U.S. EPA and DOJ Announce Sensible Enforcement Efforts

The U.S. Environmental Protection Agency (EPA) is piloting a new inspection policythat addresses several long-standing concerns of AGC and has the potential to improve the enforcement process and overall industry compliance. Similarly, the Department of Justice (DOJ) recently announced changes to enforcement policies regarding individual accountability for corporate wrongdoing set forth in the 2015 memorandum from then-Deputy Attorney General Sally Yates, “Yates Memo.” Click “read more” for further details.

Regarding the EPA’s approach, the policy calls for “real-time” feedback, including a discussion of potential deficiencies and opportunities to promptly correct problems and sets a 60-day goal for completing inspection reports. When put into practice, these procedures would avoid compounding environmental harm and penalties, which may occur when a company learns of a violation several months after an inspection takes place or even after a construction project is completed.

Turning to DOJ’s new policy, the most notable revision is to change the approach set out in the Yates Memo that “[t]o be eligible for any cooperation credit, corporations must provide to the Department all relevant facts about the individuals involved in corporate misconduct.” AGC had raised significant concerns about this “all or nothing” approach that encouraged fishing expeditions rather than calculated enforcement efforts to address the actions of bad actors.

Furthermore, under the new, revised DOJ policy – spelled out in the Justice Manual (formerly the United States Attorneys’ Manual) and announced by Deputy Attorney General Rod Rosenstein on Nov. 29 – to qualify for “any cooperation credit” companies now have to identify only individuals who play a significant role or were “substantially involved in or responsible” for wrongdoing. For civil cases, companies now “must identify all wrongdoing by senior officials, including members of senior management or the board of directors.”

For additional information, please contact Leah Pilconis at pilconisl@agc.org or (703) 837-5332.