssior fran the Public Infor atior Office. !n o t cases where another agency of government wishes to have a sinul— tan .uc release, the Pt:blic Infornation Office will eake arrangements to p-ovld them a copy of the release befog made by the Depart eat of Justice in Wash n ton. T.-. purpose of rhi5 practice is to avoid inadvertent preju i:c to o .tr pn:ties in the ctse. JT: 2J, 1V N. , p. 3: ------- Chapter I—Department of Justice Act, but such material shall, upon rea- sonable notice to the Custodian, be made available for examination by the person ho produced such material or his duly authorized rcpresentati% e during regular office hours established for the Department of Justice. Exami- nation of such material at other times may be authorized by the Assistant Attorney General or the Custodian. I 19.1 Depui Custodians. Deputy Custodians may perform such of the dutics assigned to the Cus- todian as may be authorized or re- quired by the Assistant Attorney Gen- eral. PART 50—STATEMENTS OF POLICY Sec 50.2 Release of information by personnel of the Department of Justice relating to criminal and civil proceedings. 503 Guidelines for the enforcement of Title VI, Cnil Rights Act of 1964. 50.5 Notification of Consular Officers upon the arrest of foreign nationals. 50 6 Antitrust Division business revIe i pro- cedure 507 Consent judgments in actions to enjoin discharges of pollutants 50.8 Policy ith regard to criteria for dis- cretionary access to In esIigatoi- rec- ords of historical Interest 50.9 Policy with regard to open judicial proceedings 50 10 Policy with regard to the issuance of subpoenas to members of the netts media, subpoenas for telephone toll tee ords of members of the ne s media, and the interrogation. indictment, or arrest of. members of the news media. 50.12 Exchange of FBI identification records. 50.13 Procedures for receipt and considera- tion of written comments submitted under subsection 2(b) of the Antitrust Procedures and Penalties Act. 50.14 Guidelines on employee selection procedures. 50 15 Representation of Federal officials and employees by Department of Justice attorneys or by private counsel fur- nished by the Department in civil and Congressional proceedings, and in state criminal proceedings in which Federal employees are sued or subpoenaed in their indi idual capacities. 50J6 Representation of Federal employees by private counsel at Federal expense. 50 17 Ex parte communications in informal rulemaking proceedings Sec 50 18 Criminal division ret iea uniirr the Foreign Corrupt Practices Act of 1977 50.19 Procedures to be follo- by guti’rn- ment attorne}s prior to fil.ng recusal or disqualification motions § 50.2 Release of information b person- nel of the Department of Justice relat- ing to criminal and civil proceedings. (a) General. (1) The a ailability to news media of information in criminal and civil cases is a matter which has become increasingly a subject of con- cern In the administration of justice. The purpose of this statement Is to formulate specific guidelines for the release of such information by person- nel of the Department of Justice. (2) WhIle the rclease of information for the purpose of influencing a trial Is. of course, always improper, there are valid reasons for making available to the public information about the administration of the latt - The task of striking a fair balance between the protection of individuals accused of crime or involved in civil proceedings with the Go ernment and public un- derstandings of the problems of con- trolling crime and administering gov- ernment depends largely on the exer- cise of sound judgment by those re- sponsible for administering the law and by representatives of the press and other media, (3) Inasmuch as the Department of Justice has generally fulfilled its re- sponsibilitIes with awareness and un- derstanding of the competing needs in this area, this statement, to a consid- erable extent, reflects and formalizes the standards to which representatives of the Department have adhered in the past. Nonetheless, It will be help- ful in ensuring uniformity of practice to set forth the following guidelines for all personnel of the Department of Justice. (4) Because of the difficulty and im- portance of the questions they raise, It Is felt that some portions of the mat- ters covered by this statement, such as the authorization to make available Federal conviction records and a de- scription of Items seized at the time of arrest, should be the subject of con- tinuing review and consideration by the Department on the basis of experi- §50.2 “—‘I. L- . : :t. i ..:- (I . I- :; . I ; 1 h . ‘ If 1 : l t ; r ‘ - p.- -,- - ::‘ - :1 421 - I - -F— ‘ - “ - -- ; - - ; ;‘--; F I •, . ‘ “ ‘“ - -‘ t “.‘- . ., - j, ... . ,_ • - - - 4 — Pr fri. - - _(;_e_ ‘ !- 1”j ; - . ------- Title 28—Judicial Administration ence and suggestions from those within and outside the Department. (b) Cuidehncs fo criminal actions. (1) These guidelines shall apply to the release of information to news media from the time a person is the subject of a criminal in estigation until any proceeding resulting from such an In- vestigation has been terminated by Vial or otherwise. (2) At no time shall personnel of the Department of Justice furnish any statement or information for the pur- pose of influencing the outcome of a defendant’s trial, nor shall personnel of the Department furnish any state- ment or information, which could rea- sonably be expected to be disseminat- ed by means of public communication, If such a statement or Information may reasonably be expected to influ- ence the outcome of a pending or future trial. (3) Personnel of the Department of Justice, subject to specific limitations imposed by law or court rule or order. may make public the following infor- mat ion: (I) The defendant’s name, age, resi- dence, employment, marital status. and similar background Information Cli) The substance or text of the charge, such as a complaint, indict- ment, or information. (iii) The Identity of the investigating and/or arresting agency and the length or scope of an investigation. (it-) The circumstances Immediately surrounding an arrest. Including the time and place of arrest, resistance, pursuit, possession and use of weap- ons, and a description of physical items seized at the time of arrest. Disclosures should include only incon- trovertible. factual matters, and should not include subjective observa- tions. In addition, where background Information or information relating to the circumstances of an arrest or in- vestigation would be highly prejudicial or where the release thereof would serve no law enforcement function. such Information should not be made public. (4) Personnel of the Department shall not disseminate any information concerning a defendant’s prior crimi- nal record. (5) Because of the particular danger of prejudice resulting from statements In the period approaching and during trial, they ought strenuously to be avoided during that period. Any such statement or release shall be made only on the Infrequent occasion when circumstances absolutely demand a disclosure of information and shall in- dude only Information which is clear- ly not prejudicial. (6) The release of certain types of in- formation generally tends to create dangers of prejudice without serving a significant law enforcement function. Therefore, personnel of the Depart- ment should refrain from making available the following: (I) Observations about a defendant’s character. (II) Statements, admissions, confes- sloris, or alibis attributable to a de- fendant, or the refusal or failure of the accused to make a statement. (Iii) Reference to in’. estigative proce- dures such as fingerprints, polygraph examinations, ballistic tests, or labora- tory tests, or to the refusal by the de- fendant to submit to such tests or ex- aminations. (iv) Statements concerning the Iden tity. testimon . or credibility of pro- specti’. e witnesses. (v) Statements concerning evidence or argument in the case, whether or not it is anticipated tl at such evidence or argument ill be used at trial. (vi) Any opinion as to the accused’s guilt, or the possibility of a plea of guilty to the offense charged, or the possibility of a plea to a lesser offense. (1) Personnel of the Department of Justice should take no action to en- courage or assist nev.s media in photo- graphing or televising a defendant or accused person being held or trans- ported in Federal custody. Depart- mental representatives should not make available photographs of a de- fendant unless a law enforcement function Is served thereby. (8) This statement of policy Is not Intended to restrict the release of In- formation concerning a defendant who Is a fugitive from justice. (9) Since the purpose of this state- ment is to set forth generally applica- ble guidelines, there will, of course, be situations in which it will limit the re- § 50.2 422 ------- Chapter I—Department of Justice lease of information which would not be pre3udicial under the particular cir- cumstances. If a representative of the Department believes that in the inter- est of the fair administration of .)ustlce and the law enforcement process in- formation beyond these guidelines should be released, in a particular case, he shall request the permission of the Attorney General or the Deputy Attorney General to do so. (C) Guidclines to civil actions. Per- sonnel of the Department of Justice associated with a civil action shall not during Its investigation or litigation make or participate in making an ex- trajudicial statement, other than a Quotation from or reference to public records, which a reasonable person would expect to be disseminated by means of public communication If there Is a reasonable likelihood that such dissemination will interfere with a fair trial and which relates to: (1) Evidence regarding the occur- rence or transaction involved. (2) The character, credibility, or criminal records of a party, witness, or prospective witness. (3) The performance or results of any examinations or tests or the refus- al or failure of a party to submit to such. (4) An opinion as to the merits of the claims or defenses of a party, except as required by la or adminis- tratn’e rule. (5) Any other matter reasonably likely to interfere with a fair trial of the action. (28 U.s C. 509) (Order No. 469-71. 36 FR 21028. Not. 3. 1971. as amended by Order No. 602-75, 40 FR 22119. May 20. 1975) §50.3 Guidelines for the enforcement 0 f Title VI, Civil Rights Act of 1961. (a) Where the heads of agencies having responsibilities under Title VI of the Civil Rights Act of 1964 con- clude there is noncompliance with reg- ulations Issued under that title, sever- al alternative courses of action are open. In each case, the objective should be to secure prompt and full compliance so that needed Federal as- sistance may commence or continue. (b) Primary responsibility for prompt and vigorous enforcement of Title VI rests with the head of each department and agency administering programs of Federal financial assist- ance. Title VI itself and relevant Presi- dential directives preserve in each agency the authority and the duty to select, from among the available sanc- tions, the methods best designed to secure compliance In individual ca.ses. The decision to terminate or refuse as- sistarice is to be made by the agency head or his designated representative. (C) This statement is intended to provide procedural guidance to the re- sponsible department and agency of fi- daIs In exercising their statutory dis- cretion and in selecting, for each non- compliance situation, a course of action that fully conforms to the letter and spirit of section 602 of the Act and to the implementing regula- tions promulgated thereunder. I. ALTLR’ TIVE COURSES 0? Ac’rloN A ULTIMAT 1 SANCTIONS The ultimate sanctions under Title Vt are the refusal to grant an application for as- sistance and Liii- termination of assistance being rendered Before these sanctions may be in oI vd, the Act requires completion of the procedures called for by section 602. That section requIre the department or agcnc concerned (1) to determine that compliance cannot be secured by voluntary means. (2) to consider alternative courses of action Consistent with achievement of the ob,ecti es of the statutes authorizing the patticular financial assistance. (3) to afford thc applicant an opportunity for a hearing. and (4) to complete the other procedural steps outlined In section 602. IncludIng noti- fication to the appropriate committees of the Congress. In some instances, as outlined below, it Is legally permissible temporarily to defer action on an application for assistance. pending Initiation and completion of section 602 procedures—Including attempts to secure voluntary compliance with Title VI Normally, this course of action is appropri- ate only with respect to applications for noncontinuing assistance or initial applica- tions for programs of continuing assistance. It is not .vailable where Federal financial assistance Is due and payable pursuant to a previously approved application. Whenever action upon an application is deferred pending the outcome of a hearing and subsequent section 602 procedures, the efforti, to secure voluntary compliance and the hearing and such subsequent proce- dures. if found necessary, should be con- § 50.3 : !. i — .-., - r t - a F IIfr c ,,-‘ —:. 1 . : 1b 423 • , i- .- -,. - rvr -- -ç-Iw:-w -:’ . ? 4 ’ -i x M#4 r ‘— ,# 4 4’ - - ..aa -:; .:! - i i-I, — , O—P..i— ’ . ------- G ------- JAN 23 MEMORANDUM SUBJECT: Policy and Procedures on Parallel Proceedings at the Environmental Protection Agency FROM: Courtney M. Price Assistant Administrator Office of Enforcement and Compliance Monitoring TO: Assistant Administrators Regional Administrators Regional Counsels Director, NEIC Background Civil or administrative actions pursued simultaneously with a criminal investigation or prosecution of the same party(ies), and relating to the same essential subject matter, are called parallel proceedings. Violations of most of the environmental laws within EPA’s jurisdiction carry the potential of both civil and criminal sanctions. EPA’s enforcement options therefore often include administrative proceedings or referral to the Department of Justice for civil or criminal litigation. In addition, EPA will occasion- ally seek to conduct a criminal investigation in a matter also requiring a remedial response to eliminate environmental contamin- ation or potential human health hazards. In short, the potential for parallel proceedings at EPA is high. In the face of due process arguments to the contrary, it has been held unequivocally that parallel proceedings are constitu- tional. Recognizing that the government often must pursue both civil and criminal routes to protect the public, the Supreme Court in United States v. Kordel , 397 U.S. 1 (1970), established the legality of parallel proceedings. This case involved an in rem action for the seizure of certain misbranded drugs, as well as a criminal referral with respect to those responsible for the mis- branding. The Court pointed out that prompt action in both the civil and the criminal courts can be necessary to protect the public interest. This same rationale can be used in the environ- mental field, where misconduct may create a danger which can only be addressed by a civil or administrative action for remedial relief. Proceeding civilly, however, does not foreclose pursuit of other remedies, such as a criminal prosecution, where appropriate. ------- —2— It would stultify enforcement of Federal law to require a governmental agency such as the FDA invariably to choose either to forego recommendation of a criminal prosecution once it seeks civil relief, or to defer civil proceedings pending the ultimate outcome of a criminal trial. 397 U.S. at 11. Since Kordel , other courts have sanctioned paral- lel proceedings barring “special circumstances”. The SEC cannot always wait for Justice to complete the criminal proceedings if it is to obtain the necessary prompt civil remedy; neither can Justice always await the conclusion of the civil proceedings without endan- gering its criminal case. Thus, we should not block parallel investigations by these agencies in the absence of “special circumstances” in which the nature of the proceedings demonstrably prejudices substantial rights of the investigated party or of the government. SEC v. Dresser Industries, Inc. , 628 F.2d 1368, (D.C. Cir.)(en bane), cert. denied , 449 U.S. 993 (1980). Notwithstanding the legality of parallel proceedings, a number of circumstances militate in favor of keeping such dual actions to a minimum. Inherent in the simultaneous pursuit of civil, adminis- trative and/or criminal sanctions is the possibility of legal chal- lenges and administrative difficulties. First, it would be an inappropriate use of Agency resources, as well as a questionable exercise of enforcement discretion, for EPA to seek criminal and civil sanctions in every case where both are legally permissible. Because of considerations discussed within this memorandum, separ- ate staffs will often be used for the civil! administrative action and the parallel criminal investigation. The number of EPA staff involved in an enforcement action against one party may, therefore, be doubled while not substantially changing the nature of the relief obtained. Further, when parallel actions are initiated by the govern- ment, !/ defense allegations of abuse often arise. Whatever the substance of the charges, the delay and effort occasioned by the need to respond to and litigate these charges can counterbalance the potential benefits of the dual actions. Typical objections to parallel proceedings include the allegation that the government 1/ Parallel actions may develop when a defendant in a criminal case initiates a civil suit against the government or when an individual or corporation who is the plaintiff in a civil action becomes a defendant in a criminal case involving the same matters. In such a situation, even though the government has not created the dual actions, similar parallel proceedings issues arise. ------- —3— has acted deceptively by seeking more than one type of relief without promptly notifying the party involved, or that the government is using one of the actions to assist the other. Conversely, the government may find that the criminal defendant seeks to obtain information about the prosecution of the criminal case through the use of civil discovery devices. Because of the above stated resource and legal considerations, parallel proceedings should be undertaken only when clearly warranted by the facts of a given situation. Issue Under What Circumstances Are Parallel Proceedings Warranted? Policy In light of the limited criminal investigative resources available to the Agency, criminal investigations and referrals are necessarily limited to situations of the most significant and/or flagrant environmental misconduct. Accordingly, the issue of parallel proceedings should arise in only a limited number of cases. Within this limited category of cases, if the environmental misconduct is ongoing, or if circumstances otherwise necessitate injunctive relief or remedial action, a parallel proceeding is appropriate. Where there is no need for injunctive or remedial relief, and the purpose of a civil/administrative action would be limited to the assessment of penalties for past misconduct, parallel proceedings will normally be avoided and the civil action held in abeyance while the criminal enforcement process proceeds. In such situations, Agency officials should monitor the criminal case closely to ensure that it is developed as expeditiously as possible. Discuss ion This policy supports the use of parallel proceedings in those situations in which the public interest necessitates dual actions, i.e., cases involving significant and flagrant environmental misconduct that also require injunctive/remedial response through the civil enforcement apparatus. However, where the purpose of enforcement is limited to the assessment of penalties, the simultaneous pursuit of civil as well as criminal sanctions through parallel proceeaings is discouraged. By so limiting the use of parallel proceedings, unnecessary legal challenges as well as resource strains will be avoided. In addition, the policy recognizes the reluctance frequently manifested by Federal prosecutors to penalize a defendant through both administrative/civil and criminal sanctions. ------- —4— Finally, by deferring the civil proceedings until after the com- pletion of the criminal action in penalty—only cases, the government will be able to take advantage of the doctrine of res judicata . That is, identical issues which have been resolved in the govern- ment’s favor in the criminal case do not have to be relitigated in the civil action. On the other hand, any issues or verdicts con- trary to the government’s position in the criminal case will not bind the court hearing the subsequent civil case because of the lesser burden which the government (if plaintiff) must bear in a civil action. Issue In Those Situations in Which Parallel Proceedings Are Necessary, When Should Notice of the Existence of the Parallel Proceeding Be Given to the Common Subjects? Policy Notice that a criminal investigation has commenced, or that a referral for criminal prosecution has been made, is not a legal requirement. A target does not have to be made aware of the en- forcement steps that the Agency is pursuing or contemplating. However, the Agency should consider giving notice of the potential for a criminal prosecution to the common subject(s) at the initiation of every parallel proceeding. A statement advising the subject(s) that “the Agency is free to choose civil, criminal or administra- tive enforcement actions and taking one type of action does not preclude pursuing another type of action” may be appropriate. Whether or not the Agency elects to affirmatively make such a statement, this type of answer should be given routinely to ques- tions from targets about the existence of, or the potential for, parallel actions. The Agency must be careful never to affirm- atively misrepresent the potential for a criminal case. Discussion Before a criminal investigation is initiated, the Special Agent from the Office of Criminal Investigations routinely contacts the Regional Counsel and the regional program office in the region where the investigation is to be conducted. This is to discover whether administrative/civil enforcement action is pending or contem- plated. This initial coordination is meant to ensure that a paral- lel proceeding does not occur without the knowledge of appropriate Agency personnel. When a civil action commences, it would likewise be advisable for the Regional Counsel and/or regional program offices to check with the Office of Criminal Investigations if there is any question of the existence of a criminal investigation. ------- —5— Notice of the potential for parallel civil and criminal pro- ceedings should be given to the subject(s), either orally or in writing (depending upon the previous methods of communication in the particular matter or upon the nature of the situation), when- ever it will not unduly jeopardize pursuit of the criminal inquiry. The timing, as well as the mechanics of how and who should give the notice, should be decided jointly by the attorneys and agents assigned to the criminal enforcement case and the Agency personnel assigned to the civil/administrative action. Unilateral notifica- tion without coordination by personnel assigned to either case can disrupt and confuse the parallel investigations and should not occur. While not always legally mandated, this prophylactic measure allows the common subject to protect himself against self—incrimina- tion by moving the court for a stay, a protective order, or other relief in the civil proceeding, while shielding the government from subsequent charges of deception or abuse of the civil proceed- ing. In cases in which parties have testified or have provided incriminating information, courts have been critical of the govern- ment where there have been previous misrepresentations or unfulfilled promises of immunity. See, e.g., SEC v. ESM Government Securities , Inc., 645 F.2d 310 (5th Cir. 1981); United States v. Parrott , 248 F. Supp. 196 (D.D.C. 1965); United States v. Guerina , 112 F. Supp. 126 (E.D. Pa. 1953); United States v. Rand , 308 F. Supp. 1231 (N.D. Ohio 1970). If the Agency chooses not to notify the target of the start of a criminal investigation, the execution of a criminal search warrant, the presentation of credentials by an EPA criminal investigator in an interview context, or the issuance of grand jury subpoenas will accomplish the same function by making the criminal focus obvious. So long as the Agency has not previously misrepresented the poten- tial for a criminal action, it can not be accused of being deceptive just because the targets have not been notified until the investi- gation has become public knowledge. If directly asked whether a criminal investigation has been undertaken or whether such an investigation (or prosecution) is contemplated, an EPA employee may of course decline to reply. However, in some circumstances a court may find that silence constitutes a form of deception. (See below). An alternative response would be a statement that “the Agency is free to choose civil, criminal or administrative enforcement actions and taking one type of action does not preclude pursuing another type of action”. It is clear, however, that the government cannot deny the existence of a criminal investigation or referral or mislead the party into believing that cooperation with the civil action will preclude a criminal case, if this is untrue. SEC V. ESM Government Securities, Inc., supra . In United States v. Fields , 592 F.2d 638, 643 (2d Cir. 1978), cert. denied , 442 U.S. 917 (1979), the Court criticized the conduct of two SEC employees who (while negotiating a consent decree in a civil suit) failed to disclose that a criminal referral had been made. The District Court con- cluded that defense counsel had interpreted the SEC’s silence ------- —6— regarding the referral as an agreement not to make the referral. Perhaps the key fact in the case, however, was that the defense had made it expressly known that it was entering into the decree to avoid a referral. Although the Second Circuit held that dis- missing the indictment was too severe a sanction, it did chastise the SEC for its conduct and warned against such misleading silence in the future. Id. at 647. See also United States v. Rodman , 519 F.2d 1058 (1 t Cir. 1975). In a series of cases involving the Internal Revenue Service, courts have held that, in the absence of affirmative misrepresen- tations, a taxpayer has not established that information was obtained through deceit and trickery. Specifically discounting silence as se fraud, one court stated that “silence can only be equated with fraud where there is a legal or moral duty to speak or where an inquiry left unanswered would be intentionally misleading”. United States v. Prudden , 424 F.2d 1021 (5th Cir. 1970). In United States v. Tonahill , 430 F.2d 1042, 1044 (5th Cir. 1970), the Court found that, when specifically asked whether they were investigating a crime, IRS Special Agents did not engage in impermissible trickery when they did not directly answer that a “criminal investigation” was occurring but instead stated that “their function was to reconcile the large discrepancies to see if they were the result of innocent errors”. Where circumstances require that notice of the potential for a criminal prosecution be delayed until the investigation (either field or grand jury) is completed,2/ then not only must the government be extremely careful not to mislead the party but infor- mation provided by the common subject in the parallel civil proceeding will generally not be transferred to the attorneys and agents involved in the criminal inquiry. The transfer of infor- mation from a civil to a parallel criminal enforcement action when the party is unaware that he may be the subject of a criminal investigation has not been directly addressed and condemned by the courts.3/ However, such a procedure would invite allegations of improper use o the civil proceedings to further the criminal investigation. 2/ If there is strong likelihood of evidence destruction, witness intimidation, or ongoing criminal activity, reasons certainly exist to delay disclosure or notice of the potential for a criminal investigation or referral. 3/ Where defendants have been aware of the parallel proceeding and F ave objected in advance to their statements being transferred from an agency to the Department of Justice, courts have nevertheless approved such transfers. SEC v. Dresser Industries, Inc., supra . ------- —7— Issue Should Miranda—type Warnings Be Given Under Any Circumstances To Subjects of Parallel Proceedings? Policy Full Miranda warnings are unnecessary in non—”custodial” set- tings. However, modified warnings should be given before a common subject is required to provide evidence testimonial in nature4/ during civil proceedings. That is, warnings should occur before a common subject is deposed, and before an administrative hearing or trial is held at which a party may testify. An administrative request for business documents is not considered “testimony” and need not trigger a disclosure of a criminal investigation. Schmerber v. California , 384 U.s. 757 (1966). Discussion These warnings are separate and apart from the “notice” dis- cussed earlier in this memorandum. “Notice” pertains to a state- ment from the Agency that a matter may result in both criminal and civil action by the Agency. It is issued to avoid criticism that the Agency has acted deceptively or that it has misrepresented the nature of its contacts with an individual or company. “Warnings”, on the other hand, are a response to the Fifth Amendment consider- ations which arise whenever an individual is compelled by the government to provide information. It informs the individual that his responses may be used against him in subsequent proceedings. Full Miranda warnings, or advice of rights, are not required, or advisable, in connection with the compulsion of testimony in the civil proceeding, since the testimony is not elicited in a “custodial” setting.5/ A warning which will adequately inform the party may consist of a simple statement that violations of environ- mental statutes may subject an individual to both civil and crimi- nal sanctions and that statements made by the individual may be used against him in any further proceedings. Warnings are crucial when the subject is asked to give testimonial evidence and she/he 4/ “Testimonial evidence” is that which is communicative in nature or “from the witness’s own mouth.” Private papers (such as a diary) or oral testimony come within the zone of privacy protected by the Fifth Amendment but ordinary documents or books which may include incriminating information do not. United States v. Fisher , 425 U.S. 391 (1976). 5/ The Supreme Court in United States v. Miranda , 384 U.S. 436 (1966), held that a suspect’s Sixth Amendment right to the assistance of counsel attaches as soon as government agents take him into custody or otherwise restrict his freedom of action in any significant way. ------- —8— is not represented by counsel. The Court in United States v. Kordel, supra , expressly distinguished the facts in that landmark case from the situation in which a party is unrepresented by coun- sel in the civil proceeding, noted the Fifth Amendment considera- tions at issue, and implied that it might have held differently if the defendant had not had counsel. Issue Where Parallel Proceedings Are Initiated, When and How Should Staffs Be Separated? Policy If the defendant or target is on notice of the existence of the parallel proceeding and no grand jury work has begun, staffs may be interchanged. Once a grand jury investigation is initiated, personnel with access to grand jury materials should have no further involvement in the parallel civil action in light of the statutory requirements pertaining to grand jury secrecy. Because almost every environ- mental criminal case will require grand jury investigation prior to indictment, and because at least partial separation of civil and criminal staffs will be required after the initiation of the grand jury investigation, it is usually best to separate staffs at the time of initiation of the parallel proceeding. Discussion The separation of staffs does not require a separation of supervisory personnel so long as grand jury material is not dis- closed to any supervisor who is involved in supervising staff working on the civil or administrative proceedings.6/ Supervisors who are not involved in the civil/administrative proceedings and who believe it necessary to become familiar with the grand jury investigation, should raise this issue with the Justice Department prosecutor supervising the case. 6/ Even the recent Supreme Court opinions ( United States v. Sells Engineering, Inc. , _____ U.S. _____ , 33 Crim. L. Rep. 3243 (June 30, 1983); United States v. Baggot , _____ U.S. _____ , 33 Crim. L. Rep. 3259 (June 30, 1983)), which have directly discussed the topic of “grand jury material” have not clarified what is meant by this term. Broadly interpreted, “grand jury material” might be consid- ered to include not only the testimony of grand jury witnesses and the documents subpoenaed by the grand jury but also any of the substantive matters which are the subject of the grand jury investi- gation. ------- —9— Separating the staffs which are working on each action can also negate the defense argument that one proceeding is being used to develop the other. Although the courts have approved parallel proceedings, there must be a legitimate purpose for each proceeding. A “legitimate purposea is found where independent goals exist for each action and neither action is being pursued solely to advance or strengthen the other. Public interest considerations justifying parallel proceedings would disappear should the government abuse its power to initiate both actions by interfering with the independent integrity of either action. A separation of staffs avoids the conflict in roles that may be perceived if there is involvement in both of the actions. The appearance of a conflict or of an abuse of the grand jury process (by assisting in a parallel civil action) is also avoided by the early separation of staffs. Issue May Information Developed in Criminal Proceedings Be Provided for Use in Parallel Civil Proceedings and Vice—versa? Policy Grand jury material may never be passed to anyone working on a parallel civil proceeding. In fact, grand jury material may never be discussed with anyone who is not on the so—called “6(e) list. Fed. R. Crim. P. 6(e). Information developed in criminal field investigations may be passed to civil staff for their use. However, such information must be clearly documented to show where and when the information was obtained so that allegations of grand jury abuse may be countered at a subsequent date. The Agency should be prepared to demonstrate that the information passed to the civil side from personnel working on the criminal case was not obtained by the use of a grand jury. Information obtained in civil cases from subjects of a paral- lel proceeding may be provided to personnel working on the criminal case, if the subjects were on notice of the potential for a parallel criminal proceeding when the information was provided by the subjects, and if warnings were given prior to testimonial situations. If the subjects were not on notice or were not given warnings, then information provided by them should not be turned over to personnel working on the criminal case. Discussion Where there has been no notice (of the potential for a crimi- nal proceeding) or warnings (of the Fifth Amendment considerations) or there are other indicia of potential unfairness to the target, ------- —10— information obtained in a civil proceeding from the subject of a parallel criminal proceeding should be isolated and withheld. See United States v. Kordel, supra , 397 U.s. at 12. In SEC v. Dresser Industries, Inc., supra , the Court did not object to the transfer of information from government attorneys involved in civil/administrative matters to prosecutors on the criminal side. “Where the agency has a legitimate non—criminal purpose for the investigation, it acts in good faith under the [ United States v. LaSalle National Bank , 437 U.S. 298 (1978)) conception even if it might use the information gained in the investigation for criminal enforcement purposes as well.” 628 F.2d at 1387 (footnote omitted). Notice was not an issue in this case because the company records were subpoenaed simultaneously by both the SEC and the grand Jury, placing the company on notice of the parallel proceeding. Moreover, it would not be legitimate for information to go in the opposite direction (i.e., information obtained through a grand jury passing to the civil/administrative enforcement authorities) .7/ Finally, it should be noted that the bar on exchange of infor- mation from a civil to a criminal proceeding pertains only to information obtained (1) from the common target——corporate or indi- vidual, and (2) after the initiation of the parallel proceeding. Information in the possession of the government prior to the initi- ation of a criminal investigation may be freely exchanged. Information sought by an agency which has already been subpoe- naed by a grand jury, while not available from the members of the prosecution team, can be obtained by the civil side of the agency by use of civil discovery devices, it it is sought for its own sake and not for the purpose of uncovering what took place before the grand jury. United States v. Interstate Dress Carriers, Inc. , 280 F.2d. 52, 54 (2d Cir. 1960), cited in SEC v. Dresser Industries , Inc., supra , 628 F.2d at 1382; accord, Capitol Indemnity Corp . v. First Minnesota Construction Co. , 405 F. Supp. 929 CD. Minn. 1975); United States v. Saks and Co. , 426 F. Supp. 812 (S.D.N.Y. 1976); Davis v. Romney , 55 F.R.D. 337 (E.D. Pa. 1972). This is consistent with the general proposition that, so long as each investigation and proceeding has it own legitimacy, then the tools available to each may be used accordingly. 