A September 2007 Memorandum by the EPA reveals a new parallel proceedings policy aimed at strengthening coordination between the civil and criminal enforcement programs. Most of the EPA’s enforcement actions are brought as either civil or criminal matters, but there are instances when both enforcement responses are appropriate. This most often occurs when the violations merit the deterrent and retributive effects of criminal enforcement, yet also call for civil enforcement to obtain a remedial result.

In determining whether to proceed with both a criminal and a civil charge, the EPA will consider the legal and practical issues as well as the timing of the enforcement activities. Factors the EPA will consider in going forward with a parallel criminal case include: 1) the deterrent and punitive effects of criminal sanctions; 2) the ability to use a criminal conviction as collateral estoppel in a subsequent civil case; 3) the possibility that civil penalties might undermine the severity of the criminal sentence; and 4) preservation of the secrecy and process of a criminal investigation. Factors the EPA will consider in going forward with a parallel civil proceeding include: 1) a threat to human health or the environment that should be expeditiously addressed; 2) a threat of dissipation of the defendant’s assets; statute of limitations or bankruptcy deadline; 3) the relationship between the civil and criminal actions; and 4) whether the civil case is integral to a national priority and whether postponing or discontinuing the case would substantially and adversely affect implementation of the national effort.

One final comment on the subject of criminal and civil prosecutions comes from Stacey Mitchell, the Chief Prosecutor for the Environmental Crimes Section of the DOJ. In a June 26, 2008 speech she discussed when it is appropriate for the DOJ to step in and push for a criminal prosecution. Mitchell stated that the primary issue the DOJ will look at with criminal prosecution is the offender’s culpable conduct, specifically lying, cheating, and stealing as outlined in the 1994 Devaney memo. However, Mitchell also highlighted the importance of an offender first approaching the EPA with disclosure before going to the DOJ. Mitchell stated that the EPA may decide a violation is something that can be handled internally without criminal prosecution, but if the offender initiates disclosure with the DOJ, then the DOJ, by nature, must become directly involved.

The Parallel Proceedings memo is available at:

http://www.epa.gov/compliance/resources/policies/enforcement/parallel-proceedings-policy-09-24-07.pdf.