August 23, 1994

PURPOSE: This Bluesheet replaces the entire Chapter 11 of Title 5.

These procedures are designed to define strengthen the partnership between the Environment and Natural Resources Division and U.S. Attorney's Offices in the investigation and prosecution of environmental crimes.

This Bluesheet is a final amendment to Chapter 11 and all Department attorneys should immediately begin to follow the procedures set forth in the amendment.

This chapter describes the partnership between U.S. Attorney's Offices and the Environmental Crimes Section ("ECS") of the Environment and Natural Resources Division ("ENRD"). It is the Department's goal to promote cooperation among the U.S. Attorney's Offices and ECS to utilize the strengths of every office and in each case to apply the Department's resources in the most effective manner.

(August 23, 1994)

5-11.101 Statutes Administered

Prosecutions initiated pursuant to the following statutes listed in the attachment to this chapter are deemed to be environmental crimes, and the provisions of this chapter apply to all such cases.

5-11.102 Other Criminal Provisions

Experience has shown that cases involving violations of the federal environmental laws identified in USAM 5-11.101, supra, also may involve violations of certain other federal statutes. Therefore, the Environmental Crimes Section is empowered to investigate and prosecute violations of additional criminal statutes when such violations arise within the context of environmental crimes. Examples of some of the statutes which may be involved in those cases include, but are not limited to, the following:

Statute		Subject Matter
18 U.S.C § 2		Aiding and abetting
18 U.S.C. § 287		False claims
18 U.S.C. § 371		Conspiracy
18 U.S.C. § 641		Theft or conversion of public property or money
18 U.S.C. § 1001		False statement
18 U.S.C. § 1341		Mail Fraud
18 U.S.C. § 1343		Wire Fraud
18 U.S.C. § 1505		Obstruction of administrative proceedings
18 U.S.C. §§ 1621 to 1623,		Perjury

(August 23, 1994)

5-11.103 Notice of Case Initiation

The Case Initiation Report formerly described in the U.S. Attorneys' Manual for environmental crimes is abolished. When a U.S. Attorney's Office opens a case file for an environmental case or matter, the Office will inform the Environmental Crimes Section, which it may do by entering the case or matter in the Department's computerized case tracking system and identifying the case type as "environmental." If the case or matter is not identified as "environmental" in the case tracking system (for example, due to data entry limitations), the office will inform the Environmental Crimes Section by telephone or in writing. When ECS opens a case file to initiate a case or matter, the Section Chief will provide notice to the U.S. Attorney for the district in which the crime is alleged to have occurred and will confer with the U.S. Attorney's office pursuant to USAM 5-11.104 or USAM SECTION 5-11.105.

5-11.104 Responsibility for Case Development and Prosecution

Responsibility for the approval, investigation, and prosecution of environmental crimes, except in cases of national interest, normally rests with the U.S. Attorney's Office. With the agreement of the U.S. Attorney's Office, ECS may participate as a partner, as the lead, or otherwise in such cases. Cooperation and consultation between U.S. Attorney's Offices and ECS is encouraged, in order to make the most effective use of the Department's resources. When ECS participates in a case, there should be a clear understanding between the offices concerning the allocation of case responsibility.

(August 23, 1994)

5-11.105 Cases of National Interest

A case is of national interest if it is a case that presents a novel issue of law (including the first case under a statute, provision, or regulation), a case with simultaneous investigations in multiple districts (unless the U.S. Attorney's Offices in each such district and the ECS conclude that national interests are not involved), a case with international or foreign policy implications, or an urgent or sensitive case as defined in USAM 1-10.230. In a case of national interest, the U.S. Attorney's Office and ECS will participate jointly as co-counsel from the initiation of the investigation through prosecution, unless otherwise agreed. A case may be identified as one of national interest by the U.S. Attorney's Office or the Assistant Attorney General for the ENRD.

5-11.106 Exchanging Case Information

Among ECS' other responsibilities, it is a clearinghouse for information about environmental prosecutions and a source of expertise about the handling of such cases. U.S. Attorney's Offices are encouraged to communicate with ECS early in environmental investigations and prosecutions to benefit from ECS' information and expertise, and to provide ECS with information about successes, obstacles, and strategies that ECS may share with other prosecutors. As part of this consultation, U.S. Attorney's Offices are encouraged to provide ECS with advance notice of indictments. U.S. Attorney's Offices are encouraged to consult with ECS on indictments and other matters with sufficient lead time to allow ECS to have time to provide meaningful input. In any event, U.S. Attorney's Offices will provide copies of indictments or informations within two days after filing. The Attorney General expects that ECS will participate in implementing the Assistant Attorney General's responsibilities pursuant to 28 C.F.R. § 0.65 and that each U.S. Attorney's Office will provide information to ECS to assist it in this purpose, including responding fully and expeditiously to reasonable requests for information.

(August 23, 1994)

5-11.107 Notification of Case Resolutions

When ECS is not participating in a case, the U.S. Attorney's offices shall provide ECS with notice of case resolutions by providing ECS with copies of disposition documents (including any plea agreements) when judgment is entered, except as provided in USAM 5-11.108 and 5-11.115.

5-11.108 Dismissals

In the case of dismissal of indictments, informations, or complaints in criminal cases involving violations of the statutes identified in USAM 5-11.101, supra, except when a superseding indictment has been returned or an information or a complaint has been filed against the same defendant or when the individual defendant has died, notification of the dismissal (or, in the case of a written dismissal, a copy) shall be provided to ECS so that it is received seven days before filing.

5-11.109 Declination

When a U.S. Attorney's Office or ECS declines a case and writes a substantive memo to the file or to the investigative agency, either office will promptly provide a copy of the declination memo to, respectively, ECS or the U.S. Attorney's Office for the district in which the crime is alleged to have occurred. Nothing in 5-11.104 is intended to limit ECS' authority to prosecute a case declined by a U.S. Attorney's office after consultation with that office, nor shall these provisions limit the authority of a U.S. Attorney's Office to prosecute a case that ECS has declined for reasons that ECS advises do not involve policy considerations.

(August 23, 1994)

5-11.110 Staffing

The appointment of Special Assistant U.S. Attorneys shall be approved by the U.S. Attorney of the relevant district and the Assistant Attorney General for the ENRD. In their approval process, the U.S. Attorney and the Assistant Attorney General should seek to ensure sensible and efficient use of government resources.

5-11.111 Policy-Making, Support, and Other Functions of the ENRD

In addition to its litigation activities, ECS helps the ENRD fulfill its other responsibilities:

a) setting policy nationally for the prosecution of environmental crimes;
b) providing training to U.S. Attorney's Offices, federal investigative agencies, and others;
c) providing expertise, information, and support concerning environmental prosecutions nationally, including providing a clearinghouse of prosecution-related documents; and
d) to use environmental criminal enforcement to address environmental and compliance problems, consistent with the standards of federal prosecution.

U.S. Attorney's Offices are encouraged to provide ECS with copies of important pleadings, briefs, search warrant applications, grand jury subpoenas, and similar case documents so that such documents can be made available to other prosecutors.

5-11.112 Parallel Proceedings

Because many of the environmental statutes specifically provide for criminal, civil, and administrative sanctions (see, e.g., 33 U.S.C. S 1319(a), (b), (c), and (d)), this is an area of the law especially susceptible to parallel proceedings. Such proceedings may be appropriate, for example, when in the course of the civil case the government receives evidence of deliberate violations of the law meriting criminal prosecution or when a criminal investigation uncovers evidence of an on-going violation causing environmental contamination which should be stopped quickly through an injunctive action.

