Memorandum From Earl E. Devaney, Director, Office of Criminal Enforcement, to All EPA Employees Working in or in Support of the Criminal Enforcement Program, The Exercise of Investigative Discretion (Jan. 12, 1994)

AuthorJudson W. Starr/Amy J. McMaster/John F. Cooney/Joseph G. (Jerry) Block/David G. Dickman
Page 219
January 12, 1994
SUBJECT: e Exercise of Investigative Discretion
FROM: Earl E. Devaney, Director
Oce of Criminal Enforcement
TO: All EPA Employees Working in or in Support of the Criminal Enforcement Program
I. Introduction
As EPA’s criminal enforcement program enters its sec ond decade and embarks on a per iod of unprecedented
growth, t his guidance est ablishes the principles t hat will guide the e xercise of investigative discretion by EPA Spe-
cial A gents. is guida nce combines art iculations of Congre ssional intent underlyin g the environmental criminal
provisions w ith the Oce of Criminal Enforcement’s (OCE) exper ience operating u nder EPA’s exist ing criminal
case-scre ening criteria.1
In an eort to max imize our li mited criminal resources, th is guidance sets out the spe cic factors th at distin-
guish cases merit ing crimina l investigation from those more appropriately pursued under administrative or civil
judicial aut horities.2
Indeed, the Oce of Criminal Enforcement has an obligation to the American public, to our colleagues through-
out EPA, the regulated community, Congress, and the media to instill condence that EPA’s criminal program has
the proper mechanisms in pla ce to ensure the discriminate use of the powerf ul law enforcement authority entrusted
to us.
II. Legislative Intent Regarding Case Selection
e criminal provisions of the env ironmental law s are the most powerful enforcement tools available to EPA. Con-
gressional intent u nderlying the environmental cr iminal provisions is unequivoc al: criminal enforc ement authority
should target the most sig nicant and egregious violators.
e Pollution Prosecution Act of 1990 recogni zed the importanc e of a strong n ational environmental cri minal
enforcement program and mandates additiona l resources necessar y for the crimina l program to ful ll its statutory
mission. e sponsors of t he Act recog nized that EPA had long been in the posture of reacting to serious v iolations
only after harm was done, primar ily due to limited resource s. Senator Joseph I. Lieberman (Conn.), one of the co -
sponsors of the Act, explai ned t hat as a res ult of limited res ources, “[hellip] few cases are the product of reasoned
or targeted focus on suspected wrongdoing.” He al so expressed his hope th at with the Act’s provision of additional
Special A gents, “[hellip] EPA would be a ble to bri ng cases that would have greater deter rent value than those cu r-
rently being brought.”
Further i llustrative of Congre ssional intent th at the most serious of violations should be addressed by criminal
enforcement authority is the legislat ive history concerning the enhanced cr iminal provisions of RCRA:
[e crimina l provisions were] intended to prevent abuses of the permit system by t hose who obtain and then
knowingly disregard them. It [RCRA sec. 3008(d)] is not aimed at punishi ng minor or techn ical variations
from permit regul ations or conditions if the facility oper ator is acti ng responsibly. e Depart ment of Justice
has e xercised its prosecutoria l discretion responsibly under similar provisions in ot her st atutes and the con-
1. is guidance incorporates by reference the policy document entitled Regional Enforcement Management: Enhanced Regional Case Screening
(December 3, 1990).
2. is memorandum is intended only as internal guidance to EPA. It is not intended to, does not, and may not be relied upon to, create a
right or benet, substantive or procedural, enforceable at law by a party to litigation with the United States, nor does this guidance in any
way limit the lawful enforcement prerogatives, including administrative or civil enforcement actions, of the Department of Justice and the
Environmental Protection Agency.

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