On April 17, 2024, the Environmental Protection Agency ("EPA") issued a Civil-Criminal Enforcement Coordination Policy ("Policy") that requires EPA's civil and criminal enforcement offices to collaborate throughout the planning and enforcement process. This Policy, which is effective immediately, emphasizes EPA's new approach to maintaining and strengthening the partnership between civil and criminal enforcement in an effort to provide clarity and consistency to those involved in the enforcement process.
The Policy changes EPA's previous approach to its enforcement program, which it states had "grown beyond a bifurcated approach, where its civil and criminal enforcement programs were only loosely connected." In recent years, EPA has improved communication and coordination between its civil and criminal enforcement offices, "which has led to better case screening and more consistent enforcement responses across regions." Now, to promote "collaborative strategic planning and ensure that EPA exercises its enforcement discretion fairly and consistently," the Policy requires the following measures:
- Increased collaboration between the civil and criminal enforcement programs on the development and implementation of EPA's national and regional priorities, including the National Enforcement and Compliance Initiatives ("NECIs") and regional strategic plans;
- Enhanced case screening to promote fairness and consistency and robust discussion of what enforcement option should be utilized to address violations, including whether parallel proceedings should be initiated, and continued coordination throughout each enforcement action to ensure those initial case choices protect public health and the environment;
- Improved case management through enhanced tracking of case screening that promotes information sharing about violations and ensures ready access to compliance histories and case developments, while maintaining enforcement confidentiality; and
- Updated training programs to ensure effective partnership between civil and criminal enforcement offices that include the requirements of this Policy, factors to consider in deciding whether to pursue criminal, civil, or administrative enforcement, and best practices for managing information sharing and parallel proceedings to prevent case delays.
For initial screenings to be as efficient and effective as possible, the Policy provides that each enforcement program "must determine in advance which matters need to be screened by both programs." That is, the civil enforcement program must be alert to civil matters that may include criminal conduct, such as those presenting "evidence of falsification of data." The criminal enforcement program must also be alert to situations when civil enforcement may be appropriate, such as when "there is insufficient evidence of criminal mental state." Moreover, after initial case screening, the Policy provides that civil and criminal enforcement offices must continue to coordinate throughout the existence of any resulting enforcement action, with the goal of having "a clear direction in the first year about how the action will be handled so that most judicial cases, to the extent circumstances allow, will be filed, charged, or concluded within two to three years—and within 12 to 18 months for administrative matters."
The Policy lists five factors to consider when identifying whether a matter should be subject to civil-criminal enforcement screening and engagement:
- How significant are the violation(s)?
- What is the harm/risk of harm? Or potential harm?
- What type of culpability is involved?
- Is there evidence of willful, knowing, or negligent conduct; willful blindness or deliberate ignorance; or negligence that rises to a criminal level?
- What is the compliance history for the alleged violator(s)?
- Prior EPA inspections, information requests, compliance orders, penalties, etc.?
- How would you characterize the sophistication and company size
of the alleged violator(s)?
- What is the evidence of management involvement? Economic benefit?
- Does the matter involve a national or regional strategic
priority?
- Part of a national enforcement and compliance initiative?
Parties who are potentially subject to EPA enforcement action should review the Policy to determine its scope and understand the approach it sets forth for identifying which matters should be subject to civil and criminal enforcement screening and engagement.
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