Although they may be appropriate in particular circumstances, parallel proceedings must be handled carefully in order to avoid allegations of improper release of grand jury material or abuse of civil process. Therefore, in any case under any of the statutes identified in USAM 5-11.101, supra, in which parallel-proceedings arise, the U.S. Attorney's office shall contact the Environmental Crimes Section for the purpose of coordinating the parallel proceedings.

(August 23, 1994)

5-11.113 Coordination with State Programs

Most states have environmental enforcement programs which overlap, in whole or in part, with federal programs. U.S. Attorneys should familiarize themselves with state environmental enforcement laws and state enforcement officials. Particular attention should be directed toward the following aspects of state-federal relations in the environmental enforcement field:

A. State environmental enforcement agencies may be a valuable source of information on suspected violations of federal environmental statutes. U.S. Attorneys may be in a position to assist in apprising state officials of the nature of the local federal enforcement program and in developing methods for exchanging information on suspected violations;

B. State authorities often possess evidentiary materials which are relevant to pending federal court proceedings. U.S. Attorneys should be aware of the nature and extent of the states' investigatory resources and should make provision in appropriate circumstances for the exchange of information on pending cases with state authorities;

C. Frequently a particular activity constitutes a violation of both federal and state law. When state officials are proceeding with an environmental enforcement case which may include violations of federal law, the U.S. Attorney in the affected district should monitor that state activity. If it appears that all federal interests in the case will be vindicated in the state court action, action in federal court may be an unnecessary duplication of effort. On the other hand, if federal interests will not be protected completely in state court, federal proceedings may be warranted. See also, USAM 9-2.142 and 9-27.240.

5-11.114 Individual and Corporate Defendants

A. Congress has demonstrated its intent that individuals, as well as corporations, should be criminally prosecuted for violations of federal environmental laws, see, e.g., 33 U.S.C. SS 1319(c)(5) and 1362(5), thereby recognizing the fact the unlawful acts or ' omissions of corporations actually can be traced to individual officers or employees. That Congressional intent should be given serious consideration in the development of prosecutions for violations of the statutes identified under USAM 5-11.101, supra.

B. In any case against both a corporation and any of its individual employees the willingness of the offending corporation to enter a guilty plea is not a basis for dismissal as against the individual.

(August 23, 1994)

5-11.115 Plea Negotiations and Agreements; "Global Settlements"; Alternative Sentencing

A. Without the express approval of the Assistant Attorney General, Environment and Natural Resources Division, in any criminal case arising under the statutes identified in USAM 5-11.101 no plea agreement will be negotiated which compromises the right of the United States to any civil or administrative remedies under those statutes. Efforts by defendants to effect such results may arise in the context of so-called "global settlement" offers.

B. The Assistant Attorney General for the Environment and Natural Resources Division will consider a policy for plea agreements that include "alternative sentencing," meaning a sentence other than fine, imprisonment, or restitution to specific entities for out-of-pocket expenses.

5-11.116 Handling of Appeals

All appeals in criminal cases arising under the statutes identified in USAM 5-11.101, supra, shall be handled as provided for in USAM 5-8.310 and Title 2. When a U.S. Attorney's Office makes a request to handle an appeal, such a request will be resolved by agreement between the U.S. Attorney's Office and the Chief of the Appellate Section of the Environment and Natural Resources Division. In jointly resolving such a request, the following factors among any others should be considered on a case-by-case basis and, if necessary, discussed:

· the relative advantages in this case of staffing the appeal with an Assistant U.S. Attorney who tried the case or with an appellate lawyer who was not involved in the trial;

· the relative advantages in this appeal of the U.S. Attorney's local perspective or the Environment and Natural Resources Division's national perspective;

· whether there are issues in this appeal on which components of the government may have differing viewpoints; and

· the available resources of each office, especially relative to the briefing and argument schedule of the appeal.

Copies of any draft briefs prepared by a U.S. Attorney's office on behalf of the government shall be forwarded to the Appellate Section in sufficient time to allow review, comment, and approval by the Section and the Assistant Attorney General. Copies of any draft brief prepared by the Appellate Section shall be forwarded to the U.S. Attorney's Office in sufficient time to allow review, comment, and approval by that office. In any appeal, copies of all other briefs by other parties shall be promptly forwarded by the U.S. Attorney's Office to the Appellate Section.

5-11.117 Notice of Appeals

USAM 2.200 describes the manner in which U.S. Attorney's Offices forward notices of appeal or requests to take an appeal to the Environment and Natural Resources Division. For environmental crimes, the Division designates ECS as the unit to which such notices and requests should be sent. ECS will forward the notices and requests to the Division's Appellate Section.

(August 23, 1994)

5-11.118 Record on Appeal

Whenever an appeal is taken in a case arising under any statute identified in USAM 5-11.101, supra, for which the U.S. Attorney has taken primary trial level responsibility, and that appeal is to be handled by the Environment and Natural Resources Division, the U.S. Attorney is responsible for assembling and transmitting to the Environment and Natural Resources Division those items which constitute the record of the case of the trial court level.

ATTACHMENT TO CHAPTER 5, TITLE 11 OF THE U.S. ATTORNEY'S MANUAL

Prosecutions initiated pursuant to the following statutes are deemed to be environmental crimes:

FEDERAL INSECTICIDE, FUNGICIDE AND RODENTICIDE ACT (FIFRA)

7 USC §§ 136-136y

ENERGY SUPPLY AND ENVIRONMENTAL COORDINATION ACT

15 USC §§ 791-798

TOXIC SUBSTANCES CONTROL ACT (TSCA)

15 USC §§ 2601-2692

SURFACE MINING CONTROL AND RECLAMATION ACT

30 USC §§ 1201-1328

PROTECTION OF NAVIGABLE WATERS AND OF HARBOR AND RIVER IMPROVEMENTS GENERALLY, RIVERS AND HARBORS APPROPRIATION ACT, REFUSE ACT

33 USC §§ 401-454

FEDERAL WATER POLLUTION CONTROL ACT (also known as the CLEAN WATER ACT)

33 USC §§ 1251-1387

MARINE PROTECTION RESEARCH AND SANCTUARIES ACT (also known as the OCEAN DUMPING ACT) 33 USC §§ 1401-1445

DEEPWATER PORT ACT

33 USC §§ 1501-1524

ACT TO PREVENT POLLUTION FROM SHIPS

33 USC §§ 1901-1912

SAFE DRINKING WATER ACT

42 USC §§ 3OOf-300j-26

ATOMIC ENERGY ACT

42 USC §§ 2011-2296

NOISE CONTROL ACT

42 USC §§ 4901-4918

SOLID WASTE DISPOSAL ACT (including, in Subchapter III, The RESOURCE CONSERVATION AND RECOVERY ACT, RCRA)

42-USC §§ 6901-6992k

CLEAN AIR ACT

42 USC §§ 7401-7671g

COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION & LIABILITY ACT (CERCLA)

42 USC §§ 9601-9675

EMERGENCY PLANNING AND COMMUNITY RIGHT TO KNOW ACT (EPCRA) (also known as SARA Title III)

42 USC §§ 11001-11050

OUTER CONTINENTAL SHELF LANDS ACT

43 USC §§ 1331-1356

FEDERAL HAZARDOUS MATERIALS TRANSPORTATION STATUTE

49 USC §§ 5101-5127

5-11.000 ENVIRONMENTAL CRIMES SECTION

October 1, 1988

January 12, 1993

TO: HOLDERS OF UNITED STATES ATTORNEYS' MANUAL TITLES

FROM: George J. Terwilliger III
Deputy Attorney General
Vicki A. O'Meara
Acting Assistant Attorney General (Environment and
Natural Resources Division
Thomas W. Corbett, Jr.
Chairman, Attorney General's Advisory Committee

Attached is a Bluesheet which amends Chapter 11 of Title 5 of the United States Attorney's Manual. This Bluesheet is a final amendment to Chapter 11 and all Department attorneys should immediately begin to follow the procedures set forth in the amendment.

