EPA Grand Jury Subpoena Defense - Federal Lawyer
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EPA Grand Jury Subpoena Defense

Experienced Federal Defense Counsel for Companies and Individuals Targeted in EPA Criminal Enforcement Cases

Carlton S. Patton
Carlton S. Patton
EPA Grand Jury Subpoena Team Lead
Former EPA CID Special Agent
Nick Oberheiden
Attorney Nick Oberheiden
EPA Grand Jury Subpoena Team Lead
envelope icon Contact Nick

U.S. Environmental Protection Agency (EPA) audits and inspections are increasingly leading to criminal enforcement. Under the EPA’s Strategic Civil-Criminal Enforcement Policy (which it adopted in 2024), the agency is giving equal consideration to the benefits of civil and criminal enforcement—and it is working with the U.S. Department of Justice to pursue criminal prosecution when warranted. Following the EPA’s investigation, the next step in this process is for the DOJ to issue a grand jury subpoena.

If you have been served with a grand jury subpoena related to an EPA federal grand jury investigation, it is critical that you engage experienced federal defense counsel immediately. While you may still be able to avoid an indictment (and subsequent criminal prosecution in federal district court), the clock is ticking. You and your counsel must work quickly to build a strategic defense, and your defense must focus on the specific issues that the DOJ needs to prove in order to secure a grand jury indictment.

Negligent, Knowing, or Willful Conduct: The “Mental State” Required for Environmental Crimes

One of the key issues in EPA criminal enforcement cases is the target’s “mental state.” Even if you violated a statute such as the Clean Air Act (CWA), Clean Water Act (CWA), or Toxic Substances Control Act (TSCA), this doesn’t necessarily mean that criminal prosecution is warranted. Many violations are civil in nature—because the actor lacked the requisite mental state to establish criminal culpability. As the EPA explains:

“Generally speaking, an environmental crime is a negligent, knowing or willful violation of a federal environmental law. ‘Knowing’ violations are those that are deliberate and not the product of an accident or mistake.”

Of course, when faced with an EPA grand jury subpoena, you should not focus solely on the requisite mental state for the crime (or crimes) in question. To secure an indictment, the DOJ must present adequate evidence of each element of the relevant offense. Environmental enforcement cases can be extraordinarily complicated; and, despite the DOJ’s framing, the evidence is often far from clear. The legal issues involved can be extremely complex as well—and this often presents a variety of opportunities for avoiding criminal charges in the federal criminal investigation.

Put our highly experienced team on your side

Dr. Nick Oberheiden
Dr. Nick Oberheiden

Founder

Attorney-at-Law

Lynette S. Byrd
Lynette S. Byrd

Former DOJ Trial Attorney

Partner

Brian J. Kuester
Brian J. Kuester

Former U.S. Attorney

Amanda Marshall
Amanda Marshall

Former U.S. Attorney

Local Counsel

Joe Brown
Joe Brown

Former U.S. Attorney

Local Counsel

John W. Sellers
John W. Sellers

Former Senior DOJ Trial Attorney

Linda Julin McNamara
Linda Julin McNamara

Federal Appeals Attorney

Aaron L. Wiley
Aaron L. Wiley

Former DOJ attorney

Local Counsel

Roger Bach
Roger Bach

Former Special Agent (DOJ)

Chris Quick
Chris J. Quick

Former Special Agent (FBI & IRS-CI)

Michael S. Koslow
Michael S. Koslow

Former Supervisory Special Agent (DOD-OIG)

Ray Yuen
Ray Yuen

Former Supervisory Special Agent (FBI)

How We Defend Companies and Individuals Facing EPA Grand Jury Subpoenas

With this in mind, at Oberheiden P.C., we take a comprehensive and detail-oriented approach to defending our clients who have been served with grand jury subpoenas following EPA investigations. When you engage our federal defense team to represent you, we will:

1. Promptly Engage with the EPA and DOJ

Once you engage Oberheiden P.C., we will promptly engage with the EPA and DOJ to let them know that you are represented. From this point forward, we will be investigators and federal prosecutors’ point of contact, and we will manage all communications related to the government’s attempted federal prosecution.

2. Determine Your Obligations Under the Grand Jury Subpoena

Responding to a federal grand jury subpoena can be a substantial undertaking. In addition to providing testimony, you may also be required to produce voluminous business records, communications, and other documents in grand jury investigations. Our lawyers will determine your obligations under your grand jury subpoena, determine if you have grounds to object to these obligations, and assist with meeting all enforceable obligations as required.

3. Ascertain the Criminal Charges Against You (if Any)

Even after receiving a grand jury subpoena, you still may not have a clear understanding of the criminal charges against you. It is also important to keep in mind that being served with a grand jury subpoena doesn’t necessarily mean that you are the target of the EPA’s investigation. Our lawyers can ascertain the charges you are facing (if any) and advise you accordingly through the grand jury process.

