The advent of criminal enforcement of the environmental

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1 Environmental Self-Audit and Voluntary Disclosure to What End? Gregory F. Linsin The advent of criminal enforcement of the environmental laws in the United States during the mid- 1980s spurred interest within the regulated community in the development of technical programs and management tools to enable companies to monitor environmental performance more reliably and to correct detected instances of noncompliance before they became the subject of enforcement activity. These environmental management systems enable companies to manage their environmental obligations more efficiently while improving overall compliance with complex regulatory programs. Understanding that these corporate practices could contribute to the improvement of environmental compliance rates while enabling the enforcement programs to focus their limited resources on intransigent offenders, the federal enforcement agencies promulgated policies designed to encourage self-auditing programs and to reward companies by offering reduced sanctions or a waiver of enforcement response to those companies that elected to disclose voluntarily violations identified through such programs. In 1991 the Environment and Natural Resources Division (ENRD) of the U.S. Department of Justice (DOJ) published its voluntary disclosure policy Factors in Decisions on Criminal Prosecutions for Environmental Violations in the Context of Significant Voluntary Compliance or Disclosure Efforts by the Violator, (July 1, 1991), Reading_Room/factors.htm) (hereinafter ENRD Voluntary Disclosure Policy or ENRD Policy), to encourage self-auditing, self-policing and voluntary disclosure of environmental violations by the regulated community by clarifying that these activities will be viewed as mitigating factors, and explaining that if a company fully met the identified criteria, the result may be a decision not to prosecute the company criminally. The Environmental Protection Agency (EPA) issued its own Audit Policy in 1995, Incentives for Self-Policing: Discovery, Disclosure, Correction and Prevention of Violations, (60 Fed. Reg. 66,706), and a separate guidance regarding the application of that Audit Policy to criminal violations in 1997 ( PDF). The central elements of these policies echoed the principles expressed in the ENRD Voluntary Disclosure Policy, i.e., that regulated entities were encouraged to voluntarily discover, disclose, correct, and prevent violations of environmental laws and that if Mr. Linsin is a partner with Blank Rome LLP in the firm s Washington, D.C., office. He may be reached at linsin@blankrome.com. the policy conditions were met EPA would forego or seek reduced gravity-based penalties and would not refer the matter to DOJ for criminal prosecution. EPA issued a revision to its Audit Policy in 2000 (65 Fed. Reg. 19,618), but the basic components of the policy remained largely unchanged. In 2007, in the wake of scores of criminal prosecutions of commercial vessel owners and operators for intentional violations of antipollution statutes, the Coast Guard issued its Voluntary Disclosure Policy ( Appendix%20V.pdf), modeled closely after EPA s Audit Policy and targeted to promote disclosures of environmental criminal violations. As with other policies mentioned, the key incentive is that the Coast Guard will not refer the matter to DOJ for criminal prosecution of the disclosing entity if a regulated company satisfies the policy s conditions. Are these audit and voluntary disclosure policies for environmental criminal violations working? Have they resulted in a reduction in polluting activities? Unfortunately, the public record suggests that they are not being applied with sufficient predictability to persuade regulated businesses to make the investments and assume the risks required to satisfy the policies conditions. Available evidence also suggests that these programs do not achieve their intended goal of fostering the voluntary disclosure of serious violations in a way that improves environmental compliance and a yields a significant reduction in pollution activity. There are, however, several concrete, practical measures that enforcement agencies could readily implement to improve the predictability of participation in these programs while preserving the ultimate investigative and prosecutive discretion to prosecute the most serious environmental offenses. These steps would provide clearer guidance to responsible members of the regulated community and would help ensure that good-faith efforts by regulated entities to monitor environmental performance and to report and remedy promptly any violations detected will be appropriately recognized. Environmental Compliance Plans Costs/Risks Every regulated company has an obligation to comply with the nation s environmental laws and to satisfy certain documentation or reporting requirements to verify compliance. To meet these obligations, many companies have developed an Environmental Compliance Plan (ECP). The decision to develop and implement a comprehensive ECP and/or Com-

2 pliance Management System (CMS) involves a substantial commitment of resources and personnel, both to monitor environmental compliance and to ensure appropriate followup beyond that mandated by law. A review of some of the standard features of a typical ECP readily illustrates this point. Senior Management Oversight Most ECPs call for the designation of a senior management official to serve as the overall coordinator for the ECP. This individual is typically charged with confirming that all elements of the ECP are being implemented as designed and ensuring that deficiencies are identified and corrected in a timely manner. In addition, this individual is responsible for coordinating the management components of the CMS and is usually charged with making periodic reports to the company s president and the board of directors concerning performance under the ECP. The adoption of a CMS and an ECP reflects a decision on the part of the senior management of a company to (a) provide a blueprint for the managerial