The amendment concludes the laudable efforts of many United States Attorneys, Assistant United States Attorneys, and Environment and Natural Resources Division attorneys, who have given extensive and detailed attention to ways to improve the Department's procedures for the investigation and prosecution of environmental crimes. The successful completion of this amendment is due in large measure to the efforts of J. William Roberts, the former Chairman of the Attorney General's Advisory Committee.

The new procedures emphasize the Departmental goal of cooperative efforts between U.S. Attorneys' offices and the Environment and Natural Resources Division in all cases, and set forth specific procedures for the handling of defined categories of cases. The attached bluesheet replaces certain subsections of Chapter 11 of Title 5; subsections of Chapter 11 that are not addressed in the bluesheet remain unchanged and in effect.

SUBJECT: Procedures for the Handling of Environmental Criminal Cases By United States Attorney's Offices and the Environment and Natural Resources Division of the United States Department of Justice

Replaces: Chapter 11

PURPOSE: This Bluesheet replaces certain subsections of Chapter 11 of Title 5 identified herein to include new procedures to be followed by the Environment and Natural Resources Division ("the Division") and United States Attorney's Offices (USAOs") in environmental criminal prosecutions. These procedures are designed to ensure more efficient and effective handling of environmental prosecutions.

5-11.110 General Responsibilities

A. Primary responsibility for cases arising under the statutes identified in USAM 5-11.101 may rest with the U.S. Attorney's Office, with the Environmental Crimes Section, or with both on a shared basis. That responsibility will be determined on a case-by-case basis. Experience has demonstrated that very satisfactory results may be obtained from a cooperative, joint effort, combining the U.S. Attorney's Office's familiarity with local practices and procedures and the Environmental Crimes Section's subject matter expertise and experience gained in conducting grand jury proceedings and trials in similar cases.

B. There are no precise rules for determining how responsibility for a criminal environmental case is to be divided between the U.S. Attorney's Office and the Environmental Crimes Section. The decision for a given case will be made ultimately by the Assistant Attorney General of the Environment and Natural Resources Division in consultation with the U.S. Attorney. Investigations/cases are divided into three categories:

1. Environmental Crimes Section ("ECS") cases;.
2. USAO cases; and
3. joint cases.

- ECS cases will be handled by the ECS attorney assigned, while the USAO will designate a liaison AUSA to assist with local rules and protocols and final review of the indictment, plea or other disposition.

- USAO cases will be handled by a designated AUSA,

while ECS will designate an ECS attorney for consultation and for final review of the indictment, plea or other disposition.

- Joint cases will be handled by a designated AUSA and a designated ECS attorney; all scheduling and planning will be done jointly by the attorneys.

C. Both the Division and the Environmental crimes Subcommittee of the Attorney General's Advisory Committee acknowledge that optimum results in environmental cases historically have occurred in instances when cases are investigated and prosecuted as joint cases, and that such cases generally make the most efficient and effective use of the respective resources of the Division and USAOs. Accordingly, these Guidelines are intended not to discourage, but to encourage the formation of relationships that will lead to the development of working partnerships between AUSAs and ECS attorneys and the free and open discussion of all matters, with the likelihood that they will be handled jointly to the extent of available resources.

D. In cases handled entirely by the U.S. Attorneys, in which the Environmental Crimes Section takes no direct role in the litigation, Section resources are available to provide support for the efforts of the U.S. Attorneys. For example, Section attorneys may do legal research, prepare draft papers, and provide advice on policy questions and on related cases in other districts. In cases handled primarily by the Environmental Crimes Section, the United States Attorney's Offices shall cooperate by assisting Section attorneys in scheduling sufficient grand jury time to allow investigations to proceed in timely fashion.

E. It is recognized that there will be some USAO investigations/cases which will necessarily be more significant in scope, complexity or issues and thus subject to a need for greater review and control. The Division will identify those issues of importance which will require such scrutiny. Those cases which are currently subject to such review and control include:

1. Resource Conservation and Recovery Act violations, where a defense has been raised, or is reasonably likely to be raised, that an alleged hazardous waste is not "solid waste" under applicable statutes and regulations.

2. Wetlands violations;

3. Charges under the Clean Air Act Amendments except for asbestos cases;

4. Knowing endangerment charges;

5. Charges based on negligence (except where such charges are part of a charge reduction as a result of a plea agreement);

6. Violations based upon a strict liability theory (except where such charges are part of a charge reduction as a result of a plea agreement);

7. Charges based upon the "responsible corporate officer doctrine";

8. Federal facilities;

9. Matters involving evidence to be presented by the Government derived in whole or in part from self-auditing by regulated entities or otherwise implicating the July 1, 1991 Policy on Audits and Voluntary Disclosure; and

10. Any matter of national interest, for example, an initial prosecution under a particular statute or regulation, or a prosecution involving application of a regulation the validity of which is significantly in doubt.1

Whenever there is to be a modification of these categories (hereinafter, "priority categories"), the Environmental Crimes Subcommittee of the Attorney General's Advisory Committee will be consulted by the Environment and Natural Resources Division. The Subcommittee will assist in the identification of issues that require greater scrutiny on the part of the Division. In any event, there will be an annual review of the aforementioned priorities at the Subcommittee meeting which immediately follows each U.S. Attorney's Conference.

5-11.200 ORGANIZATION

5-11.210 General

The Section is administered by a Chief and an Assistant Chief. General information relating to the Section or to matters for which it is responsible may be obtained by calling the Chief at (202) 272-9877. Information on a specific case should be requested from the staff attorney assigned to that case. When the staff attorney's name is unknown, his or her name and telephone number can be obtained by calling (202) 272-9877. (Note that a quicker response to an inquiry may be forthcoming if the requester can cite a Departmental file number, e.g., 198-13-12, which generally appears in the upper left-hand corner of correspondence originating from the Department.)

5-11.300 HANDLING OF CRIMINAL ENVIRONMENTAL CASES, GENERALLY

5-11.301 Case Development "unchanged"

5-11.302 Environmental Case Initiation

A. The ordinary procedure for initiation of criminal cases arising under the statutes identified in USAM 5-11.101, supra, and originating from EPA is by simultaneous referral to the Assistant Attorney General, Environment and Natural Resources Division and to the U.S. Attorney in the district with jurisdiction over the matter. Referral packages generally contain investigative reports and various exhibits which may aid in the understanding of the referral. However, in many instances, it may be necessary to complete the development of the cases through the use of the grand jury.

B. Some cases, though, are initiated without or prior to a formal referral, for example, when investigators call upon the U.S. Attorney's Offices to secure search warrants or when exigent circumstances require early resort to grand jury proceedings. The U.S. Attorney's office shall advise the Environmental Crimes Section of all such situations by submitting a case initiation report.

C. The USAOs and ECS will each promptly advise the other of the initiation of any investigation, and will share information in a timely fashion as facts are developed.