7/ The Federal grand jury exists for and can satisfy only one purpose——to enforce Federal criminal law. Information developed in the course of a grand jury proceeding may not be made available for use in administrative or civil proceedings absent a court order. Fed. R. Crim. P. 6(e). A “special circumstance” indicating an im- proper use of a parallel proceeding is the use of a grand jury to help a civil or administrative case. United States v. Proctor & Gamble Co. , 356 U.S. 677, 683 (1958); United States v. John Doe , 341 F. Supp. 1350 (S.D.N.Y. 1972). ------- —11— Issue To What Extent May the Government Use Civil Discovery Tools When There Is a Pending Parallel Action? Policy So long as the above stated policies on notice, warnings, and separate staffing are pursued, the government may use whatever civil discovery tools are available to pursue legitimate aims in the civil proceeding. Civil discovery may not, however, be used to pursue evidence solely relevant to the criminal case. At the court’s discretion, stays or protective orders may be granted upon a party’s motion. Discussion The presumption under the Federal Rules of Civil Procedure is that discovery should be available to each party to the fullest extent possible. On the other hand, the Federal Rules of Criminal Procedure limit discovery to only that information specifically covered within the rules. Prior to trial, a criminal defendant has the right to obtain from the government any statements alleged to have been made by the defendant to agents of the government, the defendant’s criminal record, and documents, tangible objects and any reports of examinations or tests which the government intends to use as evidence in its case in chief. In a criminal action, this difference (in discovery rules) can lead to an unfair advantage being gained, by either side, through the use of the more liberal civil discovery rules. For example, information about defense witnesses, strategy, and anticipated testimony (otherwise unavailable prior to a criminal trial) can be uncovered by the government through the use of interrogatories, depositions and/or requests to produce. Similarly, a defense attorney, by initiating a civil suit against the government or as a respondent in a civil suit, could take advantage of the civil discovery rules to depose government witnesses and file interroga— tories to reveal information normally unavailable to a criminal defendant. Therefore, courts have been sensitive to the need to ensure the integrity of each branch of the parallel proceeding. In SEC v. Dresser Industries, Inc., supra , the Court held that the limitations placed on the use of the IRS administrative summons enunciated in United States v. LaSalle National Bank, supra , are inapplicable to the SEC. Accord , SEC v. First Financial Group of Texas , 659 F.2d 660 (5th Cir. 1980). Under LaSalle , the IRS is precluded from using its administrative summons authority after a case has been referred to the Department of Justice for criminal prosecution. EPA, like the SEC but unlike the IRS, pos- sesses statutory authority to pursue investigations of both a civil and a criminal nature. Therefore, while the IRS has no prac- tical authorized purpose for issuing a summons after a referral ------- —12— to Justice, if EPA decides to pursue both civil and criminal cases, its summons authority continues undiminished even after referral, provided that the purpose is to develop the civil action. SEC v. Dresser Industries, Inc., supra , 628 F.2d at 1381.8/ Many of the IRS cases can be viewed as sui generis because of the particular statutory authority under which that agency operates. Courts historically have been sympathetic to claims by both the government and individuals that civil discovery rules are being exploited to benefit the party in the criminal proceeding. In deciding the appropriate remedy, the court will weigh the public and the plaintiff’s interest in the speedy resolution of the civil suit against the potential for prejudice to the defendant and the interest in maintaining the procedural integrity of the criminal justice system. SEC v. Control Metals Corp. , 57 F.R.D. 52 (S.D.N.Y. 1972); Campbell v. Eastland , 307 F.2d 478 (5th Cir. 1962), cert. denied , 371 U.S. 955 (1963). Both the government and individuals! corporations have successfully sought stays of civil proceedings. Unless the interests of justice weigh against the equitable relief of a stay, courts generally will grant stays of the entire civil proceeding, or at least of the discovery process, pending the dis- position of the criminal matter. Protective orders can also be employed to prevent the transfer of information between branches of government 1 or to limit the scope of the information transferred. Difficulties can be anticipated in EPA—initiated cases when the government must oppose a stay because of its need to proceed civilly and criminally. The defendant will seek to use civil dis- covery to depose government witnesses while resisting the govern- ment’s attempts to uncover defenses. If the government can negoti- ate a stipulated injunctive relief together with a stay of the remainder of the civil suit pending the criminal disposition, some of these difficulties may be resolved. Otherwise, a mixture of partial stays and narrowly framed protective orders may be the only alternative. Protective orders or stays (Fed. R. Civ. P. 26(c),(d)) may be granted at the discretion of the trial judge. At least one court has found it to be violative of due process to force the defendant to go forward in an administrative hearing while a criminal proceed- ing is pending. Silver v. McCamey , 221 F.2d 873 (D.C. Cir. 1965). 8/ This is distinguishable from the situations discussed in the EPA guidance on the “Guidelines for the Use of Administrative Discovery Devices in the Development of Potential Criminal Cases.” In that guidance, the issues were presented in the context of cases which were going to be either civil/administrative or criminal actions, but not both. If an Agency decision is made that a case should be referred for criminal prosecution alone, then it would be clearly improper to use administrative discovery devices after such referral. ------- —13— However, there are other alternatives to a stay, such as a narrowly trained protective order, sealing the responses to interrogatories, or precluding the use of the products of civil discovery at crimi- nal trials, which can be employed instead of an all—encompassing stay. McSurely v. McClellan , 426 F. Supp. 664 (D.D.C. 1970). Claims of Fifth Amendment privilege are an oft—cited reason for a request for a stay. If a civil defendant is compelled to testify, his testimony cannot later be used to incriminate him. But a civil defendant is not compelled to testify merely because the fact—finder may draw adverse inferences from his failure to testify. Baxter v. Palmigiano , 425 U.S. 308, 317—18 (1976). Some courts have granted stays where a defendant must either invoke the Fifth Amendment, and thereby jeopardize his civil/administrative case, or provide information which may be used against him in the criminal case. United States v. American Radiator and Standard Sanitary Corp. , 272 F. Supp. 691 (W.D. Pa.), rev’d on other grounds , 383 F.2d 201 (3d Cir. 1967), cert. denied , 390 U.S. 922 (1968); Dienstag v. Bronsen , 49 F.R.D. 327 (S.D.N.Y. 1970); Perry v. McGuire , 36 F.R.D. 272 (S.D.N.Y. 1964); Paul Harrigan and Sons v. Enterprise Animal Oil Co. , 14 F.R.D. 333 (E.D. Pa. 1953). Other courts have sympathized with the defendant but refused to grant protective orders, a stay or other relief despite Fifth Amendment issues. In SEC v. Rubinstein , 95 F.R.D. 529 (S.D.N.Y. 1982), the Court cited a statutory authorization to pass informa- tion from the SEC to the Department of Justice, and prior judicial approval of such action in United States v. Fields, supra , and in SEC v. Dresser Industries, Inc., supra , and denied the motion to seal discovery. ------- S7 4 . 4 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON, D.C. 20460 OI-I1CL fl- %: ‘ I) CO’ .I.’t ‘ ‘ MAR I 2 1985 MEMORANDUM SUBJECT: The Role of EPA Supervisors During Parallel Proceedings FROM: Randall M. Lut ” Director, Offide of Criminal Enforcement TO: General Distribution Attached is a copy of the recently issued guidance explaining the role of EPA supervisors during parallel civil and criminal proceedings. All supervisors and staff who may become involved in matters that have both criminal and civil enforcement potential should become familiar with the guidelines set forth in the memorandum. Although the concepts in the guidance may appear difficult upon a first reading, it is necessary to have a full understanding of the issues in order to make an informed decision about whether the supervisor should remain on the civil side of the case or the criminal side (or in rare circumstances, on both sides). Questions concerning the guidance should be directed to Peter Murtha or myself (FTS 557-7410, 703-557-7410). Attachment ( ‘ ‘i o 4 r, ,. rily) ------- UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON, D.C. 20460 I 2 85 OFFiCE OF ENFORCEMENT AND COMPLIANCE MONiTORING MEMORANDUM SUBJECT: The Role of EPA Supervisors During arallel Proceedings PROM: Courtney M. Price Assistant Adnunistr or for Enforcement and Compliance Monitoring TO: Assistant Administrators Office Directors Regional Administrators Regional Counsels Inspector General Director, NEIC I. Introduction The Agency’s mission is on occasion best served by the pursuit of simultaneous civil/administrative enforcement actions and criminal investigations and prosecutions of the same party(ies) and relating to the same essential subject matter, i.e., parallel proceedings.i/ Parallel proceedings are applicable, for example, where a person’s willful environmental misdeed both merits a criminal sanction and requires a cleanup response. Such proceedings require special caution by both supervisors and staff in their use. Failure by Agency personnel to recognize and understand the unique problems raised by parallel proceedings could delay or otherwise jeopardize both the civil/administrative and criminal proceedings. This guidance establishes supervisory procedures for persons whose responsibilities involve management of staff who work on both sides of the parallel proceedings. 1/ Supervisors who do not exercise such dual responsibilities are not covered specifically in this document. These individ- uals, as well as non—supervisory personnel who could be poten- tially involved in parallel proceedings, should refer to the memorandum entitled “Policy and Procedures on Parallel Proceed- ings at the Environmental Protection Agency,” issued on January 23, 1984 (“General Parallel Proceedings Guidance”) (Attachment). ------- —2— This guidance is designed to avoid two primary pitfalls associated with parallel proceedings. First, for a variety of reasons, 2/ care must be taken to ensure that each side of parallel proceedings has a legitimate and independent basis. Second, safeguards must be employed to guarantee that grand jury proceedings, and the information developed therein, are devoted exclusively (except as noted at Section (V)(A), pp. 6—7 note 10; and Section (V)(D), pp. 9—10, infra ) to their sole intended use: prosecution of criminal cases. Each supervisor subject to this guidance is responsible for ensuring that staff are aware of and conform to the procedures set forth below. Particular care should be taken to note the evolving nature of these requirements as the criminal matter proceeds from a mere allegation made to the Agency to an active grand jury investigation. Supervisors are encouraged to supple- ment this guidance by developing policies and practices for individual cases as needed to achieve its objectives. II. The Supervisory Role Prior to the Active Involvement of the Department of Justice (DOJ) Prior to the active involvement of DOJ 3/ in the criminal case, the Agency supervisor generally may continue managing his/her staff on both sides of the parallel actions.4/ The degree of permissible involvement by the supervisor in the criminal investigation is not dependent upon the course or the stage of the civil/administrative action. 2/ See General Parallel Proceedings Guidance at 1—4. 3/ In this context, U JU refers to any United States Attorney’s Office, as well as to DOJ Headquarters, but does not include the Federal Bureau of Investigation. 4/ This guidance presumes that ordinarily DOJ would become ctively involved in a case soon after EPA became aware that there was probable cause to believe that a particular individual or entity had committed a potentially criminal violation. This will be the case whether DOJ’s involvement is initiated by informal contacts, e.g., by the case agent from EPA’S Office of Criminal Investigations, or through the formal referral (continued) ------- —3— At no point may a supervisor request that any personnel, working on the criminal case use any criminal investigative or discovery tools for the primary purpose of benefitting the Agency’s position in the civil/administrative matter or vice versa. Strictly as a matter of law, information obtained by the criminal and the civil/administrative staffs ordinarily may be freely exchanged at this stage, assuming that each proceeding is designed to meet its own distinct and legitimate goal. (In many cases, however, preserving the secrecy of the criminal investigation and preventing the disclosure of,documents to the defendant through the liberal civil/administrative / discovery process would militate against the use by the civil! administrative staff of documents or other information produced by the criminal investigation team.) Nonetheless, supervisors may wish to consider withdrawing from their case supervision duties 5/ on one side of the parallel proceedings to minimize the possibility that abuse of either process is alleged later. Even prior to criminal referral a defendant/respondent in a civil/administrative proceeding may not be misled into believing that information he/she/it supplies will not be used in a criminal’ proceeding.6/ Moreover, individuals who are not aware that they are targets of the parallel criminal investig €Ton and who give testimonial evidence at an administrative hearing, a civil trial, or in the form of interrogatories or depositions, may have a Fifth Amendment privilege which, arguably, has not been waived. In such a situation, DOJ will evaluate the matter in a effort process. Generally, the assignment of a DOJ prosecutor to a criminal matter at any stage, e.g., to obtain a criminalsearch warrant, would constitute “active involvement.” In any event, ordinarily DOJ will be presumed to be “actively involved” no later than the date of its receipt of the criminal referral from the Assistant Administrator for Enforcement and Compliance Monitoring. 5/ Case supervision, in this context, includes the supervisor idvising the staff about such matters as strategy, investigative procedures, legal issues and the course of the case development for a specific case. 6/ If the Agency attempted to use information in a criminal roceeding that was gained through such misrepresentations, the defendant could argue that the evidence should be suppressed, or (in extreme cases) that the indictment should be dismissed, due to violation of the right to due process and (in the case of individuals) the right against self—incrimination. (Corpora- tions, in contrast to individuals, are not protected by the Fifth Amendment’s self—incrimination clause.) See General Parallel Proceedings Guidance at 4—6. ------- —4— to determine whether or not it is appropriate to transmit such evidence to members of the criminal enforcement teain.7/ Where the criminal target has been made aware of the existe ce or potential for parallel criminal action, however, such information may be freely exchanged. Staff members working on the parallel civil/administrative case must document when and under what circumstances any testi- monial information from a current or potential criminal individual target——who has not been made aware of the potential for criminal enforcement——was obtained before transmitting that information to a supervisor who has not withdrawn from the criminal action. Such material should be specially marked to prevent inadvertent disclosure. This will alert the supervisor to consult with DOJ prior to reviewing such material or disseminating it to Agency personnel pursuing the criminal matter. III. After the Active DOJ Involvement: The Supervisor’s Decision Whether to Withdraw from the Criminal (or the Civil) Matter Prior to the commencement of the grand jury, there is no / strict legal bar to an Agency supervisor being a member of the prosecution team and directing the civil/administrative matter. Once DOJ begins to direct the day—to—day investigative activities of the prosecution team, the Agency supervisor who has been performing case supervision activities on either side of a parallel investigation or prosecution should re—evaluate his/her continuing role in the investigations. To avoid any appearance that one proceeding is being used to impermissibly bolster the other, it is generally the better practice for a supervisor to withdraw from one side of the parallel proceeding or the other. Discretionary withdrawal will reduce the possibility that the Agency will need to defend its position regarding the conduct of an investigation or prosecution. An Agency supervisor who chooses to retain case super- visory responsibilities and become a part of the prosecution team will work under the direction of the prosecutor(s) 8/ in designing and conducting the investigation and prosecution. 7/ See General Parallel Proceedings Guidance at 6, 9—10. 8/ Often, there will be one prosecutor from the Environmental rimes Unit of the Land and Natural Resources Division of DOJ Headquarters and another from the United States Attorney’s Office where the prosecution is being brought, in which case Joint guidance to the prosecution team would be provided. ------- —5— A supervisor who has chosen to withdraw from case supervision duties associated with one side of parallel proceedings is not precluded from being informed about non—sensitive information concerning the proceeding from which he/she has withdrawn necessary for the performance of his/her routine management functions. Supervisors can know the amount of staff and labora- tory support required, the need for outside consultants, the dates and expense of travel, the duration of the investigation, and the facilities and individuals being investigated except as precluded by Fed. R. Crim. P. 6(e) (see pp. 6—7, infra), etc. IV. The Role of the Agency Supervisor in Parallel Proceedings After the Active Involvement of DOJ in the Criminal Matter but Prior to the Commencement of a Grand Jury Investigation A. Permited Communications and Decision—making An Agency supervisor may generally be privy to all inform- ation about both cases (except that supplied by an individual unaware of a parallel criminal investigation, see Section II, at 3—4, supra ) and may fully participate in aliAgency decision— making concerning them. Notwithstanding this rule, it is wise for a supervisor to consider whether his/her involvement in the case supervision of both sides of parallel proceedings is truly desirable, given the possibility that allegations of abuse of either process could arise. Where the Agency supervisor is both part of a prosecution team and involved in the case supervision of the civil/admini- stration matter, the following rules must be adhered to: 1. With Respect to the Criminal Investigation . Communi- cations by the supervisor pertaining to the criminal case must be directed only to members of the prosecution team or to those Agency or DOJ units devoted exclusively to criminal investigations and prosecutions, i.e., the Criminal Division of the local United States Attorneys’ Offices, DOJ’s Environmental Crimes Unit, EPA’s Office of Criminal Investigations and EPA’S Criminal Enforcement Division. 2. With Respect to the Civil/Administrative Investigation . Communications by the supervisor pertaining to the civil/admini- strative matter must be directed only to Headquarters, Regional program and/or N IC staff involved in the civil/administrative matter. Such communications shall be withheld from all Agency personnel on the prosecution team and those Agency units devoted exclusively to criminal investigations and prosecutions. 3. Staff Meetings and Documents . Supervisors should hold separate staff meetings for the personnel working on the respective sides of parallel proceedings to the extent that the case will be discussed. Supervisors must not allow distribution of infor- mation, documents, memoranda or other writings which should be withheld from respective parts of their staffs. ------- —6— B. Alerti 9 Supervisors to Commencement of Grand Jury Proceedings Supervisors directly involved in the management (but not case supervision) of a criminal matter must be aware of exactly when a grand jury proceeding is commenced to assure that he/she will not inadvertently learn about grand jury information. In situations in which the supervisor is not integrally involved with the prosecution team and therefore might not automatically be informed of such event, his/her staff pursuing the criminal matter should be alerted to immediately so inform (or request the DOJ prosecutor(s) to so inform) him/her. This notification must be limited solely to the fact that the grand jury will investigate the same essential matter being pursued in the civil/adminstrative proceeding, and must not include what has transpired in the grand jury.9/ In most cases, once a case is referred to DOJ for investi- gation or prosecution, a grand jury will be initiated soon thereafter. Thus, the guidance presented in this section regarding the supervisor’s role during parallel proceedings usually will quickly be supplanted by the even more stringent guidance pertaining to the period after the initiation of the grand jury decribed below. V. The Role of the Agency Supervisor After the Commencement of a Grand Jury Investigation A. Access to Grand Jury Material under Rule 6(e ) An Agency supervisor is not allowed to have access to grand jury material 10/ unless specifically authorized (see below) due to the limitations on disclosure found in Rule 6(e) of the Federal Rules of Criminal Procedure. A limited exception to 9/ Alerting such supervisors to the commencement of the grand jury is intended solely as a prophylactic measure to prevent disclosure of priviledged material. Supervisors who have been so alerted must not inform anyone of the existence of a grand jury and, if pressed on the matter, should refer the person requesting the information to the DOJ prosecutor(s). 10/ To prevent unauthorized dissemination of grand jury material, TE is necessary to define ugrand jury material.” The broadest view of this term would include: all witness testimony, the names of grand jury witnesses, the subject matter of the grand (continued) ------- —7— the general rule of nondisclosure, Rule 6(e)(3)(C)(ii), specifies that only such government personnel as are deemed necessary by an attorney for the government [ i.e., the DOJ prosecutor(s) and Agency attorneys that have been designated as Special Assistant United States Attorneys for particular cases]” to assist in the enforcement of federal criminal law are to be granted such access (emphasis supplied). Rule 6(e) has two primary purposes: to preserve grand jury secrecy and to prevent prosecutorial abuse. Thus, some courts have narrowly construed this provision to allow only agents and experts actively involved in the investigation to have access to grand jury material. It is the policy of DOJ not to place an individual on the so—called “6(e) list, ”ll/ allowing access to grand jury material, merely because that individual supervises a person who is on the list. jury investigation, summarizations of grand jury testimony, documents submitted to the grand jury, the direction and focus of the grand jury investigation, conclusions reached as a result of the grand jury investigation, and information obtained as a result of grand jury testimony. See, e.g., Fund for Constitutional Government v. National Archives and Records Service , 656 F.2d 856 (D.C. Cir. 1981). However, documents which are obtained by means independent of the grand jury or created for a purpose independent of the grand jury are typically not within the scope of Rule 6(e). See, e.g., United States v. Interstate Dress Carriers, Inc. , 280 F.2d 52, 54 (2d Cir. 1960). (To be prudent, it is best to check with the DOJ prose- cutor(s) to ascertain what precisely constitutes “grand jury material” under the interpretation of a particular federal district court.) Therefore, documents and records which would be otherwise available as part of a civil/administrative proceeding can generally (depending upon the prosecutor’s evaluation of the law of the relevant court) continue to be available to the civil/administrative staff (and the supervisor if he/she has withdrawn from the criminal matter) even if the grand jury has been presented with copies of these same records and documents. Such “otherwise available documents could include, for example, information produced pursuant to an administrative letter audit or inspection or materials produced by the criminal investigations team prior to the convening of the grand jury, such as interview reports, sampling results, audits, etc. (however, see caveat concerning sharing of criminal and civil information at Section II, p. 3). Additionally, grand jury material used in open court or contained in the public court papers in the criminal case may then be utilized in the civil/administrative proceeding. 11/ The DOJ prosecutor(s) are required under Rule 6(e) to promptly disclose.to the court a list of the names of the government person- nel assisting in the prosecution to whom grand jury material has been disclosed. ------- —8— B. Mandatory Withdrawal from the Civil/Administrative Action by a Supervisor on the 6(e) List When a supervisor believes that it is necessary to have access to grand jury material, it may be appropriate for him! her to join the criminal prosecution team (if he/she has not already done so). In such a case, a request together with the reasons therefor should be made to the DOJ prosecutor(s) for the supervisor to be placed on the 6(e) list. After a grand jury has been convened, if a supervisor is part of the prosecution team then he/she must without exception withdraw completely and immediately from all responsibilities involving the parallel civil/administrative action other than routine management functions. Note that failure to conform to the nondisclosure require- ments of Rule 6(e) may lead to a variety of court sanctions which could have significant adverse effects on the Agency’s criminal case, the individuals involved and the Agency’s entire criminal enforcement program. These potential sanctions include contempt citations, the removal of the prosecuting attorney(s) from the case, disclosure of the grand jury material to the opposing party, and, in extreme cases, dismissal of the indictment. C. Requests for Information by a Supervisor Not on the 6(e) List It is essential that substantive information about a parallel criminal case released to a supervisor who is not on the 6(e) list be within permissible bounds. Where the supervisor anticipates that he/she will make numerous inquiries regarding the criminal matter, the supervisor should request routine briefings by the DOJ prosecutor(s), who would determine what information may be revealed. Alternatively, once a grand jury proceeding has begun, all communications concerning the transfer of information potentially subject to Rule 6(e) between such a supervisor and his/her staff who are on the 6(e) list should be made only in writing.12/ 12/ The disclosure of management—related information clearly t within the purview of Rule 6(e) (see discussion at Section III, p. 5, supra ) would not need to be so documented. If the “in writing” approach is taken, it would be useful for the supervisor to maintain a log for each such parallel proceeding indicating, with respect to each such request for information: the date of the information request, to whom the request was made, a brief indication of the response to the request, and, if information was disclosed, the reason it was not privileged. ------- —9— This procedure allows the staff member responding to the request to determine carefully (if necessary, after consultation with the prosecutor(s)) which material (for example, because of its pre—grand jury genesis or because of its independent source) may be properly disclosed. However, this procedure would probably prove more cumbersome than briefings by the prosecutor(s), and could have the added cost of possibly creating material which arguably could be required to be turned over to the defense under the Brady doctrine.13/ Under rare circumstances, a supervisor might not anticipate that a question to Agency personnel could elicit grand jury material. To avoid inadvertent transfer of improper information, the Agency will consider both the supervisor and the respective staffs to be responsible for ensuring that privileged information is not disclosed. A staff member must decline to respond to a supervisor’s information request which would disclose grand jury information. Similarly, a supervisor must decline to respond to a staff member’s information request that would disclose any information revealed by the defendant/respondent in the civil/administrative proceeding which (as discussed at Section II, pp. 3—4, supra ) might be inappropriate to disclose. (In either case it would also be appropriate to refrain from disclosing information and to refer the person requesting the information to the DOJ prosecutor(s) concerned with the matter.) The supervisor must rely upon the judgment of the staff member, and vice versa, in withholding the requested information when necessary. D. Request by Agency Supervisor on the 6(e) List to Disclose Grand Jury Information to Agency Civil/ Administrative Personnel Supervisors on the 6(e) list who believe that there exists a “particularized need” for grand jury material to be disclosed to their staff working on a pending (or anticipated) parallel civil suit may not release, directly request the court to release, or request their staff to seek the release of, that material.14/ 13/ The Brady doctrine, in essence, requires that upon specific request by a criminal defendant, a prosecutor must disclose evidence favorable to the accused that is material to guilt or punishment. Brady v. Maryland , 373 U.S. 83 (1963). 14/ It is DOJ policy that only “attorneys for the government” may request the disclosure of grand jury material. Moreover, if a supervisor were to disclose to his/her staff (not on the 6(e) list) the existence of such material so that they might then seek it, it is probable that such disclosure, in and of itself, would violate Rule 6(e). ------- —10— However, the supervisor may request the DOJ prosecutor(s) to seek the release of such material. See United States v. Sells Engineeringr Inc. , ___ U.S., 103 S. Ct. 3133, 3168—69 (1983). DOJ prosecutors who through a grand jury investigation become aware of information which is unknown to the Agency and for which the Agency has a uparticularized need’—-for example, evidence of a serious public health hazard——may initiate appro- priate action through the courts to seek disclosure.15/ VI. Communications with DOJ If a supervisor wishes to communicate with DOJ with respect to a particular investigation or litigation in connection with the practices set forth herein, but has not yet established a DOJ contact for that particular matter, he/she should use generally the following procedures. Headquarters and other non—Regional supervisors should contact the Office of Criminal Enforcement (FTS 557—7410) and request the assistance any of the staff attorneys. Regional supervisors should request the assistance of the Criminal Enforcement Contact within the Regional Counsel’s Office for his/her Region. These attorneys will help ensure that necessary contacts with the appropriate DOJ prosecutor(s) are expeditiously made. VII. Reservations The policies and procedures set forth herein, and internal office procedures adopted pursuant hereto, are not intended, do not, and may not be relied upon to, create a right or benefit, substantive or procedural, enforcible at law by a party to litigation with the United States. The Agency reserves the right to take any action alleged to be at variance with these policies and procedures or not in compliance with internal office procedures that may be adopted pursuant to these materials. 15/ Ordinarily, DOJ should designate the lead EPA attorney on the pending civil litigation (generally the Regional Attorney assigned to the case), if one has been established, to receive such information. However, if no lead attorney has been established, the information may be transferred to the appro- priate Regional Counsel. ------- H ------- UNITED STATES ENVIRONMENTAL PROTECTION AGENCY M - 2 3 S I WASHINGTON. D.C. 20460 MAR 1984 OPFICL OF ENFORCFMFNT A%D COMP!iAF CL MONI1ORING MEMORANDUM SUBJECT: Guidance Concerni Compliance with the Jencks Act PROM: Courtney M. Pric Assistant Adminis rator or Enforcement and Compliance Monitoring TO: Assistant Administrators Regional Administrators Regional Counsels Associate Enforcement Counsels Director, NEIC Background The Jencks Act (18 U.S.C. S3500) provides that in a federal criminal prosecution, after a witness called by the United States has testified on direct examination, the court, on motion of the defendant, shall order the United States to produce any ‘statexnent, as defined in the Act, in the possession of the United States that relates to the subject matter as to which the witness has testified. witness called by the United States is subject to the Jencks Act. Therefore, the ustatementsu of environmental engineers, technicians, laboratory personnel, criminal investigators, inspectors, and EPA lawyers may be ordered turned over to the defense if any of these individuals testifies for the Government. The need for a complete understanding of the requirements of the Jencks Act, by all EPA personnel, can- not be underestimated. The identity of government witnesses cannot be accurately predicted in advance, and the sanctions for losing, destroying or misplacing ‘Jencks Act materiaP can be severe. The Act (the text of which is set forth in Appendix A) has generated a considerable amount of case law. Litigation has mainly concerned questions as to what is a statement and what sanctions should be imposed should the Government fail to produce Jencks Act material. This memorandum will discuss these points and the procedures which must be used to preserve the material. ------- —2- Issue What written materials will be considered ‘statements” subject to production to the defense during the course of criminal litigation? Discussion A ‘statement” is defined in part in 18 U.S.C. S3500(e) as (1) a written statement made by the witness and signed or otherwise adopted or approved by him; or (2) a stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement made by the witness and recorded contemporaneously with the making of such oral statement. ‘ (e)(l) Statements’ : Under subsection (e)(l), a written statement can be a report written by an agent and adopted by the witness. That is, if an agent writes up a report and either reads it back to the witness or lets the witness read it and then has the witness, in writing or orally, approve what has been written, then the witness has ‘adopted” the statement and it becomes the witness’s statement. This statement or report does not have to be written at the time of the interview of the witness. If an agent talks to a wit- ness, types up a report a few days later and shows the report to the witness who approves it, it is an ‘(e)(l) statement” of the witness. A document written by a witness, whether signed or unsigned, is also a statement and, if turned over to an agent, must be retained as Jencks Act material. Criminal investigators or agents intentionally obtaining statements from potential witnesses are not the only EPA personnel who may create ‘(e)(l) statements.’ If an EPA technician or inspector writes a report which a facility manager reads and certifies as being accurate, then this report may be considered the ‘statement’ of the facility manager. The manager has ‘adopted” the report. Also, the notes or laboratory reports of a technician or inspector are ‘(e)(l) statements’ as to that technician or inspector. If the technician or inspector testifies, then these notes or reports must be turned over to the defense if they relate to the subject matter of the direct testimony. It does not matter who records the statement or for what purpose; it remains Jencks Act material. EPA technical personnel must keep any notes that they have made of interviews with facil- ity personnel (or other potential witnesses) as well as notes recording actions which may later be the subject of a criminal prosecution. ------- —3— “ (e)(2) Statements” : Statements which are “(e)(2) statements” Thclude not only tape recordings, but any notes which can be considered a “substantially verbatim recital” of a witness’s oral statement. If an agent takes notes quoting, or writing down in a substantially verbatim form, the words of a witness and these notes are taken either at or near the time of the witness’s oral statement, these notes become the witness’s •(e)(2) statement”. The agent taking the notes is viewed in the tanner of a stenographer who accurately memorializes the witness’s words. The witness does not have to approve or adopt_the_agent’s notes. He does not have to even know that notes were being taken. If the agent has captured the witness’s words on paper, then these words are the witness’s statement even if he is unaware that he is making a statement. Agents who testify in court become witnesses whose statements also must be turned over to the defense. Investi- gative reports, written interpretations or impressions of a case, and written analyses of case problems and issues may all be ‘statements” of an agent. For instance, a report of a witness interview may not be a witness’s “(e)(l)” or “(e)(2)” statement because it does not directly quote the witness or capture the witness’s words in a substantially verbatim form. However, it may be the (e)(l) Btatement” of the agent who wrote the report. “The written report of the agent, however, is just as much a verbatim statement of the agent who prepares it as a written statement of an informer, incorporated in the report, is the statement of the informer.” Holmes v. United States , 271 F.2d 655, 658 (4th Cir. 1959). “Running resumes” of F.B.I. agents, detectives or EPA agents are “(e)(l) statements” of the agent and may be producible. If a Special Agent testifies, it can be antici— pated that his/her notes, reports to SAICs, case referral reports, and investigative reports will be producible if the direct testimony covers areas which are discussed in these previously written documents. United States v. Sink , 586 F.2d 1041 (5th Cit. 1978), cert. denied , 443 U.S. 912 (1979); Holmes v. United States, supra . Although it is incumbent upon the trial judge to separate out personal evaluations and “discussions of legal and practical problems of a prose— cution from the “running resumes” (or from any document which contains Jencks Act material), the writer who includes extraneous material always runs the risk of a judge deciding against excision. United States v. Pfingst , 377 F.2d 177, 195 (2d Cir.), cert. denied , 412 U.S. 941 (1973). Material in an agent’s report which is sensitive or which might affect the security of EPA’S investigative techniques is not exempt from Jencks Act requirements. West v. United States , 274 F.2d 885 (6th Cir. 1960), cert. denied , 365 U.S. 819 (1961). ------- —4— Notes, reports, etc., in the hands of any EPA employee—— including criminal investigators, lawyers and technical persons——are considered uin the possession of the government.” Therefore, if an EPA employee fails to disclose Jencks Act material to the prosecutor, that failure will be held against the Government even though it is the agent rather than the prosecutor who has failed to preserve something. United States v. Bryant , 439 F.2d 642 (D.C. Cit. 1971); Emmett v. Ricketta , 397 F. Supp. 1025 (N.D. Ga. 1975); United States v. Niederberger , 580 F.2d 63 (3d Cir. 1978); United States v. Wil1ia is , 604 F.2d 1102 (8th Cir. 1979). As soon as a case is opened by the Office of Criminal Investigations, the agent assigned to the case should inventory all existing notes and reports concerning potential government witnesses in the possession of, or known to, all Agency personnel involved in the case, and inform them of their obligation to retain such material. Copies of this Agency’s guidance on the Jencks Act should also be distributed to such personnel. Courts will require the Government to turn over any material which fits the statements definition if it relates to the subject matter of the witness’s direct testimony. Any material which either is not a statement of the witness or does not relate to the subject matter of the witness’s direct testimony will be excised from the document. A judge may not exercise his or her own judgment as to what material is important, helpful or necessary for the defense. If it is a statement that relates to the direct testimony, it must be turned over. Courts have broadly interpreted the phrase relates to the subject matter as to which the witness has testified, in Section (b) of the Act. However, courts have more restric- tively defined estatementsu under Section (e). Acknowledging that it is unfair to cross—examine a witness using material which does not represent what the witness in fact said, courts have excluded material that is really the agent’s words or impressions rather than those of the witness. In Palermo v. United States , 360 U.S. 343 (1959), the Court affirmed the denial of the production of a 600—word memoran- dum in which the Government agent summarized a three and a half hour interrogation of a witness who testified at trial. In one of the first Supreme Court decisions discussing the ‘statement definition of the Jencks Act, the Court attempted to clarify what courts may exclude: ------- —5— (S]ummaries of an oral statement which evidence substan- tial selection of material, or which were prepared after the interview without the aid of complete notes, and hence rest on the memory of the agent, are not to be produced. Neither, of course, are statements which contain the agent’s interpretations or impressions. 