Case Initiation and Response

AuthorJudson W. Starr/Amy J. McMaster/John F. Cooney/Joseph G. (Jerry) Block/David G. Dickman
Page 27
Chapter 3:
Case Initiation and Response
I. Case Initiation
A crimi nal c ase can begi n in any number of ways, including th rough information discovered in volun-
tary disclosures, information submitted pursuant to routine environmental compliance documents, audits,
administrative inspec tions and warrants, information requests, criminal search warra nts, anonymous tips,
or citizen and whistleblower complaints.
A. Voluntary Disclosure
To promote self-auditing, the U.S. Environmental Protection Agency (EPA), the U.S. Department of Jus-
tice (DOJ), and the U.S. Coast Guard have established voluntary disclosure policies to reward companies
that report violations found as a result of self-auditing programs, typically by mitigati ng civil penalties, or
in some instances, foregoing criminal enforcement.1 ese voluntary disclosure programs a re discussed at
length in Chapter 2, Section A.
1. Routine Compliance Information
Many environmental statues require the routine submission of compliance information, such as discharge
monitoring reports pursuant to the Clean Water Act (CWA), national pollutant discharge elimination system
(NPDES) permits or emissions monitoring reports pursuant to Title V of the Clean Air Act (CAA). Where
such reports show evidence of “pencil-whipping” (for example, by the same information being submitted
month after month, where some variation would normally be expected), total emissions that are “just below”
a threshold trigger for stricter compliance, or other falsication of information (such as by a company keeping
two sets of books—one with the “real” numbers and one for reporting to EPA),2 such reports, which must be
signed under penalty of perjury, routinely provide the impetus for a criminal investigation.
2. Audits
An environmental audit is a “systematic, documented, periodic and objective review by regulated entities of
facility operations and practices related to meeting environmental requirements.”3 ese audits may benet
companies in a number of ways. ey help to:
1. See, e.g., U.S. EPA, Incentives for Self-Policing: Discovery, Disclosure, Correction, and Prevention of Violations, 65 Fed. Reg. 19618 (Apr. 11,
2000); U.S. DOJ, Factors in Decisions on Criminal Prosecutions for Environmental Violations in the Context of Signicant Voluntary Compliance
or Disclosure Eorts by the Violator (July 1, 1991), available at (last visited May 28, 2013); U.S. Coast
Guard, Maritime Law Enforcement Manual, App. V, Environmental Crimes: Voluntary Disclosure Policy, available at
docs/CH-4%20Appendix%20V.pdf (last visited May 30, 2013).
2. See, e.g., United States v. Sinskey, 119 F.3d 712 (9th Cir. 1997) (arming defendants convictions for falsifying monthly NPDES reports
submitted to EPA).
3. U.S. EPA, Statement of Policy Incentives for Self-Policing: Discovery, Disclosure, Correction, and Prevention of Violations, 65 Fed. Reg.
19618, 19625 (Apr. 11, 2000).

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT