Response to Criminal Violations in the Deepwater Horizon Disaster
On November 28, the Environmental Protection Agency (EPA) announced that it was temporarily suspending BP from all new contracts with the U.S. government. EPA acted two weeks after BP agreed to plead guilty to 14 criminal counts, including manslaughter, obstruction of Congress and other criminal charges stemming from the 2012 Deepwater Horizon blowout and oil spill. BP also agreed to pay $4.5 billion in penalties. Federal agencies have authority to issue temporary suspensions and longer-term “debarments” to parties that violate criminal laws (over three thousand were issued in the last fiscal year). EPA is the lead agency doing so for violations of national water and air laws. The effects on BP could be significant: BP is currently the largest lease-holder in deep water portions of the Gulf of Mexico, and in 2011 was the largest supplier of fuels to the U.S. military. Its existing contracts are not affected, but it is ineligible for new ones (for example, the company has already had to skip a round of deep water leasing by the Department of the Interior).
What Now for BP?
A “temporary” suspension is supposed to last no longer than a year, but can be extended. BP will have to satisfy EPA that its “corporate attitude” has changed enough to provide the agency with reasonable confidence that the procedural and cultural shortcomings that led to the disaster have been fixed. EPA hasn't changed the text of its corporate attitude policy since 1991, but the agency has intensified its oversight of “excluded parties” in the past two years, as part of a significant government-wide push by the Obama Administration. The media have reported intense discussions between BP and the government to reach an agreement on conditions the company will need to meet.
While we await these developments, it’s useful to consider the terms of EPA’s general corporate attitude policy, since they provide a way for all companies to consider whether they have robust environmental compliance and ethics programs.
How’s Our Attitude?
Even law-abiding organizations should consider activities that will reduce the likelihood of violations, especially since those activities generally are the same ones you would employ to earn your way back from a suspension or debarment. As an example, consider the criteria EPA applies to judge whether an excluded entity has reformed enough to regain its eligibility to do business with the federal government:
-
Is there an effective program in place to prevent and detect environmental problems and violations of the law? EPA looks for evidence of “due diligence”, requiring that the organization take at least the following steps:
-
Establish written policies defining standards and procedures to be followed by its agents and employees.
-
Assign specific, high-level personnel in authority to ensure compliance with organizational policies.
-
Effectively communicate standards and procedures to its agents and employees, e.g., through required training and/or internal publications.
-
Establish an effective program for enforcing these standards, such as monitoring and audits, and internal reporting mechanisms (including protections against possible retaliation).
-
Ensure that these standards are consistently enforced through appropriate disciplinary mechanisms.
-
Immediately take appropriate steps to correct the condition giving rise to any detected offense or violation (e.g., program changes and individual disciplinary actions), and to make any appropriate notifications to authorities.
-
Are the organization’s specific actions appropriate to its circumstances? EPA considers the following factors:
-
Size of organization.
-
Likelihood that certain types of offenses may occur, and tailoring of program elements to those offenses (e.g., offenses associated with (mis)handling of toxic substances).
-
Prior history of misconduct.
-
Has the organization undertaken any additional voluntary efforts, such as pollution prevention, waste reduction and environmental clean up?
Although, of course, EPA’s focus is on environmental issues, this approach is similar to those recommended by a variety of regulatory and enforcement agencies, and by professional associations for in-house counsels and compliance personnel. For example, if you aspire to federal contracts that might exceed $5 million and last more than 120 days, you should know that Federal Acquisition Regulations (FAR), promulgated by the U.S. General Services Administration (GSA), require these contractors to establish a "Contractor Code of Business Ethics and Conduct" (FAR subpart 3.10). If your company is publicly traded, exchanges generally require listed companies to adopt formal codes of ethics applicable at least to senior executives. Similarly, if you worry that your organization might someday find itself violating a federal law, you should know that the U.S. Department of Justice has a formal policy to offer sentencing reductions to organizations with effective compliance and ethics programs—with elements very similar to those cited above.
The following checklist assembles a high-level self-evaluation for organizations thinking about these issues.
Implementation Checklist
-
Has the organization established a compliance and/or ethics program to prevent and detect violations of applicable laws?
-
Do formal organizational policies define standards and procedures for agents and employees?
-
Are specific, high-level personnel assigned responsibility and authority to ensure these standards and procedures are followed?
-
Does the organization provide training and/or other means that communicate standards and procedures effectively to its agents and employees?
-
Is there an effective program for enforcing these standards (e.g., monitoring and audits)?
-
Are there internal reporting mechanisms (including protections against possible retaliation)?
-
Does the program include clear and effective disciplinary mechanisms?
-
Does the program provide for immediate and appropriate steps to correct the condition giving rise to any detected offense or violation (e.g., program changes and individual disciplinary actions)?
-
Does the program include provisions for self-reporting to appropriate authorities?
-
If the organization has a program, which (if any) specific legal requirements does it meet (e.g., FARs, Foreign Corrupt Practices Act, compliance with an enforcement order or compliance decree, etc.)?
-
Does the organization publicize the existence and importance of this program to stakeholders (e.g., customers, investors)?
-
Does the organization encourage or require suppliers to establish and implement similar programs?
-
Does the organization implement these measures effectively?
-
Are training, audits, documents and monitoring actually provided?
-
Has the organization ever detected a violation?
-
What was the organization's actual response to detected violation(s)?
Where Can I Go For More Information?
About the Author
Jon Elliott is President of Touchstone Environmental and has been a major contributor to STP’s product range for over 25 years. He was involved in developing 16 existing products, including Environmental Compliance: A Simplified National Guide, Greenhouse Gas Auditing of Supply Chains and The Complete Guide to Environmental Law.
Mr. Elliott has a diverse educational background. In addition to his Juris Doctor (University of California, Boalt Hall School of Law, 1981), he holds a Master of Public Policy (Goldman School of Public Policy [GSPP], UC Berkeley, 1980), and a Bachelor of Science in Mechanical Engineering (Princeton University, 1977).
Mr. Elliott is active in professional and community organizations. In addition, he is a past chairman of the Board of Directors of the GSPP Alumni Association, and past member of the Executive Committee of the State Bar of California's Environmental Law Section (including past chair of its Legislative Committee).
You may contact Mr. Elliott directly at: tei@ix.netcom.com.