Office of Criminal Enforcement, Forensics and Training Incorporated Essential Discovery Elements into Its Policies and Procedures, but Additional Training Could Improve Awareness

The Office of Criminal
Enforcement, Forensics
and Training Incorporated
Essential Discovery Elements
into Its Policies and
Procedures, but
Additional Training Could
Improve Awareness

February 15, 2024 j Report No. 24-E-0021

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Report Contributors

Meg Ariotti
Allison Dutton
Patrick Gilbride
Andrew Lavenburg
Maggie Marsh
Olive Wittenberg

Abbreviations

EPA	U.S. Environmental Protection Agency

OIG	Office of Inspector General

OCEFT	Office of Criminal Enforcement, Forensics and Training

U.S.C.	United States Code

Cover Image

EPA special agent. (EPA image)

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At a Gla

24-E-0021
February 15, 2024

The Office of Criminal Enforcement, Forensics and Training Incorporated
Essential Discovery Elements into Its Policies and Procedures, but Additional
Training Could Improve Awareness

Why We Did This Evaluation

To accomplish this objective:

The U.S. Environmental Protection
Agency Office of Inspector General
conducted this evaluation to determine
whether the EPA's collection, retention,
and production of mandatory criminal
discovery materials adhered to
requirements. The U.S. Constitution's
due process clauses, the Brady Doctrine,
the Jencks Act, and the Federal Rules of
Criminal Procedure establish
requirements for the government's
obligation to disclose discoverable
information in criminal proceedings.

The EPA Office of Criminal Enforcement,
Forensics and Training investigates
environmental crimes, obtains evidence,
and helps prosecutors understand the
details of a case as it progresses through
the federal criminal process. Prosecutors
familiarize themselves with the facts of
the crime and provide the defendant with
copies of materials and evidence that
they intend to use at trial. Similarly, the
defense is required to share certain
information with prosecutors. This
process is known as "discovery."

To support these EPA mission-related
efforts:

• Compliance with the law.

• Operating efficiently and effectively.

To address this top EPA management
challenge:

• Maximizing compliance with
environmental laws and regulations.

What We Found

We did not identify any specific circumstances where the EPA Office of Criminal
Enforcement, Forensics and Training did not adhere to criminal discovery requirements
regarding the collection, retention, and production of material. OCEFT has incorporated
essential elements of discovery obligations, such as the Brady Doctrine, the Jencks Act,
and the Federal Rules of Criminal Procedure, into its criminal investigations policies and
procedures to facilitate required discovery disclosures.

We found that some special agents employed investigative procedures that deviated from
OCEFT procedures, such as using a personal camera for investigative activities and not
retaining a digital recording of a voicemail. The procedural deviations that we identified
were not violations of discovery requirements; however, they present an investigative
process risk that could negatively impact discovery during criminal proceedings. As such,
additional training for special agents, including discovery training for newer special agents
and refresher trainings on OCEFT internal policies and procedures, may improve
awareness of processes and promote best practices.

Strengthening adherence to EPA discovery policies and procedures

can promote efficient and effective criminal prosecution.

Recommendations and Planned Agency Corrective Actions

We recommend that the assistant administrator for Enforcement and Compliance
Assurance review policies and procedures to determine whether updates are needed to
improve processes or include best practices. We also recommend periodic training to
EPA employees who may support a prosecution team to promote awareness and
adherence to discovery requirements and investigative policies and procedures. The
Agency agreed with our recommendations and provided acceptable planned corrective
actions with estimated completion dates. We consider the recommendations resolved with
corrective actions pending. The Agency also provided technical comments, which we
considered and incorporated, as appropriate.

Address inquiries to our public affairs
office at (202) 566-2391 or
OIG.PublicAffairs@epa.gov.

List of OIG reports.

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U.S. ENVIRONMENTAL PROTECTION AGENCY

OFFICE OF INSPECTOR GENERAL

February 15, 2024

MEMORANDUM

SUBJECT: The Office of Criminal Enforcement, Forensics and Training Incorporated Essential

This is our report on the subject audit conducted by the U.S. Environmental Protection Agency Office of
Inspector General. The project number for this evaluation was OSRE-FY22-Q145. This report contains
findings that describe the problems the OIG has identified and corrective actions the OIG recommends.
Final determinations on matters in this report will be made by EPA managers in accordance with
established audit resolution procedures.

The Office of Enforcement and Compliance Assurance is responsible for the issues discussed in this
report.

In accordance with EPA Manual 2750, your office provided acceptable planned corrective actions and
estimated milestone dates in response to OIG recommendations. All recommendations are resolved with
corrective actions pending, and no final response to this report is required. If you submit a response,
however, it will be posted on the OIG's website, along with our memorandum commenting on your
response. Your response should be provided as an Adobe PDF file that complies with the accessibility
requirements of section 508 of the Rehabilitation Act of 1973, as amended. The final response should
not contain data that you do not want to be released to the public; if your response contains such data,
you should identify the data for redaction or removal along with corresponding justification.

We will post this report to our website at www.epaoig.gov.

To report potential fraud, waste, abuse, misconduct, or mismanagement, contact the OIG Hotline at (888) 546-8740 or OIG.Hotline@epa.gov.

Discovery Elements into Its Policies and Procedures, but Additional Training Could
Improve Awareness
Report No. 24-E-0021

FROM:

TO:

David Uhlmann, Assistant Administrator
Office of Enforcement and Compliance Assurance

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Table of Contents

Purpose	1

Background	1

Criminal Enforcement at the EPA	2

Federal Criminal Process	2

Discovery in Criminal Cases	4

Responsible Offices	5

Scope and Methodology	5

Prior Reports	7

Results	7

OCEFT Policies and Procedures Address Essential Elements of Discovery	8

OCEFT Personnel Followed Processes to Help Meet Discovery Requirements,

but Risks Exist	12

Conclusions	18

Recommendations	18

Agency Response and OIG Assessment	18

Status of Recommendations	19

A Key OCEFT Policies and Procedures Related to the Collection, Retention, and Production of

Investigatory Information and Evidence	20

B Agency Response to the Draft Report	21

C Distribution	23

24-E-0021	i

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Purpose

The U.S. Environmental Protection Agency Office of Inspector General initiated this evaluation to
determine whether the EPA's collection, retention, and production of mandatory criminal discovery
material adhered to requirements.

Top management challenge addressed

This evaluation addresses the following top management challenge for the Agency, as identified
in OIG Report No. 24-N-0008. The EPA's Fiscal Year 2024 Top Management Challenges,
issued November 15, 2023:

• Maximizing compliance with environmental laws and regulations.

Background

As part of its Fiscal Year 2022-2026 EPA Strategic Plan, the EPA states that "a robust compliance
monitoring and enforcement program is necessary to ensure communities get the environmental and
human health benefits intended by environmental statutes and EPA's regulations." The EPA Office of
Enforcement and Compliance Assurance uses both civil and criminal enforcement mechanisms to hold
violators of environmental laws and regulations accountable. When a person or company knowingly—or
under some statutes, negligently—violates a law, the person or company faces potential criminal
liability. In contrast, civil liability for environmental violations arises simply through the existence of the
environmental violation. It does not take into consideration what the responsible party knew about the
law or regulation it violated. Examples of criminal violations include an intentional decision to dispose or
dump pollutants into a river without a permit or to not install a required air pollution control device. The
EPA pursues criminal enforcement of environmental violations by conducting investigations, collecting
evidence, conducting forensic analyses, and providing legal assistance in criminal prosecutions.