D. Submission of a Case Initiation Report ("CIR"). Within two weeks of the initiation of a case by a USAO, it will submit a CIR to the Chief of ECS. Similarly, within two weeks of the initiation of a case by ECS, it will submit a CIR to the AUSA having supervisory authority for environmental prosecutions at the appropriate USAO. The CIR will include: (i) a summary of the investigation, including a statement of the available evidence to date, identification of subjects and targets, and the object and purpose of the investigation; (ii) an identification of the responsible investigative agency and case agent; (iii) a clear identification of the statute and regulations suspected to have been violated; and (iv) a statement of the USAO's or ECS's view as to whether or not the case falls into one of the priority categories, supra. An investigation will be deemed initiated at the earliest of the following dates: (i) the date it is opened as a matter in the USAO Promis, Eagle or other internal docketing system or the Division's internal docketing system (LDTS); (ii) the date an AUSA or ECS attorney provides a prosecutive opinion to the investigating agency or agent; or (iii) the date the USAO or ECS attorney issues the first grand jury subpoena. When a case is initiated by ECS, the U.S. Attorney will designate a liaison AUSA immediately upon receipt of the CIR from ECS and notify ECS of that designation.

E. ECS will utilize a centralized internal docketing system which will document the receipt of the CIR from the USAO.

5-11.303 Authority to Prosecute; Retention of Authority;

Contact with Defense Counsel; Requests for Assistance

A. Within twenty-one (21) days of the receipt of the CIR from a USAO, ECS will inform the USA whether the case falls within one of the priority categories, supra. A declaration that a case is a priority should be made in writing in order to clearly state the basis for that decision; such cases will be denominated as "PRIORITY CASES." For any investigation determined by ECS not to be a PRIORITY CASE, the USAO will promptly provide an updated CIR immediately to the Chief of ECS if and when an issue arises in the investigation that might arguably cause it to fall into one of the priority categories.

B. In all USAO cases designated as "PRIORITY CASES", the USAO will submit all indictments, pleas (including global settlements) or other proposed dispositions to ECS for approval so that they are received at least 10 business days before the anticipated action. With respect to each submission, the USAO shall submit two copies -- one to the attention of the ECS attorney assigned to the case, and the second.to the attention of the Chief of ECS, or in his or her absence, the Acting Chief. ECS will complete its review within 5 business days following receipt of the submission, unless it determines that additional information is essential to that review, which determination it will communicate to the USAO by telephone and confirm in writing. Priority indictments or plea proposals will be submitted for review along with a brief prosecution memorandum. For those cases designated as "PRIORITY CASES", a veto of the United States Attorney's recommendation must be based upon specific reasons set forth in writing.

C. Non Priority Cases do not require approval. In all such cases, the USAO will promptly provide copies of indictments, informations, dispositions, and other significant pleadings to ECS, and is encouraged to consult with ECS.

D. Contact with defense counsel on cases being handled jointly by USAO and ECS will always include a representative of ECS and the particular USAO. In all USAO cases, all defense counsel contact should be referred in the first instance directly to the USAO. In all ECS cases, all defense counsel contact should be referred in the first instance directly to ECS. Furthermore, in all cases, whether USAO, ECS or joint, both the U.S. Attorney and the Assistant Attorney General of the Environment and Natural Resources Division ("AAG") retain discretion to meet with defense counsel, subject only to the following: if the AAG chooses to meet with defense counsel in a USAO or joint case, he or she will invite the U.S. Attorney to attend the meeting either in person or through a representative, and will schedule the meeting to facilitate that attendance; similarly, if the U.S. Attorney chooses to meet with defense counsel in an ECS or joint case, he or she will invite the AAG to attend the meeting either in person or through a representative, and will schedule the meeting to facilitate that attendance. Any such meeting, whether scheduled by the U.S. Attorney or the AAG will be held at a location to be mutually agreed upon by the U.S. Attorney and the AAG.

E. To the extent that either ECS or a USAO is in need of additional legal support for a particular case or matter, each will seek to obtain it from the other. Only in the event that no AUSA or ECS attorney is available will either resort to other resources, such as agency counsel.

5-11.304 Information Needed to be Furnished to the Environmental Crimes Section by the U.S. Attorney's Office [modified by revisions to other sections]

5-11.305 Parallel Proceedings [unchanged]

5-11.306 Cases Arising by Other Than Agency Referral

U.S. Attorneys retain their authority to prosecute cases under statutes listed in USAM-5.101, supra, which are not developed or referred to them from a federal agency. The U.S. Attorney shall notify the Assistant Attorney General of the Environment and Natural Resources Division of the initiation of any such prosecution under the statutes identified in USAM 5-11.101, supra, to enable to Environment and Natural Resources Division to perform its oversight responsibilities for prosecution under those statutes as set forth herein.

5-11.307 Other Cases Involving Environmental Violations

Whenever, in the context of a case not otherwise within the jurisdiction of the Environment and Natural Resources Division, a U.S. Attorney becomes aware of information which indicates that such case may include violations of any statute identified in USAM 5-11.101, supra, the U.S. Attorney shall advise the Assistant Attorney General of the Environment and Natural Resources Division of that possibility. Upon request of the Assistant Attorney General, the U.S. Attorney shall forward to the Assistant Attorney General copies of relevant material, including grand jury transcripts.

5-11.308 Coordination with State Programs (unchanged)

5-11.310 Conduct of Prosecution

5-11.311 Individual and Corporate Defendants (unchanged)

5-11.312 Attorneys Who May Represent the United States

A. All criminal environmental cases must be-handled by attorneys who are either employed by the Department of Justice (including the U.S. Attorney's Offices) or are authorized by the Department to represent the United States. When circumstances require the use of agency attorneys in either a grand jury investigation or the actual litigation of any case involving violations of statutes identified in USAM 5-11.101, supra, prior notification shall be given to the Assistant Attorney General of the Environment and Natural Resources Division. In any case in which the Environment and Natural Resources Division has subject matter jurisdiction, authority for agency attorneys to.participate in grand jury investigations or litigation shall be obtained prior to such participation from the Assistant Attorney General of the Environment and Natural Resources Division through the Chief of the.Environmental Crimes Section. Any letter of appointment of an agency attorney as a Special Assistant United.States Attorney shall be processed through the Environment and Natural Resources Division.

B. Any appointment of any agency attorney to a special status shall specify (1) the scope of the attorney's appointment in terms of subject matter and duration and (2) that the activities of the attorney under the appointment shall be subject to the direction of the U.S. Attorney and/or the Assistant Attorney General of the Environment and Natural Resources Division.

5-11.313 Search Warrants (unchanged)

5-11.314 Grand Jury Subpoenas for Documents

When grand jury subpoenas for documents are being prepared in cases arising under the statutes identified in USAM 5-11.101, U.S. Attorney's Offices are encouraged to contact the Environmental Crimes Section. The experience of Section attorneys with such subpoenas in other cases may be of assistance to the U.S. Attorney's Offices. Copies of grand jury subpoenas for documents shall be furnished to the Environmental Crimes Section in any such cases.

5-11.315 Witness Immunities [unchanged]

5-11.320 Dispositions

5-11.321 Declinations

A. The U.S. Attorney may decline to prosecute any case arising under the statutes identified in USAM 5-11.101, supra, which is being handled entirely by his/her office, by notifying the Assistant Attorney General of the Environment and-Natural Resources Division of his/her decision with an explanation of the reasons for the decision and an explanation of the referring agency's position regarding declination. Informal discussion of such situations between the U.S. Attorney's Office and the-Environmental Crimes Section prior to a final decision by the former often facilitates coordination between the two offices.

B The Assistant Attorney General may choose to prosecute any case declined by a U.S. Attorney, with attorneys of the Environmental Crimes Section conducting such prosecution. The Assistant Attorney General may request from the U.S. Attorney whatever additional information is deemed necessary in order to decide whether to proceed with the prosecution of a referral declined by a U.S. Attorney.

C. The procedures described in the preceding two paragraphs above also shall apply in any case in which a grand jury declines to return a true bill of indictment, if the U.S. Attorney is of the opinion that prosecution should not proceed in such case.