chain of responsibility for environmental compliance from the shop floor to the board room, (b) specify the senior managers who are responsible for compliance oversight, and (c) ensure there is documentation of the information that is periodically provided to the company president and to the board members regarding environmental compliance. Collectively, these measures reflect a substantial commitment on the part of an organization to build accountability for environmental compliance into its management structure. The objective in implementing these systems is to enhance overall compliance with environmental standards, but there is also no doubt that these measures significantly escalate the enforcement risks to the organization and its individual managers in the event a violation is detected. Auditing Processes The heart of any ECP is the company s commitment to undertake comprehensive, periodic environmental audits of its business operation to verify compliance with environmental requirements, identify areas of noncompliance, and provide the mechanisms for correcting any deficiencies. Most audit regimes involve a broad, integrated review of the company s overall environmental performance. Thus, an environmental audit typically includes (a) a systematic review of all regulated waste streams to assess waste-minimization efforts and ensure proper accounting, handling, and disposal; (b) a review of the systems regulated under each of the permits held by the company s facilities to ensure ongoing compliance with permit parameters; and (c) verification of the accuracy and completeness of the information contained in manifests, monitoring reports, or other documents that have been submitted to regulatory agencies or are otherwise required to be maintained by the company. Noncompliance findings must be recorded and classified as minor or major. Corrective action must be promptly initiated and completed, typically within sixty days. The audit process also typically incorporates a review of the company s compliance with its own CMS to ensure that management oversight mechanisms are functioning as intended. Certain regulatory programs, such as the hazardous air pollutant regulations under the Clean Air Act, require the periodic submission of detailed reports concerning the management of specific environmental requirements. However, no environmental regulatory system requires a company to adopt the type of comprehensive audit program outlined above. A company that chooses to implement such a program is voluntarily adopting a degree of scrutiny concerning its environmental obligations not mandated by any regulatory regime. Budget The development and implementation of a comprehensive ECP/CMS requires a significant commitment of financial resources and the sustained involvement of the senior management team, key technical personnel, and, in most cases, outside consultants to provide objective technical guidance and legal advice. A credible ECP also requires a transparent budgeting process directly overseen by a senior corporate official to ensure that adequate funds are consistently available for required maintenance, equipment replacement, employee training, and the proper analysis, management, and disposal of all waste streams. Finally, most ECPs developed in recent years incorporate a procedure for the periodic reevaluation of the ECP itself and of the management systems that are intended to support the compliance plan. These reevaluations are designed to test the overall compliance-assurance process, so that weaknesses can be identified and improvements made in the system before the initiation of enforcement proceedings. While all regulated businesses, even if they have not implemented an ECP/CMS, must expend resources to comply with environmental standards, the standard ECP elevates the priority and visibility of this financial commitment and identifies with specificity the individuals responsible for ensuring that the requisite financial resources are committed to compliance. Documentation Another significant feature of many ECPs/ CMSs is the requirement that the internal records concerning environmental performance generated through the operation of the ECP/CMS, including the audit reports, must be retained to ensure their availability for future review and comparative analysis. Especially when coupled with the vertical reporting process, which is a hallmark of the CMS, the adoption of such a targeted document-retention policy has the potential to increase the enforcement exposure for the company and its senior managers. Investment in environmental management systems can yield significant benefits by strengthening the corporation s capacity to monitor environmental performance systematically, detect problems early, and continuously reinforce a corporate ethic of compliance. These benefits, though, can be achieved only if the corporation s senior management is prepared to assume the risks and dedicate the resources required to implement and sustain these management systems. Elevated Risks and Internal Investigations The risks inherent in the implementation of an ECP/CMS are further elevated when management receives information concerning a significant noncompliance event through a whistleblower allegation, internal monitoring, or the internal audit process. Often, the preliminary information regarding a potential violation is incomplete and raises more questions than it answers. Is the information credible, and does it, in fact, constitute a violation of

