The Environmental Protection Agency (EPA) is flexing its muscle in pursuit of stronger criminal enforcement of corporate environmental violations. Immediately after his confirmation by Congress in July 2005, Granta Y. Nakayama, the new EPA assistant administrator for enforcement and compliance assurance, announced his intention to strengthen the agency’s environmental criminal program. The purpose of EPA’s program is to conduct criminal investigations of violations that represent egregious conduct and cause or threaten significant harm to human health and the environment. While the Bush administration has been criticized for its environmental enforcement record, Nakayama hopes to turn that around.

To enhance EPA’s criminal enforcement program, Nakayama intends to increase communication and cooperation between the civil and criminal enforcement programs within the agency. He also recommended co-locating the civil and criminal investigative offices around the country in order to bolster his criminal enforcement divisions. Nakayama hired Catherine McCabe, an attorney and former deputy chief of Environmental Enforcement at the Justice Department, as his principal deputy to improve the criminal enforcement office within the EPA. The agency plans to spend additional resources to identify and prosecute the most serious crimes while investing in critical personnel, equipment and services. For example, EPA wants to increase the number of criminal investigators, which has fallen significantly since 2003.

Despite Nakayama’s plan to bolster EPA’s criminal enforcement activities, the Bush administration has not increased funding for the enforcement program. Rather, the administration continues to cut the agency’s budget, including its criminal enforcement program. In its 2007 budget to Congress, the administration proposed cutting EPA’s funding by nearly 5 percent from the previous year, down to $7.2 billion.

In recent years, the Bush administration’s record on corporate environmental crime has come under fire. The accompanying chart of EPA’s criminal enforcement program suggests that the number of environmental crime investigations has continued to drop since Bush took office in 2001. In 2005, EPA had the lowest number of environmental crime investigations in the past eight years.

It remains to be seen how the agency will follow through on Nakayama’s plan. Regardless, facilities must continue to be diligent in their compliance activities since we can be sure EPA will investigate egregious criminal activities. Following are a few examples of EPA’s recent shift in its tactic where it is seeking new methods to step up the enforcement of existing laws:

Partnership between Agencies on Worker Safety and Environmental Crime

The EPA Environmental Crime Section has announced plans to collaborate with the Labor Department’s Occupational Safety and Health Administration on enforcement of worker health and safety.

HazMat Prosecution

The EPA Environmental Crime Section successfully obtained approval from the U.S. Sentencing Commission to increase the Sentencing Guidelines for Hazardous Material (HazMat) violators. The agency cited several pending enforcement cases to support its request for increasing penalties. The government also suggested that stiffer HazMat penalties would aid efforts to combat terrorism.

Given the agency’s effort to intensify investigation of corporate criminal environmental behaviors, it is vital that you stay abreast of current regulations that affect your business. Most often violations occur when corporations do not make environmental, health and safety issues a priority in their facilities. EPA provides compliance assistance on a sector-by-sector basis. The agency also provides facility-specific assistance on statutes including the Emergency Planning Community Right to Know Act (EPCRA) and the Resource Conservation and Recovery Act (RCRA). Resources including documents, tools and information on specific assistance programs can be found on EPA’s website at www.epa.gov/ebtpages/compcomplianceassistance.html.

For current information on regulatory issues, visit www.IPC.org/EHS. IPC also publishes a monthly EHS electronic newsletter for its members.