4. Work to Secure a Favorable Pre-Indictment Resolution

If you are facing the risk of criminal prosecution, our lawyers will work to secure a favorable pre-indictment resolution on your behalf. This will be the best approach in most (but not all) cases. Whether we are able to help you avoid consequences entirely, we recommend focusing on settlement, or we advise fighting your allegations in court will depend on the current status of your case and how it progresses from this point forward.

5. Prepare Your Grand Jury Testimony (if Necessary)

If you will need to testify in response to your grand jury subpoena, our lawyers will make sure you are thoroughly prepared. We have extensive experience representing clients in a wide range of federal grand jury proceedings; and, as many of our lawyers are former DOJ prosecutors, we are intimately familiar with the DOJ’s strategies for securing indictments in federal grand jury proceedings.

Types of Criminal EPA Cases We Handle

We handle all types of criminal EPA cases in federal jurisdictions across the country. Several federal environmental statutes include provisions for criminal enforcement, and the EPA and DOJ regularly pursue criminal charges under non-environmental statutes as well. For example, the federal conspiracy, attempt, and wire fraud statutes are extremely broad, and they allow for prosecution of multiple individuals and organizations in a wide range of scenarios—including scenarios in which prosecutors cannot prove a criminal violation of an environmental statute.

Our lawyers are available to assist companies and individuals with responding to grand jury subpoenas in EPA criminal enforcement cases under:

  • Clean Air Act (CAA)
  • Clean Water Act (CWA)
  • Comprehensive Environmental Response, Compensation and Liability Act (CERCLA)
  • PFAS Litigation (SDWA)
  • Toxic Substances Control Act (TSCA)
  • Title 18 (Attempt, Conspiracy, Wire Fraud, and Other Federal Crimes)
  • All Other Federal Environmental and Criminal Statutes

While you still have opportunities to avoid prosecution after receiving a grand jury subpoena resulting from an EPA investigation (as long as you take action in time), it is important to keep in mind that, at this stage, the EPA has already gathered substantial evidence in support of its allegations. As a result, to avoid unnecessary consequences, you need to execute an informed, strategic, and proactive defense. With extensive experience representing clients in these types of matters, our lawyers can provide the advice and representation you need, and we can get to work on an emergency basis if necessary.

FAQs: Responding to an EPA Grand Jury Subpoena

What is an EPA Grand Jury Subpoena?

An EPA grand jury subpoena is a formal and binding request for the recipient to produce records or provide testimony (or both) in connection with a criminal EPA enforcement investigation. If EPA investigators uncover what they believe to be evidence of criminal violations, they will work with the DOJ to pursue an indictment; and, at the federal level, this involves empaneling a grand jury to determine if there is “probable cause” to warrant prosecution. The issuance of a grand jury subpoena (or perhaps multiple grand jury subpoenas to multiple witnesses and targets) is a critical stage in this process.

What Types of Environmental Violations Can Lead to Criminal Charges?

Numerous types of environmental violations can lead to criminal charges following an EPA investigation. Recently, we have seen criminal EPA enforcement cases targeting alleged violations such as the illegal release of hazardous waste, illegal sale of unregistered pesticides, tampering with emissions control systems and monitoring devices, and remediation failures, among many others.

If I Received an EPA Grand Jury Subpoena, Does This Mean I Am Facing (or My Company is Facing) Criminal Charges?

Not necessarily. The DOJ has the authority to subpoena both targets and witnesses in criminal EPA enforcement cases. With this in mind, once you have been served with a grand jury subpoena, determining why you have been served is a critical step toward determining how you should respond. However, this is often easier said than done, and all grand jury subpoena recipients should promptly engage experienced federal defense counsel to communicate with the DOJ on their behalf.

What Do I Need to Do if I Received an EPA Grand Jury Subpoena?

If you have received an EPA grand jury subpoena, once you determine whether you are a witness or a target, the next step is to begin formulating your response. This can be a time and resource-intensive process, and it requires an in-depth understanding of the relevant laws, rules, and regulations. With our lawyers’ experience on both sides of federal grand jury subpoenas, we are able to efficiently help our clients formulate and execute strategic EPA grand jury subpoena responses.

Can I Challenge an EPA Grand Jury Subpoena?

Targets and witnesses can challenge federal grand jury subpoenas on various grounds. However, the specific grounds that are available in any particular case (if any) depend on the specific circumstances involved. Once you engage our firm, our lawyers can determine whether you have grounds to challenge your (or your company’s) grand jury subpoena and advise you accordingly.


Contact the EPA Defense Lawyers at Oberheiden P.C.

If you have received a federal grand jury subpoena in connection with an EPA criminal enforcement investigation, we encourage you to contact us promptly for more information. To speak with an EPA defense lawyer at Oberheiden P.C. in confidence as soon as possible, call 888-680-1745 or tell us how we can reach you online now.

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