FACTORS IN DECISIONS ON CRIMINAL
PROSECUTIONS FOR ENVIRONMENTAL VIOLATIONS
IN THE CONTEXT OF SIGNIFICANT VOLUNTARY
COMPLIANCE OR DISCLOSURE EFFORTS BY THE VIOLATOR
I. Introduction
It is the policy of the Department of Justice
to encourage self-auditing, self-policing and voluntary disclosure of environmental
violations by the regulated community by indicating that these activities
are viewed as mitigating factors in the Department's exercise of criminal
environmental enforcement discretion. This document is intended to describe
the factors that the Department of Justice considers in deciding whether
to bring a criminal prosecution for a violation of an environmental statute,
so that such prosecutions do not create a disincentive to or undermine
the goal of encouraging critical self-auditing, self-policing, and voluntary
disclosure. It is designed to give federal prosecutors direction concerning
the exercise of prosecutorial discretion in environmental criminal cases
and to ensure that such discretion is exercised consistently nationwide.
It is also intended to give the regulated community a sense of how the
federal government exercises its criminal prosecutorial discretion with
respect to such factors as the defendant's voluntary disclosure of violations,
cooperation with the government in investigating the violations, use of
environmental audits and other procedures to ensure compliance with all
applicable environmental laws and regulations, and use of measures to remedy
expeditiously and completely any violations and the harms caused thereby.
This guidance and the examples contained herein
provide a framework for the determination of whether a particular case
presents the type of circumstances in which lenience would be appropriate.
II. Factors to be Considered
Where the law and evidence would otherwise
be sufficient for prosecution, the attorney for the Department should consider
the factors contained herein, to the extent they are applicable, along
with any other relevant factors, in determining whether and how to prosecute.
It must be emphasized that these are examples of the types of factors which
could be relevant. They do not constitute a definitive recipe or checklist
of requirements. They merely illustrate some of the types of information
which is relevant to our exercise of prosecutorial discretion.
It is unlikely that any one factor will be
dispositive in any given case. All relevant factors are considered and
given the weight deemed appropriate in the particular case. See Federal
Principles of Prosecution (U.S. Dept. of Justice, 1980), Comment to
Part A.2; Part B.3.
A. Voluntary Disclosure
The attorney for the Department should consider
whether the person(1)
made a voluntary, timely and complete disclosure of the matter under investigation.
Consideration should be given to whether the person came forward promptly
after discovering the noncompliance, and to the quantity and quality of
information provided. Particular consideration should be given to whether
the disclosure substantially aided the government's investigatory process,
and whether it occurred before a law enforcement or regulatory authority
(federal, state or local authority) had already obtained knowledge regarding
noncompliance. A disclosure is not considered to be "voluntary" if that
disclosure is already specifically required by law, regulation, or permit.(2)
B. Cooperation
The attorney for the Department should consider
the degree and timeliness of cooperation by the person. Full and prompt
cooperation is essential, whether in the context of a voluntary disclosure
or after the government has independently learned of a violation. Consideration
should be given to the violator's willingness to make all relevant information
(including the complete results of any internal or external investigation
and the names of all potential witnesses) available to government investigators
and prosecutors. Consideration should also be given to the extent and quality
of the violator's assistance to the government's investigation.
C. Preventative Measures and Compliance
Programs
The attorney for the Department should consider
the existence and scope of any regularized, intensive, and comprehensive
environmental compliance program; such a program may include an environmental
compliance or management audit. Particular consideration should be given
to whether the compliance or audit program includes sufficient measures
to identify and prevent future noncompliance, and whether the program was
adopted in good faith in a timely manner.
Compliance programs may vary but the following
questions should be asked in evaluating any program: Was there a strong
institutional policy to comply with all environmental requirements? Had
safeguards beyond those required by existing law been developed and implemented
to prevent noncompliance from occurring? Were there regular procedures,
including internal or external compliance and management audits, to evaluate,
detect, prevent and remedy circumstances like those that led to the noncompliance?
Were there procedures and safeguards to ensure the integrity of any audit
conducted? Did the audit evaluate all sources of pollution (i.e.,
all media), including the possibility of cross-media transfers of pollutants?
