JUST RELEASED: EPA’s Bold New Strategic Civil-Criminal Enforcement Collaboration Policy

The Environmental Protection Agency’s (EPA’s) Office of Enforcement and Compliance Assurance (OECA) just issued its new Strategic Civil-Criminal Enforcement Policy, setting the stage for the new manner in which the agency manages its pollution investigations. David M. Uhlmann, the head of OECA, signed the Policy memorandum on April 17, 2024, in order to ensure that EPA’s civil and criminal enforcement offices collaborate efficiently and consistently in cases across the nation. The Policy states, “EPA must exercise enforcement discretion reasonably when deciding whether a particular matter warrants criminal, civil, or administrative enforcement. Criminal enforcement should be reserved for the most egregious violations.” 

The Policy requires all personnel in the civil and criminal enforcement programs to incorporate the following measures, effective immediately:

1. Increased collaboration on the development and implementation of EPA’s national and regional priorities (i.e., National Enforcement and Compliance Initiatives (NECIs), the PFAS Roadmap, and the Lead Action Plan);
2. Enhanced case screening to address enforcement options to pursue at each stage of investigation to ensure “fairness and consistency” and to determine whether consultation with the Department of Justice is needed at the onset;
3. Improved case management to include information sharing “while maintaining enforcement confidentiality;” and
4. Updated training programs on topics including timely case management, and “factors to consider in deciding whether to pursue criminal, civil, or administrative enforcement.”

The Goal: Faster, Fairer, and Consistent Resolutions

This new Policy is a significant change from past practice and aims at tightening the collaborative effort among the civil and criminal enforcement programs by not only mandating regular meetings throughout each office’s stage of investigation on matters, but also requiring in-depth initial case screenings to assess the strength of the evidence and where to “start” the investigations. Appendix A of the Policy includes factors to consider during this screening.

Further, the Policy requires the development of a national tracking system (one that includes essential but non-criminally sensitive information) so that individual EPA Regions are fully aware of a target’s “existing and prior enforcement actions, both criminal and civil, since prior enforcement could impact their decision-making.” In short, this means that a matter that initially appears to be a civil issue in one Region could be quickly elevated into a criminal investigation based on information received from another Region, or even discovered from an earlier time (i.e., evidence of past violations)— all based on information housed in the new (future) database. 

Ultimately, this Policy strives to provide a “clear direction” for enforcement in an investigation’s initial year of opening, with the aspirational goal that most matters will be “filed, charged, or concluded within two to three years—and within 12 to 18 months for administrative matters.” That would be a significant difference in pace from past EPA civil enforcement actions, many of which have lingered for well over three-plus years. Importantly, the Policy also requires training of all enforcement staff (civil and criminal) to cover topics including scenarios that warrant criminal versus civil investigation or those that warrant a parallel investigation, the types of evidence that can and cannot be shared, and the necessary precautions that must be taken to avoid inadvertent disclosure of sensitive material such as grand jury material.[1]

So, What Will Happen Now?

The Policy stresses that this increased collaboration will continue to allow the agency (and its enforcement offices) to use its broad discretion in determining which priorities to address and with which resources. However, if it achieves even some of its lofty goals, the Policy may result in fewer investigations languishing for months or years before resolution. While that may mean more, and more effective, enforcement actions, it also could be a potential benefit to companies that want to resolve such matters quickly. This Policy also might help avoid situations in which, after years of almost reaching a civil administrative resolution, the matter is suddenly stayed and taken over by a separate batch of criminal investigators, and the whole investigation takes on an entirely new direction—a situation in which companies do not want to find themselves.

This Policy’s full impact on the regulated community is yet to be appreciated. Time will tell sooner or later.