Voluntary Disclosure
Oftentimes, the only difference between a civil/administrative investigation and a criminal investigation is who gets to the facility first, the civil inspector or the criminal investigator. With than in mind, the Department of Justice has set forth factors that it will take into consideration in deciding whether to prosecute an environmental offense. A premium is placed on voluntary disclosure and full cooperation. See also the Holder and Thompson Memorandums. The Department of Justice’s admittedly fluid test includes such items as whether there was prompt and voluntary disclosure of non-compliance; whether there was timely cooperation, including a willingness to provide the complete results of internal investigations; an evaluation of the quality and nature of environmental compliance programs; the company’s history of noncompliance; the existence of mechanisms to discipline employees; and the company’s subsequent compliance efforts.
Even if timely, there are potential adverse consequences associated with “voluntary disclosure.” It is not a safe harbor. It may have a dire adverse impact on officers and employees. Additionally, at this time, you cannot claim a “limited waiver.” Once the “voluntary disclosure” is shared, it is out there for everyone. Republic of the Philippines v. Westinghouse, 1991 WL 268537 (3rd Cir., Dec. 1991). Cooperation with the government after discovery of the non-compliance by the government will not preclude investigation, but it may figure significantly in the sanctions imposed under the federal sentencing guidelines. Interestingly, the voluntary disclosure guidelines exempt any disclosures of information that were required to be disclosed by statute, regulation, order, permit, etc. What environmental non-compliances are outside that arena?
See also, my August 17, 2006, post regarding the Thompson Memorandum.
More later.
As always, feel free to call me or e-mail me with any questions at walter.james@jamespllc.com.
WDJiii