In the six months or so that President Biden has been in the White House there has been a consistent message that they are serious about fully integrating Environmental Justice (EJ) into environmental permitting. We discussed this in two previous blogs on March 30th and May 10th.
If we needed further evidence that the United States Environmental Protection Agency (US EPA) is serious about EJ, we received this evidence in a June 21, 2021 memo from Lawrence Starfield, USEPA Acting Assistant Administrator.
Criminal Enforcement
Quoting from the EPA Memo: “This memorandum sets out steps to advance…environmental justice (EJ) goals via the criminal enforcement work performed by the Office of Enforcement and Compliance Assurance’s (OECA’s) Office of Criminal Enforcement, Forensics and Training (OCEFT) and the Regional Criminal Enforcement Counsels (RCECs), with technical assistance from their colleagues in other EPA offices.”
In this memo, Mr. Starfield, states the following: “The criminal enforcement program can further environmental justice by strengthening tools for the detection of environmental crimes in overburdened communities, improving outreach to the victims of such crimes, and ensuring that our investigations are structured to provide maximum assistance to the Department of Justice (DOJ) in its exercise of prosecutorial discretion and pursuit of remedies that will guarantee adequate protection for those communities” (emphasis added).
Responsible Corporate Officer
Writing about this memo, John Irving, former Deputy Assistant Administrator in U.S. EPA’s Office of Enforcement and Compliance Assurance (OECA), and now a Partner at Earth and Water Law offered some insights.
“Companies can be held liable for the actions of employees who act within the scope of their employment and for the benefit of the corporation (both broadly interpreted) under the doctrine of respondeat superior. Certain statutes, like the Clean Water Act and Clean Air Act, include “Responsible Corporate Officer” liability that holds managers criminally accountable where they could have prevented a violation but failed to do so. All of these decisions – whether to handle a case administratively within EPA or refer it to DOJ, whether to pursue a matter as a criminal or civil case (or both), and what charges to bring against whom in a criminal case – are within the government’s broad enforcement discretion and require a responsible exercise of that authority.”
Under Environmental Justice, the EPA will focus on gathering robust data so DOJ can “exercise prosecutorial discretion” (Image Credit USDOJ).
“Enhancing Remedies”
Under the header, “Enhancing the Remedies Sought in Environmental Crime Cases,” The EPA lays out some of their tactics for implementation. For example, to prevent subsequent crimes in EJ Communities the EPA will make sure that punishment for environmental crimes are “sufficient to achieve the goal of deterrence.” Accordingly, EPA personnel “should therefore investigate cases not only to determine and prove the elements of the crime but also to equip prosecution.”
The EPA will also “seek conditions of probation or supervised release whenever necessary to ensure compliance and provide communities with sufficient information to be assured that illegal pollution is not recurring. Criminal enforcement case teams should therefore be prepared to urge prosecutors to seek sentences imposing advanced monitoring, audits and/or court-appointed monitors, and electronically and publicly reported compliance data, especially in corporate prosecutions involving ongoing businesses.”
Preparing for a More Aggressive EPA
Returning to the article by the Former EPA Deputy Assistant Administrator (Mr. Irving), he said that companies can expect to see:
- “An increasing tendency to exercise enforcement discretion to refer cases to DOJ and to pursue environmental violations as criminal violations;
- More inspections and criminal investigations, particularly in EJ communities; and
- Aggressive use of federal sentencing guidelines and the statutory alternative fines provision to enhance sentences for individuals and companies.”
There are other EPA expected actions that Mr. Irving outlines in his article, which we encourage you to read.
There is plenty of evidence that the EPA means business with respect to bold enforcement of environmental permits within EJ Communities. If your company is located in a potential target area, we suggest that you seriously consider getting your environmental team (consultant and lawyer) on board under the environmental audit privilege provisions to assess your facility. As the criminal provisions will affect “Responsible Corporate Officers,” we also suggest you share the EPA memo with your senior management team.
If you need environmental compliance assistance, we can help. Contact Jeffrey Bolin, M.S., CHMM at 248-932-0228, Ext. 125.
Follow Dragun Corporation on LinkedIn.
Sign up for our monthly newsletters.
Principled Foundation | Thoughtful Advice | Smart Solutions