Were the auditor's recommendations implemented in a timely fashion? Were
adequate resources committed to the auditing program and to implementing
its recommendations? was environmental compliance a standard by which employee
and corporate departmental performance was judged?
D. Additional Factors Which May Relevant
1. Pervasiveness of Noncompliance
Pervasive noncompliance may indicate systemic
or repeated participation in or condonation of criminal behavior. It may
also indicate the lack of a meaningful compliance program. In evaluating
this factor, the attorney for the Department should consider, among other
things, the number and level of employees participating in the unlawful
activities and the obviousness, seriousness, duration, history, and frequency
of noncompliance.
2. Internal Disciplinary Action
Effective internal disciplinary action is crucial
to any compliance program. The attorney for the Department should consider
whether there was an effective system of discipline for employees who violated
company environmental compliance policies. Did the disciplinary system
establish an awareness in other employees that unlawful conduct would not
be condoned?
3. Subsequent Compliance Efforts
The attorney for the Department should consider
the extent of any efforts to remedy any ongoing noncompliance. The promptness
and completeness of any action taken to remove the source of the noncompliance
and to lessen the environmental harm resulting from the noncompliance should
be considered.
Considerable weight should be given to prompt,
good-faith efforts to reach environmental compliance agreements with federal
or state authorities, or both. Full compliance with such agreements should
be a factor in any decision whether to prosecute.
III. Application of These Factors to Hypothetical
Examples(3)
These examples are intended to assist federal
prosecutors in their exercise of discretion in evaluating environmental
cases. The situations facing prosecutors, of course, present a wide variety
of fact patterns. Therefore, in a given case, some of the criteria may
be satisfied while others may not. Moreover, satisfaction of various criteria
may be a matter of degree. Consequently, the effect of a given mix of factors
also is a matter of degree. In the ideal situation, if a company fully
meets all of the criteria, the result may be a decision not to prosecute
that company criminally. Even if satisfaction of the criteria is not complete,
still the company may benefit in terms of degree of enforcement response
by the government. The following hypothetical examples are intended to
illustrate the operation of these guidelines.
Example 1:
This is the ideal case in terms of criteria
satisfaction and consequent prosecution leniency.
1. Company A regularly conducts a comprehensive
audit of its compliance with environmental requirements.
2. The audit uncovers information about employees'
disposing of hazardous wastes by dumping them in an unpermitted location.
3. An internal company investigation confirms
the audit information. (Depending upon the nature of the audit, this follow-up
investigation may be unnecessary.)
4. Prior to the violations the company had
a sound compliance program, which included clear policies, employee training,
and a hotline for suspected violations.
5. As soon as the company confirms the violations,
it discloses all pertinent information to the appropriate government agency;
it undertakes compliance planning with that agency; and it carries out
satisfactory remediation measures.
6. The company also undertakes to correct any
false information previously submitted to the government in relation to
the violations.
7. Internally the company disciplines the
employees actually involved in the violations, including any supervisor
who was lax in preventing or detecting the activity. Also, the company
reviews its compliance program to determine how the violations slipped
by and corrects the weaknesses found by that review.
8. The company discloses to the government
the names of the employees actually responsible for the violations, and
it cooperates with the government by providing documentation necessary
to the investigation of those persons.
Under these circumstances Company A would
stand a good chance of being favorably considered for prosecutorial leniency,
to the extent of not being criminally prosecuted at all. The degree of
any leniency, however, may turn upon other relevant factors not specifically
dealt with in these guidelines.(4)
Example 2:
At the opposite end of the scale is Company
Z, which meets few of the criteria. The likelihood of prosecutorial leniency,
therefore, is remote. Company Z's circumstances may include any of the
following:
1. Because an employee has threatened to report
a violation to federal authorities, the company is afraid that investigators
may begin looking at it. An audit is undertaken, but it focuses only upon
the particular violation, ignoring the possibility that the violation may
be indicative of widespread activities in the organization.
2. After completing the audit, Company Z reports
the violations discovered to the government.