5-11.322 Dismissals

Indictments, information, or complaints in criminal cases involving violations of the statutes identified in USAM 5-11.101, supra, shall not be dismissed without prior approval of the Assistant Attorney General of the Environment and Natural Resources Division, except when a superseding indictment has been returned or an information or a complaint has been filed against the same defendant or when the individual defendant has died. Recommendations to dismiss criminal cases are the responsibility of the U.S. Attorney personally and must be signed by him/her. This provision does not apply to situations involving plea agreements which provide for the dismissal of certain counts of an indictment or information coupled with pleas of guilty to other counts..

5-11.323 Plea Negotiations and Agreements; "Global

Settlements"; Alternative Sentencing [unchanged]

5-11.324 Sentencing Memorandum (unchanged)

5-11.330 Coordination With the Environmental Crimes Section

5-11.331 Case Status

A. In all USAO cases, the AUSA handling the case is encouraged to submit copies of indictments, information, motion papers, memoranda of law, briefs and other significant documents to ECS so that ECS can fulfill its function of serving as document bank and a clearinghouse of information regarding environmental prosecutions. In addition, the following information should be furnished promptly to the Environmental Crimes Section with regard to all cases:

1. Date the indictment (or no bill) is returned or the information complaint is filed;
2. Date of arraignment and kind of plea;
3. Date of trial;
4. Verdict;
5. Change of plea of plea agreement;
6. Date of sentencing and terms of sentence;
7. A copy of any search warrant, including its supporting affidavit(s):
8. Copies of such papers filed and correspondence exchanged as are requested by the Environmental Crimes Section attorney assigned to the case.

B. Significant developments should be reported immediately by telephone to the Chief, Environmental Crimes Section, in any case in which the Section requests such reports.

5-11.332 Copies of Documents

The copies of documents required to be furnished to the Environmental Crimes section under various provisions herein relating to environmental crimes serve at least two important functions. First, they allow the Environmental Crimes Section to function in both an advisory capacity and as a clearing house for ideas which otherwise would not be shared among U.S. Attorney's Offices. Second, they aid the Environmental Crimes Section in performing its monitoring function to avoid the government's taking inconsistent positions on related matters.

5-11.340 Appeals

5-11.341 Handling of Appeals

All appeals in criminal cases arising under the statutes identified in USAM 5-11.101, supra, shall be handled as provided for in USAM 5-8.310 and Title 2, except that, upon the request of the U.S. Attorney and the approval of Assistant Attorney General, Environment and Natural Resources Division, the United States Attorney's Office may take primary responsibility for the handling of an appeal. Any such request should be initiated through the Chief, Environmental Crimes Section. In any case handled by a United States Attorney's Office copies of all briefs shall be furnished to the Environmental Crimes Section and the Appellate Section of the Environment and Natural Resources Division. Copies of any brief of behalf of the government and of any opposing brief(s) shall be forwarded to those Sections in sufficient time to allow review and comment by them prior to any further government briefing.

5-11.342 Notice of Appeals

A. The U.S. Attorney shall immediately notify the Chief of the Environmental Crimes Section of any notice of appeal by a defendant in any case arising under any statute identified in USAM 5-11.101, supra.

B. In any such case in which the U.S. Attorney believes that appeal by the United States is warranted, he/she shall make his/her recommendation to the Chief of the Environmental Crimes Section.

C. For purposes of subparagraphs A and B above, notifications and recommendations may be make by telephone in expedited appeal situations.

5-11.343 Record on Appeal

Whenever an appeal is taken in a case arising under any statute identified in USAM 5-11.101, supra, for which the U.S. Attorney has taken primary trial level responsibility, and that appeal is to be handled by the Environment and Natural Resources Division, the U.S. Attorney is responsible for assembling and transmitting to the Environment and

Natural Resources Division those items which constitute the record of the case of the trial court level.

5-11.001 Establishment

October 1, 1988

The Environmental Crimes Section was created on April 24, 1987, at which time it assumed the responsibilities previously assigned to the Environmental Crimes Unit, which was organized in 1982.

5-11.002 Purpose and Functions

October 1, 1988

The Environmental Crimes Section was organized in order to provide a specialized legal staff capable of carrying out the effective enforcement of federal criminal laws relating to protection of the environment. The duties of Section attorneys with regard to cases arising under the statutes identified in USAM 5-11.101, infra , include the following:

A. Conduct of all phases of criminal litigation at the direction of the Assistant Attorney General, Land and Natural Resources Division, in all cases in which Section attorneys have lead responsibility;

B. Cooperation with U.S. Attorneys in the conduct of all phases of criminal litigation in all cases in which the U.S. Attorneys and the Land and Natural Resources Division have shared responsibility and in which Section attorneys are directly involved in the litigation;

C. Monitoring of all prosecutions under the statutes identified in USAM 5-11.101 in which Section personnel are not directly involved, in order to assure consistency of statutory interpretations and enforcement policy.

D. Assistance, advice, and policy guidance to U.S. Attorneys in support of criminal prosecutions, whether or not Section attorneys are directly involved in such litigation; and,

E. Processing of those items which, under the provisions of this manual, require action by the Assistant Attorney General or other personnel of the Land and Natural Resources Division.

5-11.100 AREA OF RESPONSIBILITY

October 1, 1988

5-11.101 Statutes Administered

October 1, 1988

The Environmental Crimes Section is responsible for criminal enforcement litigation arising under the following statutes:

A. Federal Water Pollution Control Act or Clean Water Act, 33 U.S.C. Sec. 1251 et seq. ;

B. Clean Air Act, 42 U.S.C. Sec. 7401 et seq. ;

C. Resource Conservation and Recovery Act, 42 U.S.C. Sec. 6901 et seq. (also known as the Solid Waste Disposal Act);

D. Comprehensive Environmental Response, Compensation, and Liability Act (Superfund), 42 U.S.C. Sec. 9601 et seq. ;

E. Safe Drinking Water Act, 42 U.S.C. Sec. 300f et seq. ;

F. Toxic Substances Control Act, 15 U.S.C. Sec. 2601 et seq. ;

G. Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. Sec. 135(d) et seq. ;

H. Rivers and Harbors Act, 33 U.S.C. Sec. 401 et seq. ;

I. Marine Protection Research and Sanctuaries Act, 33 U.S.C. Sec. 1401 et seq. ;

J. Noise Control Act, 42 U.S.C. Sec. 4901 et seq. ;

K. Atomic Energy Act of 1954, 42 U.S.C. Sec. 2011 et seq. , insofar as it relates to the prosecution of violations committed by a company in matters involving the licensing and operation of nuclear power plants and affecting the environment;

L. Section 2 of the Energy Supply and Environmental Coordination Act of 1974, 15 U.S.C. Sec. 791 et seq. ;

M. Act of June 23, 1910, 33 U.S.C. Sec. 421 et seq. ;

N. Act of June 29, 1888, 33 U.S.C. Sec. 441 et seq. ;

O. Deepwater Port Act of 1971, 33 U.S.C. Sec. 1501 et seq. , insofar as a violation of the Act or the rules and regulations promulgated pursuant thereto results in environmental pollution;

P. Section 5(a)(2) of the Outer Continental Shelf Lands Act of August 7, 1953, 43 U.S.C. Sec. 1334(a)(2), where the violation of a rule or regulation results in environmental pollution.

