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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
OFFICE OF
r	ENFORCEMENT
January 12, 1994
MEMORANDUM
SUBJECT: The Exercise of Investigative Discretion
FROM: Earl E. Devaney, Director C) fj £ {~^\
Office of Criminal Enforcement	2- V—) JUoTtl&j
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TO:	All EPA Employees Working in or in Support of the Criminal
Enforcement Program
I. Introduction
As EPA's criminal enforcement program enters its'second decade and
embarks on a period of unprecedented growth, this guidance establishes the
principles that will guide the exercise of investigative discretion by EPA Special
Agents. This guidance combines articulations of Congressional intent underlying
the environmental criminal provisions with the Office of Criminal Enforcement's
(OCE) experience operating under EPA's existing criminal case-screening
criteria.1
In an effort to maximize our limited criminal resources, this guidance sets
out the specific factors that distinguish cases meriting criminal investigation from
those more appropriately pursued under administrative or'civil judicial
authorities.2
1 This guidance incorporates by reference the policy document entitled Regional Enforcement
Management: Enhanced Regions! Case Screening (December 3, 1990).
- This memorandum is intended only as internal guidance to EPA. Ii is net intended to, does not.
and may not be relied upon to, create a right or benefit, substantive or procedural, enforceable at law by a
pany to litigation with the United States, nor docs this guidance in any way limit the lawful enforcement
prerogatives, including administrative or civil enforcement actions, of the Department of Justice and the
Environmental Protection Agency.
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Indeed, the Office of Criminal Enforcement has an obligation to the
American public, to our colleagues throughout EPA, the regulated community,
Congress, and the media to instil! confidence that EPA's criminal program has
the proper mechanisms in place to ensure the discriminate use of the powerful law
enforcement authority entrusted to us.
II. Legislative Intent Regarding Case Selection
The criminal provisions of the environmental laws are the most powerful
enforcement tools available to EPA. Congressional intent underlying the.
environmental criminal provisions is unequivocal: criminal enforcement authority
should target the most significant and egregious violators.
The Pollution Prosecution Act of 1990 recognized the importance of a
strong national environmental criminal enforcement program and mandates
additional resources necessary for the criminal program to fulfill its statutory
mission. The sponsors of the Act recognized that EPA had long been in the
posture of reacting to serious violations only after harm was done, primarily due
to limited resources. Senator Joseph I. Lieberman (Conn.), one of the co-
sponsors of the Act, explained that as a result of limited resources, "... few cases
are the product of reasoned or targeted focus on suspected wrongdoing.11 He also
expressed his hope that with the Act's provision of additional Special Agents, "...
EPA would be able to bring cases that would have greater deterrent value than
ihose currently being brought."
Further illustrative of Congressional intent that the most serious of
violations should be addressed by criminal enforcement authority is the legislative
history concerning the enhanced criminal provisions of RCRA:
[The criminal provisions were] intended to prevent abuses of the permit
system by those who obtain and then knowingly disregard them. It [RCRA
sec. 3008(d)] is not aimed at punishing minor or technical variations from
permit regulations or conditions if the facility operator is acting responsibly.
The Department of Justice has exercised its prosecutorial discretion
responsibly under similar provisions in other statutes and the conferees
assume that, in light of the upgrading of the penalties from misdemeanor to
felony, similar care will be used in deciding when a particular permit
violation may warrant criminal prosecution under this Act. H.R. Conf.
Rep. No. 1444. 96th Cong., 2d Sess. 37. reprinted in 1980 U.S. Code Cong.
& Admin. News 5036.
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While EPA has doubled its Special Agent corps since passage of the
Pollution Prosecution Act, and has achieved a presence in nearly all federal
judicial districts, it is unlikely that OCE will ever be large enough in size to fully
defeat the ever-expanding universe of environmental crime. Rather, OCE must
maximize its presence and impact through discerning case-selection, and then :
proceed with investigations that advance EPA's overall goal of regulatory
compliance and punishing criminal wrongdoing.
III.	Case Selection Process3
The case selection process is designed to identify misconduct worthy of
criminal investigation. • The case selection process is not art effort to establish legal
sufficiency for prosecution. Rather, the process by which potential cases are
analyzed under the case selection criteria will serve as an affirmative indication
that OCE has purposefully directed its investigative resources toward deserving
cases.
This is not to suggest that all cases meeting the case selection criteria will
proceed to prosecution. Indeed, the exercise of investigative discretion must be
clearly distinguished from the exercise of prosecutorial discretion. The
employment of OCE's investigative discretion to dedicate its investigative authority
is, however, a critical precursor to the prosecutorial discretion later exercised by
the Department of Justice.4
At the conclusion of the case selection process, OCE should be able to
articulate the basis of its decision to pursue a criminal investigation, based on the
case selection criteria. Conversely, casesithat do not ultimately meet the criteria
to proceed criminally, should be systematically referred back to the Agency's civil
enforcement office for appropriate administrative or civil judicial action, or to a
state or local prosecutor.
IV.	Case Selection Criteria
The criminal case selection process will be guided tjy two general
measures - significant environmental harm and culpable conduct.
•' The case selection process must not be confused with the Regionaljcase Screening Process. The
relationship between the Regional Case'Screening Process and case selection are discussed further at "VI.",
below.
Exercise of this prosecutorial discretion in alt criminal cases is governed by the principles set forth
in the Department of Justice's Principles of Federal Prosecution.
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A. Significant Environmental Harm
The measure of significant environmental harm should be broadly
construed to include the presence of actual harm, as well as the threat of
significant harm, to the environment or human health. The following factors serve
as indicators that a potential case will meet the measure of significant
environmental harm.