When the U.S. Department of Justice prosecutes a case involving the EPA, the Agency must provide the
prosecutor any known exculpatory and impeachment information related to the case, as well as all
witness statements related to a case, so the prosecutor can disclose certain information to the defense.1
This is part of the process known as "discovery." The requirements of the government during discovery,
its discovery obligations, are met when the prosecutor produces all discoverable materials to the
defense. For this evaluation, we developed working definitions of "collection," "retention," and
"production," as these terms relate to the EPA's responsibility to adhere to the government's criminal
discovery requirements. Collection includes how the EPA gathers information and evidence to support
criminal charges and the prosecution of these crimes. Retention includes how the EPA preserves the
collected information and evidence to ensure the government can locate and access it during the
discovery phase. Production includes how the EPA provides the information and evidence to the
prosecutor to fulfill the government's discovery obligations to the defense. The EPA's production of

1 Exculpatory (Brady) information is that which absolves the defendant of guilt or mitigates culpability for
sentencing purposes. Impeachment (Giglio) information is that which undermines the credibility of government
witnesses. We describe each later in this report.

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information to the prosecutor does not, in and of itself, satisfy discovery requirements. Discovery
requirements can only be met when the government, represented by a federal prosecutor, discloses all
discoverable information to the defense.

Criminal Enforcement at the EPA

Within the EPA, the Office of Criminal Enforcement, Forensics and Training, or OCEFT, within the Office
of Enforcement and Compliance Assurance, investigates violations of environmental laws and provides a
broad range of technical and forensic services for civil and criminal investigations and counsel on legal
and policy matters. OCEFT is organized into three divisions:

• The Criminal Investigation Division is composed of special agents who are law enforcement
officers. Special agents focus investigative resources on cases that involve negligent, knowing, or
willful violations of federal environmental laws that often result in harm to human health or the
environment. Special agents work with attorneys within the EPA, the Department of Justice, and
U.S. Attorney's Offices to bring criminals to justice.

• The Legal Counsel Division provides support and guidance on all legal and policy matters
affecting the criminal enforcement of environmental laws or the operations of the National
Enforcement Investigations Center. Legal Counsel Division attorneys, along with EPA regional
criminal enforcement counsels, provide legal services to OCEFT management and staff in areas
such as environmental and criminal law, forensic science, and expert witness preparation.

• The National Enforcement Investigations Center provides forensics, science, and technical
support for both criminal and civil environmental investigations.

Federal Criminal Process

The federal criminal process often involves multiple federal agencies. Because multiple agencies can be
involved in prosecuting a federal crime, the U.S. Justice Manual, which contains publicly available information
on the Department of Justice's policies and procedures, refers to the "prosecution team" in its guidance. The
manual states that a prosecution team can include federal, state, and local law enforcement officers and
other government officials participating in the investigation and prosecution of the criminal case against the
defendant.

In the context of a prosecution team, the EPA is an investigatory agency and is primarily responsible for
the investigation component of the process. OCEFT special agents routinely work with attorneys at the
Department of Justice, U.S. Attorney's Offices, and the EPA as integral members of the prosecution
team. Special agent activities include identifying potential crimes, working with prosecutors to collect
information and evidence necessary for criminal charges and trials, and testifying during legal
proceedings. To adhere to the government's discovery requirements and help prosecutors fulfill their
discovery obligations, EPA personnel must provide prosecutors all potentially discoverable information
and items in their possession for prosecutors to determine discovery disclosure.

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When the Department of Justice agrees to prosecute a case involving the EPA, it leads the prosecution
team, and its prosecutors are legally responsible for ensuring discovery obligations are met during all
stages of the federal criminal process. This involves assessing the cumulative impact of all information
and items in the government's possession and producing all discoverable materials to the defense. The
U.S. Justice Manual advises prosecutors to produce discovery beyond the minimum legal requirements.
Figure 1 summarizes the steps in the federal criminal process. Green highlights denote steps that fall
within the scope of our evaluation.

Figure 1: Steps in the federal criminal process*

Federal agencies employ criminal investigators to collect and provide information to help prosecutors
understand the details of the case.

A defendant is typically charged with a crime by an indictment, which must contain the basic information
about the charges the person is facing. An indictment means the grand jury believes enough evidence
exists to charge a person with a crime. If a defendant is arrested but not indicted, a judge must conduct
a preliminary hearing to determine whether enough evidence exists to charge a person with a crime.

The defendant is brought before a magistrate judge for an initial hearing on the case. At that time, the
defendant learns about their rights and the charges against them. The defendant is asked to plead guilty
or not guilty to the charges.

Prosecutors must provide the defendant with, among other things, evidence that they intend to use at
trial. Discovery is an ongoing obligation, continuing through a trial. Failure to meet discovery obligations
can expose the prosecutor to fines or sanctions by the court and may result in a new trial.

The government may offer the defendant a plea deal to avoid trial and perhaps reduce exposure to a
more lengthy sentence. If a defendant pleads guilty, there is no trial, and the next step is to prepare for a
sentencing hearing.

A motion is a request to the court made by the prosecutor or defense attorney that the court make a
decision on a certain issue before the trial begins. The motion can affect the trial, courtroom,
defendants, evidence, or testimony.

The trial is a structured process where the prosecutor and defendant use witnesses and evidence to
present the facts of a case to a jury.

There are several motions that can be filed after the trial is over if the defendant is convicted.

The judge receives guidance and assistance from several sources to sentence a defendant.

A defendant can appeal the result of a trial to a higher court if the defendant believes they were wrongly
convicted or the sentence was too harsh. An appeal is an opportunity for the defendant to try to raise
specific errors that might have occurred at trial.

Source: Adapted from a Department of Justice website providing information on steps in the federal criminal process.
(EPA OIG image)

* The steps shown in green, investigation and discovery, denote steps that fall within the scope of our evaluation.

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Discovery in Criminal Cases

In federal criminal cases, the government has obligations to disclose certain information in its
possession to a defendant through the discovery process. The U.S. Constitution's due process clauses,
Supreme Court decisions, certain federal statutes, and the Federal Rules of Criminal Procedure provide
the key criteria establishing the government's obligation to disclose certain information during a
criminal proceeding. For example, the due process clauses of the Fifth and Fourteenth Amendments to
the U.S. Constitution obligate the government to ensure that the defendant receives a fair trial. The
Brady Doctrine, which encompasses a series of U.S. courts' interpretations of due process as it relates to
criminal discovery, including Brady v. Maryland, 373 U.S. 83 (1963), which was expanded in Giglio v.
United States, 405 U.S. 150 (1972), requires federal prosecutors to provide the defense any information
and evidence in its possession that is favorable and material to the defendant's case. This includes the
following:

• Exculpatory (Brady) information, which tends to absolve the defendant of guilt or mitigate
culpability for sentencing purposes.

