How these investigations arise
Most environmental enforcement is civil or administrative, but federal laws covering air, water, and hazardous waste also carry criminal provisions, and EPA special agents work with federal prosecutors to build those cases. Investigations often start with a tip from an employee, an inspection that turned up records that do not match, or a spill that drew attention. Some environmental statutes reach negligent conduct as well as knowing violations, which surprises managers who assumed only deliberate dumping was criminal. Individuals as well as companies can be charged, and falsifying monitoring reports is often treated as seriously as the pollution itself. State agencies, such as New York's Department of Environmental Conservation, may be investigating at the same time.
When agents arrive
If agents come with a warrant, do not interfere, and ask for a copy of the warrant and an inventory of what is taken. Employees may be asked for interviews on the spot; they can choose whether to talk and may ask to have a lawyer present, but the company should not tell them they are forbidden to cooperate. Preserve documents, sampling data, and electronic records, and suspend routine deletion as soon as an investigation is known. Equipment and processes in their current state may be evidence, so changes should be discussed with counsel first, while safety measures and legally required corrections should not be delayed.
Company and individual interests
Company counsel represents the company, and an employee's interests can diverge from it, especially where individuals made the decisions about a process. Separate counsel for key employees is often considered early. We look at the scope of the warrant or subpoena, which agencies are involved, and whether a parallel civil enforcement action is underway. Decisions about disclosure and cooperation can carry significant consequences and are better made with a clear picture of the facts.
