EPA Issues Civil-Criminal Enforcement Coordination Policy, Changing Approach To How It Handles Collaboration Between The Two Offices – Environmental Law

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On April 17, 2024, the Environmental Protection Agency
(“EPA”) issued a Civil-Criminal Enforcement Coordination
Policy (“Policy”) that requires EPA’s civil and
criminal enforcement offices to collaborate throughout the planning
and enforcement process. This Policy, which is effective
immediately, emphasizes EPA’s new approach to maintaining and
strengthening the partnership between civil and criminal
enforcement in an effort to provide clarity and consistency to
those involved in the enforcement process.

The Policy changes EPA’s previous approach to its
enforcement program, which it states had “grown beyond a
bifurcated approach, where its civil and criminal enforcement
programs were only loosely connected.” In recent years, EPA
has improved communication and coordination between its civil and
criminal enforcement offices, “which has led to better case
screening and more consistent enforcement responses across
regions.” Now, to promote “collaborative strategic
planning and ensure that EPA exercises its enforcement discretion
fairly and consistently,” the Policy requires the following
measures:

• Increased collaboration between the civil and criminal
  enforcement programs on the development and implementation of
  EPA’s national and regional priorities, including the National
  Enforcement and Compliance Initiatives (“NECIs”) and
  regional strategic plans;




• Enhanced case screening to promote fairness and consistency and
  robust discussion of what enforcement option should be utilized to
  address violations, including whether parallel proceedings should
  be initiated, and continued coordination throughout each
  enforcement action to ensure those initial case choices protect
  public health and the environment;




• Improved case management through enhanced tracking of case
  screening that promotes information sharing about violations and
  ensures ready access to compliance histories and case developments,
  while maintaining enforcement confidentiality; and




• Updated training programs to ensure effective partnership
  between civil and criminal enforcement offices that include the
  requirements of this Policy, factors to consider in deciding
  whether to pursue criminal, civil, or administrative enforcement,
  and best practices for managing information sharing and parallel
  proceedings to prevent case delays.

For initial screenings to be as efficient and effective as
possible, the Policy provides that each enforcement program
“must determine in advance which matters need to be screened
by both programs.” That is, the civil enforcement program must
be alert to civil matters that may include criminal conduct, such
as those presenting “evidence of falsification of data.”
The criminal enforcement program must also be alert to situations
when civil enforcement may be appropriate, such as when “there
is insufficient evidence of criminal mental state.” Moreover,
after initial case screening, the Policy provides that civil and
criminal enforcement offices must continue to coordinate throughout
the existence of any resulting enforcement action, with the goal of
having “a clear direction in the first year about how the
action will be handled so that most judicial cases, to the extent
circumstances allow, will be filed, charged, or concluded within
two to three years—and within 12 to 18 months for
administrative matters.”

The Policy lists five factors to consider when identifying
whether a matter should be subject to civil-criminal enforcement
screening and engagement:

• How significant are the violation(s)?
  

  • What is the harm/risk of harm? Or potential harm?




• What type of culpability is involved?
  

  • Is there evidence of willful, knowing, or negligent conduct;
    willful blindness or deliberate ignorance; or negligence that rises
    to a criminal level?




• What is the compliance history for the alleged violator(s)?
  

  • Prior EPA inspections, information requests, compliance orders,
    penalties, etc.?




• How would you characterize the sophistication and company size
  of the alleged violator(s)?
  

  • What is the evidence of management involvement? Economic
    benefit?




• Does the matter involve a national or regional strategic
  priority?
  

  • Part of a national enforcement and compliance initiative?

Parties who are potentially subject to EPA enforcement action
should review the Policy to determine its scope and understand the
approach it sets forth for identifying which matters should be
subject to civil and criminal enforcement screening and
engagement.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.