• Impeachment (Giglio) information, which undermines the credibility of government witnesses.

The obligation to disclose exculpatory and impeachment information exists regardless of whether the
defense requests such information and is part of the constitutional guarantee to a fair trial.

Additionally, the Jencks Act, 18 U.S.C. § 3500, provides that the prior statements of a government
witness are discoverable after that witness has testified on direct examination at trial. Upon request of
the defense, the government is required to produce any government witness statements in their
possession that relate generally to the witness' testimony. Rule 26.2 of the Federal Rules of Criminal
Procedure implements the Jencks Act and sets forth procedures for applying it.

Lastly, the government must disclose to the defense, upon request, specific types of information defined
in Rule 16 of the Federal Rules of Criminal Procedure. Some of the specific information the government
is required to disclose under Rule 16, after it is requested by the defense, includes statements made by
the defendant that are in the possession of the government, the defendant's criminal record, reports of
any examinations and tests, and documents or other physical objects that the government intends to
introduce at trial. For example, defendants may request a special agent's notes or audio recording of an
interview to compare to a written summary of the same interview.

It is the duty of the prosecutor to seek all potentially discoverable material from all other members of
the prosecution team. Discovery is ongoing, and a prosecutor has a continuing obligation to provide the
defendant documents and other information which may impact the case. According to Department of
Justice guidance, "prosecutors should always be alert to developments occurring up to and through trial
of the case that may impact their discovery obligations and require disclosure of information that was
previously not disclosed." A failure of the prosecutor to meet discovery obligations can expose the
prosecutor to fines and sanctions by the court or may result a new trial if the prosecutor fails to provide
exculpatory or impeachment information.

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Case Study: Discovery Concerns in an EPA Asbestos Case

In 2005, a company and seven of its executives were indicted for knowingly endangering the residents of Libby,
Montana, through ongoing releases of asbestos related to the company's vermiculite mine. The government, for
which the EPA served as the lead investigatory agency, alleged that the defendants knew that the asbestos from
the vermiculite mine was deadly, that workers and community members were developing lung disease from
exposure to the asbestos mined in Libby, and that people were dying from these diseases. The government further
alleged that the defendants nonetheless allowed Libby residents to use the contaminated vermiculite as a base
for school running tracks and the grade-school skating rink, and that they closed the mine and sold heavily
contaminated properties to people who intended to live, play, and work there without telling them of the danger.

During the trial in 2009, the government's case was affected by its admitted failure to disclose impeachment
evidence regarding a key witness, a former employee of the defendant who worked in a variety of managerial
roles over a 24-year tenure, including positions related to the Libby mine. Emails between the EPA's special agent
and a government witness included witness impeachment information, but the emails were not provided to the
defense until mid-trial.

Although the court found that the government's discovery violations did not rise to the level of prosecutorial
misconduct, it held that the prosecutors breached their constitutional duties to disclose favorable information to
the defense. As a remedy, the court allowed the defendants to cross-examine the government's witness a second
time on a narrow scope of issues, prohibited the government from redirect examination, and instructed the jury
that the witness returned to the stand because the government had not met its legal obligations. The jury later
acquitted the defendants.

According to attorneys in OCEFT's Legal Counsel Division, this case had an impact on its operations, prompting
internal review and significant resources devoted to training on the government's discovery obligations. Following
this criminal trial, OCEFT developed a discovery policy, which it finalized in 2010 and updated periodically
thereafter. The most recent update was in 2022.

Responsible Offices

The Office of Enforcement and Compliance Assurance is responsible for the issues discussed in this
report. The office helps to address pollution problems impacting American communities by pursuing civil
and criminal enforcement actions. Within the Office of Enforcement and Compliance Assurance, OCEFT
pursues criminal violators of air, water, and hazardous waste pollution laws.

The EPA's annual appropriated budget for fiscal year 2023 was roughly $10.1 billion. The Office of
Enforcement and Compliance Assurance's fiscal year 2023 budget was $223,935,000, or approximately
2.2 percent of the EPA's total budget, and OCEFT's fiscal year 2023 budget was $77,793,000, or about
0.8 percent of the EPA's total budget.

Scope and Methodology

We conducted this evaluation from August 2022 to November 2023 in accordance with the Quality
Standards for Inspection and Evaluation published in December 2020 by the Council of the Inspectors

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General on Integrity and Efficiency. Those standards require that we perform the evaluation to obtain
sufficient and appropriate evidence to support our findings.

We reviewed relevant laws, policies, and guidance related to the EPA's responsibilities for adhering to
criminal discovery requirements, and we vetted our analysis with the OIG Office of Counsel. The
documents we reviewed included:

• The due process clauses of the Fifth and Fourteenth Amendments of the U.S. Constitution.

• Brady v. Maryland, Giglio v. United States, and their progeny.

• The Federal Rules of Criminal Procedure, Rule 16 and Rule 26.2.

• The Jencks Act.

• The U.S. Justice Manual, 9-5.000 - "Issues Related to Discovery, Trials, and Other Proceedings."

Adherence to discovery requirements for federal criminal cases ultimately rests with the Department of
Justice. For this evaluation, we focused only on the aspects of criminal discovery within the EPA's
control, which limited the extent to which we could assess adherence to all discovery requirements.
Therefore, we focused our work on the processes that OCEFT applied within its investigations to help
ensure that it met discovery requirements. This included an assessment of the controls in place and the
risks that could impact the EPA's compliance with discovery requirements. To determine whether
OCEFT's processes for conducting criminal investigations were consistent with the criteria identified
above, we:

• Reviewed more than a dozen OCEFT policies and procedures governing the collection, retention,
and production of information and evidence potentially subject to discovery. Appendix A
includes a complete list of OCEFT policies and procedures that we reviewed.

• Conducted interviews with:

o Personnel in OCEFT's Professional Integrity and Quality Assurance group,

o The director of OCEFT's Criminal Investigation Division,

o The director of OCEFT's Legal Counsel Division,

o Attorneys serving as regional criminal enforcement counsel,

o One attorney in OCEFT's Legal Counsel Division who advises on criminal cases,

o Five special agents in the Criminal Investigation Division,

o OCEFT's criminal litigation support coordinator.

o The deputy chief of the Department of Justice's Environmental Crimes Section.

OCEFT identified eight closed criminal cases that went to trial between January 2016 through
August 2022 and resulted in either a conviction or acquittal of the defendant. For one of the eight cases,
all the special agents and attorneys that the EPA had identified as points of contact for the case had
either retired or left the Agency by the time of our evaluation. For the remaining seven cases, we
interviewed the five special agents, as well as six attorneys serving as regional criminal enforcement
counsel, based upon their association with the OCEFT closed criminal cases. We also obtained data on

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the apps available on Criminal Investigation Division special agent mobile phones to determine whether
the available apps were consistent with collection and retention practices that would facilitate
discovery. We did not find unauthorized communication apps on special agents' mobile phones.

