The passage of the Clean Air Act Amendments of 1990¹ and its attendant Statement of the Senate Managers once again raises the issue of the proper role and treatment of environmental self-audit programs in the field of environmental enforcement. The Statement encourages environmental audits and provides that the Environmental Protection Agency (EPA) or the United States Department of Justice (Justice), in their discretion, should refrain from using self-audit information to prove knowledge in a Clean Air Act §113(c) criminal enforcement case where reporting obligations were met and where there was timely corrective action.² Despite this legislative encouragement, prosecutors may exercise their discretion differently; thus, appropriate legal protection is needed to support and encourage auditing programs. EPA should supply this legal protection by fashioning an overall regulatory scheme that provides a safe harbor to companies that participate in a self-audit and voluntary corrective action program.

The environmental regulatory community is at a critical juncture in the philosophy of environmental enforcement. A decision must be made whether to influence behavior primarily through the force of the recently improved arsenal of criminal penalty provisions or by also creating a legal structure under which self-policing programs can achieve improved compliance effectively.