Prosecutions initiated pursuant to the following statutes are deemed
to be environmental crimes, and the provisions of this chapter apply to all such
cases:
Federal Insecticide, Fungicide and Rodenticide Act (FIFRA),7 USC
§§ 136-136y
Energy Supply and Environmental Coordination Act, 15 USC §§
791-798
Toxic Substances Control Act (TSCA), 15 USC §§ 2601-2692
Surface Mining Control and Reclamation Act, 30 USC §§
1201-1328
Protection of Navigable Waters and of Harbor and River Improvements Generally,
Rivers and Harbors Appropriations Act, Refuse Act, 33 U.S.C. §§
401-467
Federal Water Pollution Control Act (also known as the Clean Water Act),
33 USC §§ 1251-1387
Marine Protection Research and Sanctuaries Act, (also known as the Ocean
Dumping Act), 33 USC §§ 1401-1445
Deepwater Port Act, 33 USC §§ 1501-1524
Act to Prevent Pollution From Ships, 33 USC §§ 1901-1912
Safe Drinking Water Act, 42 USC §§ 300f-300j-26
Atomic Energy Act, 42 USC §§ 2011-2296
Noise Control Act, 42 USC §§ 4901-4918, 42 USC § 4910
(criminal provision)
Solid Waste Disposal Act (including, in Subchapter III, The Resource
Conservation and Recovery Act (RCRA)), 42 USC §§ 6901- 6992k
Clean Air Act, 42 USC §§ 7401-7671
Comprehensive Enviromental Response, Compensdation & Liability Act
(CERCLA), 42 USC § 9601-9675
Emergency Planning and Community Right to Know Act (EPCRA) (also known as
SARA Title III), 42 USC §§ 11001-11050
Outer Continental Shelf Lands Act, 43 USC §§ 1331-1356
Federal Hazardous Material Transportation Statute, 49 USC §§
5101-5127
Experience has shown that cases involving violations of the federal
environmental laws identified in USAM 5-11.101
also may involve violations of certain other federal statutes. Therefore, the
Environmental Crimes Section is empowered to investigate and prosecute violations
of additional criminal statutes when such violations arise within the context of
environmental crimes. Examples of some of the statutes which may be involved in
those cases include, but are not limited to, the following:
| Statute | Subject Matter |
|---|
| 18 U.S.C. § 2 | Aiding and
abetting
|
| 18 U.S.C. § 287 | False claims
|
| 18 U.S.C. § 371 | Conspiracy
|
| 18 U.S.C. § 641 | Theft or conversion of public
property or money
|
| 18 U.S.C. § 1001 | False statement
|
| 18 U.S.C. § 1341 | Mail Fraud
|
| 18 U.S.C. § 1343 | Wire Fraud
|
| 18 U.S.C. § 1505 | Obstruction of administrative
proceedings
|
| 18 U.S.C. §§ 1621 to 1623 | Perjury
|
The Case Initiation Report formerly described in the United States
Attorneys' Manual for environmental crimes is abolished. When a United States
Attorney's Office opens a case file for an environmental case or matter, the
Office will inform the Environmental Crimes Section, which it may do by entering
the case or matter in the Department's computerized case tracking system and
identifying the case type as "environmental." If the case or matter is not
identified as "environmental" in the case tracking system (for example, due to
data entry limitations), the office will inform the Environmental Crimes Section
by telephone or in writing. When ECS opens a case file to initiate a case or
matter, the Section Chief will provide notice to the United States Attorney for
the district in which the crime is alleged to have occurred and will confer with
the United States Attorney's Office pursuant to USAM 5-11.104 or USAM 5-11.
105.
Responsibility for the approval, investigation, and prosecution of
environmental crimes, except in cases of national interest, normally rests with
the United States Attorney's Office. With the agreement of the United States
Attorney's Office, ECS may participate as a partner, as the lead, or otherwise
in such cases. Cooperation and consultation between United States Attorney's
Offices and ECS is encouraged, in order to make the most effective use of the
Department's resources. When ECS participates in a case, there should be a clear
understanding between the offices concerning the allocation of case
responsibility.