Prior Reports

There are no prior EPA OIG reports related to the EPA's adherence to criminal discovery requirements.
Two reports issued by the Department of Justice OIG identified risks to federal prosecutors' ability to
fulfill the government's discovery obligations. The reports are:

• The Handling of Sexual Harassment and Misconduct Allegations by the Department's Law
Enforcement Components, Department of Justice OIG Evaluation and Inspections Division, 15-04.
March 2015. The Department of Justice OIG found that investigators relied on the discretion of
law enforcement employees involved in the investigation, or law enforcement witnesses, to
provide text messages that may have been important evidence in their investigations. Because
investigators allowed law enforcement witnesses to independently determine what texts were
relevant to the investigation without further oversight or review, the Department of Justice OIG
concluded that there was a risk that an employee might not provide all relevant material.
Additionally, the agency's inability to archive text messages presented a risk that the
government may be hampered in its ability to fulfill discovery obligations.

• Audit of the Roles and Responsibilities of the Federal Bureau of Investigation's Office of the
General Counsel in National Security Matters, 22-116. September 2022. The Department of
Justice OIG identified instances of ineffective coordination among various branches and
divisions, including in discovery matters that were the responsibility of the prosecuting attorney.
The report recommended that the Office of the Deputy Attorney General evaluate guidance for
areas of overlap and that the guidance clearly define and delegate the authority to the
appropriate entity, especially in areas related to prosecutorial decision-making.

Results

In the seven cases we reviewed, we did not identify any specific circumstances where OCEFT did not
adhere to criminal discovery requirements. OCEFT has developed policies and procedures governing the
collection, retention, and production of information and items gathered through its investigative
processes that address essential elements of the government's discovery obligations. These essential
elements of discovery include the government's obligation to disclose exculpatory and impeachment
information. Further, OCEFT personnel indicated familiarity with key policies and procedures to help
meet discovery obligations. However, in some circumstances, special agents did not have a full
understanding of investigative policies and procedures, and OCEFT could enhance employee awareness
through additional training and emphasis on best practices that would further reduce risks of not
meeting discovery requirements.

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OCEFT Policies and Procedures Address Essential Elements of Discovery

OCEFT's policies and procedures governing the collection, retention, and production of information and
evidence gathered through its investigative processes incorporate essential elements of the
government's discovery obligations and provide mechanisms for special agents to collect, retain, and
produce potentially discoverable materials to prosecutors. OCEFT has a Criminal Discovery directive and
a Procedure to Implement OCEFT and DOJ Discovery Policies that provide OCEFT's discovery policy, steps
to satisfy the government's discovery obligations, and best-practice recommendations for managing
potentially discoverable information. Additionally, OCEFT has policies and procedures related to the
following various aspects of the investigative process that help facilitate compliance with discovery
obligations, though their purposes may not be directly tied to discovery:

• Investigative process. • Information technology.

• Investigative reports. • Forensic support.

• Interviews. • Computer and digital evidence.

• Evidence handling. • Consensual monitoring.

• Search and seizure.

OCEFT's policies and procedures reference the government's legal and statutory discovery
requirements, in addition to the Department of Justice's discovery policies, and remind special agents of
prosecutors' responsibility to fulfill discovery obligations. For example, OCEFT's Criminal Discovery
directive incorporates the key criteria establishing the government's discovery obligations, including the
due process clause of the Fifth Amendment to the U.S. Constitution; case law in Brady v. Maryland
Giglio v. United States, and their progeny; Rules 16 and 26.2 of the Federal Rules of Criminal Procedure;
and the Jencks Act. Additionally, OCEFT's Criminal Discovery directive advises OCEFT personnel to follow
the U.S. Justice Manual 9-5.000 policies, which recommend producing discovery broader than the law
requires. Several of OCEFT's policies and procedures have passed their review time frame, however, and
reviews of these policies and procedures by OCEFT's Professional Integrity and Quality Assurance group
could determine whether any revisions or updates are necessary.

The following sections address elements of OCEFT's policies and procedures related to the collection,
retention, and production of criminal discovery materials.

Collection

Elements of OCEFT's policies and procedures address the collection of information and evidence during
criminal investigations to help the government fulfill its discovery obligations. For example, OCEFT's
Criminal Discovery directive addresses the prevalence of electronic correspondence and communications
and requires OCEFT personnel to familiarize themselves with and implement the Justice Manual's
"Guidance on the Use, Preservation, and Disclosure of Electronic Communications in Federal Criminal
Cases," and other Department of Justice guidance. Four of the five special agents we interviewed said
that they frequently correspond and coordinate with the prosecution team and other involved parties to
collect and retain documents and physical evidence. The Criminal Discovery directive states that OCEFT

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employees should treat electronic correspondence the same as written correspondence, that is, being
aware that a written record of potentially discoverable material is being created when communicating
electronically. Additionally, OCEFT's Information Technology Procedure prohibits the use of available chat
platforms for any substantive investigatory discussions, reducing the risk of OCEFT personnel
inadvertently creating discoverable correspondence using an Agency chat platform.

Key terminology reminder

For the purposes of this report, our working definition of "collection" comprises the processes for
developing and obtaining information and evidence relevant to an investigation. This can include the
various methods and procedures used for investigative interviewing; case-related electronic
correspondence; obtaining forensic, physical, and digitally recorded evidence; obtaining regulatory
records; and obtaining seized, detained, or abandoned property.

All five special agents said interviewing is the most common tool they use to collect investigative
information. OCEFT's Interviews procedure provides detailed guidance on conducting interviews, the
role of the special agent, note taking, and obtaining witness statements. Additionally, the procedure
provides information alerting OCEFT personnel that items such as notes taken during an interview may
need to be produced in discovery.

Retention

Elements of OCEFT's policies and procedures address the retention of potentially discoverable
information and evidence, including processes for documenting, organizing, and preserving information
and evidence during criminal investigations. For example, OCEFT's Criminal Discovery directive and
Procedure to Implement OCEFT and DOJ Discovery Policies include guidance for cataloging information
collected during investigations and storing electronic documents. OCEFT's Investigative Reports Policy
underscores the importance of documenting investigative activities. For example, the policy states that
"[a] special agent's ability to precisely record how the evidence was developed, obtained, and processed
is second only to skill in obtaining evidence." The policy describes how to prepare reports to document
criminal investigations and the significance of investigative reports under discovery authorities, including
the Federal Rules of Criminal Procedure, the Jencks Act, and Brady Doctrine.

Key terminology reminder

For the purposes of this report, our working definition of "retention" comprises the processes and
systems used for documenting, organizing, and preserving information and evidence in possession
of the Agency for the purpose of criminal discovery. This can include the methods and procedures
used for preserving case-related electronic correspondence; witness statements; physical, forensic,
and digitally recorded evidence; interview notes; grand jury items; and seized, detained, or
abandoned property. This can also include Agency systems or databases used for storing and
managing case records.

OCEFT's Interviews procedure explains the importance of preserving all original interview notes for the
purpose of discovery. The procedure states:

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Redacted

witness's testimony differ from the information provided during the interview, the
recollection of the Special Agent supported by his/her notes can influence the finder
of fact as to the truth. Notes taken on scrap paper or in a disorganized manner do not
reflect well upon the Special Agent or upon OCEFT and can harm a case.