3. The company had a compliance program, but
it was effectively no more than a collection of paper. No effort is made
to disseminate its content, impress upon employees its significance, train
employees in its application, or oversee its implementation.
4. Even after "discovery" of the violation
the company makes no effort to strengthen its compliance procedures.
5. The company makes no effort to come to terms
with regulators regarding its violations. It resists any remedial work
and refuses to pay any monetary sanctions.
6. Because of the non-compliance, information
submitted to regulators over the years has been materially inaccurate,
painting a substantially false picture of the company's true compliance
situation. The company fails to take any steps to correct that inaccuracy.
7. The company does not cooperate with prosecutors
in identifying those employees (including managers) who actually were involved
in the violation, and it resists disclosure of any documents relating either
to the violations or to the responsible employees.
In these circumstances leniency is unlikely.
The only positive action is the so-called audit, but that was so narrowly
focused as to be of questionable value, and it was undertaken only to head
off a possible criminal investigation. Otherwise, the company demonstrated
no good faith either in terms of compliance
efforts or in assisting the government in obtaining a full understanding
of the violation and discovering its sources.
Nonetheless, these factors do not assure a
criminal prosecution of Company Z. As with Company A, above, other circumstances
may be present which affect the balance struck by prosecutors. For example,
the effect of the violation (because of substance, duration, or amount)
may be such that prosecutors would not consider it to be an appropriate
criminal case. Administrative or civil proceedings may be considered a
more appropriate response.
Other examples:
Between these extremes there is a range of
possibilities. The presence, absence, or degree of any criterion may affect
the prosecution's exercise of discretion. Below are some examples of such
effects:
1. In a situation otherwise similar to that
of Company A, above, Company B performs an audit that is very limited in
scope and probably reflects no more than an effort to avoid prosecution.
Despite that background, Company B is cooperative in terms of both bringing
itself into compliance and providing information regarding the crime and
its perpetrators. The result could be any of a number of outcomes, including
prosecution of a lesser charge or a decision to prosecute the individuals
rather than the company.
2. Again the situation is similar to Company
A's, but Company C refuses to reveal any information regarding the individual
violators. The likelihood of the government's prosecuting the company are
substantially increased.
3. In another situation similar to Company
A's, Company D chooses to "sit on" the audit and take corrective action
without telling the government. The government learns of the situation
months or years after the fact.
A complicating fact here is that environmental
regulatory programs are self policing: they include a substantial number
of reporting requirements. If reports which in fact presented false information
are allowed to stand uncorrected, the reliability of this system is undermined.
They also may lead to adverse and unfair impacts upon other members of
the regulated community. For example, Company D failed to report discharges
of X contaminant into a municipal sewer system, discharges that were terminated
as a result of an audit. The sewer authority, though, knowing only that
there have been excessive loadings of X, but not knowing that Company D
was a source, tightens limitations upon all known sources of X. Thus, all
of those sources incur additional treatment expenses, but Company D is
unaffected. Had Company D revealed its audit results, the other companies
would not have suffered unnecessary expenses.
In some situations, moreover, failure to report
is a crime. See, eq., 33 U.S.C. §1321(b)(5) and 42 U.S.C.
§ 9603(b). To illustrate the effect of this factor, consider Company
E, which conducts a thorough audit and finds that hazardous wastes have
been disposed of by dumping them on the ground. The company cleans up the
area and tightens up its compliance program, but does not reveal the situation
to regulators. Assuming that a reportable quantity of a hazardous substance
was released, the company was under a legal obligation under 42 U.S.C.
§9603(b) to report that release as soon as it had knowledge of it,
thereby allowing regulators the opportunity to assure proper clean up.
Company E's knowing failure to report the release upon learning of it is
itself a felony.
In the cases of both Company D and Company
E, consideration would be given by prosecutors for remedial efforts; hence
prosecution of fewer or lesser charges might result. However, because Company
D's silence adversely affected others who are entitled to fair regulatory
treatment and because Company E deprived those legally responsible for
evaluating cleanup needs of the ability to carry out their functions, the
likelihood of their totally escaping criminal prosecution is significantly
reduced.