3 the law? If so, how extensive is the violation? How long has it been occurring? Does the information suggest that reports previously filed with or provided to regulatory agencies were incomplete or inaccurate? Who was responsible for the violation, and who knew about it at the time? Does the same problem exist at other facilities? The company must also determine how to most efficiently establish the factual record and who to task with that responsibility. Management must decide whether it will voluntarily disclose the new information to the appropriate regulatory agency. If so, questions then arise as to the form and timing of the disclosure; who should make the disclosure; what followup investigation should be anticipated from the agency; and whether any current employees might be deemed subjects or targets of such an investigation. Senior management or the board may decide to commission an internal investigation, often conducted by outside counsel, to collect factual information quickly, analyze the potential legal exposure for the organization, and provide legal advice regarding a possible voluntary disclosure to the government. However, the initiation of an internal investigation generates a cascading series of additional issues for senior management to resolve. The first challenge is to define the scope of the investigation itself and to establish a set of reporting procedures and protocols for documenting the investigation. When the investigation commences, outside counsel will need to cause a litigation hold to be implemented for the universe of documents that must be preserved, and a subset of those documents will then need to be produced and analyzed. Senior management or the board will also be required to decide whether the company will indemnify company employees who decide to retain counsel to represent them individually. More generally, throughout the course of an internal investigation, there is often a dynamic tension between the need for thorough, accurate fact finding and the risks associated with potential, parallel civil litigation or enforcement actions. This tension is nowhere more apparent than in the balancing that is often required to develop the requisite factual information in a manner and form that can potentially be shared with regulators while reserving a final decision concerning a waiver of the attorney-client privilege. Recognition that DOJ may take a negative inference from a decision not to waive the attorney-client privilege has complicated this effort. While the latest revision of DOJ s Principles of Federal Prosecution of Business Organizations suggests that federal prosecutors will no longer expressly consider a company s decision not to waive the privilege when assessing the company s quality of cooperation, the revised policy makes clear that the prosecutors will continue to consider whether a company has made a voluntary and timely factual disclosure of wrongdoing and whether, after such a disclosure, the company cooperates in the production of relevant evidence and the identification of individual perpetrators. U.S. Attorneys Manual, Title 9, Ch The voluntary disclosure policies promulgated by the key federal environmental enforcement agencies (ENRD of DOJ (1991), the Environmental Protection Agency (1995), and the United States Coast Guard (2007)) were intended to promote self-policing and to encourage regulated entities to disclose violations voluntarily. The policies were premised on the belief that responsible corporate actors could be persuaded to monitor their environmental performance and voluntarily disclose evidence of violations, thus reducing the need for regulatory oversight while improving the rate of compliance. However, in addition to the expense and risk a company incurs with the implementation of a comprehensive ECP/CMS and the additional dangers that can result from a decision to conduct a thorough internal investigation of a potential violation detected by the ECP/CMS, the voluntary disclosure policies as currently implemented tend to create disincentives that work to frustrate the core objective of the policies. One of the greatest challenges for any company evaluating whether to voluntarily disclose information regarding an environmental violation to the government is the difficulty in rationally assessing if the company will receive sufficient enforcement credit to avoid criminal prosecution. Unlike the Antitrust Division, which offers an assurance of nonprosecution to the first corporation in the door if it is willing to cooperate in the investigation of the other companies involved in an anticompetitive scheme, no other component of DOJ, including the ENRD, is in a position to promise immunity from prosecution before a voluntary disclosure is made. Indeed, the several iterations of the Principles of Federal Prosecution of Business Organizations have all required federal prosecutors to consider a range of postdisclosure factors before exercising prosecutorial judgment. But the experience of the past seventeen years demonstrates that there are a number of steps the environmental enforcement agencies, especially the ENRD, can take to reduce uncertainties and lower risks for the target audience of its disclosure policies without surrendering their prerogative to retain ultimate prosecutorial discretion. A quick review of the overall track record for these disclosure policies illustrates some of the deficiencies. EPA s Voluntary Disclosure Program, which specifically targets civil environmental violations, has been active for over thirteen years. During that time, the agency received just over 3,000 disclosed violations, but more that half of those disclosures involved reporting violations under the Emergency Planning and Community Right-to-Know Act (EPCRA), which almost certainly did not produce significant reductions in pollutant releases once the violations were corrected. Enhancing Environmental Outcomes From Audit Policy Disclosures Through Tailored Incentives for New Owners, 72 Fed. Reg. 27,116 (May 14, 2007). Although the number of voluntary disclosures initiated per year has risen somewhat over the past five years, the data still do not demonstrate a robust disclosure program that is achieving the policy goal of a significant reduction in pollutant releases through voluntary disclosure. The deficiency is even more apparent when one considers the performance of the Voluntary Disclosure Board (VDB), which was established in 1997 to review voluntary disclosures of potential criminal violations of the environmental statutes. From 2000 through the end of 2007, the VDB received a total of forty-six submissions, or an average of under six voluntary disclosures per year, according to J. T. Morgan, Staff Attorney, VDB, Office of Criminal Enforcement, Forensics & Training. That number is particularly surprising when it is recognized that during the same general period an average of over 270 defen-