OCEFT's Evidence Handling policy provides processes to receive, document, handle, and track evidence
to ensure that it is properly produced during discovery and that it may be introduced as legally
admissible evidence in a criminal enforcement proceeding. The policy includes retention procedures for
various types of evidence commonly coming into custody, including regulatory records; physical
evidence and samples; abandoned, detained, and seized property; grand jury items; weapons; and
digitally recorded evidence and photographs. Further, the policy describes the importance of evidence
retention processes in the context of discovery. For example, the policy advises OCEFT personnel to
retain all investigative photography as evidence "because it is not possible ... to determine during the
investigation which captured image may be introduced into evidence by the prosecutor."

Regarding retention of email correspondence for the purpose of discovery, OCEFT's Information
Technology Procedure and Procedure to Implement OCEFT and DOJ Discovery Policies require that each
substantive case-related email communication or electronic record be stored in an appropriately named
email folder or a hard drive. This process of moving responsive communications into an email folder is
referred to as "foldering." When a prosecutor requests applicable emails from identified OCEFT
personnel as part of discovery, the Information Technology Procedure advises the special agent to
produce the complete set of their foldered emails. When a prosecutor requests applicable emails from
EPA personnel external to OCEFT, the procedure authorizes a designated OCEFT employee to provide
search parameters to the EPA's e-discovery service to collect applicable emails for production to the
prosecutor.

OCEFT's Information Technology Procedure addresses potential discovery questions for collaborative
files that are created and stored with available Agency applications. The procedure designates a
custodian for collaborative files created using these applications; this reduces the risk of the EPA
inadvertently producing multiple draft documents to a prosecutor that may contain inconsistent
information.

Production

Elements of OCEFT's policies and procedures address the production of materials to prosecutors for the
purpose of discovery. Importantly, OCEFT's Criminal Discovery directive stresses that special agents must

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ensure that the prosecutor has access to all relevant Agency information to review for final disclosure
determinations. Additionally, OCEFT's Procedure to Implement OCEFT and DOJ Discovery Policies
provides a detailed "Discovery Checklist/' which includes a series of questions that special agents and
regional criminal enforcement counsel should discuss with the prosecutor to prompt them to think
about all sources of potentially discoverable information. In noting that the checklist is not exhaustive
and the prosecutor may decide some materials do or do not need to be collected, the procedure states
that "[t]he prosecutor will also be better informed to determine whether formal written discovery
instructions need to be sent to particular entities to ensure appropriate production."

Key terminology reminder

For the purposes of this report, our working definition of "production" comprises the processes and
procedures used to (1) search for and gather potentially discoverable information and evidence in
possession of the Agency for prosecutorial review and (2) physically and electronically provide
criminal discovery materials to the prosecutor.

OCEFT's Procedure to Implement OCEFT and DOJ Discovery Policies includes processes for preparing
information and producing evidence to the prosecutor. OCEFT's Information Technology Procedure
describes the process of sending and receiving files using the EPA's secure file transfer protocol service
and includes the file transfer support contact information. Furthermore, OCEFT's Procedure to
Implement OCEFT and DOJ Discovery Policies advises special agents to consult the Criminal Investigation
Division's criminal litigation support coordinator on how to stay organized, review documents, and
produce documents to prosecutors. It also advises special agents to err on the side of disclosure when
there is a question about discoverability of any piece of information or evidence. The procedure states
that "if the employee is unsure about the discoverability of any piece of evidence or information under
Rule 16 or Brady/Giglio, he/she should make the prosecutor aware of the information so that the
prosecutor can make the ultimate legal judgment regarding its disclosure to the defendant."

Additionally, OCEFT's Criminal Discovery directive includes the procedure for responding to Department
of Justice requests for review of OCEFT employee personnel files for impeachment, or Giglio
information. The directive details the obligations of the witness in disclosing relevant information, as
well as responsibilities for the Agency official in responding to such requests when the EPA is the lead
investigatory office. The process includes identifying and gathering all relevant information for the
employee-witness. Such information includes:

•	Individual personnel files and the official records controlled by the EPA Office of Human
Resources.

•	Any files controlled by either the OIG or OCEFT in which the employee-witness is or has been
the focus of an investigation or internal review.

According to the OCEFT Criminal Discovery directive, OCEFT's Legal Counsel Division will provide
"analysis and advice" when there is uncertainty as to whether information is of potential impeachment

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value. The directive goes on to state, however, that uncertainty over whether information has
impeachment value "should be resolved in favor of disclosure to the requesting official."

OCEFT policies and procedures also provide production guidance on specific types of evidence. For
instance, regarding the production of investigative photography to prosecutors, OCEFT's Evidence
Handling Policy advises special agents to:

[C]onfer with the assigned prosecutor and [regional criminal enforcement counsel] to
ensure that they are aware of any images not on a working copy that may have been
previously provided to the prosecutor so they may make an informed decision as to
whether to turn over the additional images. Any decisions related to discovery are to
be made by the prosecutor and not the Special Agent.

OCEFT Personnel Followed Processes to Help Meet Discovery Requirements,
but Risks Exist

Based on discussions with OCEFT staff and special agents, we did not identify any circumstances where
OCEFT employees' collection, retention, and production of potentially discoverable materials failed to
meet discovery requirements. Moreover, information we obtained provided reasonable assurance that
OCEFT personnel generally followed investigative processes to help ensure that they met discovery
obligations. This included:

• Practices described by OCEFT employees and EPA regional criminal enforcement counsels.

• Internal controls incorporated into OCEFT's investigative process.

• Anecdotal information for seven closed criminal cases in which EPA personnel served on the
prosecution team.

However, we identified instances which presented risks to the EPA in meeting the government's
discovery obligations. For instance, not all special agents we interviewed were aware of OCEFT's
updated Criminal Discovery directive. Moreover, while all special agents considered it their duty to
provide all investigative information to prosecutors to ensure compliance with discovery requirements,
all special agents were not familiar with some of the specific underlying requirements that establish the
government's discovery obligations. For example, one special agent mischaracterized the meaning of
"exculpatory information" during our interview.2 Additionally, none of the special agents demonstrated
an understanding of the specific requirements of the Jencks Act, which requires the government to
produce prior statements from a witness testifying at trial.

Aside from new special agent basic investigation training, the special agents we interviewed did not
identify any regular discovery training in which they participate. The special agents said that they

2 All five special agents described a duty to produce all investigatory information to a prosecutor, which would
encompass exculpatory and impeachment information. However, one special agent mischaracterized the meaning
of "exculpatory information" during our interview.

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periodically receive discovery updates from OCEFT and regional counsel, as well as assistant U.S.
attorneys. When employees are not fully aware of applicable legal requirements, or of policies and
procedures that govern OCEFT's investigative process, there is risk to OCEFT's ability to successfully
pursue criminal violations of environmental laws.