360 U.S. at 353. If a court describes an agent’s notes as urough U, randomU or “brief, it will be signaling its finding that the notes are not ‘statements’ as to the witness referred to in the notes. To determine whether notes accurately reflect a witness’s words, courts will consider the extent to which the writing conforms to the witness’s language (e.g., ‘I dumped it because I thought the load was hot.’); 1/ the number of pages of notes in relation to the length of the interview (e.g., one page of notes after three hours of interviewing); 2/ the lapse of time between the interview and its transcription; 3/ the appearance of the substance of the witness’s remarks (i.e., are they in quotation marks? in sentence form?); 4/ and the presence of comments or ideas of the interviewer. 5/ The Jencks Act clearly gives the court the authority to determine, after an in camera inspection, what is Jencks Act material and what is not. It is not the Government’s function to excise material; rather, any notes or memoranda which conceivably could be viewed as Jencks Act material should be provided to the prosecutor for review by the courts. 1/ Palermo v. United States, supra . 2/ United States v. Judon , 581 F.2d 553 (5th Cir. 1978); United States v. Durham , 587 F.2d 799 (5th Cir. 1979); Goldberg v. United States , 425 U.S. 94 (1976); Palermo v. United States, supra . 3/ Campbell v. United States , 365 U.S. 85 (1961). 4/ United States v. Muckenstrum , 515 F.2d 568 (5th Cir.), cert. denied , 423 U.s. 1032 (1975); United States v. Pennett , 496 F.2d 293 (10th Cir. 1974); United States v. Hines , 455 F.2d 1317 (D.C. Cir. 1971). 5/ United States v. Pfingst, supra . ------- —6— Issue When must Jencks Act material be made available to the defense and what are the sanctions if it is not made available? Discussion If a prosecutor decides to follow strictly the letter of the law, he or she need not turn over Jencks Act material until after the witness has testified at trial for the Govern- ment. However, because of the delay which this creates (while the defense reviews the material), most courts expect that a prosecutor will agree to turn over Jencks Act material either at the start of each day of trial or before the witness testi- fies on direct examination. Some prosecutors even allow the defense to examine the material before trial. As in any area of the law, different courts interpret the Jencks Act differently. Prosecutors who are aware of previous rulings by a court on Jencks Act issues will conform their practice accordingly. Therefore, what one prosecutor considers Jencks Act material, another may not. EPA personnel must accommodate themselves to the practice of the prosecutor within their jurisdiction. The Congressional purpose of the Act is to allow the defendant to have, for impeachment purposes, ‘relevant and competent statements of a governmental witness in possession of the Government touching the events or activities as to which the witness has testified at trial.’ Campbell v. United States, supra , 365 U.S. at 92. If the defense’s ability to cross—examine is impeded by the deliberate or inadvertent loss, by the Government, of Jencks Act material, the Court may decide not to allow the witness to testify at all or to strike the witness’s entire testimony. Of course, the effect of completely excluding the testimony of a Government witness may be significant. Although the Act does not require the automatic imposi- tion of sanctions for failure to preserve potential Jencks Act material, courts have warned law enforcement agencies of their duty to promulgate procedures to ensure preservation. (S]anctions for non—disclosure based on loss of evidence will be invoked in the future unless the Government can show that it has promulgated, enforced, and attempted in good faith to follow rigorous and systematic procedures designated to preserve all discoverable evidence gathered in the course of a criminal investigation. The burden, of course, is on the Government to make this showing. Negligent failure to comply with the required procedures will provide no excuse. ------- —7— United States v. Bryant , 439 F.2d 642 (D.C. Cir. 1971) (footnote ornitted)(emphasis in original). In light of the sanctions that can flow from a failure to preserve Jencks Act material, as well as Government’s inherent responsibility to preserve discoverable evidence, it is incumbent upon EPA to develop procedures that will ensure this end. Issue What procedures should be implemented throughout the Agency to preserve Jencks Act material? Discussion As a general rule, after a matter is referred to EPA’s Office of Criminal Investigations, the case agent, will be responsible for reports written to document factual develop- ments in ongoing cases. This would include, for example, interview write—ups, surveillance reports, documentation of the receipt of physical evidence, etc. One clear exception to this general rule will be Agency technical personnel who will continue to draft reports documenting sampling data and analysis, chain of custody information, etc. If more than one investigator is involved in an investi- gation, only one report should be written documenting a specific event unless circumstances mandate otherwise. All work notes should be retained by Agency personnel working on the criminal investigation until the final disposi- tion of the case. This potential Jencks Act material must be kept in secured files when not in immediate use. Any notes taken at the time of the event, or at the time of the interview, as well as reports composed from the notes must be retained. Intermediate drafts need not be retained. Investigative reports and technical reports should not include the writer’s subjective thoughts, impressions or general opinions concerning a case. If it is thought necessary to reduce to writing information that is not strictly factual, this should be kept separately in secured files. It is more likely that material which is arguably not producible under the Act will be withheld from the defense if it is kept apart from material which is clearly Jencks Act material. Rather than disputing in court which portions of reports should be excised, everything within a report should be relevant and objective material. Extraneous material which does not directly relate to a case should not be included in investi- gative reports on that case. ------- APPENDIX A S3500 Demands for production of statements and reports of witnesses. (a) In any criminal prosecution brought by the United States, no statement or report in the possession of the United States which was made by a Government witness or prospective Government witness (other than the defendant) shall be the subject of subpoena, discovery, or inspection until said wit- ness has testified on direct examination in the trial of the case. (b) After a witness called by the United States has tes- tified on direct examination, the court shall, on motion of the defendant, order the United States to produce any state- ment (as hereinafter defined) of the witness in the possession of the United States which relates to the subject matter as to which the witness has testified. If the entire contents of any such statement relate to the subject matter of the testi- mony of the witness, the court shall order it to be delivered directly to the defendant for his examination and use. Cc) If the United States claims that any statement ordered to be produced under this section contains matter which does not relate to the subject matter of the testimony of the witness, the court shall order the United States to deliver such statement for the inspection of the court in camera. Upon such delivery the court shall excise the portions of such statement which do not relate to the subject matter of the testimony of the witness. With such material excised, the court shall then direct delivery of such statement to the defendant for his use. If, pursuant to such procedure, any portion of such statement is withheld from the defendant and the defendant objects to such withholding, and the trial is continued to an adjudication of the guilt of the defendant, the entire text of such statement shall be preserved by the United States and, in the event the defendant appeals, shall be made available to the appellate court for the purpose of determining the correctness of the ruling of the trial judge. Whenever any statement is delivered to a defendant pursuant to this section, the court in its discretion, upon application of said defendant, may recess proceedings in the trial for such time as it may determine to be reasonably required for the examination of such statement by said defendant and his preparation for its use in the trial. ------- —2— Cd) If the United States elects not to comply with an order of the court under subsection (b) or Cc) hereof to deliver to the defendant any such statement, or such portion hereof as the court may direct, the court shall strike from the record the testimony of the witness, and the trial shall proceed unless the court in its discretion shall determine that the interest interests of justice require that a mistrial be declared. (e) The term “statement, as used in subsections (b), (c), and Cd) of this section in relation to any witness called by the United States, means—— (1) a written statement made by said witness and signed or otherwise adopted or approved by him; (2) a stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement made by Baja witness and recorded contemporaneously with the making of such oral statement; or (3) a statement, however taken or recorded, or a transcription thereof, if any, made by said witness to a grand jury. ------- ------- .S ’ s UNITED STATES ENVIRONMENTAL PROTECTION AGENCY . _ L I# _ . . ‘ ., T WASHINGTON. D.C. 20460 .ec j g OF’fl 01 EMO r MFNT AI O COMPLIAM MoNIToqip MEMORANDUM SUBJECT: FROM: TO: Policy on Sampling, Preservation, and Disposal of Technical Evidence in Cri Enforcement Matters Peter G. Beeson Associate Enforcement Counsel Criminal Enforcement Division All Addressees Attached you will find the final draft of policies for gathering, preservation and, in appropriate circumstances, disposal of evidence in environmental criminal matters. It has been modified to incorporate comments and suggestions received from Environmental Services Division Directors at their Washington Conference last October. These policies would apply in any case that has been assigned to, and is being managed by, the Office of Criminal Investigations of the National Enforcement Investigations Center (NEIC) of the Office of Enforcement and Compliance Monitoring. This guidance generally supplements existing policy; however, reference should also be made to the manuals and guidance issued by NEIC and the laboratories. Please review and indicate your concurrence or non currence no later than February 1, 19814. Questions and comments should be directed by telephone, or in writing, to Betsy Herman, an attorney with the Criminal Enforcement Division (557—7kb). Addressees: Assistant Administrators Regional Administrators, Region I—X Regional Counsels, Regions I—X Director, N.E.I.C. Environmental Service Division Directors Associate Enforcement Counsels 7/ ------- UNITED STATES ENVIRONMENTAL PROTECTION AGENCY _______ WASH$NGTON. D.C. 20460 . DRAFT OF ICt O ENFO C!MFNT ANC COMPu IAl r MOF i1 RIN MEMORANDUM SUBJECT: Policy on Sampling, Preservation, and Disposal of Technical Evidence in Criminal Enforcement Matters FROM: Courtney M. Price - Assistant Administrator Office of Enforcement and Compliance Monitoring TO: Assistant Administrators Regional Administrators, Regions I—X Regional Counsels, Regions I—X Director, N.E.I.C. Introduction This guidance describes procedures to be used for tech- nical evidence related to cases which have been assigned to, and are being managed by, the Office of Criminal Investigations of the National Enforcement Investigations Center (NEIC) of the Office of’ Enforcement and Compliance Monitoring. This guidance, and the internal office procedures adopted in accordance with the guidance, 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 in litigation with the United States. Any attempt to litigate any aspect of’ this guidance should be brought to the immediate attention of the Criminal Enforcement Division, Office of Enforcement and Compliance Monitoring, EPA Headquarters. SAMPLING GUIDELINES Background In any criminal prosecution, the government must prove each element of’ each offense beyond a reasonable doubt. The evidence that the government chooses to use to meet this burden is left to the prosecutor’s discretion subject to the standard limitations of probativity and relevancy. Prosecution under environmental statutes poses particularly interesting ------- —2— questions because of the need to prove the identity (and often quantity) of pollutants, and because of the need for experts (i.e., technicians, environmental engineers, etc.) to establish aspects of the government’s case. The facts upon which the expert relies must impress a jury, meet defense challenges, and establish the criteria necessary for the expert opinion. Only by considering issues of proof before evidence is collected can the government be assured that violations dis- covered can be proved when the case goes to trial. A determina- tion of what evidence should be taken, how it is to be taken and how much should be taken must be done on a case—by—case basis. As will be discussed below, the general principle will be to take representative samples and to refer clean up problems for civil and/or administrative remedies. Issue What level of pollutant sampling will suffice to support a criminal case? Policy Technical support operations conducted for criminal investigations assigned to the Office of Criminal Investigations will, with few exceptions, be evidence—gathering rather than remedial operations, and will be limited accordingly. Samples taken in support of a criminal investigation normally will be limited to those considered necessary to confirm the occurence of illegal activity, and to prove the government’s case at trial. Any overall remedial response required by the situation will then become the responsibility of existing administrative or civil response authorities within the Agency. Investigations for criminal prosecutions will not involve clean up operations, storage, or the disposal of large amounts of’ hazardous wastes. Only samples of the evidence uncovered will be collected. Regional authorities should be contacted by the criminal investigator to initiate the appropriate action once the site has been entered or the hazardous substances have been discovered. ------- It will be the policy of the Agency to use representative samples as evidence for criminal cases. Occasionally, the only evidence available for a significant environmental offense will be a small amount of’ material. In that event, the entire amount of’ material which can be collected will be retained for testing and for defense requests. Most cases assigned to the Office of’ Criminal Investigations will involve large amounts of’ pollu- tion or hazardous substances and, in those cases, representative samples will be gathered. Before any decisions are made or any samples obtained, agency personal assigned to the investigation and, where possible, prosecuting attorneys should collaborate to decide what evidence will be necessary and desirable to prove each charge. When samples are obtained without a search warrant and prior to a referral to the Justice Department or to the U.S. Attorney’s office, a prosecutor may not be working on the case. When this is the case, the investigative, tech- nical and legal personnel at the Agency will make the evidence decisions. If the evidence is to be obtained pursuant to a search warrant, this discussion (concerning evidence collection) must be prior to the submission of the affidavit for the warrant. The magistrate or judge issuing the warrant will inquire as to the duration of the eon—site” time, the area to be searched,. and the subject(s) of the search. These questions can only be answered if the government has formulated an investigative plan for obtaining the evidence in advance of the request for the warrant. Discussion Evidence decisions must start with the technicians, envi- ronmental engineers and other experts who know what is the bare minimum of evidence necessary to be a basis for their scientific opinions. Attorneys and agents should then add information concerning the tangible evidence that is most likely to clarify the government’s case for the jury and what evidence is likely to make an impact concerning the seriousness of the charges. Thought should be given to defense attacks concerning whether the samples are truly representative and whether they were obtained, preserved and tested in an accurate, scientific manner. Consideration must also be given to reducing ------- —4— the “on—site” time and the practical difficulties of proper storage and safekeeping. Finally, under certain statutory provisions (for example, the CERCLA reporting requirement for reportable quantities” found at Section 103(b)(3)], the govern- ment will be obliged to demonstrate that a specified amount of a hazardous substance was released. This will also affect the amount of sampling that is conducted on—site. The question of what is a representative sample can only be answered in the context of the case. All the parameters of the potential evidence should be sampled, photographed or documented in some fashion. See, NEIC Policies and Procedures Manual. For instance, if drums are located at a plant which does not have a permit to store hazardous wastes, the necessary proof will include establishing the nature of the drum contents. The total number of drums should also be determined and docu- mented. Unless the number is extremely large, samples can be obtained from each drum. If this is impractical, samples should be obtained from all apparent categories (size, content appearance, state of deterioration or exposure to the environ- ment, etc.). If the soil under and around the drums is possibly contaminated, then soil samples should be taken at different points and at different depths. Keeping in mind that the concentration of the substances as well as the gross amount of the substance may be relevant, the technicians should be prepared to take samples which can answer these questions. See, United States v. Gonzalez , 697 F. 2d 155 (6th Cir. 1983). Because criminal prosecutions must be proved “beyond a reasonable doubt”, care must be taken to ensure thorough and complete testing and sampling procedures. Recognizing the storage limitations of the Agency, it cannot be denied that the seriousness of the offense is emphasized when the Government can visually prove its case with a multitude of samples and physical evidence. It is expected that the technical personnel who testify in criminal cases will be able to state that a thorough and scientific procedure was used to obtain the evidence and that no further samples or tests would be necessary to confirm the results. II. DISPOSAL OF EXTRA SAMPLE EVIDENCE Background There will be occasions when EPA technicians and agents take more evidence samples than are necessary to prove a case. The storage and preservation expense as well as potential dangerousness of the items might make it advisable to dispose ------- —5— of the evidence in advance of trial. At the same time, courts look with disfavor upon the disposal of material that may be characterized as potential evidence in a criminal trial. Thus, destruction of samples and remains of samples must occur in a manner that does not jeopardize the subsequent prosecution. Issue When and how may surplus sampling evidence be disposed of prior to a criminal prosecution? Policy Court permission must be obtained before surplus samples obtained in the course of a criminal investigation are disposed of by the government. Disposal procedures will vary depending on the stage of the criminal case. Where a defendant has been formally charged, the government can file a pre—trial motion for disposal of evidence that will be considered in an adver- sarial proceeding. If charges have not been filed, the same type of motion filed ex parte may be used. This ex parte motion would be made pursuant to the All Writs Act, 28 U.S.C. § 636 (b)(l)(A)(see Attachment). Discussion It should be noted at the outset that an evidence destruc- tion motion will not always succeed. For example, it is not certain that a Court will give permission for such destruction in the context of a criminal case involving non—contraband materials. The majority of cases which discuss destruction of evidence before trial involve destruction of contraband (i.e., drugs, counterfeit money, illegal weapons). It would be under- standable for a court to refuse permission to dispose of chemicals, soil, capacitors, or drums when it has not been determined and will not be determined prior to trial whether these items were legally or illegally held or stored by the defendant(s). If the jury acquits the defendant(s), they would theoretically have the right to repossess the evidence seized, for whatever value it might have. In United States v. Ramsey , 490 F. Supp. 96 (E.D. Term. 1980) the court issued an opinion on the government’s motion to destroy certain chemicals. The court would not authorize the disposal of chemicals which the government had seized even though the government documented a reasonable concern over the hazardous nature of the substances. The government alleged that the chemicals were flammable and explosive and “constitute a present danger to property and a threat of personal injury or death to people in or near the storage area.” Id. at 97. But, the court reasoned, how could it authorize destruction of non—contraband, unforfeited property ------- —6— when there has been “no showing that the chemicals have been used or intended to be used by anyone in any significant way in a criminal enterprise?” Id. at 96. Presumably, that is what the government intended to prove at trial, but until then, the prosecutor was admonished by the Court tO use extreme care and caution with the chemicals, but to keep them. - When a Court iS petitioned, either pursuant to the All Writs Act, or by way of a pre—trial motion, for permission to destroy evidence, the Court should be informed whether the targets of the investigation have been notified of the motion, whether the targets have been offered split samples (see Section III), and whether the targets have been offered the opportunity to view the evidence before destruction. Of course, before suàh a motion is made, the effect of dis- closing the existence of a previously secret criminal investigation must be analyzed. However, if the defendants have been formally charged or otherwise made aware of the criminal investigation, EPA will encourage the prosecutor assigned to the case to obtain Court authorization to destroy sample evidence which goes beyond that necessary to prove the case or evidence which the defense has declined. In any event, any evidence obtained on behalf of the Office of Criminal Investigations shall not be disposed of until the possibility of criminal charges has been foreclosed by a Headquarters decision or the Court has authorized such destruction. III. SPLIT SAMPLES/DOUBLE SAMPLES Background Many environmental statutes require the Agency to split samples taken in the exercise of statutory inspection rights. When a site search is conducted pursuant to a criminal search warrant, no such requirement exists. However, offering samples at the time of the execution of the warrant is an expeditious method of assuring the defense access to the samples while not burdening the Agency with storeage problems. Issue Should samples be split in the context of a criminal investigation? Policy All samples taken by EPA technicians on behalf of the Office of Criminal Investigations should be taken in large enough quantities so that if the defense requests part of the sample at any time prior to trial, a portion of the sample may be turned over to the defense. ------- —7— If sample collection is authorized by a court as part of a search warrant, it is appropriate to inform the court (at the time the warrant is obtained) of the Agency’s plan to offer split samples to authorized persons at the site of the warrant. Prior Court approval of the transfer of hazardous substances is helpful, even if not necessary. Once the court has authorized the collection of samples and the splitting of such samples, an offer to turn over split samples should be made to an authorized person at the site, even without such a request having been made by the defense. If the split sample is refused or no one is available to accept it, extra amounts of the sample must be retained by the Agency. Whether or not the extra amounts are kept in separate containers should be a laboratory decision. There may be subsequent requests for samples so that independant testing can be administered on behalf of the defense in preparing for trial. Courts will normally honor such requests. Finally, the return on the search warrant should document whether a sample split is accepted, refused or not offered because no one was available to accept it. Discussion Although convictions have been affirmed where the govern- ment has lost or destroyed an evidentiary sample, the courts have begun to sympathize with a defendant’s request to indepen- dently inspect and test. For instance, in Banks v. F.A.A. , 687 F.2d 92 (5th Cir. 1982) the courts reversed the dismissal of two air traffic controllers who were fired after drugs were found in their urine. The defendants claimed that their due process rights were violated because F.A.A. allowed the private lab which had tested the urine to destroy it after it was analyzed. The court agreed that it was crucial” that the samples were not available for independent testing and dis- counted the government’s claim that cross examination of the independent testing chemist and challenging the testing methods were sufficient. Citing the principles of United States v. Gordon , 580 F.2d 827 (5th Cir.), cert . denied,439 U.s. 1051 (1978), the court stated: The laboratory tests here were the only meaningful evidence resulting in the discharges. The accuracy of those tests, including the possibility that the samples were mixed up, damaged, or even inaccurately tested, was the likely determinant of the entire case. Id. at 94. (emphasis in original) ------- —8— In Gordon , even though the government made available samples of the three seized chemicals to the defense, the Court found that it was error not to also have turned over the chemical which the government chemist made from the three seized chemicals. The reasoning of this and other similar cases is that if the government intends to introduce secondary evidence (i.e., photographs, testimony, test results), then it should retain the primary evidence for defense inspection and testing. One more case widely cited is U.S. v. Loud Hawk , 628 F2d 1139 (9th Cir. 1979), cert. denied , 445 U.s. 917 (1980). In this case, state law enforcement officers destroyed seized dyna- mite after thoroughly examining it and photographing it. The defense argued that the material was not dynamite and that they were not notified of the state’s intention to destroy it and therefore, did not get a chance to test it. The Court held that even though the dynamite was destroyed for “public safety considerations,” it was evidence and it should have been preserved for the defense. The Fifth ( U.S. v. Gordon , supra.), Ninth ( U.S. v. Loud Hawk , supra.), Third ( Government of the Virgin Islands v. Testamark , 570 F.2d 1162, 1978), Eleventh ( U.S. v. Nabors , 707 F.2d 1294, 1983) and First ( U.S. v. Picariello , 568 F.2d 222, 1978), Circuits are not sympathetic to the argument that e iidence which has been destroyed is not “suppressed.” Under Brady v. Maryland , 373 U.S. 83 (1963) and following the reasoning of U.S. v. Bryant , 439 F2d 642 (D.C. Cir. 1971), courts have found that a right to discover implies a duty to preserve. Therefore, sufficient quantities of the evidence should be obtained and preserved so that both the government and the defense can perform tests. IV. TECHNICAL SAMPLES WHICH DEGENERATE Background Samples taken by the government may, no matter how scienti- fically preserved, degenerate with the passage of time. Thus, even if there is an adequate amount of the material for defense testing, it may no longer be suitable for testing by the time the defense is notified or by the time a defendant is identi- fied. This will only be an issue when the defense has not obtained a split sample at the time the sample was taken by the Government. Issue What steps should the government take when it has poss- ession of evidence which degenerates? ------- —9— P01 cy Under no circumstances will samples, residues, or sample containers used in cases assigned to the Office of Criminal Investigations be destroyed, regardless of their condition, without following disposal procedures established in Section II above. If the chemical and/or biological properties of the evidence seized remains stable for only a short period of time, the Criminal Enforcement Agent assigned to the case should be notified by the laboratory personnel. Agency personnel and/or a prosecutor will then notify the defense. The notification should state that the government has a sample and that the defense has until a certain date to inspect or obtain the sample for indepen- dent testing. The target must be notified as soon as possible after formal charges have been brought. Whenever the target is notified, court approval to destroy after the stated date, whether or not the defense responds to the notice, must be obtained. This can be accomplished by way of the All Writs Act or by a motion to the Court which has jurisdiction over the case. Discussion This is a difficult and sensitive area because of the time considerations when evidence is likely to self—destruct. To avoid an allegation of bad faith, it will be important that the government give notice as soon as possible, so that the defense has adequate time to retain their own experts and to start their own testing. Notice should include a technician’s preliminary assess- ment of what the sample contains, when it was obtained and the rate of anticipated degeneration. The name and phone number of the prosecutor and agent to contact should also be included. If the defense responds to the notice, the U.S. Attorney’s office should be contacted and the arrangements for the transfer of a portion of the sample should be coordinated with that office. V. Laboratory Procedures Background Samples obtained, tested and preserved for EPA’s criminal cases have the same need for personnel safety, chain of custody and security procedures as those collected for administrative and civil enforcement cases. However, these procedures must be even more stringently adhered to in criminal cases. The importance of security (both for the paperwork and the samples) and of a tight chain of custody cannot be overemphasized. ------- —10— Issue What procedures should be used in the laboratory for evidence for criminal enforcement cases? Policy Where, possible evidence obtained on behalf of the Office of Criminal Investigations will be tested and preserved by Agency laboratories, rather than contract laboratories. Until further guidance is issued, each Agency laboratory will institute its own procedures to ensure the security of the paperwork and the samples. These procedures will supplement those already in force in this this area. Discussion Because of superior quality control and simplified chain of custody, technical samples collected in criminal cases will be analyzed in EPA laboratories, rather than contract labora- tories. EPA laboratories are encouraged to develop security procedures and simplify chain of custody procedures, and to discuss these changes with the Criminal Enforcement Division. and the NEIC. It is important that samples and paperwork (on these samples) not be tampered with or discussed with anyone i ot assigned to work on the case. A premature disclosure, even inadvertant, to a company, the media, or other individuals can jeopardize the success of the investigation and the safety of the investigators. Furthermore, the “tighter” the chain of custody, the easier it will be to prove the case in court. Since it may be necessary to bring into court each individual who handled, tested or packaged the samples, the fewer individuals involved, the better. Because of the complexity of the sampling and testing procedures, the laboratories are authorized to determine their own methods for making sure that no “unnecessary” personnel handle the evidence. ------- J ------- fr i A zZ ENVIRONMENTAL PROTECTION AGENCY OFFICE OF ENFORCEMENT NATIONAL ENFORCEMENT INVESTIGATIONS CENTER BUILDING 53. BOX 25227. DENVER FEDERAL CENTER DENVER, COLORADO 80225 10: SAC/RACS DATE October 31, 1984 FROM: James L. Prange Assistant Directo ’YCrimir Investigations SUBJECI : Format for Criminal Case Referrals 1. PURPOSE : This memorandum establishes policy and procedures in the preparation and submission of a Criminal Case Referral within the Office of Criminal Investigations, National Enforcement Investigations Center, U.S. Environmental Protection Agency. 2. SCOPE : The provisions of this order apply to all legal and technical employees involved in the preparation of Criminal Case Referrals and to all employees of the Office of Criminal Investigations, National Enforcement Investigations Center. 3. INTRODUCFION : Effective immediately the following policy and procedures shall be used in the preparation and submission of Criminal Case Referrals. These guidelines should be considered as reflecting the minimum standards necessary in the content of the report. 4. PREPARATION AND SUBMISSION : Criminal Case Referrals will be prepared in every instance where investigation has disclosed substantial crimi- nal violations of the federal environmental statutes and regulations, including ancillary U.S. Code violations, which create a likelthood of criminal prosecution. The timeframe for submission may vary, but in all circumstances submission should be performed whenever a case is substan- tially proven. This decision for submission should be made in close coordination with the Department of Justice attorneys, Regional and Headquarters legal staff, program technical staff, the responsible ------- -2- Special Agent in Charge of the Office of Criminal Investigations, and the Special Agent managing the investigation. The Special Agent managing the investigation will be responsible for the preparation and submission of the Criminal Case Referral in acceptable form. In those criminal investigations not utilizing the services of an investigative Grand Jury, i.e., the agency will use the Grand Jury or other court procedures merely to obtain an indictment or information, the responsible Special Agent will submit a completed Criminal Case Referral, in acceptable form, to the responsible Special Agent in Charge. This submission will be done in sufficient time to al1 formal internal review and approval prior to submission to the Department of Justice and the U.S. Attorney. This will ensure adequate agency review prior to the comitment of further agency resources in the particular investiga- tion. The final approval by the Special Agent in Charge shall provide / notice to the Special Agent that formal legal proceedings may begi >,/’ 5. P )RMAT OF A CRIMINAL CASE REFERRAL : a. Title Page : The Title Page will be in the format as shc n in Attachment A. b. Introduction and Signature Page : The Introduction and Signature Page will be in the format as shown in Attachment B. It will contain the following information: (1) EPA criminal file rnm ber and NEIC project code. (2) Federal judicial district by name and the corresponding United States Attorney. (3) Approval signatures by the Special Agent in Charge and the Regional Counsel. ------- —3— (4) A brief introduction outlining the principal violations and the suspect firms and/or individuals. c. Table of Contents : Each Criminal Case Referral shall have a Table of Contents that includes, at a minimum, the following sections: Section Page I. Title Page II. Introduction and Signature Page III. Statutory and Regulatory Violations IV. Personal History of Defendants V. EnforcEnent and Regulatory History VI. Description of Evidence Appendix A. List of Witnesses Appendix B. List of Exhibits Appendix C. Exhibits d. A discussion of the individual sections follows: Section I - Title Page : See Attachment A. Section II - Introduction and Signature : See Attachment B. Example of Introduction: This report is submitted in regard to alleged violations of the United States Code by Richard Roe, John Doe, Mary Doe, and others named as defendants or co-conspirators herein, in that between January 16, 1983, and July 1, 1983, in Fulton County, Northern Judicial District of Georgia, they did con- spire to violate the enviromental laws of the United States; further, that on July 1, 1984, they did cause the illegal disposal of a listed hazardous waste in Macon County, Middle Judicial District of Georgia. ------- -4- Section II - Statutory and Regulatory Violations : This section should contain the statutory and regulatory provisions that provide the basis for the Criminal Case Referral. Pertinent por- tions of each statute or regulation should be quoted in full. If different charges apply to different defendants, it should be noted. Section III - Personal History of Defendants : This section will be utilized to provide pertinent personal history information on the subjects of the Criminal Case Referral. For each individual, the following information should be included in the order listed: (1) Name. (2) Title and business. (3) Home address with zip code. (4) Home phone. (5) Work address with zip code (list all known company or corporate affiliations). For each corporate subject: (1) Name of company and parent corporation, if appropriate. (2) Complete address of company. (3) Complete address of facility associated with offenses. (4) State of incorporation of corporate subjects. (5) Registered agent for service. / (6) A brief statement of the business, profits, and size of the company. ------- -5— Section IV - Enforcement and Regulatory History : This section should include a description of all kncMn enforcement activity, both state and federal, taken against the defendants in the past relating to environmental matters generally. In addition, the writer should discuss any previous efforts by EPA or state agencies to remedy the problem through informal, administrative, or civil means. Give only brief sunioaries. Section V - Description of the Evidence : This section includes a chronological narrative of all relevant and material facts constituting the alleged criminal violations. It may be that for several separate incidents the episodic method may be utilized. This section forms the factual basis for criminal charges and should be defendant oriented, i.e., should tell what the defendant(s) did or caused to be done whenever possible. Each specific fact contained in this report shall be referenced to an exhibit or exhibits which substantiate the statement of fact. Speculation will be avoided. This section will usually constitute the major portion of the case report. Appendix A - List of Witnesses : This section is particularly useful to prosecutors supervising the case, and will frequently be used in issuing subpoenas, larining a Grand Jury presentation, and estimating the scope of the prosecution. For each witness, the writer should provide all available background data (i.e., name, residence, work address, telephone numbers, etc.) and a brief s nary (one paragraph) of the matters on which testimony is ------- -6- anticipated. This section should include not only the key substantive witnesses, but also those who will establish the appropriate foundation for documentary or physical evidence (for example: photographers, chain of custody witnesses, record custodians, etc.). Confidential informants should not be identified in this list. Apendices B, C - List of Exhibits and Exhibits : Copies of every substantial piece of documentary evidence in the case should be included as an exhibit to the report and should be indexed to all .z for easy reference in the main body of the report. Original exhibits or documents should not be included in the case report. Originals will normally be used as evidence in trial and should be retained in the CCI Office until other arrangements are made with the Justice Department prosecutor supervising the case. 6. REVIEW AND APPROVAL PROCESS : The responsible Special Agent will submit the Criminal Case Referral in complete but rough draft form to the Special Agent in Charge (SAIC) in accordance with section entitled “Preparation and Sub- mission” above. The SAIC will conduct a thorough review, and, after any necessary corrections, the SAIC will approve the report for typing in the initial final form. The Special Agent and SAIC will review the initial final draft. If this is approved, the SAIC will arrange for the report to be forwarded, in a confidential manner, to the Regional attorney assigned to the investigation. The Regional attorney may make a copy of the exhibits for future use and review the content of the’ report for legal sufficiency, preparing any necessary reports that might supplement the Criminal Case Referral. (See Section 8 below.) The Special Agent should also assure that the report is reviewed by ------- —7— technical personnel assigned to the investigation for technical sufficiency. Approval by technical personnel shall also coninit the Agency to support for the case throughout the judicial process. Any correct ions that are necessary will be made by the Office of Regional Counsel. The Criminal Case Referral will then be forwarded in a con- fidential manner to the responsible Regional Counsel for approval. This person shall note approval by affixing his/her signature in the appropriate space on the Signature Page. The approved report shall then be forwarded to the appropriate Special Agent in Charge. The Special Agent in Charge shall again review the Criminal Case Referral. Any further changes will be discussed with the Regional Counsel or his designee and/or the technical staff as appropriate. When approved, the Special Agent in Charge shall affix his/her signature in the appropriate space on the Signature Page. The referral will then be forwarded to the Criminal Enforcement Divi- sion in EPA Headquarters for review and approval. After approval by the Assistant Administrator for Enforcement and Compliance Monitor- ing, the referral will be sent concurrently to the Environmental Crimes Unit, Department of Justice, and to the appropriate U.S. Attorney’s Office. Section 7 describes the ultimate distribution of the referral package. 