Case Initiation and Response

• Author: Judson W. Starr/Amy J. McMaster/John F. Cooney/Joseph G. (Jerry) Block/David G. Dickman
• Pages: 27-35

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 http://www.justice.gov/enrd/3058.htm (last visited May 28, 2013); U.S. Coast

Guard, Maritime Law Enforcement Manual, App. V, Environmental Crimes: Voluntary Disclosure Policy, available at http://www.uscg.mil/foia/

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).