A case is of national interest if it is a case that presents a novel
issue of law (including the first case under a statute, provision, or
regulation), a case with simultaneous investigations in multiple districts
(unless the United States Attorney's Offices in each such district and the ECS
conclude that national interests are not involved), a case with international or
foreign policy implications, or an urgent or sensitive case as defined in USAM 1-10.230. In a case of national
interest, the United States Attorney's Office and ECS will participate jointly
as co-counsel from the initiation of the investigation through prosecution,
unless otherwise agreed. A case may be identified as one of national interest
by the United States Attorney's Office or the Assistant Attorney General for the
ENRD.
Among ECS' other responsibilities, it is a clearinghouse for
information about environmental prosecutions and a source of expertise about the
handling of such cases. United States Attorney's Offices are encouraged to
communicate with ECS early in environmental investigations and prosecutions to
benefit from ECS' information and expertise, and to provide ECS with information
about successes, obstacles, and strategies that ECS may share with other
prosecutors. As part of this consultation, United States Attorney's Offices are
encouraged to provide ECS with advance notice of indictments. United States
Attorney's Offices are encouraged to consult with ECS on indictments and other
matters with sufficient lead time to allow ECS to have time to provide meaningful
input. In any event, United States Attorney's Offices will provide copies of
indictments or informations within two days after filing. The Attorney General
expects that ECS will participate in implementing the Assistant Att
orney General's responsibilities pursuant to 28 C.F.R. § 0.65 and that each
United States Attorney's Office will provide information to ECS to assist it in
this purpose, including responding fully and expeditiously to reasonable requests
for information.
When ECS is not participating in a case, the United States Attorney's
Offices shall provide ECS with notice of case resolutions by providing ECS with
copies of disposition documents (including any plea agreements) when judgment is
entered, except as provided in USAM 5-11.108
and 5-11.115.
In the case of dismissal of indictments, informations, or complaints
in criminal cases involving violations of the statutes identified in USAM 5-11.101 except when a superseding indictment
has been returned or an information or a complaint has been filed against the
same defendant or when the individual defendant has died, notification of the
dismissal (or, in the case of a written dismissal, a copy) shall be provided to
ECS so that it is received seven days before filing.
When a United States Attorney's Office or ECS declines a case and
writes a substantive memo to the file or to the investigative agency, either
office will promptly provide a copy of the declination memo to, respectively, ECS
or the United States Attorney's Office for the district in which the crime is
alleged to have occurred. Nothing in USAM
5-11.104 is intended to limit ECS' authority to prosecute a case declined by
a United States Attorney's Office after consultation with that office, nor shall
these provisions limit the authority of a United States Attorney's Office to
prosecute a case that ECS has declined for reasons that ECS advises do not
involve policy considerations.
The appointment of Special Assistant United States Attorneys shall be
approved by the United States Attorney of the relevant district and the Assistant
Attorney General for the ENRD. In their approval process, the United States
Attorney and the Assistant Attorney General should seek to ensure sensible and
efficient use of government resources.
In addition to its litigation activities, ECS helps the ENRD fulfill
its other responsibilities:
Setting policy nationally for the prosecution of environmental crimes;
Providing training to United States Attorney's Offices, federal investigative
agencies, and others;
Providing expertise, information, and support concerning environmental
prosecutions nationally, including providing a clearinghouse of
prosecution-related documents; and
To use environmental criminal enforcement to address environmental and
compliance problems, consistent with the standards of federal prosecution.
United States Attorney's Offices are encouraged to provide ECS with copies
of important pleadings, briefs, search warrant applications, grand jury
subpoenas, and similar case documents so that such documents can be made
available to other prosecutors.
Because many of the environmental statutes specifically provide for
criminal, civil, and administrative sanctions (see, e.g., 33 U.S.C.
§ 1319(a), (b), (c), and (d)), this is an area of the law especially
susceptible to parallel proceedings. Such proceedings may be appropriate, for
example, when in the course of the civil case the government receives evidence
of deliberate violations of the law meriting criminal prosecution or when a
criminal investigation uncovers evidence of an on-going violation causing
environmental contamination which should be stopped quickly through an injunctive
action.
Although they may be appropriate in particular circumstances, parallel
proceedings must be handled carefully in order to avoid allegations of improper
release of grand jury material or abuse of civil process. Therefore, in any case
under any of the statutes identified in USAM
5-11.101 in which parallel proceedings arise, the United States Attorney's
office shall contact the Environmental Crimes Section for the purpose of
coordinating the parallel proceedings. See also USAM 1-12.000.
