Monday, January 17, 2011

Aggressive Environmental Crime Enforcement Expected for 2011

Guest Blog - Michael L. Volkov - Mayer.Brown

The Obama Administration was expected to increase environmental crime enforcement as part of its overall commitment to environmental justice.  For the first two years, the record has been mixed and the expected increase against corporate defendants never materialized.  That may soon change. 

FY 2010 saw an increase in the number of individuals, as opposed to corporations, charged with environmental crimes, from 74 percent in FY 2009 to 76 percent in 2010.   Criminal charges were brought against 289 defendants during FY 2010 and, of those 289 defendants, 251(87 percent) included charges against individual criminal defendants. These enforcement results are consistent with the EPA/DOJ’s renewed emphasis on maximizing the deterrent effect of its prosecutions. 

In 2010, the number of criminal prosecutions against companies declined, but the number of individual prosecutions increased in the last year.  Additionally, both individual and corporate criminal defendants can expect stiffer penalties for environmental crimes, in keeping with the EPA’s mission to achieve maximum deterrence.  

The EPA’s Strategic Plan outlines a planned 20 percent increase in criminal prosecutions against individuals and corporations.  The increased focus on criminal prosecutions reflects a decision by the EPA to increase criminal cases involving waste dumping and other statutory violations where significant harm to the environment or death or serious injury do not occur.  In addition, electronic reporting will become a new area ripe for criminal enforcement, as the EPA shifts away from paper records and moves toward requiring regulated entities to certify compliance via e-filing.  

In any year, there are only a handful of environmental crime incidents involving death or serious bodily injury. While the agency will certainly investigate and prosecute those serious, the new effort is aimed at increasing the less glamorous environmental crimes – i.e. false reporting or illegal storage or disposal of waste that may not cause serious environmental harm. 

In order to carry the increased caseload, the EPA has increased its staff of criminal investigators – 25 new agents are scheduled to start in the beginning of the year, bringing the total staff to over 200 criminal investigators, and another 25 new agents are scheduled to begin in May 2011.  During the early 2000s, EPA cut its number of agents to well below 200 in violation of the 1990 Pollution Prosecution Act—following which the agency embarked upon a three-year hiring strategy to restore EPA CID to present numbers. 

Corporate compliance officers would be well informed to review their company’s environmental compliance programs, increase compliance efforts, and allocate additional resources to prevent any possible criminal investigation. 

(mv)

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