7. DISTRIB!.TFION OF THE CRIMINAL CASE REFERRAL : I a. The original report with copies of exhibits is forwarded to the U.S. Attorney of the principal judicial district. An additional copy or copies may be provided to other U.S. Attorneys, if jurisdiction falls in more than one judicial district. ------- -8— b. One copy with exhibits should go to the OCI case file. c. One copy with exhibits should go to the Criminal Enforc nent Divi- sion legal office in Headquarters. d. One copy with exhibits should go to the Department of Justice, Environ- mental Crimes Unit. e. One copy without exhibits should go to the Regional Counsel. f. One copy with exhibits should go to the Assistant Director, Criminal Investigations, NEIC. Original exhibits in EPA custody should be maintained in a secure manner by the Special Agent/Case Agent until such time as their personal delivery to the court or prosecutor is arranged. Nothing in this section shall preclude coninunications between the investigating officials, the U.S. Attorneys, the Department of Justice, and Headquarters legal staff at any time. Such contact is encouraged, particularly prior to the initiation of investigative Grand Jury activities. 8. LEGAL ANALYSIS REPORT : The Regional or Headquarters attorney assigned to the investigation may, as part of the review process, prepare a legal analysis report which should be marked in capital letters “PRIVILEGED - AT’IORNEY 4)RK PROIXJCr.” This report would address the various legal issues involved in the particular investi- gation, including strengths and weaknesses, legal defenses, ‘evidenti- axy challenges, and equitable defer.ses. It may also include a proposed sample indictment, a listing of the el nents of the various offenses, parallel proceedings matters, and any other material ------- -9- counsel may feel would be useful in the prosecution of the criminal matter. It should also include environmental impact information. Distribution of this report should be made to the Regional Counsel or his/her designee, Criminal Enforcement Division legal staff, the U.S. Attorney having jurisdiction, and the Department of Justice, Environmental Crimes Unit. In addition, the Office of Criminal Investigations should get a copy. Attachments (2) cc: Thomas P. Gallagher, Director Carroll C. Wills, Chief, Enforcement Specialist ------- AT AG T A UNITED STATES ENVIRONMENTAL PROTECTION AGENCY OFFICE OF ENFDRCF 1Fi’1T AND (X)MPLIANCE MDNrI’ORING / OFFICiAL USE ONLY REPORT OF INVESTIGATION FRED C. WILL1 IS, dba UNIVERSAL ENGINEERING CASE .‘/ 84-XI-3-99 69W AUGUST 1984 NATIONAL ENR)RCE 1ENT INVESTIGATIONS CENTER OFFICE OF CRIMiNAL INVESTIGATIONS (OFFICE ADDRESS) ------- ATTACHMENT B C ) (APPROPRIATE AREA OFFICE) C LETTERHEAD ( ) CRIMINAL FILE NUMBER: REPORT EXAMINED, APPROVED, AND RECOMMENDED FOR PROSECUTION PROJECT NUMBER: (date here) SPECIAL AGENT IN CHARGE REGIONAL COUNSEL Larry D. Thompson United States Attorney Northern District of Georgia Richard B. Russell Building, Room 1800 75 Spring Street, S.W. Atlanta, Georgia 30303 INTRODUCTION: This report is submitted in regard to alleged violations of the United States Code by Richard Roe, John Doe, Mary Doe, and others named as defendants or co—conspirators herein, in that between January 16, 1983, and July 1, 1983, in Fulton County, Northern Judicial District of Georgia, they did conspire to violate the environmental laws of the United States; Further, that on July 1, 1983, they did pause the illegal disposal of a listed hazardous waste in Macon County, Middle Judicial District of Georgia. ------- #_ , p UNITED STATES ENVIRONMENTAL PROTECTION AGENCY J WASHINGTON. DC 20460 4( PRO ” MAY 919a3 OFFICE OF LEGAL AND ENFORCEMENT COUNSEL MEMORANDUM SUBJECT: Referral Procedure for Criminal Cases FROM: Courtney M. Price Acting Associate Ad üinistrator and General Counsel TO: Regional Counsels, Regions I—X All SAICs, Criminal Enforcement Division Under the current General Operating Procedures, a criminal referral to the Justice Department may be made for one of two reasons: for prosecution (where the investigative effort is complete and we believe the crime is capable of being proved); and for further investigation in conjunction with the Justice Department. In the latter situation——”referrals for further investigation”——the scope of the ultimate prosecution, and eve the i ei tity of defendants, may well not be known. The purpose of the referral is to facilitate further development of the case rather than to incorporate final Agency decisions on the viability or advisability of a prosecution. As such, it can and often does occur at an early stage in the case develppment process. n these situations, the task of creating a complete referral package is difficult—— in light of the fact that the case has not yet been completely developed. It is also time consumiflg, and thus can prejudice the investigation. The time spent in attempting to prepare a complete referral package, and in processing the package through the Regional and the Headquarters review system, can cause delays in the development of the case while not providing the countervailing benefits normally realized in the referral process, i.e. close crutiny of the evidence prior to filing or a final assess gent of the merits of criminal prosecution. ------- —2— To eliminate this inefficiency, and provide for the more natural development of criminal cases, a shortened referral package will be used where the purpose of the referral is for further investigation in conjunction with the Justice Department, rather than to incorporate a complete investigative package. (The format appears as Attachment A.) This package will provide a basis on which to make the best possible assessment both at the Regional level and at EPA Headquarters on the merits of the potential case. At the same time, it will provide a vehicle for the more rapid transmission of our investigative work product to prosecutors with the Justice Department, who will then become part of the criminal case development team. The modified referral package will normally be prepared by the Special Agent assigned to the investigation, who will be most familiar with investigative activity to date. The package must be prepared in close coordination with Regional legal and technical personnel assigned to the investigation. As under existing procedures, the referral will be approved by both the Special—Agent—in—Charge and the Regional Counsel before transmission to EPA Headquarters for approval. Cover letters to the appropriate United States Attorney and to the Land and Natural Resources Division will be drafted at EPA Headquarters for the signature of the Associate Administrator. Questions on this procedure should be directed to Peter Beeson (382—4543). It is our hope that these modified procedures will ensure the most efficient possible development of our criminal cases. Attachments ------- ATTACHMENT A MEMORANDUM SUBJECT: Criminal Referral FROM: Special—Agent—in—Charge_____________ _______________________Field Office Criminal Enforcement Division Regional Counsel Region_________________ THRU: ________________________________ Associate Enforcement Counsel Criminal Enforcement Division Enforcement Counsel TO: __________________________________ Associate Administrator and General Counsel Attached for your consideration are materials assembled by this Agency in a criminal investigation against____________ _____________________________ It is the opinion of our offices that further development of this case should proceed in close coordination with the Justice Department. An overview of the nature of this investigation is provided below for your information. We recommend immediate referral to the ( U.S. Attorney/Federal District ) and to the Land and Natural Resources Division for further development. ------- REFERRAL PACKAGE ( Name of Case) ( Name of District ) I. Identity of Subject(s) of Investigation: Individual(s) : 1. Name 2. Title 3. Age 4. Home/work address 5. Current employment 6. Criminal record, if any 7. Prior EPA enforcement action 8. Other pertinent information Corporation(s) : 1. Name and nature of business 2. Parent company 3. Susidiaries 4. Address of facility(ies) associated with offenses 5. State of incorporation 6. Size of company 7. Prior EPA enforcement action 8. Other pertinent information II. Nature of Activity under Investigation 1. Location and duration 2. Venue 3. significance of Activity (A brief statement of reasons underlying the need to address the misconduct with criminal sanctions.) ------- —2— III. Statutory Offenses l. Applicable Statutes : (A summary of Federal environmental and related laws potentially violated by the activity, accompanied by pertinent citations to the United States Code and the Code of Federal Regulations) 2. Evidence Gathered to Date : (A brief summary of available evidence, accompanied by copies of selected investigative reports prepared within the Criminal Enforcement Division that reflect this evidence (for example, surveillance reports or interview summaries.) IV. Personnel Assigned 1. Special Agent 2. Regional Attorney 3. Technical Staff ------- • AR I 1cii MAR 1 1983 ,UBJEC : ro os d xpeJiteu keI eira1 £ roc uute toi. Crim.&nal .ases hoqu icing uLthez £nvestiyation in Conjunction with the Justice L)&Q rt aent M.Lcnael W. tiewton z)eputy h jiondl Counsel Petez t. ueson Associaith Lntorcement Cou ae1 Crilaindi Lnforcement Divi iun (bL—1l eb We iave reviewed your memorandum ot £‘ebruaLy 22, l98 , on the uLove su jcct. e agree witn the reasoning set out in the mc IaoLanuuIi1 tor tne need for tne expedited referLal proceduru ani u urt tne estabiisnment o this procedure. The roceuur shouio be made rinai. as soon as possiD1 so that present investigations unuerway that nced the assistance oi a Feders.&. ranci jury can rna ce use 01. it. cc: James ii. Sargent Ronald i . Allen Andrew Robert reene John H. Johnson ------- , UNITED STATES ENVIRONMENTAL PROTECTION AGENCY \ J WASHINGTON. DC 20460 FEB 22 1983 OFFICE or LEGAL AND ENFORCEMENt COUNSC MEMORANDUM SUBJECT: Request for Comments on a Proposed Expedited Referral Procedure for Criminal Cases Requiring Further Investigation in Conjunction with the Justice Department FROM: Peter G. Beeson Associate Enforcement Counse Criminal Enforcement Division TO: Regional Counsels, Regions I—X All SAICs, Criminal Enforcement Division Under the current General Operating Procedures, a referral to the Justice Department may be made for two reasons: for prosecution (where the investigative effort is complete and the crime is proved); and for further investi- gation in conjunction with the Justice Department (in cases where additional case development can best proceed with the assistance of a Federal grand jury. In the latter situation——i.e. referrals for further investigation——the scope of the ultimate prosecution, and even the identity of defendants, may well not be known. The whole purpose of the referral is to facilitate further develop- ment of the case rather than to incorporate final Agency decisions on the viability or advisability of a prosecution. As such, it can occur at a very early stage in the case development process. In these situations, the task of creating a complete referral package is difficult if not impossible——in light of the fact that the case has not yet been completely developed. In addition, it is time consuming, and thus can prejudice the investigation. Stated alternatively, the time spent in attempting to prepare a complete referral package, and in processing the package through the Regional and the Headquarters review system can cause delays in the development of the case while not providing any countervailing benefits normally realized in the referral process, i.e. close scrutiny of the evidence prior to filing or a final assessment of the merits of criminal prosecution. ------- —2— To eliminate this inefficiency, and provide for the more natural development of criminal cases, I am proposing that the current referral system be modified where the purpose of the referral is for further investigation in conjunction with the Justice Department. Under this proposal, the attached document, and investi- gative files of the Criminal Enforcement Division, would constitute the entire referral package. It will provide, I believe, a basis on which to make an’ the best possible assess- ment both at the Regional level and at EPA Headquarters on the merits of the potential case. At the same time, it will provide a vehicle for the more rapid transmission of our investigative work product to the offices of United States Attorneys and of the Justice Department, who will then become part of the criminal case development team. It is anticipated that the cover memorandum would be prepared primarily by the attorney assigned by the Regional Counsel’s office to work with the investigators in the develop- ment of the specific case. As such, it would normally constitute attorney work product, not subject to be discovery during any subsequent litigation. As under existing procedures, the referral would receive the concurrence of the appropriate SAIC and Regional Counsel. As in the past, referrals for further investigation will count as a single case referral. It should be recognized that while the work involved in creating the referral package should be significantly reduced, the amount of time necessary to support the case through the ensuing case development process and ultimate prosecution will still be significant. I would like to receive your comments on this proposed expedited referral process by March 11, 1983. cc: Robert M. Perry Gerald Yamada Richard Mays Glenn Unterberger ------- 08 , T 1 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY % / WASHINGTON, DC 20460 4Lp t FEB22 19P3 OP?ICE OF 1 .10*1. AND ENPORCIMINT COUNSEl. MEMORANDUM SUBJECT: Criminal Referral FROM: Special—Agent—in—Charge____________________ ________________Field Office Criminal Enforcement Division Regional Counsel Region_____________ TO: United States Attorney District of___________________ Attached for your consideration are investigative files developed to date in a criminal investigation against It is the opinion of our offices that further development of this case should proceed in close coordination with the Justice Department. The Special Agent assigned to this case is S/A of the field office of the Criminal Enforcement Division, Environmental Protection Agency. The Agency attorney assigned to this case is ________________________ of the Regional Counsel’s office, Region _________ , Environmental Protection Agency. A brief overview of the nature of this investigation is provided below for your information. I. Introduction The introduction will provide a brief orientation for the Assistant United States Attorney and/or the Justice Department attorney assigned to the case. It should include: ------- —2— (a) The identity of the corporate and individual subject(s) of the investigation. For individual subjects, this section should also include the name and title, the approximate age, home and work addresses, current employment, criminal record, and other pertinent information. In the case of corporate targets, this section should include the name of the company and parent corporation, complete address of the company, complete address of the facility associated with the offenses, the State of incorporation of the corporate target, and a brief statement of the business and size of the company. (b) A brief description of the nature and duration of the criminal activity under investigation. This section should also explain the importance of the criminal activity to EPA and the need for criminal sanctions to address the misconduct. (C) Venue, i.e. the Federal District in which the offenses occurred. If the venue lies in more than one district, an explantion should be included for the choice of the Federal District to which the referral is directed. Cd) Any prior enforcement activity taken by the Environmental Protection Agency against the corporation or individuals that are the subject of the investigation. II. Statutory Offenses This section will include the statutory provisions that provide the basis for the investigation. The criminal provisions of each statute should be quoted in full. In addition, the elements of the offense for each of the violations that are under investigation should be included. Finally, where evidence is currently available to satisfy all elements of an offense against any or all of the subjects, these offenses should be ennumerated by defendant, with references to those investigative reports in the package that provide the evidence of the completed offense. This section should also include a statement of those additional offenses which are currently under investigation, and for which additional evidence is required. ------- K ------- ENVIRONMENTAL PROTECTION AGENCY fl 4 ./ NATIONAL ENFORCEMENT INVESTIGATIONS CENTER OFFICE OF CRIMINAL INVESTIGATIONS NEIC INVESTIGATIVE UNIT Building 53. Box 25227. Denver Federal Center Denver. Colorado 80225 SAC/RACs DATE February 4, 1985 FROM James L. Assistant Direct SUBJECT• Technical Protocols Attached for your review and comment are proposed protocols for technica] support during criminal investigations. For your comments to receive consideration, they must be in my office by February 20, 1985. Attachment ------- 1/23/85 PI J O( LS FOR T ICAL SUPPORF DURING CRIIIINAL INVESTIGATIO I. I.NTI )D(JCTION A. OBJECTIVE AND SWPE OF P1UI’O(DLS The irpose for these protocols is to assure that accurate, representa- tive and defensible technical evidence is gathered for criminal case develop- ment thro h: a) adequate identification of technical support needs, b) effective plannirg and scheduling to meet technical assistance requirelenrs, and c) the niform application of methods, techniques, and procedures (e.g., chain-of-ctstody, docuuent control, reporting, quality assurance/quality con- trol, etc). These protocols will apply to all technical support required in cases opened by the Off ice of Criminal Investigations, NEIC, hether provided by the l gion, NEIC, or Headquarters. B • TYPES OF TECHNICAL SUPPORT The technical support provided to the Office of Criminal Investigations generally involves one or more of the following areas: 1. Mvice and consultation to Special Agents on technical matters during case opening and develorxnent. 2 • Ièview and evaluation of technical docu ents such as inspection reports, monitoring data, operating records of targets, etc. 3. Technical aspects of witness intervie s, inc1 xIing the developi ent of technical questions for witnesses and/or assisting the Special Agents during intervie a. 4. Offsite surveillance and monitoring activities. 5. Q s ite technical investigations, incluling process evaluations, pollution control and treatment inspections, records review and sampling and/or anal)s is. 6. E cpert testimony during 1 al proceedir , etc. II. TECHNICAL ASS IST NCE RE( JEST A. CASE OPENING The case opening report! investigative plan s prepared by the Special Agent assigned to the case (herein referred to as the Case Agent). This docu ent is the first step to defining the technical support requir ents . It serves as the basis for decisions bet en the SAIC/ RAIC, Case Agent and the Ms is tant Director (AD CCI) to: * The case opening report/investigative plan is not expected to thcl xIe specific technical details on the assistance but contain sufficient infor- mation to detetmine the potential for and the type of technical support that might be needed. ------- -2— 1. E terrnine if the investigation is corsistent with Agency enforcenent initiatives and priorities. 2. Identify l a1/ regulation parai eters/requirenents. a) Legal - Will subpoenas and/or search arran be required? b) Regulatory - I bat specific la .s and regulatiors (e.g., 1 RA, TSCA, CM, etc.) apply? 3. Identify potential technical support required. a) Type of support - Will it be advice/corsultation, source irs pectiors and evaluatiors, docunent review, s plthg and analys is, offsite monitoring/surveil- lence, etc.? b) Schedule of tivities - Define the tentative time- franes for the case preparation activities awl any corstraints impacting the schedules (e.g., court dates). B. TECHNICAL SUPPORT PLANNING If the SAIC/RAIC, Case Agent and AD-Cd agree that technical support will be required for case preparation, the AD-Cd will contact the appropriate sistant Director(s) or their designees to: 1. Disctss the potential technical assistance requirenents as defined in the investigative plan. 2. E tthlish technical coordination procedures. a) Msign Technical Staff - The sistant Director, Operatiors and/or the Msistant Director, Laboratory Services, depending on the type of technical support required, will assign a coordinator(s) to ork directly with the Case Agent. b) Condtx t Backgrou d Review - An initial step in the coordination/planning process by the NEIC technical coordinator(s) in support of the Case Agent will gen- erally be the review of the available backgro nd infor- mat ion (e.g., his tory of previots non-canpliance and enforcanent action; descriptive material on targeta inclxiing information on o%.ners/operators, available records, types and quantities of hazardo z / toxic sstes involved, safety hazards awl current operating practices; mars; photograpFs; etc.) on the target sites if avail- able. The Case Agent will be relied upon to identify contacts and establish access to the information • The NEIC technical coordinator(s) will i rk closely with the Case Agent in reviewing and evaluating the backgrotnd information. ------- —3— c) Prepare Statenent of ,brk* - Sthsequent to the back- groix d review, the technical. coordinator(s) and the Case Agent will prepare a Statanent of brk defining the technical rk tiich is required to support the case [ Attachi ent A]. The Statament of brk will serve as the primary wears to define technical support needs to the provider of technical support (R ional ( f ice or NEIC). C. IECHNICAL SUPPORT IIPLE 1M ION 1. Select Source of Technical Support The technical support for criminal case preparation will be provided primarily by the R ion or NEIC. Once the Statament of kbrk outlining the technical assistance requirEnents has been pre- pared arxl revie d, the R ion, in most nearly all cases, will be requested to provide the technical assistance. The organization (i.e., R ion or NEIC) providir the technical assistance, n,less otherwise decided by the Director NEIC, will provide a].]. the tech- n ical ass is tance required (e .g., field invest igat iors, analytical services, technical report preparation, etc.). Sane criminal inves tigatior will require contractors to per- form such tasks as site excavation, hazardots materials trar port and other special tasks outside the capabilities within the Agency. }b ver, once a criminal investigation is opened, no sampling, moni- tor1r , analyses, witness intervie .s and ors Ite irs pect Ions of targets will be performed by a contractor. Attachnent B disctzses procedures that mue t be follo J to obtain contractor support. Contractor support mtst be tsed jtiiicioizly and its need mLst be juetified by the material facts of the case investigation. (a) Regional technical support : hen the legion is requested to provide the technical assistance required for the case, the following will occur: (1) The Statenent of *brk will be discuesed with the designated legional contacts by the NEIC technical coordinator(s) and the Case Agent. (2) If the legion agrees to provide the technical assistance, they will prepare a project plan (format as sho .n in AttachDent C). This plan will be revie by the case agent and the NEIC technical coordinator(s) to assure that the technical ass is tance requirenents e as outlined in the Statenent of brk will be met. * The Statenent of brk will be revie 1 by the appropriate NEIC and Area Office personnel. ------- -4- (3) The R ional technical staff will perform all the technical ass istance rk, i.e. docwent review, witness intervie s, site (target) in- spectiors, field sampling/monitoring and analyses* etc. (4) The legional staff will prepare a report thich (Attachnent D is a general report format) will contain the technical findings of the inves ti- gation team incltxled relative to the target. U less specific irstructiorE to the contrary are provided, the dis tribut ion of technical reports* prepared by Regional staff will be United to the following persorE: - Case Agent - SAIC/RAIC of requesting office - Ms is tant Director, Criminal Investigations - Technical Coordinator, NEIC (involved withi ,L#\ kt Statanent of brk preparation and project I) -s c ’— plan review) = - Ms ignei Regional attorney (5) The Region will provide the necessary follow-up support required (e.g., expert testimony, technical expertise, witness intervie .s, etc.), to bring the case to fruition. (b) NEIC technical support : If NEIC provides the technical support required for the case, the following will occur: (1) A project plan (format as showi in Attaclinent C) will be prepared. The plan will be reviewed by the Area Cff ice and NEIC to assure that the tech- nical assistance requirenents as outlined in the Statanent of brk will be met. (2) The NEIC technical staff will perform all the technical assistance ork required (e.g., docu- ment review, witness intervies.s, site (target) irspectiors, field sampling/monitoring and analyses*, etc.). * Attachnent E disc .sses the time requiranent3 associated with analytical support. * My report containing restrictive material will be revie d only by those authorized/cleared for access to the material. ------- —5- (3) The NEIC techni cal staff will prepare a report (Attachnent D is a genera]. report format) thich will contain the technical findir thcluJed relative to the target. Uiless specific fr tri.x- tions* to the contrary are oved, the dis tn- bution of the draft and final technical reporta prepared by the NEIC technical staff will be limited to the following: - Case Agent ass igned to the case - SAIC/RAIC of the requesting office - sistant Director, Criminal Investigations - appropriate, ftss is tant Direct 7 ) Co Pvt ’ r 4 OperatioT and Laboratory Services and iJ Ii’- those m6nbers of their staff involv j - thief, hforcBnent Specialist ( f ice L (4) The NEIC will provide the necessary follow-up support required (e.g., expert testimony, tech- nical expertise, witness intervie .s, etc.), to bring the case to fruition. * ky report containing restricted material will be revie d only by those authorized/cleared to have access to s h material. ------- Attachnent A FORMAT T R STATE € T OF D1 ( ON TECHNICAL SUPPORI I rr DuC’rION Provide backgrouid on the all atior and ans r the following questior : .hat la s/r ulatiors, etc., are being or have been al1 edly violated? Wiat is the enforcanent end-point (objectives) sot Jit, i.e., A,at is the irivestiga- tion trying to prove? then is the technical assistance required? TECHNICAL SUPR)RT Describe ac needs to be done (e.g., what kind of technical support is required arxl hw m*zh). Provide tentative timefr sne and any cor traints on schedule Identify is being investigated* Identify the locatiors being thvestigated Identify any special requir6nents - for exanpie, the need for contractor support. Describe safety requirenents. P1 )JECF Q)ORDINAFION Define the primary contacts in the Area C f ices and NEIC for case prepara- tion activities. Describe technical Project Plan requiraiients .‘ Define end-proth.ct requirønents. Reports (diss nination and review) Follow-up * The Statenent of Wrk will be prepared by NEIC technical coordinators and the Special Agents with review by appropriate NEIC a ix! Area ( f ice person- nel. The Statenent of brk will serve as primary means to define technical support needs to the R ional Cff ices. ** The sersitive nattn e of a criminal case preparation may prohibit dispersing this infornat ion u%ttl the decision on *x is providing technical assist- ance is made. ------- Attaclinent B Q)N1’RACI )R ASSISTANCE DURING CRIMiNAL CASE INVE T1GAIIONS In those case inves tigatiors there contractor assistance is recuired for s t h purposes as ccavat ion, trans port of hazardois materials or other tasks outside the capabilities within the agency, the procedures discissed in the following paragra s will be applied: The contractor assistance req ir aents will be defined based on the State- ment of brk developed for the investigation by the Case Pgent and the NEIC teclr ica1 coordinator. Incli.xled in the stat nent of con actor assistance requirenenta should be a description of the site(s) to be investigated, details on the services required, anticipated probl s and other infonnation helpful to potential bidders. Factors to be addressed should incliule equipnent, length of time services required, estimated costs, safety requir nents and the speci- fic need for responsiveness. If the situation requires ininediate response, a full description of the danger, eiiergency or possible consequences mis t be described. The Case Agent and the tecFriical coordinator(s) will prepare, jointly, a requisition for the defined contractor ass is tance requirenents. They will w ,rk closely with the NEIC (If ice of Planning aid ?tnagenent to secure the ass is tance required. Hnergency contractor ass is tance can generally be secured in about 24 to 48 hours. In r n-energency (routine) cases, action can rax e fran a ek to 60 da e depending on the estimated cost of the ass Is tance required. ------- Attachnent C FDR T OF TECHNICAL PIOJECF PL N* I! T R)DUC ION/OJBEC IVFS Backgro .uxi, Ehforceiient endpoint. UIRED INVESTIGATIVE ACrIVITIFS Ibcunent review Source Inspection/Technical evaluation Sanplirg and monitoring (at target or offsite) (type, nunber, locations) Anal)ses (type, nunber and procedures) QA/QC PR CEDURFS DOQJI N aNTRL/CHAIN-OF-QJSIDDY P CEDURES SAFElY R UIRE IS r ONNEL AND FIELD B UIP F R3 UIREI’fNL’S SCHEDULES Inspections, docunent revie 1 s Sampi ing/rnonitorthg Malyt ical ports * Proj ect Plan - The technical proj ect plan will be developed by the organ iza- t ion (i .e., R ion or NEIC) selected to provide the technical ess is tance. The plan will cover all technical. ess [ stance requiranents for the c e (e.g., docunen t review, irs pect ions, s ampi ing, analys is, report preparation, etc.). Plan review will be by the NEIC and requesting Area (if ice. ------- Attach ant I) PDRMAI FOR TECHNICAL REPORI’S SUPPOR ING CRIMINAL INVFSTIG IONS INTR)DUC ION D cribes the scope and b is for the inv tlgation and, as appropriate, bacI rour i information on the target. 3 Th J ( OF INV TIGATtON AND TECHNICAL FINDINGS tNV TIGATION P CEDUR W at es done? Fbw s it acca iplished? FINDINGS OF INVESTIGATIONS Field thservatior /record revie a, etc. Laboratory ana1ys ( D FLIANCE STAIIJS (with the la a/r u1atlor aU edly violated) TABLES FIGURES APP DICES (inclx supporting information for the findings) ------- Attaci-inent E 1 ’rDE R IJIREI TS ASSOCLATED TH ANALYTICAL SUPPO DURING CRIMINAL CASE PREPARATIONS The analytical ativities for a crthiinal or civil case preparation often require a major portion of the time, personnel and costs incurred in the inves- tigation. Therefore, it is very important, orxe the need for analytical sup- port has been established, to identify, as precisely as possible, the type and nunber of analyses required. The general prir iple follo l is that aiequate evidence m s t be collected to meet cese preparation requirenents. Thts, the better the st xIy objective can be identified, the more accurately the sampling/ analytical requir nents arxl the time frane for canpletir the analyses can be defined. br exanpie, it generally requires mt. h less time to canplete the analysis for a specific paraneter all edly present then it takes to analyze sanpies for a variety of tthno .ns. Table 1 provides information on the approx- imate times required to perform vario .s analyses Mch might be required during an environnental cese investigation. ------- Table 1 EST1MAT D TU€ RB JIRED FOR VARIO S ANALYSES IN VIROW ’FREAL CASE PREPARATIO Time Period* Analytical Parameters Measured L zs /Regu].at ions To Which Applicable Within One Week** Water quality tests (ph, BOD, WD, rutrients, etc.) Priority pollutant (PP) metals by ICP PCBs in Water Corrosivity, flmrrnability, reactivity Infra-red (IR) scan CWA, RCRA, SDWA CWA, RCRA, SDW CWA, TSCA, SINk RCRA CWA, RCRA, SDWA Within Two Weeks PCBs in soil, tissue, hazardous wastes Trthalcxnethanes in water Selected pesticides in water and soil VGA in water, soil, tissue I ase/ne.itral/acid PP in water PP metals by AA in water, soils TSCA, C’ Z , SDWA, RcRA CWA, RCRA, FIFRA, SD L k CWA, RCRA, SINk CWA, SDWA, R RA CWA, SINk, R RA Within Three Weeks VGA in hazardous waste Selected presticides in tissue and hazardous wastes Base/neutral/acid PP in soil, tissue, hazardous wastes PP metals by AA in tissue Identification of unkn n base/neutral/acid organics in water RCRA RCRA, FIFRA RCRA RCRA CW , RCRA, SDWA Within Four Weeks Base/neutral/acid/pesticide PP in water PP metals by AA in hazardous wastes TCDD in water CWA, FIFRA, RCRA RCRA TSCA, , SINk RCRA*** Within Five Weeks VGA, base/neutral/acid pesticide PP in soil, tissue hazardous wastes EP-Toxicity TCDD in soil, tissue hazardous wastes Identification of .n*nc m base/neutral/acid pesticide organics in water RCRA, FIFRA RCRA TSCA, CWA, FIFRA, SDW , RCRA Within Six Weeks Ccmpositiona]. analysis of hazardous wastes Ames Test Identification of urknown base/neutral/acid pesticide in hazardous waste RCRA RCRA, O#ZP RCRA lime requ1re to pertorm ten analyses; inclüdà the time required for quality control and related laboratory functions. 1 week equals 5 work days As u dified by 1.984 amendments to RCRA w ** ------- L ------- UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON, D.C. 20460 20 OCT 1982 MEMORANDUM SUBJECT: Guidelines Relating to the Criminal Investigative Jurisdictions of the Office of Legal and Enforcement Counsel and the Office of the Inspector General FROM: Robert M. Perry G 4 ”T Associate Administrator and Gener . Counsel o ° : ra1 TO: The Administrator In the past, some confusion has existed concerning the respective criminal investigative jurisdictions of the Office of Legal and Enforcement Counsel and the Office of the Inspector General. This issue has now been addressed in meetings between the Associate Administrator for Legal and Enforcement Counsel and General Counsel and the Inspector General. In addition, a legal opinion (Opinion) has been issued by the Office of Legal and Enforcement Counsel. A copy of the Opinion is attached. The Opinion first notes that “various criminal penalty provisions available to EPA are all substantially intertwined with programmatic regulatory efforts.” (Opinion at 2). Since Section 9(a)(2) of the Inspector General Act of 1978 (the Act) specifically prohibits the transfer to any Inspector General of “program operating responsibilities,” the Opinion concludes that the Administrator of EPA is precluded from transferring to the Inspector General criminal investigative jurisdiction under these statutes. In addition, the Opinion states that voluntary assump- tion by the Inspector General of EPA’s criminal investigative function relating to program responsibilities would not be consistent with Congressional Intent underlying the Act, and that the Inspector General “must take grea care to ensure that his resources are committed to those areas clearly ------- —2— encompassed within his Congressional mandate, i.e. the prevention and detection of fraud, waste and abuse in program operations.” (Opinion at 6). Accordingly, the Opinion concludes that the role of the Inspector General in the environmental criminal enforcement program, as in all other Agency programs, is one of “oversight ”——to evaluate “the Agency’s procedures and effectiveness in identifying and prosecuting criminal violations.” (Opinion at 7). The Office of the Inspector General has reviewed, and concurs with, the conclusions reached in the Opinion. In addition, both offices agree that——from a management perspective——it is best to define precise areas of primary investigative jurisdiction for the two offices where possible. Accordingly, the following jurisdictional guidelines have been drawn up by both offices. These guidelines are effective immediately. A. Investigative Jurisdiction——Office of Legal and Enforcement Counsel The Administrator has a statutory obligation to investi- gate compliance under all regulatory programs and to pursue criminal penalties in appropriate cases of noncompliance. The Office of Legal and Enforcement Counsel, as the Administrator’s representative, carries a similar mandate to pursue investigations of violations of the criminal provisions of all environmental statutes enforced by EPA. Accordingly, investigations of violations of EPA’s environmental statutes fall within the primary jurisdiction of the Office ofLegal and Enforcement Counsel. This would include investigations under: (1) Clean Water Act, 33 U.S.C. § l25l et. (2) Marine Protection, Research and Sanctuaries Act of 1972, 33 U.S.C. flh1 Ol et. çq . (3) Clean Air Act, 42 U.S.C. 7leOl et. q. (4) Noise Control Act of 1972, 42 U.S.C. 1149O1 et. (5) Resource Conservation and Recovery Act, 42 U.S.C. § 69o1 et. (6) Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. Ul36 et. CT) Toxic Substances Control Act, 15 U.S.C. § 26O1 et. ------- —3— (8) Comprehensive Environmental Response, Compensation and Liability Act of 1980, 1e2 U.S.C. § 9601 et. s q . (9) Refuse Act, 33 U.S.C. §1e07. — ___ B. Investigative Jurisdiction——Office of the Inspector General The Inspector General will have primary jurisdiction over criminal investigations involving waste, fraud and abuse by EPA employees, contractors or grantees. This would include: (1) Bribery of EPA officials, see e.g . 18 U.S.C. §1201. (2) Conflict of interest in EPA employees, see 18 U.S.C. § 2O5, 207, 208, 219. (3) Embezzlement or misapplication of EPA funds, 18 u.s.c. § 6 1—6 3, 61e8, 619, 651, 652, 651e. (1k) Conspiracy to defraud with respect to monetary claims against EPA, 18 U.S.C. 1286.1/ (5) Disclosure of confidential information by EPA employees, 18 U.S.C. §1905.2/ (6) False statements concerning employee compensation, see 18 U.S.C. § 19l9—l922. (7) Falsification or forgery of EPA contractor bids, guarantees, securities etc., 18 U.S.C. §14914. (8) Falsification of power of attorney, contracts or other writings to obtain moneys from EPA, 18 U.S.C. §495. (9) Extortion by EPA officials, 18 U.S.C. §872. (10) Kickbacks to EPA officials, 18 U.S.C. §8714. A parallel provision in Section 112(b)(1) of Superfund, t2 U.S.C. §96l2(b)(1), also falls in the Inspector General’s primary jurisdiction. 