Practices Described Were Generally Consistent with Investigative Process;

Some Risks Identified

Four of five special agents we spoke to demonstrated an understanding of their obligations to produce
exculpatory and impeachment information to prosecutors during discovery, as mandated by authorities
including Brady and Giglio. All five special agents said that they disclose all case-related information to
prosecutors regardless of potential inadmissibility of evidence. Two of the five special agents said that
they may offer input on how they would characterize certain information for prosecutors, that is,
identifying information as discoverable versus potentially privileged or nondiscoverable, but also said
that they would not withhold any information from prosecutors based upon their characterization of the
information. These two special agents said EPA attorneys may help review and characterize information
prior to production to the prosecutor.

Although the determination as to what information the prosecution team deems discoverable lies with
the prosecutor, one special agent reported withholding operational plans as part of production to the
prosecutor on a case.3 The special agent considered these plans a government work product and thus
not subject to discovery. While government work products may be protected from disclosure under the
Federal Rules of Criminal Procedure, the prosecutor has the ultimate responsibility to decide what
material the prosecution team believes is discoverable. In this circumstance, the special agent did not
allow the prosecutor the opportunity to determine disclosure, which creates a risk of discoverable
material not being produced during a criminal proceeding.

Special agents described various ways they retain case-related information during an investigation that
aligned with guidance included in OCEFT policies and procedures, as follows:

•	Special agents described storing physical or documentary evidence in a secured location and
tracked with chain of custody forms. Their descriptions were consistent with processes included
in OCEFT's Evidence Handling policy.

•	Special agents stated that they prepare investigative activity reports to document and
memorialize criminal investigative activities and retain these reports in OCEFT's electronic case
management system. Their descriptions were consistent with processes included in OCEFT's
Investigative Reports Policy.

3 In response to our draft report, OCEFT said that "[p]rosecutors know that [operational plans] exist but do not
expect them to be produced in discovery because such documents relate to safety issues surrounding law
enforcement operations rather than the subject matter of the investigation." We did not verify OCEFT's position
with the Department of Justice. As noted in the report, the prosecutor has the ultimate responsibility to decide
what material the prosecution team believes is discoverable.

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• Special agents told us that they maintain a hard-copy case file for any handwritten notes,
working documents, or other documents that are not tracked with a chain of custody form or
maintained in an electronic case management system. Their descriptions were consistent with
processes in OCEFT's Interviews procedure and Procedure to Implement OCEFT and DOJ
Discovery Policies.

• Special agents told us that they use email foldering to retain case-related email correspondence.
Foldering case-related emails is a process recommended in OCEFT's Procedure to Implement
OCEFT and DOJ Discovery Policies and Information Technology Procedure.

All five special agents said that they prepare investigative activity reports to document work undertaken
on a case and retain the reports in OCEFT's electronic case management system. The special agents'
descriptions of investigative activity report preparation were consistent with OCEFT's Investigative
Reports Policy. These special agents said that the reports summarize all facts and results of investigative
activities, attach supporting files, and document where supporting files and evidence are retained—for
example, hard-copy case files, evidence room, or outside of the electronic case management system.
During production to the prosecutor, all five special agents said that they download all case files and
attachments from the electronic case management system and provide them to prosecutors as an
external hard drive or disc. However, four of five special agents said that not all digital files can be stored
in OCEFT's electronic case management system because of file size limitations. If a file is too large to
attach to reports in the electronic case management system, special agents said that the file is stored in
evidence, referenced in the investigative activity report, and tracked with a chain of custody form. The
special agents' descriptions for handling such files were consistent with processes included in OCEFT's
Investigative Process policy. Additionally, all five special agents demonstrated an understanding of
retention procedures for case-related electronic correspondence, such as emails, text messages, and
instant messages, as described in OCEFT's Procedure to Implement OCEFT and DOJ Discovery Policies and
Information Technology Procedure. For example, special agents said that they retained substantive case-
related email correspondence in folders and subfolders to assist prosecutors' review for discoverable
information. Four of five special agents indicated to us that little-to-no case-related text messages were
generated on their investigations,4 and all five special agents said that they did not use instant messages
for case-related communications. An attorney serving as regional criminal enforcement counsel told us
that he advises special agents to avoid generating substantive information in emails, texts, or instant
messages. Limiting electronic correspondence can reduce the risk of creating discoverable
correspondence, which would need to be produced in discovery but may be difficult to retain.

All five special agents said that interviewing is the most common investigative tool they use to collect
information and evidence during criminal investigations. All said that they retain handwritten notes

4 For one case, the special agent said that he took screenshots of case-related text messages, prepared
investigative activities reports, and attached screenshots of the text messages to the investigative activity reports.
This process was consistent with the best-practice recommendations for retention of electronic correspondence
included in OCEFT's Procedure to Implement OCEFT and DOJ Discovery Policies and Information Technology
Procedure.

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from investigative interviews in their hard-copy case files. The special agents' descriptions of their
practices were consistent with OCEFT's Interviews procedure. However, two of five special agents said
that they only produce hard-copy interview notes to a prosecutor when the prosecutor specifically
requests them. In some instances, information in special agent notes, or even the notes themselves,
may be discoverable and require production. According to a deputy section chief at the Department of
Justice, ensuring that special agents produce hard-copy notes can sometimes be a challenge in the
discovery process because prosecutors may forget to request interview notes. Because the deputy chief
cited this as a challenge, it may be helpful for special agents to automatically produce interview notes to
prosecutors, reducing any risk of the prosecutor not being made aware of any notes containing
discoverable information. Two of five special agents said that they scan and upload handwritten
interview notes to OCEFT's electronic case management system. Incorporating this as standard practice
may reduce the risk of inadvertently failing to produce potentially discoverable materials if a prosecutor
does not request interview notes.

All five special agents described retention procedures for digitally recorded evidence that aligned with
OCEFT's Evidence Handling policy, that is, transferring digital recordings to a "write-once" optical media,
such as a CD-R or DVD-R. Additionally, four of five special agents said that they never use personal
devices for investigative activities. However, two special agents described instances that were not
consistent with OCEFT policies and procedures:

•	One special agent reported transcribing a voicemail containing case-related information and
preparing an investigative activity report with that transcription instead of creating and
retaining a digital recording of the voicemail as directed in OCEFT procedures. OCEFT's
Procedure to Implement OCEFT and DOJ Discovery Policies directs special agents to:

(1) record both the voicemail and the envelope information available
on the voicemail system that provides the date and time that the
voicemail was received, (2) write an [Investigative Activity Report]
describing the circumstances of the voicemail and the method used
to preserve it, (3) list the electronic audio file as an attachment to the
[Investigative Activity Report], and (4) store the [Investigative Activity
Report] and attached audio file in the appropriate file folder related
to the case on the secure hard drive or official case file.

•	Another special agent reported using a personal digital camera to take pictures for
investigations because the special agent said it is better than what the Agency has for taking
digital photographs. According to OCEFT's policy, Evidence Handling, "[e]very effort should be
made to avoid the use of personal digital image capture devices."