Q. Emergency Planning and Community Right-to-Know Act, 42 U.S.C. Sec. 11001 et seq .

5-11.102 Principal Criminal Statutory Provisions

October 1, 1988

Although other criminal provisions are included in the statutes identified in USAM 5-11.101, supra , those which are most commonly enforced include the following:

A. Clean Water Act or Federal Water Pollution Control Act: 33 U.S.C. Secs. 1319(c)(1) and (2) (knowing or negligent conduct in violation of specified sections of Act), 1319(c)(3) (knowing endangerment), 33 U.S. C. Secs. 1319(c)(4) (knowingly submitting false information), and 1321( b)(5) (failure to notify of known discharge of oil or hazardous substance);

B. Clean Air Act: 42 U.S.C. Secs. 7413(c)(1) (knowing conduct in violation of specified sections of Act) and 7413(c)(2) (knowingly submitting false statements, etc.);

C. Toxic Substances Control Act: 15 U.S.C. Sec. 2615 (knowingly or willfully committing any of the acts prohibited by 15 U.S.C. Sec. 2614);

D. Resource Conservation and Recovery Act: 42 U.S.C. Secs. 6928(d)(1) (knowingly transporting hazardous waste to unpermitted facility), 6928( d)(2) (knowingly treating, storing, or disposing of hazardous waste without permit or in violation of permit), 6928(d)(3) (knowingly making false statements), 6928(d)(4) (knowingly destroying, altering, or concealing records, etc.), 6928(d)(5) (knowingly transporting hazardous waste without a manifest), 6928(d)(6) (knowingly exporting hazardous waste without consent of receiving country or in violation of international agreement), and 6928(e) (knowing endangerment);

E. Comprehensive Environmental Response, Compensation, and Liability Act ("Superfund"): 42 U.S.C. Sec. 9603(b) (failure to report known release of hazardous substance to the environment);

F. Federal Insecticide, Fungicide and Rodenticide Act: 7 U.S.C. Sec. 136 1 (knowing violations of specified sections of Act).

5-11.103 Other Criminal Provisions

October 1, 1988

Experience has shown that cases involving violations of the federal environmental laws identified in USAM 5-11.101, supra , also may involve violations of certain other federal statutes. Therefore, the Environmental Crimes Section is empowered to investigate and prosecute violations of additional criminal statutes when such violations arise within the context of criminal cases for which the Section is primarily responsible. Examples of some of the statutes which may be involved in those cases include, but are not limited to, the following:

Statute		Subject Matter
18 U.S.C. Sec. 2		Aiding and abetting
18 U.S.C. Sec. 287		False claims
18 U.S.C. Sec. 371		Conspiracy
18 U.S.C. Sec. 641		Theft or conversion of public property or money
18 U.S.C. Sec. 1001		False statement
18 U.S.C. Sec. 1341		Mail Fraud
18 U.S.C. Sec. 1342		Wire Fraud
18 U.S.C. Sec. 1505		Obstruction of administrative proceedings
18 U.S.C. Secs.1621 to 1623		Perjury
49 U.S.C. Sec. 1809		Transportation of hazardous materials

5-11.110 General Responsibilities

October 1, 1988

A. Primary responsibility for cases arising under the statutes identified in USAM 5-11.101 may rest with the U.S. Attorney's office, with the Environmental Crimes Section, or with both on a shared basis. That responsibility will be determined on a case-by-case basis. Experience has demonstrated that very satisfactory results may be obtained from a cooperative, joint effort, combining the U.S. Attorney's office familiarity with local practices and procedures and the Environmental Crimes Section's subject-matter expertise and experience gained in conducting grand jury proceedings and trials in similar cases.

B. There are no precise rules for determining how responsibility for a criminal environmental case is to be divided between the U.S. Attorney's Office and the Environmental Crimes Section. The decision for a given case will be made ultimately by the Assistant Attorney General of the Land and Natural Resources Division in consultation with the U.S. Attorney.

C. In cases handled entirely by the U.S. Attorneys, in which the Environmental Crimes Section takes no direct role in the litigation, Section resources are available to provide support for the efforts of the U.S. Attorneys. For example, Section attorneys may do legal research, prepare draft papers, and provide advice on policy questions and on related cases in other districts. In cases handled primarily by the Environmental Crimes Section the United States Attorneys' offices shall cooperate by assisting Section attorneys in scheduling sufficient grand jury time to allow investigations to proceed in timely fashion.

D. The Environmental Crimes Section also is responsible for the monitoring of criminal prosecutions under the statutes identified in USAM 5-11.101, supra , to assure consistency of statutory interpretations and of enforcement policy among the districts. In order for this function to be carried out effectively, it is imperative that U.S. Attorneys' offices keep the Section advised of any cases in which Section attorneys are not directly involved.

5-11.200 ORGANIZATION

October 1, 1988

5-11.210 General

October 1, 1988

The Section is administered by a Chief and an Assistant Chief. General information relating to the Section or to matters for which it is responsible may be obtained by calling the Chief at FTS (202) 633-2490. Information on a specific case should be requested from the staff attorney assigned to that case. When the staff attorney's name is unknown, his or her name and telephone number can be obtained by calling FTS (202) 633-2490. (Note that a quicker response to an inquiry may be forthcoming if the requestor can cite a Departmental file number, e.g. , 90-5-1-2-40 or 62-81-2, which generally appears in the upper left-hand corner of correspondence originating from the Department.)

5-11.300 HANDLING OF CRIMINAL ENVIRONMENTAL CASES, GENERALLY

October 1, 1988

5-11.301 Case Development

October 1, 1988

A. Criminal cases under the statutes identified in USAM 5-11.101, supra , may be investigated and developed by personnel of any of the agencies responsible for administering those statutes. Among those agencies are the Environmental Protection Agency, the United States Coast Guard, and the Army Corps of Engineers. Cases under those statutes also may be investigated and developed by the Federal Bureau of Investigation or by other federal agencies.

B. The primary source of criminal cases under the statutes identified in USAM 5-11.101 is the Environmental Protection Agency (EPA). Within EPA the special agents assigned to the Office of Criminal Investigations (OCI) are chiefly responsible for developing criminal cases. OCI investigators are located in field offices in various parts of the country. U.S. Attorneys who wish to make contact with the OCI special agents should make such requests through the Special-Agent-in-Charge of the appropriate field office. A current listing of field offices and their personnel can be obtained through the OCI office in Denver, Colorado (FTS) 776-3215 or (303) 236-3215.

C. When apparent violations of the statutes identified in USAM 5-11.101, supra , are brought to the attention of the Department of Justice by persons or agencies other than those with statutory enforcement responsibilities, the Department either forwards those reports to appropriate enforcement officials for evaluation and possible referral for legal proceedings or may itself undertake the necessary investigation and prosecution. The practice of forwarding reports of suspected violations to appropriate agencies allows the agencies to bring to bear their technical expertise to determine whether violations actually have occurred.

D. The Department of Justice retains the authority to develop enforcement actions through its own efforts.

5-11.302 Environmental Case Initiation

October 1, 1988

The ordinary procedure for initiation of criminal cases arising under the statutes identified in USAM 5-11.101, supra , and originating from EPA is by simultaneous referral to the Assistant Attorney General, Land and Natural Resources Division, and to the U.S. Attorney in the district with jurisdiction over the matter. Referral packages generally contain investigative reports and various exhibits which may aid in the understanding of the referral. However, in many instances it may be necessary to complete the development of the cases through the use of the grand jury.

Some cases, though, are initiated without or prior to a formal referral, for example, when investigators call upon the U.S. Attorneys' offices to secure search warrants or when exigent circumstances require early resort to grand jury proceedings. The U.S. Attorney's Office shall advise the Environmental Crimes Section of all such situations.

5-11.303 Authority to Prosecute; Retention of Authority; Requests for Assistance

October 1, 1988

A. The Assistant Attorney General for the Land and Natural Resources Division has supervisory responsibility over all criminal proceedings arising under the statutes identified in USAM 5-11.101. Therefore, the final authority regarding the prosecution or declination of any such matters shall rest with the Assistant Attorney General for the Land and Natural Resources Division. See 28 C.F.R. Sec. 0.65.