2, Parallel proVisioflB in three environmental statutes are also the primary responsibility of the Inspector General. These are: (i) Section 3007(b)(2) of RCRA, 142 U.S.C. §6927(b)(2); (2) Section 14(d) of TSCA, 15 U.S.C. §2613(d); (3) Section lOh(e)(2)(B) of CERCLA, 42 U.S.C. §960 1 e(e)(2)(b). ------- C. Shared Investigations Sections A & B above delineate, by statutory provisions as veil as subject matter, the areas of primary investigative jurisdiction of each office. There viii also be investigations that extend into areas of shared investigative jurisdiction. Examples of shared investigations would include, for example: — An Investigation by the Office of Legal and Enforcement Counsel into unauthorized water pollution under the Clean Water Act that uncovers evidence of kickbacks to EPA inspectors to conceal the pollution. — An Investigation by the Inspec or General into a complaint of attempted extortion by an EPA compliance Inspector that uncovers incidents of improper disposal of PCBs by the victim of the extortion efforts. When investigations conducted by either office uncover facts implicating the jurisdiction of the other, immediate coordination viii occur between the Criminal Enforcement Division and the Office of the Assistant Inspector General for Investigations, and a decision viii be made on the proper allocation of responsibility for the investigation. Each office will implement internal procedures to ensure that notification of potential shared investigations is given in a timely fashion to the other office. These guidelines will allow for a smooth, productive relationship between the investigative components of the respective offices. Any questions should be directed to Peter Beeson, Associate Enforcement Counsel, Criminal Enforcement Division (FTS 382 — 1 e5 1 e3) and/or Paul Olson, Acting Assistant Inspector General for Investigations, Office of the Inspector General (FTS 382_1 lO9). Attachment cc: Assistant Administrators Regional Administrators Staff Office Directors ------- I Tt ____ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON. DC Z0410 APR I 6 MEMORANDUM OFFICE OF L.EGAL AND ENFORCEMENT COUNIC SUBJECT: EPA Criminal Investigator Program FROM: Robert f l. Perry 1 t’ 4 “i Associate Administrator for Legal and Enforcement Counsel and General Counsel TO: Matthew N. Novick Inspector General (A—109) ISSUE This addresses your question as to whether the EPA Office of the Inspector General COIG) can legally perfbrm all criminal investigations within EPA. ANSWER There are substantive legal problems with the OIG performing all criminal investigations within EPA. First, a transfer by the Administrator of all of EPA’S criminal investigatory authority to the Inspector General (IG) would violate the Inspector General Act of 1978 (the Act). Second, a voluntary assumption by the IG of such responsibilities raises concerns that such actions would contravene the IG’s Congressional mandate. DISCUSSION A. The Act precludes the Administrator’s transfer of all criminal investigative responsibility to the 1G . The Act provides that Sec. 9. (a) There shall be transferred * * * (2) such other offices or agencies, or functions, powers, or duties thereof, as the head of the establishment involved may determine are properly related to the functions of the Office and would, if so transferred, further the purposes of this act, ------- —2— except that there shall not be transferred to an Inspector General under paragraph (2) pro- gram operating responsibilities . [ Emphasis supplied.] The Act does not define’ ‘program operating responsibilities.’ However, the legislative history for this provision is helpful in assessing its meaning. The Senate Government Affairs Com- mittee states: ...In order to prevent compromising the independence and objectivity of the Offices of Inspector and Auditor General, transfer of program operating responsibilities is prohibited. S. REP. NO. 95—1071, 95th Cong., 2d Sess. 4, reprinted in [ 1978] U.S. CODE. CONG. £ AD. NEWS 2676, 2713. Additionally, the House Government Operations Committee states: While Inspectors General would have direct responsibility for conducting audits and investigations relating to the efficiency and economy of program operations and the prevention and detection of fraud and abuse in such programs, they would not have such responsibility for audits and investigations constituting an integral part of the program involved . Examples of this would be audits conducted by USDA’S Packers and Stockyards Administration in the course of its regula- tion of livestock marketing and investigations conducted by the Department of Labor as a means of enforcing the Fair Labor Standards Act. In such cases, the Inspector General would have oversight rather than direct responsibility . [ Emphasis supplied.] B. REP. NO. 95—584, 94th Cong., 2d Sess. 12—13 (1977). Both the Senate and the House Committee Reports provide a clear Congressional intent to preserve the auditing and investigative integrity of the IG by removing it from the potential conflict of interest created by carrying Out program operations and then having to review under the Act those program operations. Analysis of the various criminal penalty provisions avail- able to EPA indicates that they are all substantially intertwined with programmatic regulatory efforts. In order to illustrate this point, I have briefly discussed two of these provisions below. ------- —3— 1. Federal Insecticide, Fungicide and Rodenticide Act (7 U.S.C. S136 et seq.) Sec. 14. (b) criminal Pdnalties — (1) In General . — Any registrant, commercial applicator, wholesaler, dealer, retailer, or other distributor who knowingly violates any provision of this Act shall be guilty of a misdemeanor and shall on conviction be fined not more than $25,000; or imprisoned for not more than one year, or both. (2) Private Applicator . — Any private applicator or other person not included in paragraph (1) who knowingly violates any provision of this Act shall be guilty of a misdemeanor and shall on conviction be fined not more than $1,000, or imprisoned for not more than 30 days, or both. (3) Disclosure of Information . — Any person who, with intent to defraud, uses or reveals information relative to for- mulas of products acquired under the authority of section 3, shall be fined not more than $10,000, or imprisoned for not more than three years, or both. In its identification of the reasons for this legislation, the Senate Agriculture and Forestry Committee stated: All of these provisions are designed to provide for tighter control of pesticide registration and use to insure protection to man and the en- vironment. Registration of pesticide producing establishments will aid the Administrator in tracking down violations and accidental discharge or spillage...S. REP. NO. 92—838, 92nd Cong., 2d Sess. 3, reprinted in [ 1972] U.S. CODE CONG. & AD. NEWS 3993, 3998. Further, that Committee stated: Civil penalty provisions are considered a necessary part of a regulatory program such as pesticides control. While the criminal provisions may be used where circumstances warrant, the flexibility of having civil remedies available provides an appropriate means of enforcement without subjecting a person to criminal sanctions. S. REP. NO. 92—838, id. at 4019. ------- —4— These provisions recognize that criminal and civil investigations, as well as prosecutions, are a crucial component in ensuring the effectiveness of the regulatory effort. As such, the enforcement effort (which includes investigation for criminal violations) is a major part of the regulatory program . 2. Toxic Substances Control Act (5 U.S.C. 2601 et seq.) The Toxic Substances Control Act (TSCA) states that it is the policy of the United States that ‘adequate authority should exist to regulate chemical substances and mixtures which present an unreasonable risk of injury to health or the environment, and to take action with respect to chemical substances and mixtures which are imminent hazards.’ (TSCA, S2.) [ Emphasis supplied.] In furtherance of this policy, TSCA identifies in Section 15 various prohibited Acts. Section 16(b) then provides: (b) CRIMINAL. — Any person who knowingly or willfully violates any provision of section 15 shall...be subject, upon conviction, to a fine of not more than $25,000 for each day of violation , or to imprisonment for not more than one year or both. It is axiomatic that a regulatory program is only as effective as general compliance with it. The investigation for regulatory compliance and the penalizing of violators are both essential parts of the regulatory program. A similar conclusion can be reached regarding EPA’S other available criminal penalties.*/ Section 9(a)(1)(I) of the Act provides that EPA’S ‘Office of Audit’ and the ‘Security and Inspection Division’ are trans- ferred to the 01G. At the time of this transfer, the responsi- bilities of the Security and Inspections Division did not include */These provisions include: The Clean Water Act — Section 309(c) The Noise Control Act of 1972 — Section 11 The Comprehensive Environemntal Response, Compensation, and Liability Act of 1980 — Section 103(b)(3), Cc) and (d)(2) The Solid Waste Disposal Act — Section 3008(d) The Marine Protection, Research, and Sanctuaries Act of 1972 — Section 105(b) The Toxic Substances Control Act — Section 14(d) The Clean Air Act — Section 113(b) and Cc) ------- —5— performing investigations of violations of the various criminal penalties contained in EPA programs. Rather, its primary re- sponsibility was in areas such as personnel security clearance and physical protection of classified or privileged information, Agency equipment, bui]’dings, and personnel. (EPA Delegations Manual, Chapter l—]—A(9), January 28, 1976). Consequently, there is little support for any argument that EPA’S entire criminal investigatory function was intended by Congress to be centralized in the OIG at the time of its creation. This con- clusion is further buttressed by the fact that on the effective date of the Act, such investigatory functions for several of the programs had been concurrently delegated to the Assistant Admin- istrator for Enforcement and to the Regional Administrators (e.g., EPA Delegations Manual, Chapter 2—14, January 28, 1976). B. The voluntary assumption by the IG of EPA’S criminal investigatory function relating to’program responsi- bilities under the various statutes is not consistent with congressional intent . As identified above, the Administrator cannot delegate EPA’S program criminal investigation function to the 1G. Therefore, the next question which must be considered is whether the IG himself could assume such a role as part of the IG’s investigative authority. Section 4(a)(l) of the Act provides that: It shall be the duty and responsibility of each Inspector General, with respect to the establishment within which his Office is established — (1) to provide policy direction for and to conduct, supervise, and coordinate audits and investigations relating to the programs and operations of such establish- ment. This language appears, at first, to be broad enough to support an arguument that the creation of the IG centralized all investiga- tive functions within the 01G. However, the legislative history of the Act limits the scope of this IG activity. The Senate Government Affairs Committee stated: The Inspector and Auditor General’s focus is the way in which Federal tax dollars ------- —6— are spent by the agency, both in its in- ternal operations and its federally funded programs. Such a responsibility obviously encompasses countless issues. The Inspector and Auditor General should obviously be involved in identifying patterns and perpetrators of program- matic fraud, but allegations that an Assistant Secretary is making decisions which are influenced by a financial conflict of interest would also be a proper concern. The Inspector and Auditor General would also be properly concerned if an audit or investigation turned up indications that agency supervisors or employees were incompetent. The integrity and quality of agency decisionmaking are inextricably intertwined with the economy, efficiency and effectiveness of agency programs and operations. Broad as it is, the Inspector a,d Auditor General’s mandate is not unlimited. Issues requiring sub- stantive or technical expertise will often fall outside his proper sphere . For instance, if the Inspector and Auditor General at the Environmental Protection Agency received a report that a new type of sewage treatment facility system in Milwaukee was not functioning according to specifications, resulting in dangerous levels of pollution, the Inspector and Auditor General could quite properly decide that responsibility for handling the issue rested elsewhere and make the proper referral. How- ever, if the Inspector and Auditor General received allegations that EPA had approved plans for a faulty sewage treatment system because an Agency official was improperly influenced in his decision, the Inspec- tor and Auditor General’s basis for involvement would be clear. S. REP. NO. 95—1071, supra . at 2702 — 2703. Congress has recognized that there are areas of activity within an agency or a department in which IC functions can over- lap those of the program. The determination of the role his Office will play is the sole responsibility of the IC. The head of the Agency or department is barred by statute from preventing the IG from auditing or investigating any matter he feels is pro- per. (S3(a) of the Act). However, the IC must take great care to ensure that his resources are committed to those areas clearly encompassed within his Congressional mandate; i.e. the prevention and detection of fraud, waste and abuse in program operations. A policy by the IG which would give him control of criminal investi- gations under EPA’S environmental statutes would commit substantial ------- —7- IG resources to areas where there is little assurance that the expenditures will promote the detection and prevention of fraud, waste and abuse. The Administrator has the statutory responsibility to ensure maximum compliance with all of the regulatory require- ments. As discussed above, these compliance functions are so intimately intertwined with program operations as to be inappro- priate for transfer to the IG under section 9(a)(2) of the Act. Thus a dilemma would exist for the Administrator if the IG sought to consolidate all criminal investigatory activity in the IG’s Office. Acquiescence by the Administrator in the IG’s assumption of this role would subject her to criticism that she is failing her statutory responsibilities; that is, sh2 under her direct statutory capacity is not ensuring full compliance with regula- tory standards. Such an acquiescence shifts the decisional responsibilities for criminal investigations from the Administra— •tor to the 1G. Moreover, because of the statutory independence of the IG, the Administrator’s ability to establish consistent, Agency—wide standards for the selection of competing enforcement options would be seriously undermined. Finally, because the Administrator cannot abdicate her responsibility for ensuring compliance with EPA’S statutes, it appears that, even if the IG is willing to voluntarily assume responsibility for EPA’S entire criminal investigatory operations, the Administrator would still be required to maintain a program to perform criminal investigative functions under all environmental statutes. This is especially true since the prohibition against transfer of criminal investiga- tory functions contravenes the prohibition in section 9(a)(2). Such a finding would bar the transfer to the IG of the resources now committed to program compliance. Responsibilities pertaining to the criminal investigative functions at EPA can, however, be allocated In a manner that is consistent with congressional intent. The Administrator must develop and implement procedures to identify criminal violations of the various environmental statutes administered by EPA. The role for the IG is oversight of the Agency’s procedures and effec- tiveness in identifiying and prosecuting criminal violations. This responsibility is carried out under the authority of the IG Act and not pursuant to the various environmental statutes admin- istered by EPA. Therefore, the IC could effectively serve the Administrator in the conduct of program criminal responsibility in an oversight capacity. A proper division of action should be developed to orderly accomplish this objective. ------- —8— Summary The Act prohibits the Administrator from transferring to the IC the Agency’s program criminal investigatory activities authorized by the various environmental statutes administered by EPA. The IC is to remain free to investigate all aspects of the Agency’s operations. In a regulatory agency such as EPA, the enforcement function is an integral part of the program. Care must be taken by the IG that he not become so intertwined with a program role (by directing criminal investigations of alleged violations) that the IG’s ability to objectively evaluate the program’s effectiveness (i.e., EPA’S compliance efforts) is int— paired. The role of the IC in EPA’S criminal enforcement program could be one of oversight and a support function to the programs. A proper delination of this action should be developed. ------- M ------- SP qp UNITED STATES ENVIRONMENTAL PROTECTION AGENCY J WASHINGTON, DC 20460 ‘I( PR0 APR 2 5 i °a OFFICE OF I.EGAI. AND ENFORCEMENT COUNSEl.. MEMORANDUM SUBJECT: Case Closing Procedures for Investigations within the Criminal Enforcement Division FROM: Michael A. Brown fL____ Enforcement Counsel \. TO: Associate Enforcement Counsel Criminal Enforcement Division Regional Counsels, Regions I—X On February 23, 1983, the Criminal Enforcement Division issued interim case closing procedures. Comments received in response to those procedures have now been reviewed and, where appropriate, incorporated into final procedures detailed below. It is the current practice of the Criminal Enforcement Division to open an investigative file and assign a case number upon receipt of an allegation that will require any investi- gative time on the part of a Special Agent. Accordingly, these procedures apply to all cases opened within the Criminal Enforcement Division and closed prior to referral to the Justice Department . It will be the responsibility of the Criminal Enforcement Division to review all case closing decisions in the field to ensure consistent application of these guidelines. CASE CLOSING PROCEDURES A case may be closed for one or more of the following reasons: (1) Initial Allegation Unfounded : A case may be closed if, at the end of a preliminary inquiry by the Criminal Enforcement Division, no credible evidence is found to support the original lead or allegation. This decision, which in all cases will be reviewed and approved by the Special—Agent—in— Charge (SAIC) of the appropriate field office, will be incorporated in the last investigative report on the case. Before a case is closed for this reason, all reasonable leads will be pursued and resolved. ------- —2— (2) Referral for Administrative/Civil Enforcement Action : A case may be closed if, after investigation, the facts do not warrant criminal prosecution, but rather are appropriate for administrative or civil sanctions. In such a:situation, the case will be closed, removed from the docket of the Criminal Enforcement Division, and referred to the appropriate Agency office for alternative enforcement action. To ensure that alternative enforcement action is, in fact, pursued, a decision to close a criminal investigation for this reason must have the concurrence of the SAIC and of appropriate representative(s) of the office(s) that will be responsible for pursuing the alternative enforcement action. This would include the Regional Counsel and Regional/Headquarters program manager (for civil action) or the Regional/Headquarters program manager (for administrative action). This concurrence will be reflected in the final investigative report filed by the Criminal Enforcement Division in the case. (3) Referral to Separate Law Enforcement Office or Agency : A case may be closed where the alleged criminal activity falls substantially or exclusively in the jurisdiction of another law enforcement agency. Included in this. category would be cases initiated within the Criminal Enforcement Division that, as they develop, fall primarily or exclusively within the jurisdiction of the Inspector General of the Environmental Protection Agency. Prior to approval of closure for this reason, the SAIC should ensure that appropriate consultation has occurred with the Office of Regional Counsel to explore all potential environmental violations. In addition, the final investigative report in the case file should indicate that no further investigation is anticipated in light of the fact that the case falls primarily or exclusively in the jurisdiction of another agency. Referral of the investigative matter to the appropriate outside Agency will occur simultaneously at the Field Office and Headquarters level following review and approval of the case closing decision by’ the Criminal Enforcement Division at EPA Headquarters. ------- —3— (4) Lack of Prosecutive Merit : A case——while not “unfounded” may be closed for lack of prosecutive merit, i.e. due to evidentiary deficencies, insignificance of the offense, a prior State criminal prosecution, lack of prosecutorial resources, lack of jury appeal, etc. A case will be closed for this reason only after appropriate consul- tation with the Office of Regional Counsel and with the concurrence of the United States Attorney’s office of the Federal District in which the violation has occurred and would be prosecuted. The final investigative report included in the case file will reflect the concurrence of a specific Assistant United States Attorney in the termination of the investigation. In every case closed for this reason, consideration should be given to alternative enforcement action of an administrative or civil variety. Where this is possible, the case closing procedures ennumerated in paragraph (2) above should also be followed. (5) Closed but Retained for Intelligence Value : A case—— while not “unfounded”——may be closed prior to referral due to the exhaustion of available leads. Where this occurs, the criminal investigation will be suspended and the case formally “closed.” If administrative/civil enforcement action has been delayed pending resolution of the criminal inquiry, it will proceed. Evidence developed during the investigation will remain available for intelligence value, and the case can be re—opened if additional leads or evidence appear. * * * In all five situations specified above, the reasons supporting the closing of the investigation will be clearly and fully documented by the case agent on EPA form 2720—9 (Report of Investigation) and included as the final report of the investigative file. In this manner, the rationale supporting the Agency’s decision, as well the internal and external coordination that has occurred during the closing process, will be reflected clearly during any subsequent file reviews. Finally, it is stressed that the closing of an investigative file within the Criminal Enforcement Division does not preclude subsequent re—opening of the same file should additional evidence be located, or additional investigative requirements be identified. ------- Mc ------- N ------- fl\iL t, 4) UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON. DC 20460 t PR0 ’ : v 171982 OFFICE OF LEGAL AND ENFORCEMENT COUNSEl. MEMORANDUM SUBJECT: Reporting on Criminal Investigations FROM: Michael A. Brown Enforcement Counse TO: All Regional Counsels Director, NEIC Attached are revised reporting procedures on active criminal cases currently being implemented within the Criminal Enforcement Division. These procedures will supersede those established in a May 5, 1981 memorandum: Wilson to Regional Enforcement Directors, et. al.; entitled “Reporting Procedures for Investigations into Potential Criminal Violations of Environmental Statutes” (attached). Specifically. Regional attorneys will rio longer be asked to submit either the “Case Opening Report” or the “Monthly Investigation Report” required by the May 5, 1981 memorandum. Attachments ------- • qtO SV 4 _____ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY ¶ j WASHINGTON. DC 20460 4g PRØ t” OFFeCE OF LEGAL AND ENFORCEMENT COUNSEL MEMORANDUM SUBJECT: Reporting and Iritell Systems for the Criminal Enforcement Division FROM: Peter G. Beeson Associate Enforcement Counsei’ Criminal Enforcement Division TO: All Special—Agents—In—Charge Criminal. Enforcement Division Introduction This memorandum establishes procedures for: 1. A central file system for investigative reports; 2. A monthly activity report; 3. A telephone log book; 4. A quarterly case status report; and 5. A case coordination report. These procedures are effective immediately. Questions that arise during the implementation of these procedures should be referred to William Graff, Chief of Criminal Investigations. As with other procedures established within the Division, we encourage your input and that of your staff. Changes will be made where warranted. ------- —2— I. CENTRAL FILE SYSTEM FOR INVESTIGATIVE REPORTS The primary purposes of the Criminal Enforcement Division’s Central File System are (1) to ensure proper custody of every document generated during an investigation and (2) to facilitate the timely retrieval of information. Properly maintained, the system is also a source of valuable intelligence data and a useful tool in appraising the status of current investigations; reallocating investigative personnel as needed; and evaluating the quality of investigative work. A. Classification and Serialization of Investigative Files In order to retrieve information efficiently, any mail, both incoming and outgoing, as well as communications and reports will be classified by all field offices according to a standard classification system. Each field office of the Criminal Enforcement Division (CED) will maintain a separate file for each EPA region within r its area of responsibility. Philadelphia will maintain separate files for Regions I, II and III; Atlanta for Regions IV and VI; Chicago for Regions V and VII; Denver for Region VIII; and Seattle for Regions IX and X. Files will be kept on a fiscal year basis, October 1 through September 30. r Each regional file will be subdivided into the following numbered classifications: 1. Administrative 1/ 2. Solid Waste (RCRA and CERCLA) r 3. Air 4. Water 5. Pesticides 6. Toxics 7. Liaison with other authorities 8. Newspaper Clippings 9. Informants 10. Intelligence Within each classification, a new numbEr is given to each case as it is opened. Each document is then serialized sequen- tially within that number. 1/ The “Administrative” classification——designated as number 1—— should be broken down into sub—files for particular topic matters such as office equipment, personnel matters, policy, procedures, etc. ------- —3— For example, a Region III water case would receive a “4” classification; the first water case would be “1”; and the first document dealing with that case would be “1”. Finally, each case number will be preceded by a designation of the fiscal year in which it is opened. Thus, this hypothetical Region III case, if opened in FY 1982, would receive the following number: 82 — III 4 1 (Fiscal year) (Region) (Water mv.) (First mv.) Similarly, the first serialized document for this case file would be given the following number: 82 — III 4 1 (FY) (Region) (Water mv.) (First mv.) (First Document Subsequent documents going into the same case file would be rr placed in chronological order and read as: 82 — III — 4 — 1 — 2 82 — III — 4 — 1 — 3 82 — 111 — 4 — 1 — 4 r Headquarters will file cases using the Regional classification and serial numbers. When a SAIC determines that a new investigation is to be conducted, he or she must decide the classification of the case and assign the correct classification and sequential case number. Case files will be stored in secure filing cabinets. * * * r The above—described case numbering system will apply to every matter investigated within a field office, since it is of crucial importance that the Division be able to account for all investigative time. Accordingly, the distinction drawn between a “preliminary inquiry” and a “complete investigation” in the “General Operating Procedures for the Criminal Enforcement Program” ( See pp. 13—14 of G.O.P.) does not affect this case numbering system. Every separate matter should receive a separate case number. 2/ B. Establishing the Permanent File Once the SAIC has determined that a new case file should be opened, the case file must be organized in a uniform manner. 2/ As is indicated in subsequent pages of this memorandum, a separate “Case Coordination Report” will be filed at that point when the investigative staff, following its preliminary inquiry, determines that a full investigation is warranted. ------- —4— manner. The file should include such items as background data; reports of information received (EPA form 2720—10); reports of interviews (EPA form 2720—8); reports from confidential infor- mants; reports of investigative operations (EPA form 2720—9); case status reports; newspaper clippings; and any other inforina— tion that may have evidentiary value, retrieval value, or provide a lead for further investigation. Every month (except where a different schedule is assigned to a case) copies of all documents generated or assembled in every open case file in a field office will be transmitted to the Headquarters office of the Criminal Enforcement Division for inclusion in the Headquarters filing system. Until further notification, these packages should be directed to Peter Beeson, Associate Enforcement Counsel, Criminal Enforcement Division (EN—329); Environmental Protection Agency; 401 M Street, S.W.; Washington, D.C. 20460. These packages should be mailed on the fifteenth of each month (or on the first working day thereafter). C. Indices In order to achieve one of the primary purposes of the filing system (that is, the retrieval of information), an index must be established. The easiest and most effective system is a 3 x 5 card index file. When a case file is established, the principal subject of a specific investigation becomes the title of the case. Before a case is opened, the proposed title is searched through the indices to insure that a prior case file does not exist on that subject, r or other alleged participants. If no previous case file exists, the Supervisor underlines the title on the first document to go into the file. A blue pencil or pen is used for purposes of prominence. The field office then prepares a 3 x 5 card. In the upper left—hand corner of the index card, the exact title will be typed in capital letters. Identifiying data, including address, date of birth, employer, etc., is typed below the title. Directly following the exact title, the month and year in whicn the case is initiated is noted. The case number is then typed in the upper right—hand corner of the card. When a case file is opened (MORGAN’s LANDFILL), the index card will note the file by using an asterisk after the title. The main card will appear as follows: ------- —5— MORGAN’S LANDFILL * 4/80 80—111—4—1 Morgan Road Collegeville, PA 19426 This card indicates, by virtue of the asterisk (*), that a case file has been opened on that particular entity. Once a card is typed for the main subject, it is no longer necessary to mark the subject for indexing in the main file. However, if the title of the main file is changed, a new card will reflect this by typing the name of the new subject and again the asterisk is used. Each serial (i.e., each document, whether mail, memo, report, or the like) to be filed should also be marked for index, by underlining in blue pencil all names of individuals, companies r or other pertinent information contained therein. The index card would read as follows: MORGAN, HENRY 11/80 80—111—4—1—serial Morgan Road Collegeville, PA 19426 DOB: 11/11/11 r SOCIAL SECURITY #: 111—11—1111 Owner/Operator Morgan’s Landfill Interviewed: 11/11/80 Once the indexing is completed on a serial, a red “slash mark” is drawn through every blue underline indicating that an index card has been prepared. Some serials may have only one name underlined in blue; others may have 15 or 20, depending on the nature of the serial to be indexed. As the cards grow in number and are filed alphabetically, they will be the only means of ascertaining the location of the information in each file. D. Retrieving Information Each case file is placed in numerical sequence within the specified classification. In retrieving material on a particular ------- —6— investigation, CED staff proceed to the files, pulling that section containing the serial number obtained from the index card for the desired information. If it becomes necessary to remove a file from the file room, a charge—out card should be used that lists the file number in its entirety, including the last serial number in the file, and indicates the name of the person taking the file and the date taken. This charge—out card is placed where the file is permanently located. As a general rule, files should be returned within five days. F. Exhibits Exhibits will include photographs, physical evidence, documen- tary evidence, charts, maps and other items likely to be used as evidence in tne government’s case. The size of the exhibit determines the place where the exhibit should be filed. If an exhibit is of such size that it can be filed in the investigative file, it should be placed in a letter—size manila envelope, referred to as “1A Exhibits.” Each exhibit in the 1A category is placed in turn in a white envelope showing the file number, the serial reflecting receipt of the exhibit, the date received by investigating employee, the name and address of contributor, the name of employee receiving the 1A Exhibit, whether or not it may be returned, and a description of the exhibit. Identical data describing each exhibit is typed on the manila envelope. When an exhibit is too large or bulky to be placed in the lA Exhibit manila folder, it should be referred to as a lB Exhibit, placed in a red—rope envelope and stored in a secure locked cabinet. In these cases, a white envelope is made up, containing the same information as for a 1A Exhibit, and filed in the investigative file. Only authorized CED staff can charge out either the 1A or lB type exhibits, again by use of a charge—out card. A colored sheet showing the contents of the red—rope envelope is affixed to the outside of the red—rope envelope; a duplicate of the colored sheet is placed on the top of a 1A manila envelope in the first section of the file. G. File Security Each field office has the responsibility for the orderly receipt, processing and control of all mail, memoranda, investigative reports, and any related documentary evidence generated during the course of the investigation. Files must be updated daily and the index cards alphabetized and filed as quickly as possible. All cards should be filed within the week. No file should ever be in a “lost status”. To prevent this from happening, a weekly check of charged—out files should be made to ascertain the person working on the file while it is out ------- —7— of the file room. A physical check of the charged—out file should be made, by ascertaining that the employee still has the file charged to him/her and by reflecting new charge—out dates and names. H. Grand Jury Materials Because of the need for absolute confidentiality and account- ability, documents received pursuant to grand jury subpoena will be maintained separately and in accordance with procedures estab- lished in existing Agency guidance. ( See April 30, 1982 memorandum, Perry to Regional Counsels, entitled “Agency Guidelines for Parti- cipation in Grand Jury Investigations” at pp. 12—13.) II. MONTHLY ACTIVITY REPORT Pr On the first working day of each month, each SAIC will submit a Monthly Activity Report that summarizes the investigative activity of the field office during the preceding month. A copy of the report format is attached. (Attachment A.) III. TELEPHONE LOG BOOK Each field office will maintain a bound telephone log book to record the receipt or transmittal of all priority messages unless the information is recorded on other Agency forms or records. The following procedure should be followed in using this log book: Upon receipt or transmission of a telephone message: 1. Enter and underline day of week and date on next writing line. a. Close each day’s message entries by drawing a double line across the entire page in next vacant space 2. Separate message entries of same day by drawing a single line across the next vacant space. 3. Write all telephone messages as follows: a. Enter time of message (as stated by sender) in margin on left side of page. b. Enter, on same line as time, identity of CED office receiving or sending message. c. Write message in paragraph style. d. Enter, directly under message body, identity of person authorizing message. e. Enter on next line title and name of person actually receiving or transmitting message. f. Enter on right side of same line the name and office of the person to whom the message is transmitted. ------- —8— Following these procedures, a sample message will appear as follows: Monday, July 4, 1982 11 a.m. CED Headquarters Special Agent R. Jones, IGO, EPA, FTS 555—1234 advises that Donald Smith, President—Sierra Club who lives at 979 Park Ave., Washington, D.C. 202—555—5678 called the IGO and stated that he has information concerning “midnight dumping” of toxic wastes in Puget Sound in Seattle, Washington. Mr. Smith requests a tele- phonic interview so that he can furnish this Agency with specific information as to the persons responsible for this activity and the toxic waste being disposed of. Auth. W.E. Graff , Chief of Criminal Investigations Cik. Mary Jones S/A Harry Jones, Seattle, WA Responsibilities of the Special—Agent—In—Charge The Special—Agent—In—Charge is responsible for the proper maintenance of the telephone log, will initial all entries not made by himself, and will ensure that all incoming messages receive the attention they require. The SAIC will also record notification data or other additional information concerning a telephone message in the margin next to the entry. IV. CASE STATUS REPORT In addition to regular reporting on active investigations, each agent will complete a Case Status Report on each case three months after a file is opened, and at three—month intervals there- after. The report will ensure that investigative matters on the active docket are not allowed to remain open indefinitely and without progress. A copy of the report format is attached. (Attachment B.) V. CASE COORDINATION REPORT EPA’S “General Operating Procedures for the Criminal Enforce- ment Program” require coordination with the appropriate Regional Counsel and Regional program office at the initiation of a full investigation, i.e., at that point when the CED investigative ------- —9— staff, as a result of its preliminary inquiry, determines that there is credible evidence of criminal activity that warrants thorough investigation. ( See pages 13—14 of G.O.P.) The Case Coordination Report will reflect this coordination. In addition, it will designate the Regional legal and technical personnel assigned to the investigation, and will detail the status of any civil or administrative proceedings against the same targets. Finally, it will identify the predicate environmental statute upon which the investigation is based, and will summarize, in general terms, the anticipated future course of the investigation. The Case Coordination Report format is attached. (Attachment C.) rr 0’ ------- Attachment A MONTHLY ACTIVITY REPORT Field Office: Prepared by: SAIC Period Ending: 1 SAIC __________ S/Agents Number Investigative Days Per F.O.: Number Days Excused Absences Per F.O.: Actual Number Investigative Days Per F.O.: Total Number of Travel Days Per F.O.: Number of Case Files Opened/Region*: Number of Case Files Closed/Region*: Number of Interviews Conducted/Region: Number of Search Warrants Executed: (include designation of participating law enforcement agency) Number of Subpoenas Served: Number of Indictments Obtained*: Number of Convictions Obtained*: Number of Cases Declined by Justice Dept. After Referral*: Total Travel Allowance Per F.O.: Total Travel Expenditure Last Period: Travel Expenditure This Period: Travel Allowance Remaining: Other Office Expenditures This Period: * Addendum — Title of case with brief explanation. ------- Attachment B CASE STATUS REPORT Date: To: CED Headquarters From: (Reporting Office) Title: Case #: Investigator Assigned: Date Case File Opened: Summary of Allegations and Investigation to Date: Summary of Investigation Remaining: Estimated Workdays to Complete Investigation: Anticipated Future Status: Prospective Prosecution: ________yes ________no Will be closed with no further action: ________yes _______no Will be referred for administrative/civil action: _______yes _______no Other: Prepared by: Special Agent Approved by: Special—Agent—In—Charge ------- CASE COORDINATION REPORT 1. Administrative Data Report of: (Name of Spec:a1. Agent assigned to Investigation) Date Case Opened: Field Office: Regional Office: (Location of Investigation) Case File Number: Title: Enclosure: Reference: 2. Regional Coordination This ection should include: — Date of Regional Counsel concurrence — Regional Counsel (or designate) giving concurrence — Regional Program Office representative contacted, and date — Regional personnel (legal and technical) assigned to case — A statement that: (a) No administrative/civil action is ongoing or contem- plated; or r (b) Administrative/civil action is being held in abeyance pending completion of the investigation; or (C) that EPA Headquarters has approved parallel criminal and civil/administrative proceedings. ( See page 14 of General Operating Procedures.) 