Could Your EPA Civil Enforcement Matter Turn Criminal?

Parties involved in a civil enforcement matter by the U.S. Environmental Protection Agency (EPA) could soon find themselves facing even more serious criminal liability. On April 17, 2024, the EPA’s Office of Enforcement and Compliance Assurance announced a new “Strategic Civil-Criminal Enforcement Policy” (Policy). The Policy is effective immediately and applies to all civil and criminal enforcement staff and all enforcement matters moving forward.

The new Policy requires the entire EPA to coordinate and communicate throughout an investigation to determine (and potentially redetermine) whether an enforcement case should be pursued as (a) an administrative matter, (b) a civil or criminal matter, or (c) both a civil and a criminal matter simultaneously.  According to the EPA, the goal of the new policy is to strengthen the strategic partnership between civil and criminal enforcement.

Types of EPA Enforcement

The EPA’s primary task is to enforce Federal environmental laws. Enforcement can take several forms, including both civil and criminal actions.

• Civil administrative actions: These are non-judicial enforcement actions taken by EPA or a state agency and may be in the form of a notice of violation or a Superfund notice letter; or an order (either with or without penalties) directing an individual, a business, or other entity to take action to come into compliance, or to clean up a site.
• Civil judicial actions: These are formal lawsuits filed by the U.S. Department of Justice on behalf of EPA. They may allege that persons or entities have violated statutory or regulatory requirements or failed to comply with an administrative order. They may also seek to require the defendant to reimburse the EPA for the costs of cleaning up a Superfund site or commit to performing remediation.
• Criminal actions: These are typically reserved for the most serious violations, particularly those that are willful or knowingly committed. In addition to monetary penalties, a court conviction can result imprisonment.

One of the key distinctions between environmental civil and criminal enforcement actions is that civil liability is strict. This means that it arises simply through the existence of the environmental violation and does not take into consideration what the responsible party knew about the law or regulation they violated. Conversely, criminal liability generally requires proof beyond a reasonable doubt that the defendant knowingly violated the environmental law, meaning that the person or company was aware of the facts that created the violation. 

EPA Strategic Civil-Criminal Enforcement Policy

Many federal environmental statutes include both civil and criminal penalties, which gives the EPA discretion when deciding whether a particular matter warrants criminal, civil, or administrative enforcement. In its latest Strategic Civil-Criminal Enforcement Policy, the EPA calls for closer coordination between its civil and criminal offices in making such decisions. It states:

A strong partnership between EPA’s civil and criminal enforcement offices—characterized by joint strategic planning, rigorous case screening, and regular communication—will enable EPA to realize the full benefits of the environmental laws and promote greater fairness in enforcement. National and regional initiatives will be most successful if they include both criminal and civil cases. Civil and criminal enforcement managers should review inspection reports and other information regarding alleged violations to determine the appropriate enforcement tools for each matter and revisit those choices as cases progress. Information sharing should be a two-way street to promote optimal enforcement.

The EPA’s new Policy specifically calls for increased collaboration between the civil and criminal enforcement programs on the development and implementation of EPA’s national and regional priorities. It also mandates enhanced case screening and “robust discussion” of what enforcement option should be utilized to address violations, including whether parallel proceedings should be initiated.

Of particular importance for parties facing an EPA enforcement action, the Policy lists factors that EPA staff should take into consideration in deciding whether to pursue criminal, civil, or administrative enforcement. They include:

• How significant are the violation(s)? Factors to take into consideration include the harm/risk of harm, including environmental and human health impacts; the possibility of an imminent and substantial endangerment, ongoing discharge, emission, or release, or other acts; where there is no imminent and substantial endangerment, the risk or threat of harm plain, such as improper storage of ignitable or reactive waste, an eroding lagoon, or falsification of drinking water data such that remedial measures and/or injunctive relief may be appropriate; the existence of a requirement to report the violation that was ignored (e.g., CERCLA reporting); and whether the conduct involves either a violation of a permit or the failure to obtain a permit.
• What type of culpability is involved? Factors taken into consideration include whether there is evidence of willful, knowing, or negligent conduct, willful blindness or deliberate ignorance, or negligence that rises to a criminal level; is there evidence of concealment of misconduct or falsification of required records, bypass or tampering with monitoring or control equipment; and are there other “red flags” that may suggest criminal conduct, i.e. conflicting stories, suspicious signatures and dating of forms, unsubstantiated data, conflicting data, or no data, suspect or demonstrably false claim(s) of ignorance about requirements, and poor management/intentional decentralization to avoid knowledge.
• What is the compliance history for the alleged violator(s)? Factors taken into consideration include prior EPA inspections, information requests, compliance orders, penalties, etc.; a history of repeated violations, past enforcement actions, and consent decrees; and state involvement.
• How would you characterize the sophistication and company size of the alleged violator(s)? Factors taken into consideration include evidence of management involvement and economic benefit.
• Does the matter involve a national or regional strategic priority? Factors taken into consideration include whether the matter is part of a national enforcement and compliance initiative or part of a regional strategic priority

Key Takeaway Under EPA’s new enforcement policy, entities in a civil EPA enforcement matter may find their case converted into a criminal matter. At the same time, entities involved in EPA criminal enforcement may be able to argue that their case should be a civil matter. Both of these possibilities highlight the importance of working with an experienced environmental attorney who can effectively negotiate with the EPA on your behalf.