Most environmental violations never lead to formal enforcement. Those that do are usually handled administratively or civilly, through a notice of violation (NOV), a penalty, or in some cases a consent order. But the line between civil and criminal enforcement can be closer than many people assume. Under the Clean Water Act, a knowing violation can be treated as a felony, and even a negligent violation can be charged as a crime. The same discharge could end with nothing, a penalty, a settlement agreement or, in very rare cases, an indictment.

Which of those outcomes a company faces usually depends on two things: the conduct surrounding the violation and the harm it caused.

EPA’s Two Tests

EPA’s 1994 case selection guidance, known as the Devaney memo after the director who signed it, sets two tests for criminal cases.

The first is significant environmental harm. That means actual harm to people or the environment, a real threat of harm, or a failure to report a release that caused or threatened harm.

The second is culpable conduct, which the memo describes as:

•        A history of repeated violations

•        Deliberate misconduct

•        Concealing misconduct or falsifying records

•        Tampering with monitoring or control equipment

•        Operating without a required permit

Most of that list is about how people behaved, not how much was released. A permit exceedance is usually an administrative or civil matter. A permit exceedance that someone concealed, or a lab result someone altered, can become a criminal one.

The Four Factors Prosecutors Look For

Once a matter reaches the Department of Justice (DOJ), prosecutors have traditionally focused on four aggravating factors:

1. Deceptive or misleading conduct, such as knowingly submitting false data to EPA or a state agency

2. Significant environmental harm, such as a large fish kill or a major operational incident

3. Operating outside the regulatory system, such as running without a required permit or pollution controls

4. Repetitive violations, often continuing after civil or administrative enforcement

These factors overlap with the Devaney memo, and the case record supports them. Former University of Michigan law professor David Uhlmann reviewed federal environmental prosecutions from 2005 to 2014. His study found that 98 percent of charged defendants had committed violations involving at least one of the four factors.

Two Cases from This Year

Old Dutch Mustard, Greenville, New Hampshire. The company’s Clean Water Act problems went back decades and had drawn repeated civil enforcement. According to DOJ, owner Charles Santich then had a contractor run a hidden pipe carrying acidic wastewater to the Souhegan River and lied to inspectors about it. In April 2026 he was sentenced to 18 months in federal prison, and the company was fined $1.5 million. The case involved three of the four factors: repeat violations after civil enforcement, deception, and an unpermitted discharge.

Onsite Environmental, Nashville, Tennessee. In 2022 and 2023, the plant manager and a supervisor at this waste pretreatment facility sent untreated waste into the city sewer. They then had employees move the city’s sampler hose into a bucket of cleaner water to defeat its monitoring. Both pleaded guilty this spring and face up to five years in prison. Tampering with monitoring is deceptive conduct, the first factor on the list.

In both cases, the discharge alone was not what made the matter criminal. The concealment and deception were.

Who Gets Charged

Both cases charged individuals: an owner, a plant manager, and a supervisor. That is typical. More than 80 percent of defendants charged in environmental criminal cases are individuals, and a smaller share are corporations. DOJ’s 2023 Voluntary Self-Disclosure Policy for environmental crimes reinforces that focus. A company seeking credit must identify everyone substantially involved in the misconduct and cooperate against them. Sidley Austin prepared a helpful summary of the policy.

The Practical Question

Most companies will never face a criminal case, and most violations shouldn’t become one. When the on ramps do appear, though, they typically don’t start at corporate headquarters. They often start at a facility, with a manager or executive under pressure.

If an investigator compared your facilities’ reported data with what actually left the fence line, would the two match? And do you know which of your sites have repeat-violation history that would make an investigator take a closer look?

Some of that can only be answered from the inside. But a facility’s compliance history is public, and it’s often the first thing an investigator reviews.

Until next week,

Doug Parker

CEO, Ecolumix

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Coming in Future Issues:

Environmental risk in mergers and acquisitions (M&A): When you buy a facility, you buy its record.

Your sustainability report Is part of the record. Why the gap between a company’s sustainability claims and its regulatory data is getting more attention.

Questions or topics worth covering? Reach out: doug@ecolumix.com