3. Future Course of Investigation (Self Explanatory) 4. Predicate Environmental Offense This section should include a brief statement of the allega- tion and the statutory provision that is the focus of the investi— gation. ------- M ENORANDUM iU3 ECT: Reporting Procedures for Investigations into Potential Criminal Violations of Environmental Statutes FROM: Richard D. Wilson Acting Assistant for Enforcement TO: Regional Enforcement Directors Director, NEIC Acting Director, Office of Criminal Enforcement INTRODaCTI N The Office of Criminal Enforcement, created as part of the recent reorganization of the Office of Enforcement, is responsible for coordinating EPA’S national criminal enforce- ment effort. As part of this overall responsibility, the office will monitor ongoing investigative activity relating to potential criminal violations of environmental statutes. This memorandum establishes reporting procedures for all offices involved in such investigations. Regional. offices are being asked to implement this system immediately — to provide headquarters in the near futhre with an accurate reflection of investigative activity throughout the country. While implementing the system, we strongly encourage all offices to comment on its operation, and particularly on guidelines detailed in this memorandum for the initiation of investigations into potential criminal violations of EPA’S statutes. Changes may well be made after evaluating our initial experience under the system. Under the system established in this memorandum, each office is being asked to perform three separate functions: 1. Each office should complete and transmit a uCase Opening Report with the initiation of each . uture investi- gation. (Guidelines for the formal initiation of investiga- tions are included in this memorandum and a sample Case Opening Report is attached as Appendix A.) The report will be directed to the Office of Criminal Enforcement. ------- c: .:a . ... ._ .. .. - on each open investigative file, providing a brief summary of investigative activity over the previous month. (A sample Monthly Investigation Report is attached as Appendix B.) 3. Each Regional Enforcement Director should conduct an immediate inventory of all existing investigations in the office and, where appropriate under guidelines established by this memorandum, complete a Case Opening Report• for transmittal to the Office of Criminal Enforcement. ThiFS regional inventory should include regional cases for which NEIC has provided technical support. It should also include all criminal matters referred and currently under-. consideration by the Justice Department and/or local United States Attorney. Through this inventory, and a similar review at EPA headquarters, we will gain an accurate picture of the current investigative activity throughout the country. Further, if regional resources are not available to pursue investigations identified through this inventory, we will attempt to secure assistance from the Justice Department or other law enforcement agencies. This inventory should be coin leted by M v 29, 1981 . Thereafter, Monthly Investigation Reports snould be submitted on all open files starting with July 1, 1981. It is important to underscore the important but limited purpose behind this reporting system. Regular reporting on investigations into potential criminal violations will be crucial to our ability to monitor and maintain agency—wide standards for the investigation and referral of criminal cases. In addition, it will allow for national coordination of civi l and criminal enforcement activity, and will provide a basis on which to allocate limited investigative resources (both within EPA and in other law enforcement agencies) among competing regional demands. At the same time, the decision to initiate an investiga- tion into potential criminal violations — and to file a Case Opening Report . — should not be viewed as a formal decision to proceed criminally in a particular case. This decision will be made at the time of referral to the Justice Department — not before —— and will be based in large part on information accumulated during the investigation itself. Stated alternatively, no enforcement options are precluded by opening an investigative file.. This action simply reflects that under the facts of a particular case, the potential for criminal sanctions, as well as civil or regulatory, seems real and should be investigated. ------- : two separate forms are attached: the Case Opening Report (A peridix A) and the Monthly Investigation Report (Appendix B). Please reproduce these forms for use on an interim basis until their format is tested, regional comments are received, and final printed forms are produced. The purpose of these reports is to provide the Office of Criminal Enforcement with adequate information to monitor the nature and progress of investigative activity throughout the country. They will rot be a substitute for the more detailed reporting and documentation that should occur in the field during an ongoing investigation in areas such as witness statements, evidence authentication (chain of custody), surveillance reports, etc. In completing these forms please take care not to include personal opinions on the merits of the investigation, the reliability of witnesses, the appropriateness of criminal sanctions, or other subjective matters. These reports should be limited to brief factual statements concerning the requested info:mation. Finally, the identities of confiden- tial sources of information should not be included in these reports. I. The Case Opening Report Except in rare circumstances, investigations into poten- tial criminal violations will be initiated on the authorization of the Regional Enforcement Director or his/her designee. The Case Opening Report (Appendix A) should be completed immediately upon the opening of each new investigation. The original should be placed in a regional investigative file; a copy should be forwarded simultaneously to: Peter Beeson, Acting Director Office of Criminal Enforcement (EN—329) U.S. Environmental Protection Agency 401 M Street, S.W. Washington, D.C. 20460 Because of the sensitive nature of the information provided in these reports, please take care to include this entire address, including the mail code, on the envelope. Under the current mail processing system at EPA headquarters, mail is not opened until delivered to the addressee. This practice should be reinforced by including the notation ------- wij.l be taken to ensure continued s curityof these reports within the Office of Criminal Enforcement. A. Guidelines for the Initiation of an Investication 3.nto ?otent .a.]. Criminal Conduct While criminal — as well as civil —— sanctions are potentially applicable to a broad range of regulated activity, EPA has traditionally pursued civil remedies in nearly all enforcement matters. This practice will certainly continue in the foreseeable future. However, in a limited category of cases, representing the more extreme forms of misconduct, crimina.1. sanctions will be appropriate. A final agency decision on the proper enforcement route in a partic— ular case ujU be made at the time of referral to the Justice Department. The guidelines listed below are provided to assist in recognizing cases in which the potential for criminal sanctions (as well as other enforcement options) should be considered. A Case Opening Report should be completed and submitted when an office determines, in accordance with these guidelines, that the facts of a particular case indicate the potential for criminal charges. As such, the Case Opening Report will represent the initiation of an investigation which may culminate in the use of criminal sanctions. It will not, however, reflect an agency decision that criminal conduct has occurred, or that criminal sanctions are the exclusive or appropriate remedy. All enforcement options should remain open, and should be considered, throughout the ensuing investigation, and pending formal referral to the Justice Department. Finally, we recognize that guidelines cannot be created that will apply in all situations, or that will provide a litmus paper test for the recognition of criminal cases. Accordingly, these guidelines are not intended either to mandate the initiation of an investigation, or to preclude absolutely the consideration of criminal sanctions in situations that they do not address. Recognizing that exceptions will occur, however, we should seek overall consistency in our criminal enforcement efforts. In addition, it is to our advantage to ensure that limited investigative resources are employed in the most significant cases. With these goals in mind, at least one of the feilowing categories of conduct should normally be indicated before initiating an investigation and filing a Case Opening Report: 1. Conduct resulting in, or creating the clear potential for, substantial environmental harm or human health hazard. ------- c..___ . — whicn compliance is clearly feasible. 3. Conduct indicating falsification, c cealment or destruction of records or information requirec to be maintained or reported under an environnental statute; ot affecting a matter within the jurisdiction of the agency. 4. Conduct reflecting willful conte npt of a civil consent decree resulting from a previous civil enforcement action. Finally, an investigation should be opened with a Case Opening Report only after a preliminary determination has been made that the lead or allegation is credible, and warrants further investigation. An investigative file need not be opened with each uncorroborated complaint of illegal pollution activity. Eowever, if preliminary investigation corroborates the complaint, and further field work is warranted, the office should formally open an investigation and complete a Case Opening Report. B. Instructions for the Com 1etion of the Case Opening ReDort Instructions for the completion of the Case Opening Report follow: Block 1 — Provide name of the EPA office (Office) that is initiating the investigation. Block 2 — The file number is a combination (File Number) of an office designator, a sequential number, and the last two digits of the year. Thus, the fifth case opened in Region X in 1981 will be designated: ‘X—5—81. Each Regional office should ide iTy and number each current invest .gation in the office. A case opening form for each should also be completed . Thereafter, each new invest gati .on should be numbered sequentially, i.e., 5, 6, 7, 8, etc. Block 3 — This block should include a brief (Nature of description of the nature of the Investigation) investigation, including the ------- ta]. harm, if known (i.e toxicity of pollutant; scope of I arm; population affected, et ); the basis for the investigation • (informant information; falsified documents; administrative search warrant; compliance inspection); the geographical area and Federal judicial district in which the alleged criminal activity occurred; and the tine period covered by the conduct. Subjective opinions on the merits of the investigation, the credibility of witnesses, etc. should not be included. In addition, the identity of informants should be omitted. The description should be limited to a brief factual summary. Block 4 (Subject(s) of Investigation) Block 5 (Agency Personnel Assigned) Block 6 (Other Agency Contact with Eubject(s)) — Corporate and individual subjects should be identified by name, title where appropriate, and address. This list may well change as the investigation develops. There is no need to file additional Case Opening Reports where additional suspects are subsequently identified. 8owever, this fact should be included in the Monthly Investigation Report (described in greater detail in a subsequent portion of these instruc- tions). — All agency personnel assigned to pursue each investigation should be identified in this block. Include every person who will have any substantive responsibility in the investigation, to the extent their identity is currently known. (Secre- tarial or clerical staff should be omitted.) — This block is included so that we can identify, at the beginning of each investigation, any potential overlap between the investigation and pending ------- enforcement contact with the subject(s) should be identified. (For example, a person applying for a renewal of an NPDES permit may also be under investigation for submitted false DMRs under the existing permit.) Block 7 — This block will include a brief (Future Course statement of the action planned of Investigation) to pursue the investigation, i.e. witness interviews; file reviews; coordination with the local U.S. Attorney; surveillance, etc. In many investigations, the regional offices will not have the resources or equiment necessary to pursue some aspects of the investigation. This should be indicated, since we may be able to provide investigative assistance fron headquarters, or through coordination with other law enforcement agencies. Block 8 — This block is available to continue (Continuation answers to previous questions. Space) II. The Monthly Investigation Report On the first working day of each month a separate Monthly Investigation Report (Appendix B) should be submitted on each open investigation, detailing the course of the investigation over the previous month. Again, this report is intended to provide a brief summary of activity on each case, and will, not be a substitute for more detailed reporting and documentation in the regional offices. Instructions for completing the Monthly Investigation Report follow: Blocks 1, 2 — Same as with Case Opening Report. ------- Ac:ivi y) interviewed (omitting identities where confidential); file.s re- viewed; coordination with state and local agencies; involvement of the Justice Department or other Federal agencies (FBI, IRS, etc.); and other field investigative activity pursued in the case. If the investigation has occurred on, or been directed at, the property of the subject(s), (searches, - inspections, surveillances, etc.) this fact should be included. If the investigation is proceeding by grand jury, (i.e., following a formal referral to the Justice Department), indicate this fact. However, under no circumstances should confidential grand jury material or testimony be summarized in these reports. Finally, in block 33, indicate physical evidence secured during investigation and available for trial. Block 4 — This block should be used to (Future Course indicate likely avenues of future of Investigation) investigation, including an assess- ment of the amount of additional time necessary to complete the investigation. Again, opinions on the merits of the investigation should not be included, and grand jury secrecy should be preserved. Block 5 — This block is provided for an update of informa ion provided in blocks 4, 5, and 6 of the Case Opening Report, i.e., identity of subject(s) of the investigation; agency personnel assigned to the investigation; and other ongoing agency contact with the subject(s) of the investigation. ------- The effectiveness and credibility of EPA’s national cri•iii aJ. enforcement program will depend on our ability to develoc consistent national priorities and procedures. The reporting system established in this memorandum, which is to be implemented immediately, is an integral feature of this coordination effort. Your cooperation in providing the information required by these reports is essential. Questions on the contents of this memorandum, or the syste n that it establishes, should be directed to Peter Beeson, (FTS/7.55—0420). ------- APPENDIX A CASE OPENING REPORT ------- ENVIRONMENTAL PROTECTION AGENCY CASE OPENING REPORT 1. OFFICE 2. FILE NUMBER — 3. NATURE 01 INVESTIGATION 4. IDENTITY OF SUBJECT(S) OF INVESTIGATION INDIVIDUAL/COMPA}TY 1.• 2. 3. ADDRESS 5. AGENCY PERSONNEL ASSIGNED TO INVESTIGATION NAME TITLE . PHONE ------- %::-;I GJz :caL ;RcC zDiNG (ye j o) yes, identify the proceeding, and all Age y ersonnel involved: B. PENDING CIVIL ENFORCEMENT REPERRAL (yes/no)______ If yes, identify the civil action and all Agency personnel involved: 7. FUTURE COURSE OF INVESTIGATION 8 • SPACE FOR CONTINUATION OF ANSWERS 9. SIGNATURES Individual Preparing Form Regional Enforcement Director or Designee - Date Date ------- APPENDIX B MONTEL! INVESTIGATION REPORT ------- ENVIRONMENTAL PROTECTION AGENCY MONT!LY INVESTIGATION REPORT 1. OFFICE 2. Fl LE NUMBER 3. E P .IPTION OP INVE.$TIGATIVE ACTIVITY . A. General ‘ B. Avai .able Physical Evidence 4 • FUTURE COURSE OF INVESTIGATION 5. C ANGES IN 4,5,6, OF CASE OPENING REPORT A. Subjects of Investigation (] Check if same B. Personnel Assigned to Investigation C. Other Agency Contact with Subjects SI A U ES [ ] Check if same fl Check if same Inv ua Prepari.ng Form Regiona.1 En orcem nt Director or Designee Date Date ------- 0 ------- MISC ELLANEOtJS ------- CRIMINAL PROSECUTION UNDER THE FEDERAL WATER POLLUTION CONTROL ACT U,:iled States v. Fre:zo Brothers 602 F.2d 1123 (3d Cir. 1979), cert. denied, 48 U.S.LW. 3535 (U.S. Feb. 19, 1980) Although criminal prosecutions are authorized under the Federal Water Pollution Control Act of 1972,’ civil actions have remained the — ——enforcement-not in. Recently;-howeverfederal prosecutors-have begun- to apply criminal remedies as a method to prompt polluters to clean up. 2 (hilled Stales Frezzo Brothers 3 demonstrates the potential of criminal prosecution. In Frezzo, a family owned enterprise permitted manure-rich waters to flow into a stream. The United States Environ- mental Protection Agency 4 had never promulgated effluent limitations 5 or other regulations applicable to the defendants’ business, nor had it issued any abatement order or other prior notice that defendants might be in violation of the FWPCA.’ Nevertheless, the United States Attor- ney obtaihed convictions 7 and the United States Court of Appeals for I. 33 U.S.C. § 1319. 1321 (1976 & Supp. 1977). The Federal Water Pollution Control Act of 1972 is hereinafter referred to as FWPCA. 2. See, ag.. UiutedStates v. Hamel, 551 F.2d 107 (6th Cit. 1977); United States v. Olin Corp., 465 F. Supp. 1120 (W.D.N.Y. 1979); United States v. Little Rock Sewer Comm.. 460 F. Supp. 6 (E.D. Ark. 1978); United States v. Phelps Dodge Corp.. 391 F. Supp. 1181 (D. Ariz. 1975). Seethe WaliSLJ Ocs.3, 1979,at2l,esL2 The Justice Department moved to strengthen its enforcement of laws dealing with pollution and hazardous waste.... rrhe holder oq a newly created post of Deputy Assistant Attorney General in the department’s Land and Natural Resources Division. .. . will oversee a new hazardous- waste section, along with the department’s existing pollution-control section landl will also supervise all of the division 1 s criminal prosecutions. Attorney General Benjamin Civileut said that 20 lawyers will be added to the divi- 5ion’s staff to aid enforcement efforts. These management moves follow months of discussion within the department about the need for tougher enforcement of environmental laws. 3. 602 F.2d 1123 (3d Cir. 1979), cc i i, denied. 48 U S.L.W. 3535 (U.S Feb. 19, 19!Wi) 4. The Uaited States Environmental Prote iion Agency is char;ed wmth implemcnuuua of the ict 33 USC (2 51(d) (1976) Jicreinaftcr chat gcncy . th be rcferreJ to a ‘w EI’\ 5. Effluc. t !.m,caci.n is de ed as foUo.w r.ie tc rn • ?9. cnt iirnuca .jn ” r.iejns ar, r:s’riciz n c , c,,ch d w a S”: cn \ . - on Iluanuties. rJ ca. and concentracz .’IIs 1 ‘.ne’mcal, ph) .:cal. bmol.j tic:iI, . a .L other contituents hich are disch4rgcd from p ..tnt urces icuu .IavIg4ble waters. 33 U S.C. § 1362(11) (1976). See EPA v California cx ic!. State Water Resources Control Sd., 426 U.S. 200, 204-05(1976); Ford Motor Co. v. EPA, 567 F.2d 661,673(6th Cir. 1977) (Engel, J.. dissenting): ice text accompanying notes 45-SO L’Ørz. 6. 33 U.S.C. § 1251 (1976 & Supp. 1977). 7. United States v. Frezzo Bros., 461 F. Supp. 266 (ED. Pa. 1978). 983 ------- 984 CIIFCIGO-KEN7 ’ L4W REViEW the Third Circuit affirmed the convictions. 8 Frezzo lays a foundation for increased federal prosecution and jail sentences for polluters. This comment will discuss federal water pollu- tion laws preceding the FWPCA, the enforcement scheme of the FWPCA, and various cases illustrating its implementation. Next, the Frezzo case will be presented and analyzed. Finally, the potential im- pact of the Frezzo decision upon future prosecutions will be consid- ered. DEVELOPMENT AND ENFORCEMENT OF WATER POLLUTION LEG ISt -A1’1O N The’ Federal Waler PolIutio,rAct 0/1948 Prior to the 1970’s, federal water pollution enforcement “relied al- most exclusively on negotiation, public pressure, and voluntary compli- ance.” 9 The first federal statute intended to remedy water pollution was the Federal Water Pollution Act of 1948.10 This act and its amend- ments provided for an extended “conference procedure” as a means of enforcement.” This procedure required conferences among the dis- chargers ofpollutants and all control agencies in the region’ 2 followed by an informal hearing “intended to resolve pollution problems by con- dilation and coordination, rather than by enforcement sanctions.”’ 3 These procedures delayed any enforcement for at least two years and the only enforcement available then was an injunction.’ 4 During the twenty-four years of the existence of this legislation prior to passage of the FWPCA, this procedure resulted in. but one case reaching court.’ 5 That case was settled by a consent decree. 8. United States v. Fresso Eros, 602 F.2d 1123 (3d Cit. I979) cere deirl. 48 U.S.L.W. 3535 (US. Feb. 19, 1980). 9. Glenn, The C,ime of “Pollution’ The Role of Federal Wale, Pollution CHminal Sane. Mans, I I AM. CalM. L R Ev. 835, 836 (1973) thereinafter cited as Glenn j. 10. The Federal Water Pollution Act of 1948 declared that it was the “policy of Congress to recognize, preserve. and pmt the primaiy responsibilities and rights of the Slates in controlling water pollution.” 33 U.S.C. § 466 (1964). Thus, although this act was a first step, the Congress had 1101 thrown the full force of the f dcral government behind e orts to control water pollution. I I S ’e F Gs, o. ENviao tr mi. LAw 2-75 (2dcd. l978)fherelnaiiercltcdasGRAol: S. Rk ‘ .i 41.1, 92C Cor ’ . 1st 5c s 2. rvprvurd “1 (i°’ U 5 Co C r . AD ?J ws 3 d. tt ’ 9 where ibe o’ttrn,uec reoo; s c the r(i4Jor aWGn ’ .CnI’ to tii. l94 pri.r to the FWPCA. 12. Id 13. Id., seeS. EP No 414, 92d Cong., III Sc . 5, re,thu du V972l U.S Coot Co ’ o & AD. NEWS 3668, 3612. 14. id. IS. In that case. United States v. City of St. Joseph. Docket No. 1077 (W.D. Mo. St. Joseph Div. 1961), the polluter was dumping over five million tons of raw sewage a day during the four years which elapsed between the initial conference and the consent degree. ------- NOTES AND COMM&’1TS 985 The principal weaknesses of this act were that the government was required to give a violator 180 days notice prior to initiating court ac- tion; the act applied only to interstate waters, which comprise only about fourteen percent of all waters in the United States; and the act provided for the establishment of “stream standards” for a body of water and not effluent standards, which are prescribed for the source of the discharge.’° The Ref use Act Dissatisfaction with the Federal Water Pollution Act of 1948 led to the dusting off of an older piece of legislation which was originally designed to prevent obstruction of navigable waters.’ 7 This legislation, the Rivers and Harbors Act of 1899,18 made it illegal to discharge or deposit “any refuse matter of any kind or description whatever other than that flowing from streets and sewers and passing therefrom. into any navigable waters.” 9 From its inception until the late 1960’s,. the so-called Refuse Act was almost exclusively used to prosecute cre- ators of obstructions or impediments to anchorage or navigation . 20 However, during the 1960’s, several United States Supreme Court cases began to expand application of the Refuse Act to prohibit pollution. In the first of these cases, United Slates i’. Republic Steel Corp. ,21 the Court interpreted the Refuse Act as applying to the discharge of liquid wastes containing suspended solids which had not blocked navi- gation or anchorage? This decision was expanded by the Court in United States v. Standard Oil Co. , where the defendant d2irned that the gasoline he had spilled into a waterway could not come within the scope of the Refuse Act because it was a valuable commodity. 4 The 16. Druley, The RefuseAci of 1899, 2 ENv. Ru. Monogsaph No. 11(1972) (hereinafter cited as Drulcyj. 17. id. 18. 33 U.S.C. § 407 (1976). 19 Id. 20 S . . U’iited States v Ballard Oil Cu. 195 F 2d 369 (2J Cir. 1952); Uuicd States v M raa. 113 F !72 ( C) N.Y I JQi) ‘Jniicd Stj.cs v M.irtt’in .rn. 5SF. 765 (F D S.C. I ’1i çorcd- cessor i ic P:iu’c .Acr ni 39 .‘.rcet d in oatmg b . ai;c th wc:c ‘or pct n t o s&ruct1nn), .jmied Scatc .‘ Hums, 4 F 3 D w’ V ipreJc c or to thc ‘ i c of 1899) Furthermore, the Army Cørps of Engineers, charged with adinimsiracion ci’ t ie Rcfi c continued to emphasize the statute’s application to impediments to navigation even after United States Supreme Court decisions in the 1960’s to the contrasy. See text accompanying notes 21.27 21. 362 U.S. 482 (1960). 22. Id at 490. 23. 384 U.S. 224 (1966). 24. Id. at 225. ------- 986 C/I/CA GO.KENT L4W REVIEW Court rejected this defense, stating that “ [ t]his case comes to us at a time where there is greater concern than ever over pollution—one of the main threats to our free-flowing rivers and to our lakes as well.” 25 Furthermore, Siandard Oil povided a Ibundation for the imposition of stnct liability under the Refuse Act since the Court had reinstated an indictment charging that the defendant had merely “allowed” the gaso- line to enter the waterway. 26 Consequently, civil and criminal liability have been imposed under the Refuse Act without a showing of intent, knowledge. or r egiigcnce. 2 ——While.these_decisions_gre tIy panded the potential reach of the Refuse Act and. led to significant enforcement, the RefusèT Act áistiJf not, widely utilized. In the early 1970’s, however, public pressure caused the agency charged with its administration, the Army Corps of Engineers, to establish a permit system under the statute Further mi- 25. IS Justice Dougias, writing for the majority, continued: The erisis that we face in this respect would not, of course, warrant us ii i manufacturing offenses where Congress had not acted not in stretching statutory language in a eriminBi field to meet strange conditions. But whatever may be said of the rule olsizict construc- tion, it cannot provide a substitute for common sense, precedent. and legislative history. We cannot construe 13(33 U.S.C. § 407j of the Riven and Harbors Act in a vacuum. Id. at 225-26. Lower courts also expanded their application of the Refuse Act. See. e.g.. United States v. Esso Standard Oil Co., 375 F.2d 621 (3d Cit. 1967) (liquid petroleum products) United Stases v. Consolidation Coal Co., 354 F. Supp. 173 (N.D.W. Va. 1973) (“effluent wastes”); United States v. Granite State Packing Co., 343 F. Supp. 57 (D.N.H.). qff’d. 470 F.2d 203 (1st Cit. 1972) (blood. manure, and grease); United Stateev. Interlake Steel Corp.. 297 F. Supp. 912 (N.D. 111. 1969) (iron particles and oiiy substance). 26. 384 U.S. at 225. See Olds, Unkovic & Lewin, Thoughz, oit the Role of Penalties in the £.foicemmt of the ann , Air and Water Ac!. ,, 17 Du L. REv. 1,3 (1977) (heteinalter cited as Olds). Although the Standard Oil Court specifically declined to reach the liability question. 384 U.S. as 230, the (acts of the case provided a basis for a strict liability interpretation. See United States v. White Fuel Corp., 498 P.24 619 (15* Ci ,. 1974) where the court cited Siarida,d Oil in applying siiict liability in a etimnml prosecution. 27. United Stares v. White Fuel Corp.. 498 F.2d 619 (Isi Cir. 1974). In that case, the court examined the standard of liability necessary for criminal prosecution under the Refuse Act. On. fendant corporation operated an oil tank farm near the Boston harbor. Over a period of years, oil had accumulated underground. This oil percolated through the soil and entered the harbor. In cxplairnng the policy behind strict liability, the court stated: Merely to attempt to formulate, let alone apply (a due care defenscj would be to risk nppling the Ref.. e Act as an enforcement tool The defendant. (a ubsuntia1 hustoess ctccrori c, ou!d i.auaUy “. iirc e c’u’a’ e c c1tro of both i. ’.c . c’erzi. .c and the relevant t,tc s :t .jLd re .iliicuh :cijced. arid ta ac purpb . : r ‘t’c u C tifT fli U ‘.awe I ‘f.C suc with :ianOc.ice Igctuai an thc.scticai Jrhl:c.cen ho. ah a’tJ iji . enc wr’ng. [ Vi1C see no u %&rncas .n piedIr .aun4 !i.io’ljt on .c.:i ai —er. ance r rthcr than either uuentions or best cft’orts U h.atever oi.aaional h:irshnes; this could entail is offset by the moderateness of the permited 1ne. the fact that the uatute’s command—to keep refuse out of the public waters—.tcarcely imposes an impos- sible burden, and the benefit to society of having an easily defined, enforeible standard which inspires performance rather than excuses. Id. at 623 (footnote omttted). 28 Exec. Order No. 11,574, 35 Fed. Reg. 19.627 (D cc. 25, 1970) established a permit system ------- NOTES AND COMMENTS 9 57 petus to enforcement occurred in 1970 when United States Attorneys were given guidelines for criminal and civil enforcement actions. 29 These guidelines authorized prosecutors to initiate criminal actions against “occasional polluters” on (heir OWfl, without approval from the Corps.° The promise of expanded application of the Refuse Act was soon thwarted, however, by several court decisions. 3 ’ For instance, in ICalur ‘. Resor. 2 a federal district court enjoined the issuance of discharge permits under the Refuse Act until the Corps of Engineers amended. its permit regulations to require the preparation., of environmentaL impact statements in conformance with the National Environmental Policy Act. 33 This requirement was a substantial barrier to the implementa- tion of the Corps’ permit system as a means of dealing with pollution. Additionally, Ia/ s ir held that the Refuse Act permit system did not apply to non-navigable tributaries of navigable waters. A second decision impairing the Refuse Act as a means of curbing pollution was United States v. Pennsylvania Industrial Chemical Corp. 35 In that case defendant was charged with violating section 13 of the Refuse Act by dumping liquid industrial wastes without a permit. 36 The Court rejected defendant’s contention that its failure to obtain a permit was excusable because the Corps of Engineezs had no formal permit program at the time of the dumping. 37 However, the Court ac- cepted as an admissible defense the defendant’s claim that it had been “affirmatively misled” by the Corps’ longstanding administrative con- under the Refuse Act, u referred to in section 13 of the statute. 33 U.S.C. § 407(1970). Permits were to be issued by the Secretary of the Army after consultation with the administrator. During the yeats 1971 and 1972, there were about 300 criminal convictions under section 13 of the Refuse Act, 33 U.S.C. § 407 (1970), and over 120 civil actions. 118 CoNG. Sac. S33.705 (Oct 4, 1972) (remarks of Senator Griffin). Most of these resulted in either the stopping of dump- ing or the installation of pollution controls. Id. 29. Druley, sz om note 16, at 6.7. 30. Id See, ag., United States v. Standard Brands, Inc., No. 70 Cr858 (S.D N.Y. Dcc. 7, 1970) However, the primary enforcement tool utilized under the Refuse Act was the injunction. Drukv. mpra note 16. at 8 Ses sy. United States v Armco Steel Corp. 333 F. Supp (073 (S 0 , 31. i_.r: , d I,. ’ic Z t:ni Cc r.. .l !‘ ‘ ;‘i ’5 2 , “ Ke ’ . ‘ “ •Y•i 3 t. r Di •‘ • ( (‘) T e ‘i.i ‘ ‘ i. J d —— .‘l ‘li ”LU 1 ‘,. .Lt h .”cr.t b requir—u uader the En irutunc icaL P ticy A whci major fcd rai .tct.o.i anticipated to have an effeic on the environment. Id § 43 2. 34 335 F Supp at (0-Il. See Glenn, Jup a ni.1e 9. at 852.53. 35. 411 U.S. 655 (1973). 36. 33 USC. § 407 (1976); see text accompanymg note 19 supra. 37. 411 U.S at 659 A permit system was instituted in December of 1970. See note 28 nipra. ------- 988 CHICAGO-KENT LAW REVIEW struction of section 13 as limited to impediments to navigation. 38 The Court allowed this defense, despite its own and other court decisions which had interpreted the Refuse Act far more broadly than the Corps’ regulations. 39 The Court stated that the defendant “had a right to look to the Corps of Engineers’ regulations for guidance.” 4 ° The judicial limitations placed upon the Refuse Act in Kalur and Pennsylvania Industrial Chemical gave impetus to passage of the FWPCA. With the passage of the FWPCA, the Refuse Act became limited to curtailing discharges which are of an isolated rather than a continuous nature and which have an effect upon navigaticu or anchôr 4 1 -—- ____________— — The Federal Water Pollution- ConirolAct of /972 The FWPCA of 1972 was an advance over all pre-existing federal water pollution control legislation. 42 The act’s stated goal is to elinii- nate the discharge of pollutants into navigable waters by l985. This was to be accomplished by the establishment of a permit system requir- ing polluters to use the “best technology available” to reduce their dis- charge of pollutants by l977. ’ Briefly, the act operates as follows: The administrator establishes guidelines to be used in promulgating national effluent limitations. 45 38. 411 U.s. at 670. 39. Id. at 674. See. &g.. United States v. Standard Oil Cc.. 384 U.S. 224 (1966). 40. 411 U.S.at674 . 41. 33 U.S.C § 1371(b) (1976). The Refuse- Act is expressly preserved by 33 U.S.C. § 1371(aX2XB) (1976). The Refuse Act permit system was eclipsed by the National Pollution. Discharge cIin i,iation System provided for in 33 U.S.C. § 1342(aX5). However, the Army Corps of Engineers still issues permits for dredged or fill materiaL Id. § 1344. Alsoj actions pending under din Refuse Act at the time of passage of the FWPCA were preserved. Id. § 1251. See United States v. Rohm & Hans Co.. 500 F.2d 167(5th Cir. 1974). cut, denIed. 420 U.S. 962(1975); United States v. Consolidation Coal Co., 354 F. Supp. 173 (N.D.W. Va. 1973). 42. See EPA v. California r rd. State Water Resourses Control 3d.. 426 U.S. 200(1976); Arnold, ifrut Lthuthoo,u and NPDE .S Federal and State Implementation 0/the Federal Water Pci/talon Control Amerid,,renLs of 1972, 15 B.C hio. & COM. L Rev. 767 (1974). 43. 33 U.S.C. § 1251 (aX I) (1976). 44. That section provides in part In order to carry our the objective of this chapter there shall be achieved— (l (A) nnc idler than July !. I Y?7. e uent limitations for po aL 3urces. other ‘ha 1 i uohdy “wncd ire lntcnt works, u1 which shall r qIur the . phc.ittiivi of the h. p ’ . t: - a ’ i. “ontrc , ‘1,ijI ’ . cu.rc.itlt’ ..lab(e a i’ d by to. . ci’ .. - ‘..‘ “ c ’ ’, t,flrq. lT .en .. .. - .— — .•• .;: — ..L - poLcd ‘. .t. tiargec I d § . ! ! o.. 2 ‘ . ‘ i. .- — cr - rc D, u c . .. .. .‘ - . . ‘ ,t Iufl5 r i iIire appIIi. twn of tftc “hcst onvcntu. ’i ii t’iLu’dflL l”fll I. .igy’by .i . i. 1934. Id. § l3ll(bj 2XE). 45 See E.i. du Pont de Nemours & Co. v. Train, 430 U.s. 112 (1977), for euensive analysis of the FWPCA. ------- NOTES AND COMMENTS 989 These guidelines describe factors which the EPA must consider in de- termining permissible levels of discharge. These factors include vari- ables such as the age of the discharging facility and the technological process being used by that facility. 46 Based upon these and other fac- tors detailed in the guidelines, the adminstrator promulgates national effluent limitations which establish a range of permissible discharge levels for classes and categories of point sources. 47 The EPA, or if the state has an EPA-approved plan, the state, may then issue permits to indi idaa1 point sources. 48 These permits entitle the permit holder to discharge in conformance with levels established by the national efflu- ent limitations. 49 If the operator of a particular point source believes that he cannot conform to the standards set forth in the national efflu- ent limitations, he may apply to the permit-issuing body for a variance. If the state, rather than the federal EPA, has authorized a variance, that variance is subject to federal approval. 50 The focus of the act’s enforcement is section 1319. This section provides that any person who violates complianee orders, the operative sections of the act, or a permit condition may be subject to a civil pen- alty not to exceed $10,000 per day of such violation. 5 ’ Civil actions 46. 33 U.S.C. § 1314(b) provides in pan: For the purpose of adopting or revising effluent limitations under this Act the Adminis- (rater shall, after consultauon with appropriate Federal and State agencies and other interested pessons, publish within one year of lcnactment of this ut!eJ, regulations, pro- viding guidelines for effluent limitations, and, at least annually thereafter, revise. For the ycara of struggle to determine how this section interacted with section 1311 and other sections of the act, see E.I. du Pont de Nemours & Co. v. Train, 430 U.S. 112 (1977); American Iron & Steel Inst. v. EPA, 526 F.2d. 1027 (3d Cit. 1975); CPC Int’l, Inc. v. Train, 515 F.2d 1032 (8th dr. 1975) Natural Resources Defense Council. laic. v. Train, 510 F.2d 692 (D.C Cit. 1975). Although the policies and concepts are a vast improvement over previous legislado the FWPCA has been described as a “poorly drafted and astonishingly imprecise statute.” LI. dii PontdcNeinours&Co.v.Train,54 1 F.2d 1018, 1026(4thCir. 1976). fd,430U.S. 112(1977). The FWPCA has led to many conflicting interpretations and “virtually every exercise of the (EPA’sJ discretion has precipitated protracted litigation.” Republic Steel Corp. v. Train. 557 F.2d 9), 94(6th Cir. 1977). vacated and’,emandea 434 U.S. 1030 (1978). 47 33 U.S.C. § 1314 (1976) 48. Section 1342(a)( I) provides chat the administrator may i “enn ti,r the di hargc of ni p . 11ucant. or ombinaci n of ‘ti1lut., its. .i w- . 3i..:.n: L3 ‘.(...t .,c :.ti, r.’r. sucF . re u.’ ‘“ t i ’h r 1. .iflfl. ’ c’ ’ ’ I c i i .dc I . .‘ I. - . u ..‘( e. ’.i’— r s. r” .; • ‘ •“s -• I_ C. - ’ — - ‘ ‘Ls’ ’ C ‘ •-, n ’tcr Id § I3 - 2( (t). 49. For a morc detailed discussion of thc pennht appiicauon prc . .cdure. s ‘: irai Rc- sources Defense Council, Inc. v. Cosde, 568 F.2d 1369, 1378 (D.C. Cu. 1977); Marathon Oil Co. v. EPA. 564 F.2d 1253 (9th dr. 1977). 50. See 33 U.S C. § 1342(d) (1976). 51. Section 1319(d) provides: ------- 990 CHICAGO.KEIIT L4W REYJEW may also be brought against municipalities and a state may be joined as a party. The act also includes three provisions for criminal liability. One provides for a maximum S 10.000 fine and/or a maximum of six months in jail for false statements. 