Environmental Liabilities

Appendix 5-I: Environmental Risk Factors and Mitigating Measures

Risk Factors

Mitigating Measures

  • Substantial risk of death or serious bodily injury (knowing endangerment)

  • Significant environmental harm

    • Actual

    • Potential

  • Foreseeability of the incident

  • Hazardous/toxic wastes/materials

  • History of noncompliance/serious past regulatory violations

    • Acute violations

      • Large volumes

      • Long duration

    • Chronic or “ongoing and continuous” violations

    • Clear/unambiguous regulations or permit terms

  • Significant cleanup costs

    • Economic benefits arising from violations/noncompliance

  • Proof of intent (vs. accidental)

    • Degree: “knowing” or “negligent” (Clean Water Act)

    • Type:

      • Witness testimony/whistleblower

      • Notices of violations

      • Emails

      • Reports/memos

  • Corporate culpability booster

    • Level of participation in violations

    • Pervasiveness of wrongdoing within company

  • “Process” crimes

    • Lies/cover-up/concealment

      • Perjury

      • False statements

        • Permitting

        • Investigation

  • Obstruction

    • Document destruction

    • Witness intimidation

  • Effective corporate compliance program

  • Voluntary disclosure of violations

  • Cooperation with authorities

  • Internal investigation

    • Prompt initiation

    • Credible and transparent process

    • Root cause analysis

    • Disclosure

  • Post-violation remedial actions

    • Voluntary cleanup

    • Termination of “bad apple” employees

  • Collateral consequences of violations (potential overkill)

  • Adequacy of civil/regulatory enforcement (proportional enforcement)

  • Adequacy of prosecuting individuals (bad apples vs. bad orchard)

  • Continuous improvements in compliance program/training

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