B. The Assistant Attorney General of the Land and Natural Resources Division retains the authority to assume primary responsibility for handling any case within the jurisdiction of the Land and Natural Resources Division and arising under the statutes identified in USAM 5-11.101, supra .

C. The U.S. Attorney may commence the prosecution of any matter arising under the statutes identified in USAM 5-11.101, supra , provided that notification is given as set forth in USAM 5-11.304, infra , unless requested not to do so by the Assistant Attorney General of the Land and Natural Resources Division. The Assistant Attorney General may require that such prosecution not be undertaken or he/she may request that a U.S. Attorney not commence prosecution of such a matter if in the judgment of the Assistant Attorney General additional review of the referral is required by the Land and Natural Resources Division. In the latter situation U.S. Attorneys shall not proceed until the Assistant Attorney General has completed the necessary review. In any prosecution commenced by a U.S. Attorney, the U.S. Attorney may request Environmental Crimes Section assistance by either calling the Environmental Crimes Section or writing to the Assistant Attorney General, Land and Natural Resources Division, Attention: Chief, Environmental Crimes Section. Additionally, the Assistant Attorney General of the Land and Natural Resources Division may require that personnel of the Environmental Crimes Section take part in the development and prosecution of any matter arising under the statutes identified in USAM 5-11.101, supra .

5-11.304 Information to be Furnished to the Environmental Crimes Section by the U.S. Attorney's Office

October 1, 1988

With regard to cases being handled entirely by the U.S. Attorney, within 14 days of receipt of any referral under the statutes identified in USAM 5-11.101, supra , the U.S. Attorney shall advise the Chief of the Environmental Crimes Section of the identity of any Assistant U.S. Attorney to whom the case has been assigned. Notification of decisions to either prosecute or decline cases shall be given by the U.S. Attorney or by an assistant to the Chief, Environmental Crimes Section. Notification of the presentation of evidence to a grand jury shall be given to the Chief, Environmental Crimes Section, or to the Section attorney assigned to the case. See USAM 5-11.313, 5-11.314, 5-11.331, and 5-11.341, infra , regarding other information which should be forwarded to the Environmental Crimes Section.

5-11.305 Parallel Proceedings

October 1, 1988

Because many of the environmental statutes specifically provide for criminal, civil, and administrative sanctions ( see , e.g. , 33 U.S.C. Sec. 1319(a), (b), (c), and (d)), this is an area of the law especially susceptible to parallel proceedings. Such proceedings may be appropriate, for example, when in the course of a civil case the government receives evidence of deliberate violations of the law meriting criminal prosecution or when a criminal investigation uncovers evidence of an on-going violation causing environmental contamination which should be stopped quickly through an injunctive action.

Although they may be appropriate in particular circumstances, parallel proceedings must be handled carefully in order to avoid allegations of improper release of grand jury material or abuse of civil process. Therefore, in any case under any of the statutes identified in USAM 5-11.101, supra , in which the possibility of parallel proceedings arises, the U.S. Attorney's office shall contact the Environmental Crimes Section in order to coordinate the potential parallel proceedings.

5-11.306 Cases Arising by Other Than Agency Referral

October 1, 1988

U.S. Attorneys retain their authority to prosecute cases under statutes listed in USAM 5-11.101, supra , which are not developed or referred to them from a federal agency. The U.S. Attorney shall notify the Assistant Attorney General of the Land and Natural Resources Division of the initiation of any such prosecution under the statutes identified in USAM 5-11.101, supra , to enable the Land and Natural Resources Division to perform its oversight responsibilities for prosecution under those statutes.

5-11.307 Other Cases Involving Environmental Violations

October 1, 1988

Whenever, in the context of a case not otherwise within the jurisdiction of the Land and Natural Resources Division, a U.S. Attorney becomes aware of information which indicates that such case may include violations of any statute identified in USAM 5-11.101, supra , the U.S. Attorney shall advise the Assistant Attorney General of the Land and Natural Resources Division of that possibility. Upon request of the Assistant Attorney General, the U.S. Attorney shall forward to the Assistant Attorney General copies of relevant material, including grand jury transcripts.

5-11.308 Coordination with State Programs

October 1, 1988

Most states have environmental enforcement programs which overlap, in whole or in part, with federal programs. U.S. Attorneys should familiarize themselves with state environmental enforcement laws and state enforcement officials. Particular attention should be directed toward the following aspects of state-federal relations in the environmental enforcement field:

A. State environmental enforcement agencies may be a valuable source of information on suspected violations of federal environmental statutes. U.S. Attorneys may be in a position to assist in apprising state officials of the nature of the local federal enforcement program and in developing methods for exchanging information on suspected violations;

B. State authorities often possess evidentiary materials which are relevant to pending federal court proceedings. U.S. Attorneys should be aware of the nature and extent of the states' investigatory resources and should make provision in appropriate circumstances for the exchange of information on pending cases with state authorities;

C. Frequently a particular activity constitutes a violation of both federal and state law. When state officials are proceeding with an environmental enforcement case which may include violations of federal law, the U.S. Attorney in the affected district should monitor that state activity. If it appears that all federal interests in the case will be vindicated in the state court action, action in federal court may be an unnecessary duplication of effort. On the other hand, if federal interests will not be protected completely in state court, federal proceedings may be warranted. See also , USAM 9-2.142 and 9-27.240.

5-11.310 Conduct of Prosecution

October 1, 1988

5-11.311 Individual and Corporate Defendants

October 1, 1988

A. Congress has demonstrated its intent that individuals, as well as corporations, should be criminally prosecuted for violations of federal environmental laws, see , e.g. , 33 U.S.C. Secs. 1319(c)(5) and 1362( 5), thereby recognizing the fact the unlawful acts or omissions of corporations actually can be traced to individual officers or employees. That Congressional intent should be given serious consideration in the development of prosecutions for violations of the statutes identified under USAM 5-11.101, supra .

B. In any case against both a corporation and any of its individual employees the willingness of the offending corporation to enter a guilty plea is not a basis for dismissal as against the individual.

5-11.312 Attorneys Who May Represent the United States

October 1, 1988

A. All criminal environmental cases must be handled by attorneys who are either employed by the Department of Justice (including the U.S. Attorneys' offices) or are authorized by the Department to represent the United States. When circumstances require the use of agency attorneys in either a grand jury investigation or the actual litigation of any case involving violations of statutes identified in USAM 5-11.101, supra , prior notification shall be given to the Assistant Attorney General of the Land and Natural Resources Division. In any case in which the Land and Natural Resources Division has subject matter jurisdiction, authority for agency attorneys to participate in grand jury investigations or litigation shall be obtained prior to such participation from the Assistant Attorney General of the Land and Natural Resources Division through the Chief of the Environmental Crimes Section. Any letter of appointment of an agency attorney as a Special Assistant United States Attorney shall be processed through the Land and Natural Resources Division.

B. Any appointment of an agency attorney to a special status shall specify (1) the scope of the attorney's appointment in terms of subject matter and duration and (2) that the activities of the attorney under the appointment shall be subject to the direction of the U.S. Attorney and/or the Assistant Attorney General of the Land and Natural Resources Division.

5-11.313 Search Warrants

October 1, 1988

When search warrants are to be sought in cases arising under the statutes identified in USAM 5-11.101, U.S. Attorneys' offices are encouraged to contact the Environmental Crimes Section. The experience of Section attorneys with warrants in other cases may be of assistance in drafting affidavits for warrant applications and in preparing for searches, generally. Copies of warrant application papers and warrants shall be furnished to the Environmental Crimes Section in any such cases.