52 A second penalizes failure to no tify the government of a harmful spill of oil or hazardous substance with a maximum $10,000 fine and/or imprisonment up to one year.” The third, section 13 19(c)(I). is a general criminal sanction which provides: Any person ho wilfully or n ghgentLy violates s tio (s]. of this title,, or any permit condition or limitation . is ued . . by thc Admintstraior or by a State. . . shall be punished by a fine of not less than $2,500 nor more than $25,000 per day of violation, or by imprisonment for not more than one year, or by both. The FWPCA corrects many of the problems confronted when ear- lier legislation was used to remedy water pollution. For example, un- like the Water Pollution Act of 1948, the FWPCA provides for Any person who violates section 1311, 1312, 1316, 1317, 1318, 1328, or 1345 of this tide, or any permit condition or limitation implementing any of such sections in a permit issued under section 1342 of this tale by the Adnunistrator, or by a Slate, or in a permit issued under section 1344 of thin title by a State, and any person who violates any order issued by the Adminisiretor under subsection (a) of this section, shall be subject to a civil penalty not to exceed S 10.000 per day of such violation. Id. § 1319(d). 52. Section 13 19(c)(2) provides: Any person who knowingly makes any false statement, representation, or certifica- non in any application, record, report. plan. or other document filed or required to be maintained under this chapter or who falsifies, tampers with, or knowingly renders mac- curate any monitoring device or method required to be mnintained under this chapter, shall upon conviction, be punished by a fine of not more than 510,000. or by imprison- ment for not more than six months, or by both. Id. § l3 19(cX2). See United States v. Little Rock Sewer Comm., 460 F. Supp. 6 (ED. Ark. 1978). In that case, individual members of a volunteer town board “clearly leaked any personal knowl- edge of the false statemen&’ made by a city employee to the EPA. Ia as 8. Nevertheless, the court found the town board criminally liable for those statements under 33 U.S.C. § 1319(c)(2) on a theory of respondent superior. The board was held vicariously liable for the negligent or wilful statements of its high level employee. 53. Section 132l(bX5) providen Any person in charge of a vessel or of an onshore facility or an offshore facility shall, as soon as he has knowledge of any discharge of oil or a hazardous substance from such vessel or facility in violation of paragraph (3) of this subsection, immediately notify the appropriate agency of the United States Government of such discharge. Any such eerson (A) in charge of a . s el frwn which oil or hazardous 3u i.rnc is dIsch4 ge! m vi .’ .i.uri ot paragrztph . .1 .‘f this :ubs ction. ‘r B) n harge ‘ c ’ eI trom “ .i .h oil .i ..z.: ns . .i.r . r . i : ‘ “3tJ . .h ‘ :‘ . f ‘Li’ 1_. ‘t..t . .‘: c 1 . ,. - a —. . : -. —— -i . ,. . . 1 — — .. :. --_ ,i. . — ‘ , ri nt ’r n c .r \.- ‘L L - ‘:. ‘. I’ .. . ..._. ,, ..: ,i r.I jrtiiji:un 0012i1’ci r ’ : w ‘i, iiat ’r i , , ‘i i -_a —ot ..• . • . - . any .uch person in any ciimin.iI ca.,c, e’cLcpt a pr;;e uli..r. :or perjury or tir false statement. 33 U.S.C. § 132 l(b)(5) (1976) 54. Id. § 13l9(c)(l) ------- NOTES AND COMMENTS 991 limitations to be placed upon the sources of pollution regardless of the quality of the water into which the pollutants were discharged.” The earlier act had permited discharging unless water quality standards were violated. 56 Secondly, the FWPCA applies to navigable waters of the United States, a provision which has been interpreted extremely broadly, even to the point of including dry gullies.” Furthermore, un- like the Refuse Act, the FWPCA permit system and other EPA action under the act is spccificaUy exempted from the requirement that envi- roarnemal impact statements be filed by the agency.” FWPCAschemedepends-upon-”rapid-ac-- cess” to the federal courts, 59 a vast improvement over the lengthy con- ference procedure of the Water Pollution Act of 1948.60 Also, the. FWPCA civil and criminal enforcement provisions compare favorably to those in the Refuse Act.” For example, the Refuse Act provides for strict liability in both criminal and civil actions and permits a max- imum fine of $2,500.62 In contrast, the FWPCA imposes strict liability only in civil actions,’ 3 but provides for substantially greater fines than those in the Refuse Act.’ 4 Thus the FWPCA is intended to make pol- luting an uneconomical proposition.’ 3 However, unlike the Refuse 55. Id. § 1311(b). 56. Druley, .n ww note 16, at 1. 57. See United States v. Phelps Dodge Corp., 391 F. Supp. 1181, 1184.87 (D. Aria. 1975), where the court stated that For the purposesof this Act to be effectively carried into realistic achievement, the scope of itS control must extend to all pollutants which are discharged into any Ie.’smry. including normally dry aivoyas, where any water which might flow therein could reason- ably end up in any body of waler, to which or in which there is some public interest. including underground waters. Id. at 1187 (emphasis in original). 58. 33 U.S.C. § 1371(c)(l) (1976). 59. S. Rn . No. 414. 92d Cong.. 1st Scat. 65, repi.wed iii (19721 U.S. CODE CONG. & At, Naws 3668, 3731. See United States v. Detrex Chein. Indus., Inc., 393 F. Supp. 73S, 737 (ND. Ohio 1975), where the court stated that “the legislative history of the Acts reveal congressional concern over the apparent insufficiency of penakies provided to encourage compliance prior to the 1972 amendments.” 60. See text accompanying notes 9-IS .n o,a. 61 33 U.S.C. § 407 (1976); ee text accompanying notes 18-27 and 32.40 supu. 6!. 33US.C §410 (1976) 1 US C § l3 i(d)(t976), re note 51 ore See’, Un:ted States v Marathon Pice- l, ’ e C. 1 , 5 Q 2 -’O 7 h C. r ‘ ‘ ‘ hc:e a iw LsScs ed ag.unst an owner who — :_ .,I .n .. . • : . —u • ‘‘ sed t ; i: ,; F ’) .. ‘..S’ § .ii’ ’ t.$!O ? .j e ‘_‘iteJ Stiic • V tre Ch’ m l !d . 3 J 1- upn r,. 73. ‘N I) •)‘qu J7 ’ Therc the E?. .ou t to htvc i tine k ted for eacn ‘.toint.oa. roUter than n a per .lay baiis The court held that ‘while a S 10,1 )00 per violation per day penalty wouli also tend to effectuate the congressional enforcement purpose, the truly devastating impact of such a construction on busi- ness is not what Congress intended. Such a rule would tend more towards conftscauott than mere deterrence.” Id. ------- 992 CHICAGO-KENT LAW REVIEW Act, criminal violations under the FWPCA are not based upon strict liability. 66 The government must show that the violation was either negligent or willful. 6 ’ Jail sentences as provided in both statutes are similar—up to one year for first-time offenders. 68 A:i additional enforcement provision in the FWPCA not providcd for in earlier legislation is a form of “blacklisting.”b 9 This FWPCA provision prohibits any federal agency from procuring goods and serv- ices from a person convicted of a criminal offense under the act. - -__ENFORCEMENT ACTION UNDER THE FWPCA The above FWPCA enforcement provisions reflect congressional intent to toughen sanctions against polluters. 7 ° These provisions rely primarily upon enforcement of effluent limitations, which are imposed upon dischargers via permits.” As long as a discharger remnine in, compliance with his permit, he is deemed to be in compliance with the act.” A violation of a permit condition subjects a discharger to en- forcement provisions. This is also the case where limitations are appli- cable to a discharge and where the discharger has not obtained a permit.” While this enforcement scheme can be simply stated, it has led to many questions of statutory interpretation. 74 For one, a number of cases have arisen where there are no effluent limitations or other regu- lations which are applicable to the discharge at issue.” Courts have 66. 33 U.&C. § 13 19(c) (1976); saw text a mpanying note 54 i m. The CIesn Air Act has ascienter requirement that the violation be knowing” before criminal sanctions may be imposed. Since liabilily for “knowing” conduct is a tougher test than “fleghgear conduct, it would seem that criminal liability “may be imposed under the Water Act on a lesser showing of culpability than under the Air Act.” OIds upu note 26, at 15. 67. 33 U.S.C. § 1319(c)(l) (1976); see text accompanying note 54 wpra. 68. 33 U.S.C. § 410, 1319(c)(I) (1976). 69, Id. § 1368(a). For a discussion of this provision, see Air wrd Waler Act E, ,,remen1 Prob/e,ns— ,4 Case Siidy, 34 Bus. LAW. 665, 671(1979). This statute has been expanded by exec- utive order to require compliance with the act as a condition to an agency contract. Furthermore. EPA’s regulations implementing this order provide that federal, state, or local criminal convic- lions or administrative findings of non.compliance may serve as a basis for blacklisting a facility. (a O U. iucd Staic v DctreA Chem 1nJu ., inc. 393 F Supo 735. 737 (N D Ohio 1975); :wi tune 7. .u S33 .38 1) ’ cn,.. • Cc’t’.c. I7( 9 ‘ ‘ :) Cii• f’ 7) — I •1. . . I j.fl • ‘ .‘tC .. • ... .. ‘. •v.,, , ‘_ . •...:u ’ -. ‘, .i _ , : ; 4 ‘‘ , 7- ee i oic lo c ’ pra 7. See’. eg.. United Sutes v. huth.on Farms. Inc. 12 E Ri.. 14- 14 (E P Pa 1973). tThued States v. OAF Corp.. 389 F. Supp. 1319 (S.D Tea. 1975); United States v. Holland. 373 F. Supp. 665 (M.D Fla 1974). ------- NOTES AND COMMENTS 993 disagreed as to whether enforcement procedures can be instituted against the discharger in this situation. A Texas federal district court addressed this question in United States v. GAF Corp •70 In G .4F, defendant chemical company had ap- plied for a permit to dump chemical wastes into a deep well. The gov- ernment, without taking action on the permit application, sought to enjoin the dumping under 1319(b), which provides for appropriate civil relief for violacions7 The government asserted that the dumping weuld violate section 1311(a). This section provides that, except in compliance with the act, the discharge oL any pollutant by any person shall be unlawful.” 78 The government maintained that dumping would violate section 1311(a) per Se, regardless of the facts that no applicable cffluent limitations had been established and that defendant’s permit lad not been acted upon by the EPA.’ 9 The GAF court rejected the government’s contention that the broad prohibition in section 1311(a) could be enforceable where appli- cable effluent limitations had not been promulgated. 8 ° The court stated that enforcement action must be based upon a failure to comply with promulgated regulations or with other sections of the act that specifi- cally prohibit certain discharges. 8 ’ Furthermore, the court stated that the government’s interpretation of the act would lead to an “intolerable outcome.” 82 According to the GAF court, the intolerable outcome of enforcement of section 131 1(a) per se would be that “every person and enterprise in the country [ would have] to affirmatively comply with one 76. 389 F. Supp. 1379 (S.D. Tex. 1975). 77. Section 1319(b) provides: The Administrator is authorized to commence a civil action for appropriate relie including a permanent or tempoi’aly injunction, for any violation for Which he is author- ized to issue a compliance order under subsection (a) of this section. Any action under this subsection may be brought in the district court of the United States for the district in which the defendant is located or resides or is doing business, and such court shall have jurisdiction to restrain such violation and to rccjwre compliance. Notice of the com- mencement of such action shall be given immediately to the appropriate State. 33 U.S.C. § 1319(b) (1976). 78. Section 1311(a) provides: E cepc as in compliance with this se uon and sections 1312. 1316. 1317, 1328. 1342, aai L3. ‘f tt t ‘itle, the dbchar e of any pollutant by any person 3h311 be unlawfuL /.7 tJI. I? - • . ‘ I ‘‘.‘ Iiol tc— C..’ v 7 ru.; 55( F : ,I - . th . ‘ .: .. n. ,.heir’- t — ti .’ dcci. 1 ’rp -’. •c.. .1 fl:—.I u;i r r) . . ‘ - “. fl.t• t.t’. SII t.)( .‘. :i I •( 1 . ) - , ..,. r’ c” • ,e: I :tu ’ ?. •I. - n ., - •ur’ aT ,. , .!erucd thc •.ji ciin .i ‘h ruund ;he oi po aI & -heru aI wasics into a deep weLl Jid not tunstltutc dbehar c mpollutdnts within the nicaniug of sc t,on 13 11(a). 389 F. Supp. 1383-85. SI. Id at 1386. 82. Id. ------- 994 Cl//CA GO-KENT L4W REVIEW of the enumerated Sections before discharging any pollutant?’ 83 Rather than reach this result, the court outlined either of two ways in which a person could comply with the FWPCA: A person could never contravene an effluent limitation, or he could comply with the conditions and limitations of his permit. 84 Apparently piqued that the government was seeking enforcement where no regulations applied, the court concluded that the government was trying to “avoid the legal consequences of the Administrator’s dalliance by proposing the per se inlerpretatiou of 1311(a). ”” The court saed that its decision merely denied to the administrator “the freedom to restructure the FWPCA to c ver wh rd peaCtø be’his-procrastination:” 86 — The decision hr G 1 4F was relied upon by the Sixth Circuit in Re- public Steel Corp. v. Train. 87 In Republic Steel, the adminictrator ob- jected to a permit issued by the Ohio EPA on the ground that the state agency had improperly waived the July 1, 1977 deadline. That date was statutorily designated as the date by which the permit-issuing au- thority should require dischargers to employ the “best practicable con- trol technology currently available.” 88 The state-issued permit had allowed Republic to continue discharging at levels above those achiev- able by the best practicable technology past July 1, 19Th Republic, possessing a state-issued permit, contended that the State was entitled to extend compliance with the FWPCA beyond the dead- line because, at the tune the permit was issued, there were no effluent limitations defining the “best practicable technology” discharge levels for Republic’s business. 89 The Sixth Circuit held that the inability of the federal EPA to promulgate timely standards foreclosed the imposi- 83. Id. at 1385. 84. Id. at 1386. Seethe United States v. Olin Corp., 465 F. Supp. 1120 (WD.N.Y. 1979). in 0/ia. defendant corporation and individual defendants sought to dismiss an indictment charging them with twenty-eight counts of making false statements to the EPA in violation of 18 U.S.C. § 1001 (1976) and 33 U.S.C. § 13 19(cX2) (1976). See note 52 .nqm. Thtsc charges pertained to reports which defendant voluntarily filed prior to obtaining a permit to discharge. The defendants argued that the adzninisirator could have enforced section 1319 even if defendant had not been is.tucd a permit. Consequently. dei cndanis claimed, the general section 1001 counts should be is ‘ect on 13I ’(ch pr:empted a plicatiun t t ut statute on the (.wts hefore the court. a’J ‘iItefl .Ctcj _ccti.,n 3I9 a ‘. r.;v,n “u tiy he.i the . dunbtr’itur “3 “ :11 ‘ . It I” i L . .fI . r a ‘ i: u _: ‘:‘. , ‘ .— t J 465 SI, ,i Ot ier . .jL’r s have es nt&er .i’Ir . f .:ci. v S ...- •‘; . . ‘‘ %l ’ - “ e Inc. -i. C . . .st e, 568 F 24 1369. l37 ) D C ’ C.: U77j 87. 557 F.2d 91. 95(6th Cu. 1977). vacated and ,e,nandcd, 434 U S. 1030 (1978) 88. 33 U.S.C. § 131 1(b)(l)(A) (1976); see note 44 mp, . 89. 557 F.2d at 95. ------- NOTES AND COMMENTS 995 tion of the statutory deadline upon Republic. Citing GAF, 9 ° the court stated that “federal regulations must exist before dischargers can be compelled to honor dates for implementing them.” 9 ’ In another case where there was an absence of EPA regulations, Ford Motor Co. v. EPA, 92 the Sixth Circuit reviewed the administra- tor’s veto of a state-issued permit. There the court set aside an EPA veto of a state-approved permit on the grounds that the veto was inva- ltd because i “was not based upon any published regulation or guide- line or exprcs statutory provision.” Th practical effect of the holdings in UAF Republic Steel, and Ford is that, unless a discharge is expressly prohibited by EPA regula- tion or the act, the administrator is powerless to limit water pollution. 9 This result has led to other courts taking a contraty position. 95 These 90. United States v. GAP Corp., 389 F. Supp. 1379 (S.D. Tea. 1975 ) ; s teat accompanying notes 76.86 .rupFa. 91. 557 F.2d at 95. While this case was pending, the EPA completed and issued regulations applicable to defendant’s business. Id. On certiorari to the United States Supreme Coux the Sixth Circuit’s decision was v ’ d and remanded for reconsideretion in light of the 1977 amendments to the FWPCA 434 U.S. 1030 (I978) The 1977 amendment which required vacation of Rçsthlicspertfi .wiiy gave the tdmin,i . irator discretionary authority to grant an extension beyond the July 1. 1977 deadline. 33 U.S.C § 1319(aX5XB) (Supp. 1977). This amendment allowed the administrator to extend compliance up to but not later than April I, 1979 in situations where dischazgezs ware m frii,g good faith efforts to comply. The Administrator may. if he determines (I) that any person who i a violator oI or any person who is otherwise not in compliance with, the time requirements under this chapter or in any permit issued under this chapter. has acted in good faith, and has made a commitment (in the form of contracts or other securities) of ner wy zeaow to achieve compliance by the earliest possible data after July I, 1977, but not later than April 1, 1979 (ii) that any extension under this provision will not result in the imposition of any additional controls on any other point or nonpoini sour (iii) that an application for a permit under section 1342 of this title was filed for such person prior to December 31. 1974; and (iv) that the facilities necessary for compliance with such requirements are under construction, grant an extension of the data referred to in section 131 I(b)(l )(A) of this title to a date which will achieve compliance at the earliest tune possible but not later than April I, 1979. Id. 92. 567 F.2d 661 (6th Cit. 1977). 93. Id. at 662. See afro Washington v. EPA, 573 F.2d 583 (9th Cit. 1978). In that case, the state, under an EPA-approved permit system, issued a permit to a paper company for discharge of suiphite wastes into the P’iget Sound. However, the EPA had not issued appLicable eliluent limita- .t n iiuidehnci ‘ der 33 U.S C § 1314 19 ’6i, see note 4.3 wra. fuc u. e by the permit issuer. The .1’.\ ‘.i.i.ictt.cJ uIC .,ite • . a. hor.t’ ‘a .‘acc ccrmu . b ,rc : ‘ c E1 A iad n t ui’l .sht’d atu.dc— - . .: i ¶ ,‘ ‘. 4 ;.‘ j. ,) 7 rs Tue c!d U • ‘is I - — “ ‘c’ ‘ 1” • ‘lLi I :‘, . . . ‘e .‘ .f ’’’ .I , — :, ‘ r ..r — ci I ..“ .11. ‘1 ‘‘T ‘‘ c Ir • 91 S e Ford Motor C ’ EPA, So7 ‘ 2d 661, 72 ( th C:r. L 77) tEngel, J. d: srn trngp. 95. Li, American Frozen Foud Inst. v. Train, 539 F.2d 107 (D.C. Cir. 1976); South Caro- lina Wildlife Fed. v, Alexander, 457 F. Supp. 118, 124-27 (D.S.C. 1978): United States v. Hudson Farms. Inc., 12 E.R.C. 1444. 1446 (ED. Pa. 1978); United States v. Holland, 373 F. Supp. 665,668 (M.D. FIa. 1974). ------- 996 CNIC.400.KENT L4W REVIEW courts have enforced the broad prohibition in section 1311(a) that “the discharge of-any pollutant by any person shall be unlawful” on aperse basis. 96 These decisions sometimes enforce section 1311(a) on this basis with little or no di cussion. 97 For example. in United Siates v. Ho!- land, 98 a Florida district court enjoined dumping on the basis of section 1311(a), referring to that section as the “enforcement hub” of the act. 9 ’ Another case which discusses section 1311(a) is American Frozen Food Institute i Train. ’ 00 Although not an enforcement case, the United States Court ot’ Appeals for the Distr ct of Columbia Circuit noted __ here that the broad prohibition in section 1311(a) “is central to the entii Ici [ i dfi tatiitoryand requires-no- promu1gation ”° ’ In another case, the District of Columbia Circuit again offered support for a finding that section 1311(a) is enforceable parse. In that case, Naiural Resources Defense Council, Inc. v. Costle,’° 2 an environ- mental group challenged EPA regulations which exempted certain ag- ricultural and other discharges from permit requirements. The District of Columbia Circuit held that these regulations went beyond the EPA’s authority because the “legislative histoiy makes clear that Congress in- tended [ permits] to be the only means by which a discharger. . . may escape the total prohibition of [ section 131 l(a)J.”° 3 Therefore, if the adniimstrator does not have the power to officially exempt certain dis- charges by regulations, it follows that the mere absence of regulations limiting discharges cannot amount to an exemption from enforcement of the act. A second question which has confronted the courts when inter- 96. Seenotc78Jr4wtr. 97. See United Statcs v. Hansel. 551 F.2d 107(6th Cir 1977) a ciiminal io’ where the defendant was seen turning on a gasoline pump which gushed onto a frozen lake. Defendant was convicted under section 1319(c)(l). See text accompanying note 54nipiw. On appeal. defendant claimed that he had been improperly charged and chat he should have been charged with either a violation of the Refuse Act or section 1321 of the FWPCA which specifically prohibits any dis- charge of petroleum products. 551 F.2d at 109. In relying only on section 1319(cXI). the prosecu- tor was required to show that defendant’s alleged actions violated section 1311(a). which provides that ‘ [ ejxcepc as in compliance with [ the Acti, the discharge of any pollutant by any person shall be uxilawful.” 33 U S C. § I 311(a) (1976). The court concluded that the negligent or wilful viola- don uf e .tiun 1Lt( t) could be the basis of a criminal acu3n. 551 F.2d at 110. The court stated ihu lu :ol..p4 rtca with precedent at w.ttcr pollution kgislauon [ should) be given a generous - i .in 3 l2 Jr.lIy c fl tr•,ci.. n • /j ‘ 2. United ‘.sres . Si.iudaid Oil Cu • • , : • .“r ’ , ‘ ..: ,.c , ‘ .i 1 ’t,. ‘ . ‘ •!•). (I )i nd i ) • ,;i. (: • I r • ) 37 F ut’t, 5o iM 0 9 ? 1.1 at . - - tOO i3 F 2J 107 (D.C Cir 1976) 101. Id. at 128. - 102. 565 F 24 1369 (D.C. Cir 1977). 103. Id. at 1374. ------- NOTES AND COMMENTS 997 preting the enforcement mechanism of the act is whether the adminis- trator has a mandatory duty to issue an abatement order to a discharger in violation of the act. This question centers upon interpretation of section 1319(a)(3), whieh provides that whenever the administrator finds that a person is in violation of section 1311(a) or any permit pro- visions, conditions, or limitations, the administrator “shall issue an or- der requiring such person to comply with such section or requirement, or he shall bring a civil action.” 04 The question whether this section imposes a mandatory duty upon the administrator has arisen in two contexts. First 2 if this section does create a mandatory duty, the act provides that a citizen may bring suit against the administrator to carry out that duty. ’° 5 Citizens, usually environmental groups, have advo- cated that the administrator’s duty under section 1319(a)(3) is mandatory and they have sued to enforce that duty)° 6 Second, defend- ants in criminal prosecutions under the act have defended on the ground that the administrator must issue an abatement order or take civil action before pursuing criminal remedies.’° 7 In the first context, the courts have been divided as to whether a citizen’s civil action may compel the EPA to issue an abatement order to a violator.’ 08 The only circuit court of appeals to decide this issue, 104. Section 13 19(aX3) providen Whenever on the basis of any information available to him the Admiu’.titrator finds that any person is in violation of section 1311. 1312. 1316, 1317, 1318. 1328, or 1345 of this title, or is in violation of any permit condition or limitation implementing any of such sections in a permit issued under section 1342 of this tide by him or by a State or in a permit issued under section 1344 of this title by a State, he shall issue an order requir- ing such person to comply with such section or requirement, or he shall bring a civil action in accordance with subsection (b) of this section, 33 U.S.C. § 13l9(a)(3) (1976). 105. Section 1365(a) provides chat a citizen may commence a civil action against any person (including the United States or its agencies) when an effluent Limitation or an order issued by an administrator has been violated. 33 U.S.C. § l365(aXI) (1976). An action may be commenced against the administrator if there is “alleged a failure of the Administrator to perform any act or duty under this chapter which is not discretionary with the AdmInistrator.” Id. § 1365(a)(2). 106. See, ag., Sierra Club v. Train, 557 F.2d 485 (5th Cir. 1977); South Carolina Wildlife Fed. v. Alexander, 457 F. Supp. 118 (D S.C. 1978); Illinois cx reF. Scott v Hoffman, 425 F. Supp. 71 (S.D. III. 1977) till ‘e. e . United States v Frezzo Bros. 602 F 2d 1123 3d Cir 1979); United States v H .id. .n Firm,. Inc. !2 E RC 1444E D. P. 1 thiicedSt,itccv Phelps L)uJ 5 e Corp.. 7)1 F. : iL) • ‘ ..t i—’ j II.’ S . . .- ( mi.. . • • L i’i d mc ’ . ‘. “c . ‘ . . .k. ‘“. F. — . — • S • r : . •. _ , i ’ _ —.- r. , r . 0 r • ..- .i J—! ii... ” .‘. - .ii.c . ,c’ . 1i; rt .— — ‘c’—n . ‘It . ‘.‘r. ’ . I :nc .“‘cr m.i. [ ‘mm. .’ 10 ‘4. ly —, . ..ulmifltstr’to’ h j . ii g ci’. it a ’ . m’on Dctenu4nI 1 i .r -’ i thu .until the ompIIdlice d,tte .ui the abatement urUer .‘.a, pasueti, he was immune fnim uther enforcement action. The court held to the contrary, stating. The language of section 1319(a)(3) does not establish mutually exclusive allen,atives rather Congress thereby sought to reduce the case load of the courts where administra- tive action would suffice to effectuate compliance. To rule otherwise, would reward vio- ------- 998 CHIC4 GO-KENT L4W REVIEW the Fifth Circuit, held that the duty of the administrator to issue an abatement order under section 13 19(a)(3) is discretionary rather than mandatory.’° 9 Two trial courts deciding this question have held that the act mandates some type of action by the administrator when he finds that a discharger is in violation of the act. ‘° In the second context, that of a criminal prosecution, the few re- ported opinions dealing with this question have held that there is no mandatory duty for the EPA to issue an abatement order or institute a civil suit prior to t kxng criminal action.” In Uthed States . Phelps Doa ’e carp.,u2 defendant was criminally charged with negligently or ——wilfully-discharging-pollutant into.a. ,normally_4iy rroyojn vioi of FWPCA sections 1311(a)” 3 and 1319(c).” 4 The defendant sought to have the charges dismissed on the grounds that the administrator had failed to issue an abatement order prior to instituting crimmal ac- tion.’ ‘ In determining whether section 1319(a)(3)” 6 imposes prerequisites to filing a criminal, action under section 13 19(c), the Arizona district court in Phelps turned to the act’s legislative history. During Senate consideration of the act, Senator Edmund Muskie, one of the key pro- ponents of the FWPCA, explained that “the provisions requiring the Administrator to issue an abatement order whenever there is a viola- tion Earel mandatory.” 7 Although this statement lends support to the argument that there are prerequisites to a criminal suit, the court looked to other portions of the legislative history which suggested a contrary conclusion.” 8 In the final House committee report, the ad- ministrator’s enforcement options were described in the alternative. Ia es of the Act by forgiving penaltias incurred where the dminictrator has invoked this congressionally approved procedure, thereby effectively discouraging the uiilir.axion of said procedure. Id. at 738. 109. Siena Club v. Traiii. 557 F.2d 485, 491 (5th Cir. 1977). 110. Eg., South Carolina Wildlife Fed. v. Alexander, 457 F. Supp. 118 (D.S.C. W18); Illinois gird. Scott v. Hoffman, 425 F. Supp..7 1 (S.D. 111.1977). However, both of these courts indicated that the i,vpe of enforcement action pursued was discretionaiy with the administrazor. See South Cacolina \Vldlite Fed. v Alexander. 457 F Supp. 118. 132-34 ,D.S C. 1978) ( IL. 3 e note 1U7 .supra. !2 39! F Supo 1 151(0 ArLi ‘ 75i Sr c. , ,’ra. — — .. Ii .I. g fl_’.i.! I i. 2 ’i F Sup i at 1S3. uot,r ‘ . Hisr .’ -i k ’: i W, ..j( ‘uL. C ”.TaUL ACT AME .L’M .NTS o l 72. e S (iOVEi N IE ’..T P , -.ri OFi Ici !74 lhcr aaf- ter cited as LcoIsI.A ’r lvn HISTORYI. ItS. 391 F. Supp. at 1184. ------- MOTES ,IND COMMENTS 999 The administrator’s duties were such that “he may take any of the fol- lowing enforcement actions: (I) he shall issue an [ abatement order]; (2) he shall notify [ the ‘ iolator] . . or (3) he shall bring a civil action; or (4) he shall cause to be instituted criminal 19 The Phelps court interpreted these “conflicting” portions of legislatne hictor to mean that “while the Administrator muss act in case af [ sicj any viola- tion, he has alternative methods of acting; i.e., either by civil or crimi- nal proceedings. He is not required to proceed first to effect a correction by civil means before instituting criminal proceedings.” ’ 2 ° UIV!TED STATES J FREZZO BROTHERS Facts 0/the Case Frezzo Brothers was a family operated business engaged in mush- room growing and manure composting. Compost was prepared by re- cycling water from a holding tank through a mixture of hay and manure.’ 2 ’ On six different dates, manure-rich water overflowed the holding tank into a nearby stream. This fiowage was traced to the Frezzo farm by a county health officiaL Upon investigation, a com- pany officer admitted that the holding tank could control the water 119. H. Rnr. No. 911. 92d Con&. 2d Sess. 114(1972). That House report statc Whenever on the basis of any information available to him the Administrator finds that anyone is in violation of (the Acti be may take any of the following enforcement actions: (I) he shall issue an order requiring compliance; (2) he shall notify the permn in alleged violation.. . . IIf the state does not commence action within 30 days after notifl- cation,) the Mmrn tra2or shall issue an order requiring such person to comply with a permit or a condition or limitation of a permit; or (3) he shall bring a civil ac&ioz a’ (4) he shall cause to be instituted criminal proceedings. Id., , rthu dL, LEGISLATIVE His’roav, si or note 117, at 801.02 (emphasis added). 120. 391 F. Supp. at 1184. Accord, United States v. Hudson Farms, Inc., 12 E.R.C. 1444 (ED. Pa. 1978). In iladionFarmi, a Pennsylvania distaci court relied on Phd ,: in denying a motion to dismiss an indictment based on the administrator’s admitted failure to issue an abatement order pnor to criminal prosecution. The cowl denied the motion, stating thae ISection 1319(c)) makes no mention of a prerequisite of Administrator action. This implies a congressional intent not to impose such a prerequisite. In short, although the question is, indeed, a close one, under all the existing law it would appear that defendant’s motion should be denied. Counsel for defense have cited no controlling authorny to counter this conclusion ‘,nd what little authority that exi4Is tends to supoort it Id 4d ‘—c’ g hc ‘w..”’z ‘ .r” ic ’ r ’I hit .-‘r ,n dc:, :he .. ‘ui. . ry c .’tc t .1 . ..‘ — ‘ . ‘C . . ‘ — —- .. ‘ ‘r— \. “ ‘.. ‘ r “ ,_, _. , - • .‘- . ‘-‘ .. !‘ . r, •.... • . : •. ,‘ . ..t — ., . , -. - • ‘ ,,. . — It. • ,‘ L ..‘ l) i?.t T,’i, ‘i i’crsc rnanur! I C C “utmely urcha ,nI .i .ic n . in . .i . . ,cnc :i.r ‘c The defendants made more income from eIXing c.Jrnpo . I to other nu,nroom ru I .ers Lnaa did from selling mushrooms. Telephone interview with Bruce Chasan. Astistant United States Attorney, Eastern District of Pennsylvania (. pril 7, 1980) ------- 1000 CHICAGO-KENT LAW REViEW “only 95 percent of the time.” 22 On the basis of this information and lab analysis of samples of the discharges, the company and two of its officers were indicted on six counts of negligently or wilfully discharging a poliutam into a watcr- way in violation of section 13 1 1(a)’ 23 and 1319(c) ’ 24 of the FWPCA. Four counts of wilful violations rested upon measurements of discharge n days when their was no rain. Two counts of negligent violations rested upon evidence gathered on rainy days. Defendants had never Prior to indictment, defèrida ts had not been is- sued an abatement oi óiliäd anycivitaction- been-taken- against._. — them. Furthermore, the EPA had not promulgated any effluent limita- tions or other regulations applicable to compost manufacturing. Defendants’ motion to dismiss was denied and a jury convicted defendants on all counts.’ 25 Prior to sentencing, motions for judgment of acquittal were denied.tTh The individual defendants were each sen- ten cedto thirty-day jail terms and fined an aggregate of $50,000. The corporate defendant wa s also fined $50,000. On appeal, the United States Court of Appeals for the Third Circuit affirmed the convic- lion.’ 27 Reawning a/the Couri In reviewing the conviction of the Frezzo defendants, the Third Circuit was faced with two main issues: first, whether the EPA may proceed under the act against a discharger although it has not promul- gated applicable effluent limitations,’ and second, whether the EPA must give notice of the alleged violation or institute civil action before commencing criminal prosecution.’ 2 ’ The Third Circuit was the first circuit court of appeals to consider these issues in a criminal prosecu- tion. In determining whether the administrator was required to give no- tice, issue an abatement order, or take civil action before pursuing criminal remedies under section 1319(c), the court first examined the worjictg of that criminal provision. Thcr the statute pcovides that wil- . . j . U , ,. .., ! j ._ . ._ I.. , ,. e tc t N S s t r m 125. Urntci1 Siates ‘. r uu Bros. F Suop t5 D P 9 ) 126. Id. 127. United Std tes v. Freuo Bros.. 602 F.2d 1123 (3d Cir. 1979). 123. ld.ai 1127.28. 129. Id. at 1125-27. ------- NOTES AND COMMENTS 1001 ful or negligent violators of the act “shall” be punished by imprison- ment, fi.ne, or both. ’ 3 ° The court also considered the wording of section 1319(a)(3), which provides that violators “shall” be served an abate- cent order or civil action “shall” be brought against them.’ 3 ’ The de- fendants argued that without section 1319(a)(3) noutication prior to the institution of criminal proceedings that they were in violation of the act, there could not be a showing that their actions were wilful viola- tions of the act.’ 32 In determining the effect, if any, of section 131 9(a)(3) upon section 1319(c), the court, drawing from Phe s.’ 33 re- -. - -iied-on--the-finaLllouse comn tee report. There the enforcement ac- tions that the administrator “may” take de ribed iir the--—-------- alternative, and included a range of notices, civil actions, or criminal proceedings The court considered this committee report to have greater weight than a subsequent statement by Senator Muskie that an abatement or- der or civil action was mandatory under the act’ 33 The court stated that the.Se.n te had acceded to the House n not imposing mandatory prerequisites to enforcement’ 36 Further, the court state± . - [ Vile see no reason why the Government should be hampered by prerequisites to seeking criminal sanctions under the Act. .. . view of the broad reaponsibilities imposed upon the Administrator -. . he should be entitled to exercise his sound discretion as to whether the facts of a pazticularcase warrant civil or criminal sanc- tions.’ 7 Moreover; the court stated that this holding was consistent with the desire of Congress to strengthen the ability of the government to pursue crimin I remedies for water pollution.’ 38 A contrary holding, the court staled, “would be inconsistent with the Congress’ desire for a stronger enforcement mechanism.” 39 On the second issue facing the court, whether the promulgation of effluent limitations was a prerequisite to enforcement action, the de- fendants argued that before a violation of section 1311(a) could occur, 130. See text a companytng note 54 r.ap a. 131 Se totc 104 .svpr UI 602 . c :126 1 t, .t t. r. •,‘ r ‘ •. ‘.i. ..i.j •r 1_. • Lb 1 1.1 ai 1126-27 u •fl.i e Ifl•tC s1I 138. Id . ee Juwd State, Hamel, 5I F 2 i t ,1. i 3 6th C r • i7. v e stated that Congress intended a more severe penalty haa that avai abk in t!ic R tuje Act; in the evetit that the discharge was deliberate and wilfuL’ 139. 602 F2dat 1126. ------- 1002 CHICAGO.KEHT LAW REViEW defendants must have been shown to have not complied with an ex- isting effluent limitation. They contended, relying chiefly OQ GAF, that applicable limitations were a prerequisite to enforcement.’ 40 The government countered that GAP was incorrectly decided. It argued that section 1311(a) was by itself an entbrc able prohibition upon all discharges of pollutants. In attempting to rebut the holding in GAF that such a proposition would be intolerably burdensome, the government outlined the correct procedure as follows: Where no efflu- en: limitations have been established for a particular business, a dis- h jgç iou1d apply for a permit to discharge pollutanb uader section 1342(a), which allows the conditions pending permit approvaL’ 4 ’ If this procedure were not adopted by the court, the government argued, the absence of effluent limitations would nullify the act. In weighing these. arguments, the Frezzo court looked to the poli- cies of the act. The court found that the basic policy of the act was to -. “halt uncontrolled” discharges.’ 42 The court could see nothing in the act which restricted enforcement efforts to situations where effluent lim-- itations had been promulgated.’ 43 The court held that even where no such regulations had been promulgated, violations could be punished. Without this flexibility, the court stated, “numerous industries not yet considered as serious threats to the environment may escape adminis- trative, civil, or criminal sanctions merely because the EPA has not es- tablished effluent liniitations.” 4 ’ Further, these unregulated industries would be able to continue polluting until the administrative process was able to fix effluent limitations. Such a result, the court held, “would be inconsistent with the policy of the Act.” 45 The Frezzo court, unlike the court in GAF, did not find enforce- ment prior to the establishment of applicable regulations to be “unduly burdensome.” The court suggested that a business, prior to dis- charging pollutants, should apply for a permit regardless of whether applicable effluent limitations had been promulgated. This procedure would prompt the administrator to consider promulgation of perma- .it1 Ii H I2— .. ‘ c d m ui i n ’Ies 75-36 ‘a ..: ‘i... .,I 3 U s . ‘‘ . ‘. ‘ . ‘i 1H. •i h . 1 t . . •. .. — 4 :1 T” .s ,.. “..... —‘-x’ r d .‘ , . •. . ‘_ . ,.; , I I ’ ..c CiI p!uITIui .t(cd r .h Prtkular hu s, cs d ar , cd . rit p. Isu D1I 144. Id. 145 Id. 146. Id ------- NOTES AND COMMENTS 1003 nent effluent limitations applying to the entire industry. The court ad- ded that, in appropriate cases, the permit applicant would be protected from liability during the pendency of the permit application. ’ 47 In contrast to this procedure. the court stated, the interpretation of the act urged by the defendants would have allowed them to continue polluting until effluent limitations for the entire composting business were promulgatecL The court rejected this interpretation, stating: “ [ TheJ EPA cannet be expected to have anticipated every form of water pollution throuh the . stab1ishrnent oleffluent imi1ations [ In this casej the- government’s- intervention by way of criminal indicunents brought to a halt potentially serious damage to the stream in ques- tion.” 148 ANALYSIS Prosecution of defendants in Frezzo resulted in jail sentences for individuals who were pursuing a legal business, albeit in violation of the FWPCA.’ 49 In this respect, Frezzo is unusual because although cziminal enforcement has been available against polluters for about fifteen years under the Refuse Act’ 5 ° and for seven years under the FWPCA,’ 5 ’ criminal prosecution has not been widely employed and jail sentences rarely have been iniposed.’ 52 The Frezzo holdings, which eliminate regulations and notice as prerequisites to criminal prosecu- tion, will likely smooth the way for further criminal proceedings.’ 53 These holdings will best achieve the sweeping goal of the act to elimi- 147. Id See text accompanying.aotcs 16942 bØ . 148. Id. 149. See text accompanying notes 126-27 mpe. 150. ALthough criminal enforcement has been available under the Refuse Act since its ipcep. tion, the statute was not applied to pollution until the Reptblic Steel and Siairdard Oil cases. See text accompanying notes 21-27 JTIpFTI. 151. See text accompanying notes 42-54 .s14o a. 152. See United States v. White Fuel Corp., 498 F.2d 619 (1st Or. 1974). Several factors have retarded the use of cruninal sanctions. The most basic factor is that violators of pollution laws have not been generally regarded as criminals. Comment, The U.re of Civil Perialue,, in Enforcing the Cigna Water 4ciAme,rdme ’nts of /977, (2 SAN Fx pi L. R v 437, 444(1978). This perception mak:s t : Likely thai eni orcers wiLl c wose to indict rather th.in warn r enjoin and it ma¼es ‘.iIJin , LO ii ’ . .t / i i .’e ), it 3’ 3 ’ F’.arthci tin.bicun 5 e niinjj I ‘,( I, ,, .,I’ flo,luI. ’r— .1, . U.nI iId..iU(. &‘ g .