4 dants were charged each year with environmental criminal offenses. fy2007results.pdf#page=23. The Coast Guard s Voluntary Disclosure policy, modeled on EPA s program, was issued in November As of August 2008, the Coast Guard has not reported receipt of any voluntary disclosures of violations from the maritime industry. Part of the reason may be that the Coast Guard s policy labors under several structural disadvantages. First, although there have been scores of well-publicized criminal enforcement cases brought over the past decade for intentional vessel pollution violations, no parallel civil or administrative enforcement program for vessel pollution offenses has developed in the United States. For a number of reasons, there has been no real gradation of enforcement response. As a consequence, in the mind of the maritime operator contemplating a potential disclosure, the risks may appear to be much higher than for a typical shore-based company. Second, because of the international character of the commercial shipping industry, the Coast Guard is not the only enforcement authority with the ability to proceed against a maritime operator. A vessel s flag state and numerous other port and coastal states may also have jurisdiction to consider enforcement actions based on a voluntary disclosure made to the Coast Guard under its disclosure policy. The Coast Guard s policy does not and cannot address these broader enforcement risks. Finally, while the requirements for participation in EPA s program were derived from and blended well with the more progressive trends in environmental management practices in the United States, the requirements for qualification under the Coast Guard s policy bear very little relationship to what have been the standard industry practices for insuring environmental compliance under MARPOL 73/78, the international convention that establishes discharge limitations for ocean-going commercial vessels and the international regime for vessel inspection and certification. The most critical deficiency of the ENRD voluntary disclosure policy has been the nearly complete failure of the policy to generate significant interest or participation by members of the regulated community. The express purpose of the policy is to encourage self-auditing, self-policing and voluntary disclosure of environmental violations by the regulated community by indicating that these activities are viewed as mitigating factors in the Department s exercise of criminal environmental enforcement discretion. Unlike EPA and other components of the Department that have similar programs, over the past seventeen years ENRD has not published any statistics regarding industry participation in the program, the number of voluntary disclosures made pursuant to policy, or the results of any such disclosures. Likewise, ENRD has not issued any clarifications, modifications, or updates to the policy. Public references to ENRD s voluntary disclosure policy have appeared only indirectly in the context of organizational plea agreements involving guilty pleas to felony offenses where ENRD has stated that the defendant was provided a concession in the form of a reduced criminal fine or a reduced number of counts in recognition of the defendant s voluntary disclosure of wrongdoing or cooperation during the investigation. Unfortunately, this public record conveys the almost inescapable conclusion that ENRD s voluntary disclosure policy does not have a significant mitigating effect on the exercise of prosecutorial discretion by its prosecutors. If the only potential benefit under the policy for engaging in the qualifying conduct of self-auditing, self-policing, and voluntary disclosure is a reduced criminal fine in an inevitable criminal prosecution for felony offenses, the policy as implemented provides very little incentive for the regulated community to make the financial investments and assume the enforcements risks that are required by ENRD s disclosure policy. Practical Steps to Enhance Incentives The effectiveness of the federal voluntary disclosure policies could be significantly improved by the implementation of certain practical measures that could reduce uncertainty for the regulated community without compromising the investigative or prosecutive discretion of the federal enforcement agencies. By clarifying the potential benefits of self-auditing programs and improving the predictability of results, the federal government could increase the likelihood that responsible members of the regulated communities would be prepared to make the required investments and assume the risks associated with intensive environmental monitoring programs. Illustratively, over the years, EPA has taken several steps to assist the regulated community in understanding the agency s voluntary disclosure program and to make adjustments in the program to correct perceived inequities and to encourage greater industry participation. For example, EPA publishes annually the data concerning the number of voluntary disclosures initiated, the number of facilities involved, and the number of disclosures resolved. The agency also periodically publishes responses to frequently asked questions (FAQs) in the Federal Register to clarify issues concerning interpretations of the policy and its implementation. The agency also offers compliance assistance to companies that are attempting in good faith to implement meaningful ECPs and CMSs. Additionally, the agency modified its disclosure policy five years after it was initially promulgated to provide the potential for reduced penalties even when the violations were discovered by means other than a systematic audit process. EPA has also recently published a new Interim Approach to Applying the Audit Policy to New Owners. (73 Fed. Reg. 44,991 (Aug. 1, 2008)). This targeted modification of the Audit Policy is a creative effort to leverage the motivation that new owners of regulated facilities have to avoid inheriting the environmental mistakes of the prior owners and to encourage new owners to engage in comprehensive environmental compliance reviews, correct violations, and upgrade deficient equipment and practices. To achieve these results, the Interim Approach offers a range of additional incentives to new owners, including an expanded disclosure period, the elimination of penalties based on economic benefit or delayed capital expenditures for qualifying disclosures from new owners, and allowance of consideration of all violations under the disclosure policy, even those which would otherwise be ineligible because they are required by legally mandated monitoring or auditing procedures. While this Interim Approach does not provide all of the concessions sought by the regulated community, at a minimum,