The failure to preserve a digital recording of a voicemail with case-related information and the use of a
personal digital camera to collect evidence introduce risks to achieving OCEFT's Evidence Handling
policy, which is:

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[T]o properly receive, document, handle and track obtained evidence to ensure that
it: 1) is properly produced, if required, during the discovery phase of a criminal
enforcement proceeding; 2) may be introduced as legally admissible evidence in a
criminal enforcement proceeding; and 3) is properly handled or disposed of following
the conclusion of a criminal investigation and/or prosecution.

Processes Include Internal Controls to Aid Discovery; Some Risks Identified

OCEFT has established internal controls that aid in the collection, retention, and production of

investigative information meeting discovery requirements. These include:

•	Supervisory review and approval. The collection of investigative information includes steps for
special agents in charge, who have supervisory responsibilities over certain investigative
activities, to review and approve operational plans. Additionally, investigative activities to obtain
physical evidence via a search warrant typically involve review and input from special agents in
charge and regional criminal enforcement counsel, as well as approval from a prosecutor. Also,
either special agents in charge or assistant special agents in charge review and approve each
investigative activity report.

•	Inspections by OCEFT's Professional Integrity and Quality Assurance group. OCEFT's Professional
Integrity and Quality Assurance group is charged with ensuring that OCEFT employees,
particularly law enforcement personnel and managers, adhere to the highest levels of integrity
and professionalism as expected by the Agency and the public. The group's Office Inspection
Program has two components: (1) Office Self Inspections, in which the office's special agent in
charge assesses operations using a standard procedure and (2) Office Verification Inspections, in
which the Professional Integrity and Quality Assurance group ensures the accuracy of the office
self-inspection, identifies and addresses issues, and identifies best practices for dissemination
across OCEFT. Four of six business functions included in the Professional Integrity and Quality
Assurance group's Office Inspection Program Manual address elements of collection, retention,
and production of criminal discovery. For instance, inspections assess adherence to OCEFT's
Criminal Discovery directive on requests for Giglio review of special agents' files. The Office
Inspection Program Manual also requires supervisors to describe how they ensure staff adhere
to relevant laws, regulations, standards, and directives that govern OCEFT and Criminal
Investigation Division operations. Further, inspections assess office liaison efforts with external
stakeholders, such as prosecuting authorities and enforcement agencies, state and local
environmental regulators and management programs, regional management, program offices,
and civil enforcement programs. Proactive liaison efforts may facilitate coordination for future
discovery efforts. All five special agents we interviewed said that it is their responsibility to
coordinate with entities outside of OCEFT and ensure that evidence held by outside entities is
produced to prosecutors. Upon completion of the inspection process, the Professional Integrity
and Quality Assurance group issues a report with action items to which the special agent in
charge must respond; the group then follows up on high-priority action items.

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• Regional enforcement counsel review. OCEFT assigns a regional criminal enforcement counsel to
every case to review case information and provide legal guidance to special agents during
investigations. According to attorneys we spoke to, regional criminal enforcement counsel may
also review information the Agency has collected to determine whether certain information may
be characterized as privileged information. OCEFT's Investigative Process policy states that
special agents should consult with the assigned regional criminal enforcement counsel
throughout all stages of the investigations process. In some instances, regional criminal
enforcement counsel may be appointed to practice in federal court as a special assistant

U.S. attorney.

• Past U.S. Attorney's Office experience and ongoing litigation support. Five of six attorneys we
interviewed said that they had experience as special assistant U.S. attorneys. Special assistant
U.S. attorneys act as a prosecutor on a federal criminal case and, according to an EPA attorney
we spoke to, are subject to Department of Justice policies and procedures, including the criminal
discovery policies in the Justice Manual. Because several regional criminal enforcement counsel
have experience in this role, they are uniquely qualified to advise OCEFT personnel on satisfying
discovery requirements. Additionally, OCEFT has established a criminal litigation support
coordinator role with responsibilities to aid special agents in production of information. These
coordinators have an advisory role in the discovery process that, according to OCEFT's
Procedure to Implement OCEFT and DOJ Discovery Policies, includes "advis[ing] a Special Agent
on how to stay organized, review documents, and produce documents." Additionally, the
criminal litigation support coordinator can aid special agents in preparing file formats for data
and documents that need to be uploaded to the EPA or Department of Justice information-
sharing platforms and that are then reviewed for discovery purposes.

Despite the range of internal controls OCEFT has in place, risks remain. For example, not all special
agents use the resources available to them. Four of the five special agents we spoke to said that they did
not consult with the criminal litigation support coordinator on the cases that we asked about.

Improvements to existing controls could further reduce risks of not meeting discovery requirements. For
example, only two of the five special agents we interviewed said that they take steps to document
production of case-related information to a prosecutor. One special agent reported preparing a letter to
the prosecutor with a list of all files and information produced to the prosecutor for the case, and
another reported preparing a disk with all electronic files produced to the prosecutor, then copying the
disk for Agency documentation of what was provided to the prosecutor. While all special agents said
chain of custody forms are updated to reflect physical evidence sent to a prosecutor, not all
discoverable information may be tracked with chain of custody forms. For example, production of
investigative activity reports, case-related email communications, and handwritten interview notes may
not be documented. Without a record of what was produced to a prosecutor, the Agency may be unable
to prove what it produced, and when it was produced, during criminal cases.

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No Discovery Concerns Raised on Cases Discussed with Special Agents

We asked special agents and regional criminal enforcement counsel about processes used to collect,
retain, and produce information on seven closed criminal cases that were investigated by the EPA and
went to trial over the last seven years. None described any problems in producing discovery for these
seven cases or any discovery issues raised during the trials. For one case, the regional criminal
enforcement counsel said that a state inspector found photographs relevant to the case just before the
trial began, but the relevant materials were brought forth before the trial and were appropriately
disclosed to the prosecutor once they were identified, thus satisfying discovery obligations.

Conclusions

Strengthening EPA discovery policies and procedures can promote efficient and effective criminal
prosecution, ensure that defendants receive fair trials, and minimize the risks of overturned convictions
or potential costs associated with having to retry a case because of discovery violations. While we did
not identify any specific circumstances where OCEFT failed to adhere to criminal discovery
requirements, OCEFT has opportunities to strengthen its processes and further reduce risks of not
fulfilling discovery obligations.

Recommendations

We recommend that the assistant administrator for Enforcement and Compliance Assurance:

1.	Review Office of Criminal Enforcement, Forensics and Training policies and procedures to
determine whether updates are needed to improve processes, including best practices.

2.	Provide periodic training to EPA employees that may serve on a prosecution team to promote
awareness and adherence to discovery requirements and investigative policies and procedures.

Agency Response and OIG Assessment

Appendix B contains the Office of Enforcement and Compliance Assurance's response to our draft
report. The Office of Enforcement and Compliance Assurance also provided technical comments, which
we considered and incorporated, as appropriate, when we finalized this report.

The Office of Enforcement and Compliance Assurance agreed with our recommendations and provided
acceptable planned corrective actions and estimated completion dates. Specifically, for
Recommendation 1, the Office of Enforcement and Compliance Assurance stated that it will review
OCEFT policies and procedures to determine whether updates are needed to improve processes,
including the identification of best practices. For Recommendation 2, the office stated that it will
provide mandatory officewide training on discovery requirements, policies, and procedures annually
beginning in 2024. The proposed corrective actions satisfy the intent of Recommendations 1 and 2.
Therefore, we consider the recommendations resolved with corrective actions pending.