‘ i ,IraI. i ‘:i L . Ii — —. ‘ •.n .. • •I.• — • : ‘ . ‘ . :_‘I .4 1 . .I— • . • . ... :. . — — •1’ . .‘., . — ‘.1 .LI..Z •_ • : : • i’. ‘‘ . ILI j .. .ctcmer whi,..h . io an erncni .n c;vi . , .tis, v. ..iaH.. i.•’ i.’it&.jn - t., , . , .j ‘i s iutiozial protections ror defertddnts than actions Okis. .ipri rn’e 2o, t 3 153. Two similar criminal actions hdve been filed in the aine federal diatrict of Penn yh ’ania. United States v. Hudson Farms, inc., 12 E.R.C. 1444 (E.D. Pa. 1978). discussed in note 120 sup,u ------- 1004 CM/CA GO.KEMT LAW REVIEW nate pollution by l985.’ They are in harmony with the proposition that in the FWPCA, the “Congress . . made a legislative determina- tion that polluters rather than the public should bear the costs of water pollution.”” Seen in this light. the Fre::o decision interprets, the FWPCA logically and correctly. On the issue of whether effluent limitations are a prerequisite to enforcement, the Frezzo holding is correct because of the result to which a contrary holding would lead As an exaznpi of a contrary result, the GAfcotirt punished the public by permitting continued poi- lution because the promul tion fefflu nrIimitations-was--overlooked or delayecL’ 36 This reasoning ignores the fact that some of the delays involved in the promulgation of effluent limitations have been justified by “technological and administrative restraints.” 57 These delays were apparently foreseen by Congress since permits may be issued prior to the promulgation of effluent limitations.’ 58 The act provides that, prior to the promulgation of effluent limitations under section 1311(a), the state or the EPA may impose such “terms and conditions in each per- mit as [ the Administrator] determines are necessary to carry out the provisions of the Act” 3 ’ Thus, administrative delays in the promulga- tion of regulations need not lead to the continued pollution by a dis- charger who is immune from enforcement procedures.’ 6 ° Another factor supporting the Frezzo interpretation is that the United States v. Oxford Rnyal Mushroom Products. Inc., No 79-211 (ED. Pa. Sept 24 1979). Fora discussion of Oxfo,dRctyei see tO E!4v. REP. 2005 (Feb. 15. 1980) and Id. 2095 (Mar. 7, 1980). Ia O rr/ordRoj aI, the individual and corporate defendants pleaded guilty. A pica bargain agreement was reached where the corporation was fined 5100.000 and the corporate president was fined S 100.000 and sentenced to probation for five years. 1d at 2095. 154. 33 U.S.C. § 123 l(a)( 1) (1976) 135. United States v. Marathon Pipeline Co.. 589 F.2d 1303, 1309 (7th Cir. 1978). 156. See text accompanying notes 81-86 .wpia. 157. Natural Resources Defense Council, Inc. v. Costle, 568 F.2d 1369, 1378-79 (D.C. Cir. 1977). 158. Id. 159 33 U.S.C. § 1342(a)(1) (1976). See note 48 supra 160 See c/so El . u Pont Je Nemours & Co.’. Train. 430 U.s I 12, 135.3.6 ii 976). where che Court held that even chou h C . n ress m.iv hae .it nded effluent lurntti tion, to be promulgated trhin atic ..tr .if tL I . . . c. die .tii cr,cor rntcrnr t4(t,.,, .tfth !.I1 : t . i ea ’ro •. . . . . •;• . . ç • j.. ii IJ I.i,.)F .. ,“ —. .I ,_ .. ‘ l I’ —. . ,, . . ,. .._.. . ‘C’c’.). C . ‘c ’u : tr . ’ tri , ti ..ic: ...icd . ‘..tb — .•‘— i.i a’u, a u uin e.t siacuce such as ;rns is the ..rr Lt’ re iv’:n this unUii.,, ’n as c&i a uic facts that the Agency is charged with dommlstrltton of the At.i. and tnac there 1i.i in• doubiedly been reliance upon its in&erprerauon by the States and other parues affected by the Act, we have no doubt whatever that its construction was sufficiently reasonable to preclude the Court or Appeals from subsututLng Its judgment for that of the Agency. Id. at 134-35. quoirng Train v. Natural Resources Defense Council. Inc • 421 U.S 60. 87 ( 1975) ------- NOTES AND COMMENTS 1005 FWPCA provides that until December 31, 1974. a timely permit appli- cant was entitled to complete immunity from enforcement acuon.’ ’ Thus, the FWPCA did not demand immediate cessation of discharge upon passage of the act as the only means of compliance with section• 1311(a). Rather, the legislative scheme was to gradually impose in- creasingly strict discharge limitations upon permit holders. Under the Fre.rzo interDretation, section 1311(a) acts as a stopgap provision where thschargers have not come under the urnbr iia of the pcrmit system. -—--Nevcrth .eless,_j1i contrazy interpretation finds support in a number of cases. t02 Among those cases is S/ream Pollution-Control-.- - - Board v. United States Steel Corp. ,163 relied upon by the Frezzo de- fendants.’ In that case, the Seventh Circuit states in dictum that an enforceable section 131 l(a)perse ban on discharges where there are no regulations would be contrary to the entire legislative scheme.” Such 161. 33 U.S.C. § 1342(k) (1976). For text of the statute, tee note 171 bØvz. See Natural Re- Defense Council, Inc. v. Train, 510 F.2d 692, 696 (D.C. Cir. 1975). where the court stated The timetable for permit issuance is set forth in section ( 1342(k)j. For the first 180 days after the enactment of the statute, the discharge of any pollutant shall not be a violation of the Act if the discharger applies for a permit within the 180 day period. Until December 31. 1974, the pendency of an application for a permit containing the n ’y information for processing of the application will prevent a poUuter from be- ing in violation of the permit re uircment. After December 31. l974 the Act contem- plates that all discharges from point sources shell be made in conformity with a permit. The permits may be issued by the slates under approved programs or by the Adminictra- tor in the absence of a state program. The Act vests the Administrator with the final review authority for permits issued by the stales. Id. (footnotes omitted). 162. See notes 76-93 js wn and accompanying text. 163. 512 F .2d 1036 (7th Cir. 1975). 164. Brief for Appellant at 12. 165. 512 F.2d at 1042. In Strewn Poliialon Coarol Board, a private citizen sought to intcsvcne in a common law public nuisance action brought by a state agency against United Slates Steel Corporation. No federal effluent hmitauons had been promulgated at the time the common law action was brought. Furthermore, United States Steel’s permit application was pending with the EPAatthetimeofthesuit. Id.at 1041 n.l2. The court recognized that under 33 U.S.C. § 1365(b)(I)(B) (1976) a private citizen may inter- vene if the action was brought to require .compliance with a “standard, limitation, or order” within the meaning of the act. Id. at 1041. In order to bring the action within the scope of the statute, petitioner argued thai defendant was in violation of section 1311 of the act. The private citizen :ir ued th.it ‘here could be a violation rcg.irdless of whether effluent limitations had been promul- .atcd The .uuct r 1 eCteu ins irgument. ..uting •‘ -n . 1 L • .‘ : . .oI Ut tI.c -tgi tc . s -‘fl. ..‘.( . .‘Cs “ .‘t ‘ ThilC .fl; vi . 2 -’ .t ’ Lj., ‘ ‘L Is ‘! . I.r ,I,t’ ‘I. -.1 eiCl ‘..-. — .. -1,.’ . . (. ‘ ‘ .... ,.,—‘ •j._ . ,. . jr ‘iin ’ .i ‘he . . ‘t_.i’. — _. ; .i.. . u_h t .. ! .l. ti 142 Although this c4se vas reLied uoon n & ::o . the . eIenJant. i ’iet or .‘ ‘r’eula’u t2. ‘ c government did not consider Strewn Pollui,w, Conirol Board as ulconsis enI t ‘th its own posuIu.n Brief for Appdllee at 4. The government noted that, in Steam Pollution Control Board, the dis- charges in question occurTed before the section 1311(b) effective date of July I. 1973 Also, de- fendant there was presumed to have made timely application for a permit. unlike the defendants in Fret: .. id. at 4-5. ------- 1006 CHICAGO-KENT LAW REVIEW a result, the court stated, would mean that discharges would be totally prohibited until an effluent limitation was promulgated. Thus, the ef- fluent limitation would act as a license to pollute. If this interpretation were followed, the court stated, passage of the act would demand ‘total purity . tbrthwith only to be succeeded by various stages of in pu. rity.” 6 ’ However, the Seventh Circuit later found its interpretation in Steam Pollution Control Board not to be controlling.” 7 Total purity need not be required forthwith because, as the court noted in the later case. permits could be issued regardless of he noncx1stence of applica- ble regulations)° 8 Although the Frezzo holding on the issue of effluent limitations is correct, the court’s opinion does not sufficiently analyze the problem of what criteria should govern whether today’s first-time permit applicant should be given immunity during the pendency of a permit application. According to the Frezzo decision, a “potential transgressor” 69 of the act has an affirmative obligation to apply for a discharge permit regard- less of the existence or absence of effluent limitations. The court stated that in appropriate circumstances application for a permit could protect an applicant from suit during the pendency of the àpplicatioir. 17 ° 4&J authority for this proposition, the court cited section 1342(k)’ 7 ’ of the FWPCA and Stream Pollution Control Board. 172 However, in reality, the permit applicant is protected from suit only to the extent of the 166. 512 F.2d at 1042—43. 167. United States Steel Corp. v. Train, 556 F.2d 822. 830 n.3 (7th Cit. 1977). 168. Id. at 844. 169. 602 F.2d at 1128 170. Id. Ill. Section 1342(k) provides: - Compliance with a permit issued pursuant to this section shall be deemed compli- ance, for purposes ofsccuons 1319 and 1365 of this title, with sections 1311. 1312. 1316. 1317. and 1343 of this title, except any standard imposed under section 1317 of this title for a toxic pollutant injurious to human health. Until December 31, 1974, in any case where a permit for discharge had been apphed for pursuant to this section. but final administrative disposition of such application has not been made, such discharge shall r.ot he a violati ,jn of(I).ecuon 1311. 1316. or 1342 of this utle, or(2) section 407 of this t.J ’. ie the . drninistracor or ther pLitntu t ’pruves th.ti thul admini trauve disposi- ‘ ,u ,.t rcAicjrioui h.js n i hv n m.idc hecause o th fath.r l the upol, nt to — . tt ‘ ri.. ,. . r”. .11 ed ir z .1u ,s .e. ... ;,‘ . t’ie •u i. .i.i.’ii S S - I . •I , t’. .¼ n% :‘ ‘ . •i . , ,.. .‘ • —. . . — S _I . ,,, • • • .. : -. ‘ ‘t .iqj , t ‘ •i, — ... i zc ‘ - •_I .’L, r ,i b ‘I ”. ’I n i c 1 ’ts ijoter ii .u.h t s).r. ..-‘nlic’ i. ,r .i _. .z (tir iii”t pursuJac u ths ItiL1 such 1!0-day period 33 U.S.C. § 1342(k) (1976). 172. 512 F 2d 1036 (7th Cir 1975); see notes 163-66 mp?a and accompanying text. ------- NOTES AND COMMENTS 1007 administrator’s grace.’ 73 Neither of the authorities relied upon by the Frezzo court would have protected der endants even if they had had a permit pending. Section 1342(k) would not have offered protection be- cause that section provides that a permit applicant is shielded from en- forcement action during the pendency of the application until December 31, l974.’ Stream Pollution Control Board does not offer protection because the facts in that case concerned a permit application prior to December 31, 1974) Neither Stream Pollution control Board nor section I3 42(1c) considers-the-questio of-liabilitywher a perm4j .wasapp ed ____ for after December 31, 1974. Consequently, it is unlikely that either of these authorities, relied upon in Frezzo, provides assurance that a dis- charger who applies for a permit today will be shielded from liability during the pendency of the application. Therefore, the Frezzo interpre- tation appears to leave to the administrator’s discretion whether a par- ticular application is surrounded by the “appropriate” circumstances’ 76 meriting immunity from suit during permit pendency. If the circum- stances were not appropriate for immunity, the adminictrator could re- fuse to establish temporary operating conditions and/or bring suiL’ Either of these actions could lead to the shut down of the applicant’s business. 178 Furthermore, even if the EPA were to refrain from en- forcement action, a polluter would remain liable to a civil action brought by a private citizen.’ 79 However, these possibilities do not re- fute the correctness of the Frezzo holding to the effect that effluent limi- tations arc not a prerequisite to enforcement) ° Occasional harsh 173. Consider section 558 of the Admini4rative Procedure Act, which offers some support that applicants should be given immunity during pendency. 5 U.S.C. § 558 (1976). That section pro- vides that where a licensee has made timely and sufficient application for a new license, a license with reference to an activity of a continuing nature does not eapire until the application has been finally determined. However, this provision applies to renewals, not first-tune applicants. 174. See note 171 .wp . 175. See 512 F.2d at 1038 n.2. 176 602 F26 at 1128. 177 Cf Marathon Oil . EPA, 564 F 2d 1253. 1275.76 (9th Cir. 1977) (Wallace. I.. dissenting), w’ier: zhc majority tound that due process rrquiemcnls svere met by EPA procedures. Id at I ‘ 5 In .1 ’C IL Judtc ‘. ilL. cuted that “the EP ’ rcfw.al to issue the nccc sacy permit would :_jutre t tt 1crs 13 41311. , ( nuoL 5 .ee th..: ‘he ( 1’A tu ‘.e power tu force a hu’,nc . ,. rae . ( .. ‘ . “‘.rc I., —t o..i rae ri . il ec -- — aJ ’ .‘.. — 19. ii ...t I 2, thIthei i Ste ’ti . . rr i.a. F .. . . (‘ . ‘r. : ‘‘ :. ‘rud. .1 ‘J U S ,,73, ( I ’J76), w’ cre hc coun stated tii,at a cit c ’t r u c ‘t;vc the LI’A a .in ,.c na’ttce of his intention to sue, there is no authorization to blo ,k a citizen’s ,uit under ,eccion (13651 even though the agency believes that the suit should not go forward.” I d See note 105 ISO See Bethlehem Steel Corp v. Train. 544 F.2d 657 (3d Cir.), cerL d wied, 430 U.S. 975 (1976), relied upon by the district court in Fre:zo. 461 F. Supp. at 269 In Bethlehem Steel, the ------- lcO dH/C4GO-KE %’T 1 IV REVIEW results such as chose described above were foreseen by the drafters of the legislation.’ 8 ’ Amelioration of the impact of the FWPCA lies with Congress, not with the courts.’ 82 The other defense raised by the defendants in Frezzo, that section l319(a)(3) imposes a mandatory duty upon the administrator to issue an abatement order prior to seeking criminal remedtes, was also cor- — rectly—decide&b thef qjzo court. If an abatement order were re- quired as a prerequisite to criminal prosecution, ii i1dii t li iir icil— liability, but it would impose a nearly insurmountable impediment to criminal enforcement. For example, assume that as a prerequisite to criminal action the administrator had issued an abatement order which required the defendants in Frezzo to comply with the act in thirty days. Despite that order, the defendants would still be civilly liable for all pollution discharges prior to issuance of the order as well as those which continued while the abatement order was in effect.’ 83 This fol- lows because the only event that cuts off civil liability is a cessation of illegal discharges.’ ’ Therefore, the issuance of an abatement order still would have left the defendants in Frezzo open to enforcement ac- tion. However, criminal action would be foreclosed no matter how wilfully or negligently dischargers continued to pollute up to the time of the compliance date. Such an interpretation of the act would make criminni provisions useless appendages. This would contradict the. plain congressional intent that the FWPCA strengthen criminal en- forcement as compared to that available in earlier legislation.’ 8 ’ Fur- thetmore, if there were such a prerequisite to criminal action, it would impose upon the EPA an additional administrative procedure. This roust held that the EPA was without authority to grant an extension beyond a statutoxy compli- ance date even though by that date the administrator had not yet promulgated applicable regula- tions. 544 F 2d at 663. 18 1 See id at 662.63. whera the court stated that Congress had “opted to take the risk that • harsh onsequen.cs :ould cnsu ” unJer environmental SLnLUtes. S z1.o Union Electric Co. v. FL’ —‘ U S 2 to. ‘t , ‘tir ‘ ..c). •. t .•.•I • ‘ ‘.D _ ‘i. i i • S !(rt’ o 4’4• 2d C.it’g. 2d Sec repr,n. i ti S ( f •t AD NEwS. 36b8. J730.3 1. whcrc the commute: rcp rt st .at d Under the Refuse Act the Federal government is not constrained in any way from acting against violators. The Committee continues thai authority in this Act. The Committee further recognizes that sanctions under existing law have not been sufficient to encourage compliance with the provisions of Federal Water PoUution Con- trol Act. Therefore, the Committee proposes to increase signitlcantly the penalties for knowing viola*ions would hid be subject to penalty of $25,000 per day or imprisonment for one year or both. ------- NOTES AND COAIMENTS 1009 conflicts with the stated policy of the act which provides that unneces- sary delays and paperwork should be avoided. ‘ 6 Another factor supporting the Fre.rzo court’s truerpretauon of the act that there be no 1319(a)(3) prerequisite to criminal prosecution is that the Senate version of the FWPCA was specifically amended by the House so that the administrator was “authorized rather than required” to initiacc civil a tions. 7 This accession to the House by the Senate was correctly noted and relied upon by the court.’ a violation is a prerequisite to criminal suit streamlines enforcement. The impact of this resolution is that a discharger is expected to know that he is in violation of the act, despite the absence of applicable regu- lations spelling out permissible conduct. Considering the specific facts involved in the Frezzo case, this does not seem like an overly harsh result In Frezzo, defendants knew of and did nothing to prevent the spillage of thousands of gallons of feces-laden water into a stream.’ 89 As fecal matter is probably the oldest water pollutant known to man, the finding of criminal liability in Frezzo does not seem unjust.’ 9 ° If a 186. See 33 U.S.C. § 12 5 1( 1 ) (1976). 187. CoriF. RE?. No. 1236. 92d Con&, 2d Sees. 132. reprnredm [ 19721 CODE CoNo. & AD. NEWS 3776. 3809. 188. See text accompanying note 136 .eapra. 189. See Brief for Appellee at ix.xvi. At trial, the discharged wastes were described as having a very characteristic dark brown color. They are malodorous. They smell like manure. And sometimes their consistency varfiesj froii that of watery to nearly sludge-like.” id. at IL 190. The defendants in F,eszo raised another defense in a petition to the Third Circuit bra rehearing alter the court’s opinion was handed down. The defense raised there was that the de- fendants were exempt from the permit program because the discharges for which they had been convicted were the result of exempt agricultural activities. This claim of exemption rested upon 40 C.F.R. 125.4(i) (1978), which provides: The following do noi require an NPDES Permit: (I) Water pollution from agricultural and silvicultural activities, including runoff from orchards, cultivated crops, pastures, rangelands, and forest lands, except that this cadu- sion shall not apply to the following: (3) Discharges from agricultural point sources as defined in § 125.53. Section 125 53. defining agricultural a civittes. provides ( :il r,thni(ionc i.r .he puro.se of thi3 ecilon , Tn :c. i & ;i .ttural ,K’uIil ource” me..ri any di cern. ie. ccnfinc l :md duc::te • .e — • fi.’. “‘. n .cn , ri. ,,Iucjc. ft. Ill . i ‘%Jv133 1 c .“. CN I , . . L , . i. j. . - z’ .i : n ‘ .i’IC • — UCrS L , ’, . ’l, .”- ri- r—.,’ :—. . . .;I -. i ir’ .1 •cu pini,ii :!v l r ,. p . ‘li ‘‘ • iI .‘ .pcrLiItiii-. - i C F R. I 53 l979) Ti’ i9’7 a,iicii..iinent tij tk.: f ’ .’ , P C n.Ji ’: a .C...LIuz? — i:i ‘% 1po .irs Lu have drawn from code regulation section 124 4(t The Administrator shall not require a permit under this section for dischargc com- posed entirely of return thiws from irrigated agriculture, nor shall the Administrator directly or indirectly, require any State to require such a permit. 33 U.S.C. § 1342(1) (Supp. 1977). Although neither the above statute nor section 124.4(i) have been the subject of judicial interpretation, an antecedent regulation was invalidated on the ------- 1010 CHICAGO-KENT LAW REVIEW situation were to arise where a defendant could not have been expected to know that he was polluting, there likely would not be a finding of criminal liabtlity because the violation would not have been “wilful or negligent” and hence ould not satisfy the scienter requirements of section I3l9(c). CONCLUSION Enforcement of section 1311(a) of the FWPCA on aper se basis c ac s upon ?oil-.uers z 1 burden to apply for a permit to d terrnine whether they come within the scope of the act. After Frezzo, failure to meet this affirmative duty may lead to criminal penalties in the- first instance. This does not seem an unfair burden to place upon discharg- ers considering that the act has been law for eight years. Moreover, the date by which all discharge of pollutants is to cease is less than five years away. If the FWPCA is to be a potent weapon with which to end water pollution, polluters not in compliance with the act should be sub- jected to the full force of the penalties provided therein. Cases such as Frezzo prepare the way for imposition of these penalties. SHARON NELSON KAHN . . •:. _ f.’ ‘. ‘... , 1uL.i •:, .. ‘. ipt ri ura poiiit •Lr :; !roi,t : ic ?c1fl’ —- - - • ,. —. , rs •.,. i •.— : . - . F ‘“‘L ’ I. (_ - •‘,• — .: —_ — _ — ‘ — s •_ , _• _ _ .. . .. •—:L....• .. ii’ i: .t: JI ‘- - • s ,.r S.. ti ciL a ii ” 0’ C’i . ] kir c:’ f ’14L 1. . .v.’ wu . ., dc- ijctj. -H ‘ S LW 3 : .5 t_. S. b !. j (I). On Marcn 14. I O. dclcaLtnts c i rnoti , n I , vacate ansi sd a ide the s rItenc. pursuant to 8 U S C § 2255 (1976) or, altcrn uve1y. for a writ of error coram nobis. This motion was pending at the time of publication of this article. 191. See text accompanying note 54 nip-a. ------- INVESTIGATIONS ------- ?‘ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON. D.C. 20460 4 L pplQtl 5 ’ OFFICE OF ENFORCEMENT APR 2 31980 MEMORANUUM TO: Regional Enforcement FROM: Jeffrey G. Miller Acting AdminiSi for Enfor SUBJECT: Grand Jury In estfqations As the emphasis on criminal enforcement increases within the regulatory scheme of the Environmental Protection Agency (EPA), enforcement personnel must become familiar with the law and rules associated with criminal prosecutions. As a first step in this process, this memorandum and its attachment addresses the subiect of EPA participation in grand -iurv proceedinqs. These guidelines, I am hopeful, will minimize the likelihood of a breach of grand jury secrecy and enable the regions to better participate in the criminal enforcement process. As you maybe aware, proceedings before a grand jury are secret and the disclosure of matters occurring before that body is regulated by Rule 6(e) of the Federal Rules of Criminal Procedure. Only the Attorney General, an authorized assistant of the Attorney General, a United States Attorney or an authorized assistant of a United States Attorney are empowered to conduct proceedings before a grand jury. EPA attorneys, although employed by the same government as the above officials, are not considered attorneys for the government within the meaning of -Rule 6 Ce) and therefore, may not participate in grand jury proceedings, absent permission from the Attorney General. Inasmuch as the reason for secrecy before the grand — - - jury is to shield innocent citizens from unwarranted criminal - allegations, and to protect witnesses who may provide the grand jury with testimony, EPA-access to grand jury materials is restricted by statute. - The flow of information to the grand jury is controlled by the Federal prosecutor, who has broad discretion as to what evidence will be presented to the grand jury for its ------- —2— consideration, and necessarily, what assistance he needs to present that evidence. On the other hand, the court controls matters emanating from the grand jury. Accordingly, the prosecutor may not freely disclose to EPA matters occurring before the grand jury without advising the court or, in some instances, securing the court’s permission. Because of the secrecy requirement, any EPA involvement in the grand jury process must be structured within the requirements of Rule 6(e) in order to harmonize agency participation with the letter and intent of the law. Rule 6 Ce) (3) of the Federal Rules of Criminal Procedure provides for the disclosure of matters occurring before the grand jury “to such government personnel as are deemed necessary by the attorney for the - government to assist L the government attorneyJ in the performance of Lhis] duty to enforce Federal criminal law. ” (emphasis added) By virtue of its control over matters emanating from the grand jury, the court is empowered to treat a violation of grand jury secrecy as contempt of court and punish the violator accordingly. To minimize the likelihood of a breach of grand jury secrecy by EPA personnel, the following procedures are recommended: 1) The Regional Director should identify and make available to the prosecutor all agency personnel involved in the gathering or collection of evidence in the case. 2) The prosecutor, at his option will decide which EPA personnel should have access to grand jury materials. 3) The Regional Director should circulate a memo to the regional personnel involved in the grand jury proceeding and/or other regional personnel, advising them that personnel assisting the grand jury should not discuss any matters relative to the case with unauthorized agency employees. 4) Any communications between the regional. office and - the government relative to the matter before the grand jury should be directly with the federal prosecutor assigned to the case, the United States Attorney or his designated assistant rather-than through the EPA personnel assigned to the case. 5) A regional of fici al should be designated as the agency liaison with the prosecutor’s office for disposition on matters before the grand ------- —3— jury. Once designated, the official should not participate in or supervise the preparation of - any civil or administrative matters involving the target defendants or parties in the criminal proceeding. 6) Agency personnel with access to grand jury material may not use the materials for any other related EPA matters and should be divorced from involvement in civil or administrative work relating to the grand jury’s investigation. After the investigation is completed, EPA personnel still may not use grand jury materials for any other purpose without prior judicial approval. 7) Files obtained pursuant to grand jury process should be maintained in the United States Attorney’s office and not on EPA premises. Where the occasion arises where the files must be kept on EPA premises, the files should not be commingled with agency files and should be stored -in a separate secured area. - - 8) At the outset of EPA participation in the grand jury process, the Federal prosecutor should be requested to provide written instructions to EPA personnel as to the use of grand jury materials. 9) The EPA personnel assisting the grand jury should b sworn in as agents of the grand jury or Special Assistant United States Attorneys. and 10) Agency personnel assigned to grand jury should execute a document :äc]cnowledging that they will not utilize the grand jury material far other than in connection with the grand jury proceeding. EPA personnel are only allowed to participate in grand jury proceedings as agents of the grand jury and Special Assistant United States Attorneys. Therefore, they cannot discuss any matters before the grand jury with anyone not-cleared to—receive such information under the provisions of Rule 6(e). This pro- hibition extends to all agency personnel, including supervisors of the grand jury participants. The reason for the above rules is to isolate the criminal proceedings from any other EPA activity involving the same matters. This procedure will hopefully preclude a claim that unauthorized grand jury material flowed freely to ------- — 4-. participants in the civil-or administrative cases. Any parallel administrative or civil investigations within the region may continue without expectation of assistance from the prosecutor. When the grand jury has concluded its function, the agency in appropriate circumstances may apply for access to the materials presented to the grand jury for use in related civil or administrative proceedings. This application should be made through the prosecutor’s office which handled the criminal proceeding. If the above procedures are not followed, ___the court may later preclude agency access to the grand jury materials for iviloradm±nistrative—use. If you have any questions about the above policy, please call Charles Wagner at FTS 755—2540. Attachment ------- , o S ) :l ? ?. . UNITED STATES ENVIRONMENTAL PROTECTION AGENCY I WASHINGTON. D.C. 20460 I 1 q( OFFICE OF - APR 2 31980 MEMOR. NDUM TO: Regional Enforcement Directors FROM: Charles E. Wagner, Special Assistant (jJJI\pT Administrator for Enforcement t / SUBJECT: Access to Grand Jury Materials Historically, the maintenance of secrecy with respect to grand jury proceedings was in connection with the important public policy of encouraging and facilitating the exchange of information between witnesses and grand jurors. United States v. Procter & Gamble , 356 U.S. 677 (1958). United States v. Socony Vacuum Oil Co , 310 U.S. 150 (1940); United States v. Johnson 319 U.S. 503 (1943) The traditional reasons for this policy of secrecy are: 1) To prevent the escape of those whose indictment may be contemplated; 2) To insure the utmost freedom to the grand jurors in their deliberations and to prevent accused persons or their friends from influencing the grand jurors; 3) To prevent subornation of perjury or tampering with witnesses who have testimony or evidence to give the grand jury; 4) To encourage free and unfettered disclosure by persons who have information with respect to the commission of criminal acts, and - 5) To protect the innocent accused, who was exonerated by the grand jury, from disclosure of the fact that he was under investigation. This policy is implemented in Rule 6(e) of the Federal Rules of Criminal Procedure which imposes the obliga-t4on of secrecy upon grand jurors, attorneys for the government and other non-witness participants in the grand jury proceeding. ------- —2— This need for secrecy created problems for the Federal prosecutor relative to the degree he could share matters presented to the grand jury with other agency personnel comprising the prosecution team. These problems were heightened where the prosecutor, faced with complex, technical or scientific issues, needed to seek assistance from experts in order to prepare his case for presentation to the grand jury. It was in this context that the amended Rule 6(e) of the Federal Rules of Criminal Procedure was adopted to resolve the dilenuna created by the continuing need for secrecy before the grand jury. Rule -6(e) -(3 )-(A)—of -—the—Federal--Rules--.o f— Criminal—Procedure— provides: (3) Exceptions. (A) Disclosure otherwise prohibited by this rule of matters occurring before the grand jury, other than its deliberations and the vote of any grand juror, may be made to -- Ci) an attorney for the government for use in the performance of such attorney’s duty; and (ii) Such government personnel as are deemed necessary by an attorney for the government to assist an attorney for the government in the performance of such an attorney’s - duty to enforce Federal criminal law . (emphasis added) When a party, other than the Federal prosecutor, seeks access to materials produced before the grand jury, a —_____ particularized need must be demonstrated to the Court before access will be allowed. Bast v. United States, , 542 F.2d 893 (4th Cir. 1976); United States v. Smith , 532 F.2d 257, 261 (89th dr. 1977); Matter of Traux , 439 F. Supp. 1198 (D,C, Cal. 1977). Where the United States attorney seeks to utilize and disclose the materials produced before the grand jury in order to enforce federal criminal law, wider latitude is - granted. See United States v. Garcia , 420 F.2d 309 (2nd Cir. 1970). Accordingly, persons, other than the attorney for the government, may have access to grand jury material; provided, the prosecutor is of the opinion that the nature of the criminal case warrants the technical assistance of persons not found within his office. United Statesv. Evans 526 F.2d 701, 707 (5th Cir. 1976); United States v. Hoffa , 349 F.2d 20 •(Gth Cir. 1965); In re Paul Perlin , 589 F.2d 260, 266 (7th Cir. 1978). In cases where the Attorney General appoints an agency attorney as a Special Assistant United States Attorney, the ------- —3— agency attorney has the same discretion with regard to grand jury materials as a prosecutor employed by the Department of Justice (DOJ) or the United States Attorney’s Office. See In re Perlin, supra . Additionally, the Court presumes the attorney will follow the law and he is bound by the same Department of Justice regulations as any DOJ attorney. Therefore, his discretion must be exercised in accordance with those rules. The process of appointing the agency attorney sanitizes him and makes him an attorney for the government within the meaning of Rule 6 Ce) (2) and Rule 54 Cc). Id. at 267; United States v. Birdman , 602 F.2d 547 (3d Cir. 1979). Accordingly, it matters little that the agency attorney participated in related civil or administrative proceedings prior to his appointment. In re Perlin, supra; United States v. Birdman, Supra . Moreover, when the grand jury has concluded its investigation, disclosure to another agency for civil or administrative purposes is wholly proper where the ends of justice require it. United States v. Socony Vacuum Oil Co. , 310 U.S. 150 (1940. - • Problems, however, may surface where parallel grand jury and administrative/civil proceedings are being conducted relative to the same matters. The law is too well settled to debate that the use of the grand jury process to secure evidence for civil or administrative proceedings is improper. In re Special March 1975 Grand Jury , 541 F.2d 166, 170 (7th Cir. 1976); In re Perlin , supra, 589 F.2d at 268; Capitol Indem Corp 1st Mm Const. Co. , 405 F. Supp. 924 (D.C. Mass 1975). Therefore, where civil and criminal investigations -- are proceeding simultaneously, care must be exercised to avoid the appearance of mischief in the use of the grand jury by any participating Federal agency which happens to be involved in both proceedings. - Rule 6 Ce) (3)3 sets forth the uses to which an agency, assisting the DOJ, may put the materials obtained from the grand jury. The Rule—provides: (B) Any person to whom matters are disclosed under subparagraph (A) (ii) of this paragraph shall not utilize that grand jury material for any purpose dth than assisting the attorney for the government in the performance of such attorney’s duty to enforce Federal criminal law. - In Robert Hawthorne, Inc . v. Director of Internal Revenue , 406 F. Supp. 1098, (E.D. Penn. 1916), the Court outlined the factors a court may take into account when assessing a claim that agency involvement in the grand jury proceeding was improper: ------- —4— 1) The nature of the initial and continuing directions to agency personnel from the prosecutor as to the scope of their role in the proceeding. 2) The presence of.any prosecutorial supervision of agency personnel. 3) The insulation of grand jury related files and activities from general agency operations. 4) The maintenance of an accurate system of record keeping. 5) The extent to which the grand jury materials will be necessary in future proceedings. Id. at 1125 and 1126 - The Court further observed that the taking of an oath by agency personnel, declaring their adherence to the rules governing the nature of their access to the grand jury materials, would be helpful in insuring compliance. A Rule 6(e) docket, that the Court in Hawthorne suggested that the government keep, will be helpful in insuring the integrity of the proceeding. The docket should include the following: 1) The general description of the criminal investigation as set forth in the government’s application for the____ Rule 6(e) order; 2) The identity of each investigative target; 3) The identity of all agency personnel with access -- to the grand jury material; 4) Identity of the relevant agency supervisory personnel; 5) The identity of the Assistant U.S. Attorney(s) supervising the investigation; 6) The date on which each batch of grand jury material was received and the material should be identified; 7) The date on which the material was reached for consideration; and 8) The date on which the technical assistance was terminated. Id. at 1127 ------- —5— During the pendancy of criminal investigation, the related civil or administrative proceeding may continue unabated. See, Donaldson v. United States 400 U.S. 517 (1971), United States v. Wencke , 604 F.2d 602, 611 (9th Cir. 1979); United States v. Friedman , 532 F.2d 928 (3rd Cir. 1976). It should be noted that Rule 6(e) was never intended to insulate from all future discovery, documents which were presented to the grand jury. United States v. Saks , 426 F. Supp. 812 (S.D.N.Y. 1976). Where the grand jury data is to be disclosed for its intrinsic value in the furtherance of a lawful civil or administrative investigation, rather than to reveal what occurred before the grand jury, the mere fact that similar data was presented to the grand jury does not preclude disclosure. United States v. Interstate Dress Carriers, Inc. , 280 F.2d 52, 54 (2d Cir. 1960); In re Senate Banking Committee Hearings , 19 F.R.D. 410 (N.D. Ill. 1956); In re Grand Jury Investigation of yen—Fuel , 441 F. Supp. 1299 (M.D. Fla. 1977); Davis v. Romney , 55 F.R.D. 337 (E.D. Pa. 1972) - - It has been observed that, at the conclusion of the - grand jury’s work, the need for secrecy diminishes. United States v. Proctor & Gamble Co. supra , 356 U.S. at 681 n. 8. Petrol Stops Northwest v. United States , 571 F.2d 1127, 1129— 1130 (9th Cir.) Accordingly, the only reason for secrecy which survives the grand jury term and the criminal proceeding is the need to protect the grand jury witnesses from retaliation. State of Illinois v. Sarbaugh , 552 F.2d 768 (1977). Rule 6(e)(3)(C); provides: (C) Disclosure otherwise prohibited by this rule of matters occurring before the grand jury may also be made -- - - Ci) - When so directed by a court preliminarily to or in connection with a judicial proceeding. If the court - - orders disclosure of matters occurring before the grand jury, the disclosure shall be made in such manner, at such time, and under such conditions as to the court may direct. In this regard, it should be noted that the cases interpret the term “judicial proceedings” to include, iriadditionto btate and local court civil proceedings, those administrative proceedings where the administrative proceeding is part of a statutory scheme which provides for judicial review. In such cases, disclosure under Rule 6(e) may be obtained upon court order. Doe v. Rosenberry , 255 f.2d 118 (2d Cir. 1958), state bar grievance proceedings; In re Special February J.97l Grand Jury v. Conlish , 490 F.2d 894 (7th Cir. 1973), local police disciplinary board; In the Matter of Disclosure of Grand Jury Transcripts , 309 F. Supp. 1050 (S.D. Ohio), police disciplinary boards. Thus, for EPA purposes, a Rule 6(e order could be obtained for grand jury materials to ------- —6— be used in only those agency proceedings in which judicial review is provided by statute. In order to qualify for access to materials following the completion of the criminal proceeding, “the government must provide a general description of the materials sought in order to allow the court intelligently to determine if such materials are rationally related to an existing or contemplated civil proceeding. Additionally, the government must represent to the court that the grand jury proceeding was not used as a subterfuge or dodge for obtaining records _for - a civil -inves-tigation - or--proceed-ing.------In re- Grand Jury subpoenas , April 1978. 58]. F.2d 1103 (4th Cir. 1978); In re December 1974 term, Grand Jury Investigation, 449 F. Supp. 743 (D.C. Md. 1978). While the penalty, generally, for violating Rule 6(e) is contempt of court, the court has inherent power to impose more severe sanctions relative to the criminal or civil proceeding. Consequently, one should govern his actions at all times in a proper manner. See United States v. Malatesta , 583 F.2d 748 (5th Cir. 1978). ------- CASES ------- OTHER REG. CASES ------- p ------- a ------- R ------- S ------- T ------- U ------- V ------- w ------- xYz ------- |