5 it constitutes an effort on the part of EPA to adjust its disclosure policy proactively to address practical business realities while enhancing compliance rates and reducing pollution. As the Coast Guard evaluates the effectiveness of its new voluntary disclosure policy, it should consider implementing some of the measures EPA developed to enhance and expand its disclosure program, such as a mechanism to provide compliance assistance to vessel owners and operators attempting in good faith to develop effective ECPs or CMSs. Such advice could be very constructive for the maritime industry even if provided on a nonbinding basis. Also, the Coast Guard s policy statement commits the agency to making all compliance agreements reached under the policy publicly available. It would be extremely useful if the Coast Guard committed to publishing statistics, as does EPA, on the number of voluntary disclosures received and vessels impacted and the enforcement outcome, if any. These measures could help the Coast Guard engage the commercial maritime industry on a positive basis concerning environmental compliance and assist responsible owners and operators in implementing effective audit programs while gaining a better appreciation of how such programs can yield benefits under the Coast Guard s disclosure program. However, DOJ retains sole authority for the initiation of environmental criminal prosecutions. EPA and the Coast Guard can make recommendations concerning the disposition of certain cases, but prosecutive authority in environmental criminal cases rests exclusively with the leadership of ENRD and the U.S. Attorney s Office in the district where the conduct occurred. In the end it is ENRD s approach to and application of its voluntary disclosure program that ultimately determines the degree of risk a company will face if it elects to disclose significant environmental misconduct. Regrettably, ENRD s nearly complete radio silence on the subject since the adoption of its voluntary disclosure policy seventeen years ago has undermined the policy s stated objectives and has thwarted its potential to promote active self-policing and the voluntary disclosure of more significant potential violations. ENRD could breathe life into its voluntary disclosure policy and help to clarify the risks that do and do not exist for a company considering disclosures under the policy by borrowing both from EPA and from the experiences of the Criminal Division with respect to public corruption prosecutions, including voluntary disclosures made under the Foreign Corrupt Practices Act (FCPA). For example, the Criminal Division has a formal opinion procedure whereby a company can obtain guidance concerning specific, nonhypothetical, prospective transactions. These opinions are issued as a public release by the Department and inform the broader business community of the Department s positions on FCPA compliance. Because the questions arising under ENRD s disclosure policy will not typically concern issues of statutory construction, the same procedure could be adapted to provide guidance to the interested corporations on the requirements and benefits under the ENRD s disclosure policy, mimicking the success of the FAQs published by EPA. The Criminal Division has also released statistics concerning the disposition of public corruption cases, including the percentage of FCPA dispositions that arose from voluntary disclosures by American companies to the Department. While the Criminal Division views the FCPA as an important weapon in combating foreign corruption, it has repeatedly demonstrated flexibility in resolving such cases, including the use of deferred prosecution agreements, pleas by foreign corporate subsidiaries, and dramatically reduced fines. Additionally, in addresses before professional and business organizations, the leadership of the Criminal Division and the Fraud Section have repeatedly emphasized that FCPA s voluntary disclosure program will always provide tangible benefits for companies that elect to voluntarily disclose information, ranging from declinations to reduced charges and/or fines, and have provided concrete examples of these benefits. The ENRD should actively consider adopting similar procedures to provide much needed guidance to the regulated community and to energize its moribund voluntary disclosure policy. Much more can and should be done by ENRD s leadership to spell out what tangible benefits are available under the policy and how a company can determine if it has a reasonable chance to obtain those benefits. Such an initiative would be particularly helpful to maritime owners and operators who are attempting to evaluate the risks and potential rewards of the Coast Guard s new disclosure policy, in the context of an enforcement environment that has to date focused almost exclusively on criminal prosecution for all violations, large and small, intentional or accidental. By clarifying how its voluntary disclosure policy will be applied and publicly committing to an ongoing process of engagement and dialogue with the regulated community concerning the risks and rewards under the policy, the ENRD could dramatically reduce the uncertainty that currently surrounds its disclosure policy and increase the likelihood that the policy could begin to achieve its stated purpose of improving the compliance rate and yielding significant pollutant reductions.