U.S. DOJ, Factors in Decisions on Criminal Prosecutions for Environmental Violations in the Context of Significant Voluntary Compliance or Disclosure Efforts by the Violator (July 1, 1991)

• Author: Judson W. Starr/Amy J. McMaster/John F. Cooney/Joseph G. (Jerry) Block/David G. Dickman
• Pages: 225-229

Page 225

U.S. Depart ment of Justice

Washington, D.C. 20530

July 1, 1991

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 a nd voluntary disclosure of

environmental violations by the regulated commun ity by indicating that these ac tivities are viewed as m itigating

factors in the Department’s exercise of crim inal environmental enforcement d iscretion. is document is intended

to describe the factors th at the Department of Justice considers in deciding whether to bri ng a criminal prosecution

for a violation of an environmental st atute, so that such prosecutions do not create a disincentive to or undermi ne

the goa l of encouraging critical self-auditi ng, self-policing, a nd voluntary dis closure. It is de signed to give federal

prosecutors direction concerni ng the exercise of prosecutorial d iscretion in environmental cr iminal ca ses 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 crimin al prosecutorial discretion with respect to such factors as the

defendant’s voluntary di sclosure of violations, cooperation w ith the g overnment in inves tigating the violations, u se

of environmental audits and other procedures to ensure compliance with all applicable environmental laws and regu-

lations, and use of measu res to remedy expeditiously and completely any violations and the ha rms caused thereby.

is gu idance a nd the examples conta ined herein provide a fra mework for the determinat ion of whether a par-

ticular ca se presents the type of circumstanc es in which lenience would be appropriate.

II. Factors to Be Considered

Where the law a nd evidence would otherwise be s ucient for prosecution, the attorney for the Depar tment should

consider the actors contained herein, to the extent they are applicable, along with any other relevant factors, in deter-

mining whether and how to prosecute. It must be emphasized t hat these are examples of t he types of factors which

could be relevant. ey do not constitute a denitive recipe or checklist of requirements. ey merely illustrate some

of the types of in formation which is releva nt to our exercise of prosecutorial d iscretion.

It is unlikely that any one factor will be dispositive in any given case. All relev ant factors are considered and given

the weig ht deemed appropriate in the particula r case. See Federal Principles of Pr osecution (U.S. Dept. of Justice,

1980), Comment to Part A.2; Part B.3.

A. Voluntary Disclosure

e attorney for the Department should consider whether the person1 made a voluntary, timely and complete disclo-

sure of the matter under investigation. Consideration should be given to whether the person came forwa rd promptly

after discovering the noncomplia nce, and to t he quantity and quality of information provided. Part icular consid-

eration should be given to whether the disclosure sub stantially aided the government’s invest igatory process, and

whether it oc curred before a law enforcement cr regulator y authority (federal, state or local authority) had already

obtained knowledg e regarding noncompliance. A disc losure is not considered to be “voluntary” i f that disclosure is

already specic ally required by law, regulation, or permit.2

1. As used in this document, the terms “person” and “violator” are intended to refer to business and nonprot entities as well as individuals.

2. For example, any person in charge of a vessel or of an on shore facility or an oshore 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. No. 101-

380, §4301(a), 104 Stat. 485, 533 (1990).