Most states have environmental enforcement programs which overlap, in
whole or in part, with federal programs. United States Attorneys should
familiarize themselves with state environmental enforcement laws and state
enforcement officials. Particular attention should be directed toward the
following aspects of state-federal relations in the environmental enforcement
field:
- State environmental enforcement agencies may be a valuable source
of information on suspected violations of federal environmental statutes. United
States Attorneys may be in a position to assist in apprising state officials of
the nature of the local federal enforcement program and in developing methods for
exchanging information on suspected violations;
- State authorities often possess evidentiary materials which are relevant to
pending federal court proceedings. United States Attorneys should be aware of
the nature and extent of the states' investigatory resources and should make
provision in appropriate circumstances for the exchange of information on pending
cases with state authorities;
- Frequently a particular activity constitutes a violation of both federal and
state law. When state officials are proceeding with an environmental enforcement
case which may include violations of federal law, the United States Attorney in
the affected district should monitor that state activity. If it appears that all
federal interests in the case will be vindicated in the state court action,
action in federal court may be an unnecessary duplication of effort. On the
other hand, if federal interests will not be protected completely in state court,
federal proceedings may be warranted. See also, USAM 9-2.031 and 9-27.240.
- Congress has demonstrated its intent that individuals, as well as
corporations, should be criminally prosecuted for violations of federal
environmental laws, see, e.g., 33 U.S.C. §§ 1319(c)(5) and
1362(5), thereby recognizing the fact the unlawful acts or omissions of
corporations actually can be traced to individual officers or employees. That
Congressional intent should be given serious consideration in the development of
prosecutions for violations of the statutes identified under USAM 5-11.101.
- In any case against both a corporation and any of its individual employees
the willingness of the offending corporation to enter a guilty plea is not a
basis for dismissal as against the individual.
- Without the express approval of the Assistant Attorney General,
Environment and Natural Resources Division, in any criminal case arising under
the statutes identified in USAM 5-11.101 no
plea agreement will be negotiated which compromises the right of the United
States to any civil or administrative remedies under those statutes. Efforts by
defendants to effect such results may arise in the context of so-called "global
settlement" offers.
- The Assistant Attorney General for the Environment and Natural Resources
Division will consider a policy for plea agreements that include "alternative
sentencing," meaning a sentence other than fine, imprisonment, or restitution to
specific entities for out-of-pocket expenses.
All appeals in criminal cases arising under the statutes identified in
USAM 5-11.101 shall be handled as provided for
in USAM 5-8.300 and Title 2. When a United States Attorney's
Office makes a request to handle an appeal, such a request will be resolved by
agreement between the United States Attorney's Office and the Chief of the
Appellate Section of the Environment and Natural Resources Division. In jointly
resolving such a request, the following factors among any others should be
considered on a case-by-case basis and, if necessary, discussed:
The relative advantages in this case of staffing the appeal with an Assistant
United States Attorney who tried the case or with an appellate lawyer who was not
involved in the trial;
The relative advantages in this appeal of the United States Attorney's local
perspective or the Environment and Natural Resources Division's national
perspective;
Whether there are issues in this appeal on which components of the government
may have differing viewpoints; and
The available resources of each office, especially relative to the briefing
and argument schedule of the appeal.
Copies of any draft briefs prepared by a United States Attorney's Office on
behalf of the government shall be forwarded to the Appellate Section in
sufficient time to allow review, comment, and approval by the Section and the
Assistant Attorney General. Copies of any draft brief prepared by the Appellate
Section shall be forwarded to the United States Attorney's Office in sufficient
time to allow review, comment, and approval by that office. In any appeal,
copies of all other briefs by other parties shall be promptly forwarded by the
United States Attorney's Office to the Appellate Section.
USAM 2.200 describes the manner in which United States Attorney's
Offices forward notices of appeal or requests to take an appeal to the
Environment and Natural Resources Division. For environmental crimes, the
Division designates ECS as the unit to which such notices and requests should be
sent. ECS will forward the notices and requests to the Division's Appellate
Section.
Whenever an appeal is taken in a case arising under any statute
identified in USAM 5-11.101 for which the
United States Attorney has taken primary trial level responsibility, and that
appeal is to be handled by the Environment and Natural Resources Division, the
United States Attorney is responsible for assembling and transmitting to the
Environment and Natural Resources Division those items which constitute the
record of the case of the trial court level.
| March 2001
| USAM Chapter 5-11
|