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Status of Recommendations

Rec.

Page







Planned

No.

No.

Recommendation

Status*

Action Official

Completion Date

18

18

Review Office of Criminal Enforcement, Forensics and Training policies and
procedures to determine whether updates are needed to improve
processes, including best practices.

Provide periodic training to EPA employees that may serve on a
prosecution team to promote awareness and adherence to discovery
requirements and investigative policies and procedures.

Assistant Administrator 4/1/24
for Enforcement and
Compliance Assurance

Assistant Administrator 12/31/24
for Enforcement and
Compliance Assurance

* C = Corrective action completed.

R = Recommendation resolved with corrective action pending.
U = Recommendation unresolved with resolution efforts in progress.

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Appendix A

Key OCEFT Policies and Procedures Related to the
Collection, Retention, and Production of Investigatory

Information and Evidence

OCEFT policy or procedure

Effective date

Review period or date

Information in policy or
procedure relates to:

OCEFT-l-010, Computer & Digital
Evidence

6/29/12

Review date: 6/30/14

Collection

OCEFT-l-011, Consensual
Monitoring of Verbal
Communications

6/29/12

Review date: 6/30/14

Collection, Retention

OCEFT-l-004, Interviews

6/29/12

Review date: 6/30/15

Collection, Retention,
Production

OCEFT-l-006, Search and
Seizure

6/29/12

Review date: 6/30/15

Collection, Retention,
Production

OCEFT-l-007, Evidence Handling

6/29/12

Review date: 6/30/14

Collection, Retention,
Production

OCEFT-l-003, Investigative
Reports Policy

6/30/12

Review date: 6/30/14

Collection, Retention

OCEFT-I-002R1, Investigative
Process

9/30/15

Review period: every
three years

Collection, Retention,
Production

OCEFT-I-009R1, Environmental
Forensic Support for Criminal
Investigations

10/22/21

Review period: every
five years

Collection, Retention,
Production

OCEFT-I-008R3, Criminal
Discovery

8/30/22

Review period: every
five years

Collection, Retention,
Production

OCEFTPROC-2022-1, Procedure
to Implement OCEFT and DOJ
Discovery Policies

8/30/22



Retention, Production

OCEFTPROC-2022-2,
Information Technology
Procedure

8/30/22



Collection, Retention,
Production

Source: OIG summary of OCEFT policies and procedures. (EPA OIG table)

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Appendix B

Agency Response to the Draft Report

ASSISTANT ADMINISTRATOR FOR ENFORCEMENT AND COMPLIANCE ASSURANCE

WASHINGTON, D.C. 20460

December 15, 2023

MEMORANDUM

SUBJECT: Response to Office of Inspector General Draft Report: "The Office of Criminal

Enforcement, Forensics and Training Incorporated Essential Discovery Elements into Its
Policies and Procedures, but Additional Training Could Improve Awareness," Project No.
OSRE-FY22-0145

FROM: David M. Uhlmann

TO: Patrick Gilbride

Director of Implementation, Execution, and Enforcement Directorate
Office of Special Review and Evaluation

The Office of Enforcement and Compliance Assurance (OECA) appreciates the opportunity to
respond to the findings and recommendations in the Office of Inspector General (OIG) Draft
Report: The Office of Criminal Enforcement, Forensics and Training Incorporated Essential
Discovery Elements into Its Policies and Procedures, but Additional Training Could Improve
Awareness (Project No. OSRE-FY22-0145) (Draft Report), which the Office of Inspector General
provided to us on November 16.

OECA concurs with the Draft Report's conclusions. I am pleased that OIG's evaluation of
discovery policies and practices within the Agency's criminal enforcement program identified
no instances of non-compliance with governing legal requirements. We have attached technical
comments that include some minor corrections, using the template OIG provided, but OECA
does not have any significant concerns with the accuracy of the Draft Report.

1^2

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OECA also concurs with the Draft Report's recommendations. We welcome the
recommendation that we provide additional training to enhance awareness given the
importance of our discovery obligations.

OECA appreciates the opportunity to work collaboratively with the OIG to ensure that the
Agency's criminal enforcement program is in full compliance with all discovery-related laws and
policies, and to minimize future risks of noncompliance with these important legal duties.

If you have questions about OECA's response or would like additional information, please
contact OECA's Audit Follow Up Coordinator, Gwendolyn Spriggs, spriggs.gwendolyn@epa.gov.

Table of Corrective Actions

Rec#

OIG Report
Recommendations

Corrective Actions

Completion Dates

Review Office of Criminal
Enforcement, Forensics
and Training policies and
procedures to determine
whether updates are
needed to improve
processes, including best
practices.

OECA concurs with this recommendation and will
review OCEFT policies and procedures to determine
whether updates are needed to improve processes
(including best practices).

April 1, 2024

Provide periodic training
to EPA employees that
may serve on a
prosecution team to
promote awareness and
adherence to discovery
requirements and
investigative policies and
procedures.

OECA concurs with this recommendation and will
provide mandatory office-wide live virtual training
on discovery requirements, policies, and
procedures annually beginning in CY 2024.

December 31, 2024

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Appendix C

Distribution

Administrator

Deputy Administrator

Chief of Staff, Office of the Administrator

Deputy Chief of Staff for Management, Office of the Administrator
Assistant Administrator for Enforcement and Compliance Assurance
Agency Follow-Up Official (the CFO)

Agency Follow-Up Coordinator
General Counsel

Associate Administrator for Congressional and Intergovernmental Relations
Associate Administrator for Public Affairs

Principal Deputy Assistant Administrator for Enforcement and Compliance Assurance
Deputy Assistant Administrator for Enforcement and Compliance Assurance
Director, Office of Continuous Improvement, Office of the Chief Financial Officer
Director, Office of Criminal Enforcement, Forensics and Training, Office of Enforcement and

Compliance Assurance
Office of Policy, OIG Liaison
Office of Policy, GAO Liaison

Audit Follow-Up Coordinator, Office of the Administrator

Audit Follow-Up Coordinator, Office of Enforcement and Compliance Assurance

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Whistleblower Protection

U.S. Environmental Protection Agency
The whistleblower protection coordinator's role
is to educate Agency employees about
prohibitions against retaliation for protected
disclosures and the rights and remedies against
retaliation. For more information, please visit
the OIG's whistleblower protection webpage.

Contact us:

Congressional Inquiries: OIG.CongressionalAffairs(5)epa.gov

Media Inquiries: OIG.PublicAffairs@epa.gov
une EPAOIG Hotline: OIG.Hotline@epa,gov

m Web: epaoig.gov

Follow us:

X (formerly Twitter): (a>epaoig

(to) Linkedln: linkedin.com/company/epa-oig
YouTube: voutube.com/epaoig

[0] Instagram: @epa.ig.on.ig

HfJat

www.epaoig.gov

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