Factor 1. Actual harm wii] be demonstrated by an illegal discharge, release
or emission that has an identifiable and significant harmful impact on human
health or the environment. This measure will generally be self-evident at the time
of case selection.5
Factor Z The threat of significant harm to the environment or human
health may be demonstrated by an actual or threatened discharge, release or
emission. This factor may not be as readily evident, and must be assessed in light
of all the facts available at the time of case selection.
Factor 3. Failure to report an actual discharge, release or emission within
the context of Factors 1 or 2 will serve as an additional factor favoring criminal
investigation. While the failure to report, alone, may be a. criminal violation, our
investigative resources should generally be targeted toward those cases in which
the failure to report is coupled with actual or threatened environmental harm.
Factor 4. When certain illegal conduct appears to represent a trend or
common attitude within the regulated community, criminal investigation may
provide a significant deterrent effect incommensurate with its singular
environmental impact. While the single violation being considered may have a
relatively insignificant impact on human health or the environment, such
violation's, if multiplied by the numbers in a cross-section of the regulated
community, would result in significant environmental harm.
B. Culpable Conduct
The measure of culpable conduct is not necessarily an assessment of
criminal intent, particularly since cnminal intent will not always be readily evident
at the time of case selection. Culpable conduct, however, may be indicated at the
time of case selection by several factors.
. . When ihis factor involves a fact situation in which the risk of harm is so great, so immediate and/or
irremediable, OCE will always cooperate and coordinate v.ith EPA's civil enforcement authorities to seek
appropriate injunctive or remedial action.
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Factor 1. History of repeated violations.
While a history of repeated violations is not a prerequisite to a criminal
investigation, a potential target's compliance record shpuld always be carefully
examined. When repeated enforcement activities or actions, whether by EPA, or
other federal, state and local enforcement authorities, have failed to bring a
violator into compliance, criraittai investigation may be warranted. Clearly, a
history of repeated violations will enhance the government's capacity to prove
that a violator was aware of environmental regulatory requirements, had a&uai
notice of violations and then acted in deliberate disregard of those requirements.
Factor 2. Deliberate misconduct resulting in violation.
Although the environmental statutes do not require proof of specific intent,
evidence, either direct or circumstantial, thar a violation was deliberate will be a
major factor indicating that criminal investigation is warranted.
Factor 3. Concealment of misconduct or falsification of required
records.
In the arena of self-reporting, EPA must be ablejto rely on data received
from the regulated community. If submitted data are false, EPA is prevented
from effectively carrying out its mandate. Accordingly, conduct indicating the
falsification of data will always serve as the basis for serious consideration to
proceed with a criminal investigation.
Factor 4. Tampering with monitoring or control equipment.
The overt act of tampering with, monitoring or control equipment leads to
the certain production of false data that appears to be otherwise accurate. The
consequent submission of false data ihreatens the basic integrity of EPA's data
and, ia turn, the scientific validity of EPA's regulatory decisions. Such an assault
on the regulatory infrastructure calls for the enforcement leverage of criminal
inve-sugaucn.
Factor 5. Business operation of pollution-related activities without a
permit, license, manifest or other required documentation.
Many of the Jaws sad regulations wi:h:r. EPA's jurisdiction fecus or
inherently dangerous and strictly regulated business operations. EPA's criminal
enforcement resources should clearly pursue those violators who choose to ignore
environmental regulator}' requirements altogether and operate completely outside
of EPA's regulatory scheme.
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V.	Additional Considerations when Investigating Corporations
I
While the factors under measures IV. A and B, above, apply equally to
both individual and corporate targets, sevetal additional considerations should be
taken into account when the potential target is a corporation.
In a criminal environmental investigation, OCE should always investigate
individual employees and their corporate6 employers who may be culpable. A
corporation is, by law, responsible for the criminal act of its officers and
employees who act within the scope of their employment and in furtherance of the
purposes of the corporation. Whether the corporate officer or employee
personally commits the act, or directs, aids, or counsels other employees to do so
is inconsequential to the issue of corporate culpability.
Corporate culpability may also be indicated when a company performs an
environmental compliance or management audit, and then knowingly, fails to
promptly remedy the noncompliance and correct any harm done.7 On the other
hand, EPA policy strongly encourages self-monitoring, self-disclosure, and self-
correction.8 When self-auditing has been conducted (followed up by prompt
remediation of the noncompliance and anjj resulting harm) and full, complete
disclosure has occurred, the company's constructive activities should be considered
as mitigating factors in EPA's exercise of investigative discretion. Therefore, a
violation that is voluntarily revealed and fully and promptly remedied as part of a
corporation's systematic and comprehensive self-evaluation program generally will
not be a candidate for the expenditure of scarce criminal investigative resources.
VI.	Other Case Selection Considerations
EPA has a full range of enforcement tools available - administrative, civil-
judicial, and criminal. There is universal consensus that less flagrant violations
with lesser environmental consequences should be addressed through
administrative or civil monetary penalties and remedial orders, while the most
serious environmental violations ought to be investigated criminally. The
challenge in practice is to correctly distinguish the latter cases from the former.
® The term "corporate" or "corporation", as used ir. this guidance, describes any business entity,
whether legally incorporated or not.
7!n cases of self-auditing -and/or voluntary disclosure, the exercise of prosecutorial discretion is
addressed in the Department of Justice policy document entitled "Factors in Decisions on Criminal
Prosecutions for Environmental Violations in the Context of Significant Voluntary Compliance or
Disclosure Efforts by the Violator" (July 1. 1991).
® See EPA's poiicy on environmental audits, published at 51 Fed. Reg. 25004 (July 9, 1986)
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