4. Company F's situation is similar to that
of Company B. However, with regard to the various violations shown by the
audit, it concentrates upon correcting only the easier, less expensive,
less significant among them. Its lackadaisical approach to correction does
not make it a strong candidate for leniency.
5. Company G is similar to Company D in that
it performs an audit and finds violations, but does not bring them to the
government's attention. Those violations do not involve failures to comply
with reporting requirements. The company undertakes a program of gradually
correcting its violations. When the government learns of the situation,
Company G still has not remedied its most significant violations, but claims
that it certainly planned to get to them. Company G could receive some
consideration for its efforts, but its failure to disclose and the slowness
of its remedial work probably mean that it cannot expect a substantial
degree of leniency.
6. Comprehensive audits are considered positive
efforts toward good faith compliance. However, such audits are not indispensable
to enforcement leniency. Company H's situation is essentially identical
to that of Company A, except for the fact that it does not undertake a
comprehensive audit. It does not have a formal audit program, but, as a
part of its efforts to ensure compliance, does realize that it is committing
an environmental violation. It thereafter takes steps otherwise identical
to those of Company A in terms of compliance efforts and cooperation. Company
H is also a likely candidate for leniency, including possibly no criminal
prosecution.
In sum, mitigating efforts made by the regulated
community will be recognized and evaluated. The greater the showing of
good faith, the more likely it will be met with leniency. Conversely, the
less good faith shown, the less likely that prosecutorial discretion will
tend toward leniency.
IV. Nature of this Guidance
This guidance explains the current general
practice of the Department in making criminal prosecutive and other decisions
after giving consideration to the criteria described above, as well as
any other criteria that are relevant to the exercise of criminal prosecutorial
discretion in a particular case. This discussion is an expression of, and
in no way departs from, the long tradition of exercising prosecutorial
discretion. The decision to prosecute "generally rests entirely in [the
prosecutor's] discretion." Bordenkircher v. Haves, 434 U.S.
357, 364 (1978).(5) This discretion is especially
firmly held by the criminal prosecutor.(6)
The criteria set forth above are intended only as internal guidance to
Department of Justice attorneys. They 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, nor
do they in any way limit the lawful litigative prerogatives, including
civil enforcement actions, of the Department of Justice or the Environmental
Protection Agency. They are provided to guide the effective use of limited
enforcement resources, and do not derive from, find their basis in, nor
constitute any legal requirement, whether constitutional, statutory, or
otherwise, to forego or modify any enforcement action or the use of any
evidentiary material. See Principles of Federal Prosecution (U.S.
Dept. of Justice, 1980) p. 4; United States Attorneys' Manual
(U.S. Dept. of Justice, 1986) 1-1.000.
1. As used in this document, the terms
"person" and "violator" are intended to refer to business and nonprofit
entities as well as individuals.
2. For example, any person
in charge of a vessel or of an on shore facility or an offshore facility
is required to notify the appropriate agency of the United States Government
of any discharge of oil or a hazardous substance into or upon inter
alia the navigable waters of the United States. Section 311(b)(5) of
the Clean Water Act, 33 U.S.C. 1321(b)(5), as amended by the Oil Pollution
Act of 1990, Pub. L. 101-380, §4301(a), 104 Stat. 485, 533 (1990).
3. While this policy applies
to both individuals and organizational violators, these examples focus
particularly upon situations involving organizations.
4. For example, if the company
had a long history of noncompliance, the compliance audit was done only
under pressure from regulators, and a timely audit would have ended the
violations much sooner, those circumstances would be considered.
5. Although some statutes
have occasionally been held to require civil enforcement actions, see,
eg., Dunlop v. Bachowski, 421
U.S. 560 (1975), those are unusual cases, and
the general rule is that both civil and criminal enforcement is at the
enforcement agency's discretion where not prescribed by law. Heckler
v. Chaney, 470 U.S. 821, 830-35 (1985); Cutler v. Haves,
818 F.2d 879, 893 (D.C. Cir. 1987) (decisions not to enforce are not reviewable
unless the statute provides an "inflexible mandate").
6. Newman v. United
States, 382 F.2d 479, 480 (D.C. Cir. 1967). |