5-11.314 Grand Jury Subpoenas for Documents

October 1, 1988

When grand jury subpoenas for documents are being prepared in cases arising under the statutes identified in USAM 5-11.101, U.S. Attorneys' offices are encouraged to contact the Environmental Crimes Section. The experience of Section attorneys with such subpoenas in other cases may be of assistance to the U.S. Attorneys' offices. Copies of grand jury subpoenas for documents shall be furnished to the Environmental Crimes Section in any such cases.

5-11.315 Witness Immunities

October 1, 1988

In any case arising under the statutes identified in USAM 5-11.101, in which immunization authority is sought for a witness pursuant to 18 U. S.C. Secs. 6002, 6003, the material necessary for such authorization shall be transmitted to the Environmental Crimes Section of the Land and Natural Resources Division, which oversees the required departmental processing. This provision also applies to any agency requests for immunization approval under 18 U.S.C. Sec. 6004, which may be directed through a U.S. Attorney's Office.

5-11.320 Dispositions

October 1, 1988

5-11.321 Declinations

October 1, 1988

A. The U.S. Attorney may decline to prosecute any case arising under the statutes identified in USAM 5-11.101, supra , which is being handled entirely by his/her office, by notifying the Assistant Attorney General of the Land and Natural Resources Division of his/her decision with an explanation of the reasons for that decision and an explanation of the referring agency's position regarding declination. Informal discussion of such situations between the U.S. Attorney's Office and the Environmental Crimes Section prior to a final decision by the former often facilitates coordination between the two offices.

B. The Assistant Attorney General may choose to prosecute any case declined by a U.S. Attorney, with attorneys of the Environmental Crimes Section conducting such prosecution. The Assistant Attorney General may request from the U.S. Attorney whatever additional information is deemed necessary in order to decide whether to proceed with the prosecution of a referral declined by a U.S. Attorney.

C. The procedures described in the preceding two paragraphs above also shall apply in any case in which a grand jury declines to return a true bill of indictment, if the U.S. Attorney is of the opinion that prosecution should not proceed in such case.

5-11.322 Dismissals

October 1, 1988

Indictments, informations, or complaints in criminal cases involving violations of the statutes identified in USAM 5-11.101, supra , shall not be dismissed without prior approval of the Assistant Attorney General of the Land and Natural Resources Division, except when a superseding indictment has been returned or an information or a complaint has been filed against the same defendant or when the individual defendant has died. Recommendations to dismiss criminal cases are the responsibility of the U.S. Attorney personally and must be signed by him/her. This provision does not apply to situations involving plea agreements which provide for the dismissal of certain counts of an indictment or information coupled with pleas of guilty to other counts.

5-11.323 Plea Negotiations and Agreements; "Global Settlements"; Alternative Sentencing

October 1, 1988

A. Without the express approval of the Assistant Attorney General, Land and Natural Resources Division, in any criminal case arising under the statutes identified in USAM 5-11.101 no plea agreement will be negotiated which compromises the right of the United States to any civil or administrative remedies under those statutes. Efforts by defendants to effect such results may arise in the context of so-called "global settlement" offers.

B. Without the express approval of the Assistant Attorney General, Land and Natural Resources Division, in any criminal case arising under the statutes identified in USAM 5-11.101 no plea agreement will be negotiated which provides for alternative sentencing. "Alternative sentencing" in this context means sentencing other than fine, imprisonment, probation, or any combination of those sanctions. It includes, by way of example only, such things as monetary payments except to the United States Treasury and requiring the performance of an act otherwise required by law.

C. Review by the Land and Natural Resources Division of any potential agreement covered by subparagraph A or B of this section shall be on a case-by-case basis and shall be initiated through the Chief of the Environmental Crimes Section.

5-11.324 Sentencing Memorandum

October 1, 1988

Many probation officers and district judges do not have experience with sentencing for environmental crimes; thus, they have no context in which to determine the seriousness of the crimes or the sanctions which may be appropriate to them. In districts where local practice permits, a sentencing memorandum may be a useful means by which to assist the probation officer and the court. The Environmental Crimes Section can furnish samples of such memoranda or material, including case citations, statistics, and technical data, which may be helpful to the United States Attorneys' offices in drafting sentencing memoranda in environmental cases.

5-11.330 Coordination With the Environmental Crimes Section

October 1, 1988

5-11.331 Case Status

October 1, 1988

A. Once a case arising under the statutes identified in USAM 5-11.101, supra , has been initiated in a U.S. Attorney's Office, the Land and Natural Resources Division shall be kept informed of all its developments. In addition to the information called for in USAM 5-11.304, supra , the following information shall be furnished promptly to the Environmental Crimes Section with regard to all such cases:

1. A copy of any proposed indictment or information, such that the Division shall have at least 48 hours in which to review that document prior to its presentation or filing, and a copy of any indictment or information as it is finally returned or filed;
2. Date the indictment (or no bill) is returned or the information or complaint is filed;
3. Date of arraignment and kind of plea;
4. Date of trial;
5. Verdict;
6. Change of plea or plea agreement;
7. A copy of any motion which, if granted, (a) could be dispositive, (b) could affect the enforceability of the relevant statute(s), or (c) otherwise is considered significant by the U.S. Attorney;
8. Date of sentencing and terms of sentence;
9. A copy of any search warrant, including its supporting affidavit(s); and
10. Copies of such papers filed and correspondence exchanged as are requested by the Environmental Crimes Section attorney assigned to the case.

B. Significant developments should be reported immediately by telephone to the Chief, Environmental Crimes Section, in any case in which the Section requests such reports.

5-11.332 Copies of Documents

October 1, 1988

The copies of documents required to be furnished to the Environmental Crimes Section under various provisions herein relating to environmental crimes serve at least two important functions. First, they allow the Environmental Crimes Section to function in both an advisory capacity and as a clearing house for ideas which otherwise would not be shared among U.S. Attorneys' offices. Second, they aid the Environmental Crimes Section in performing its monitoring function to avoid the government's taking inconsistent positions on related matters.

5-11.340 Appeals

October 1, 1988

5-11.341 Handling of Appeals

October 1, 1988

All appeals in criminal cases arising under the statutes identified in USAM 5-11.101, supra , shall be handled as provided for in USAM 5-8.310 and Title 2, except that, upon the request of the U.S. Attorney and the approval of Assistant Attorney General, Land and Natural Resources Division, the United States Attorney's Office may take primary responsibility for the handling of an appeal. Any such request should be initiated through the Chief, Environmental Crimes Section. In any case handled by a United States Attorney's Office copies of all briefs shall be furnished to the Environmental Crimes Section and the Appellate Section of the Land and Natural Resources Division. Copies of any brief on behalf of the government and of any opposing brief(s) shall be forwarded to those Sections in sufficient time to allow review and comment by them prior to any further government briefing.

5-11.342 Notice of Appeals

October 1, 1988

A. The U.S. Attorney shall immediately notify the Chief of the Environmental Crimes Section of any notice of appeal by a defendant in any case arising under any statute identified in USAM 5-11.101, supra .

B. In any such case in which the U.S. Attorney believes that appeal by the United States is warranted, he/she shall make his/her recommendation to the Chief of the Environmental Crimes Section.

C. For purposes of subparagraphs A and B above, notifications and recommendations may be made by telephone in expedited appeal situations.

5-11.343 Record on Appeal

October 1, 1988

Whenever an appeal is taken in a case arising under any statute identified in USAM 5-11.101, supra , for which the U.S. Attorney has taken primary trial level responsibility, and that appeal is to be handled by the Land and Natural Resources Division, the U.S. Attorney is responsible for assembling and transmitting to the Land and Natural Resources Division those items which constitute the record of the case at the trial court level.