Corporate Compliance Forms and Tools

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