May 27, 1999
When environmental compliance is subjected to a government probe
By John L. Greenthal
Government regulatory agencies usually respond to violations of environmental requirements through the civil enforcement process.
But those agencies and their prosecutorial partners (including the state Attorney General and local district attorneys) may also develop cases for criminal prosecution when the violation is committed intentionally, knowingly, recklessly, or with criminal negligence.
Some industries are targeted for enforcement because of public visibility or past environmental issues. Although a company may not know of a violation, potential problems generate specific warning signs, including:
- Inspections that are unscheduled, unexplained, or frequent.
- Unanticipated requests for documents, manifests or purchase orders, or other specific company documents.
- Requests for interviews with staff and management.
- Compliance audits which uncover substantial noncompliance or evidence of criminal acts.
- Surveillance of business operations.
- Labor unrest or the departure of a disgruntled employee familiar with the company's environmental issues.
Employers with internal information about possible criminal activity, knowledge of a government investigation into company environmental management practices, or a subpoena for witnesses and/or documents should quickly and accurately assess the situation and address such questions as:
- What advice should be given to employees contacted by investigators?
- What should be done if investigators take samples or seize documents?
- What reporting obligations exist?
- Do corporate officers need separate counsel?
To be prepared for any investigation, companies should: perform environmental management system audits and compliance assessments; develop inspection policies and conduct training; establish policies for keeping and managing records; build a crisis management team for unexpected discharges and releases; evaluate the implications of investigations, pleas and convictions; and manage labor-relations issues.
If an inspection does occur in which government investigators participate, companies should take detailed notes on the inspection. Companies should try to control as much as possible any physical evidence obtained. They should ask for receipts of records and copies of records requested by the investigators.
After such an inspection, company officials should ask the investigators for initial comments and reactions. Company officials should not respond with their own perspectives to the investigators' comments. As soon as the investigators leave, the company should hold a post-inspection response team meeting to compare notes and impressions and prepare a report for review by counsel.
John L. Greenthal is an environmental attorney in Albany with Nixon, Hargrave, Devans & Doyle LLP. He will participate in Business Council seminars on environmental compliance and other environmental issues on June 8, 9, 10, 15 and 16 at five locations statewide. Call Ellen Muir at 1-800/358-1202.