On June 25, the Department of Labor (DOL) outlined its policies for referring regulatory enforcement cases to the Department of Justice (DOJ) for criminal prosecution (90 Fed. Reg. 27057). The DOL’s Office of the Solicitor published its policies in response to the May 9 Executive Order “Fighting Overcriminalization in Federal Regulations” (E.O. 14294; 90 Fed. Reg. 20363).
The E.O. instructed agencies to publish guidance describing factors they consider when deciding whether to refer alleged violations to the DOJ.
Factors the DOL considers when deciding whether to refer alleged violations of criminal regulatory offenses to the DOJ include the following:
- Whether an employee has died or been seriously injured as a result of a violation of a law the DOL enforces;
- Whether the putative defendant’s conduct is particularly egregious, such as when the employer has a history of similar violations;
- Whether the putative defendant has deliberately impeded the DOL’s investigative efforts;
- Whether workers were physically or mentally coerced, such as in cases involving trafficking or extortion;
- The harm or risk of harm caused by the alleged offense;
- The potential gain to the putative defendant that could result from the offense;
- Whether the putative defendant held specialized knowledge or expertise or was licensed in an industry related to the rule or regulation at issue; and
- Any evidence of the putative defendant’s general awareness of the unlawfulness of the conduct, as well as the defendant’s knowledge or lack thereof of the regulation at issue.
Safety Board investigating another Austin Powder facility
The U.S. Chemical Safety and Hazard Investigation Board (CSB) announced on June 24 it launched a formal investigation into a second incident involving a toxic nitric acid release at another facility owned by the Austin Powder Company.
On June 13, the board announced it opened an investigation into a June 11 release of toxic nitric acid and nitrogen oxide gas at Austin Powder’s Red Diamond facility near McArthur in Vinton County, Ohio. The board is now investigating a similar gas release on November 24, 2024, at the U.S. Nitrogen facility in Midway in Greene County, Tennessee, which Austin Powder also owns.
According to a statement issued by Austin Powder at the time, the November 24 incident in Tennessee occurred after a “malfunction” during the start-up of the facility’s nitric acid plant. The Tennessee facility produces nitric acid and other substances used in other products manufactured by Austin Powder.
As with the June 11 incident in Ohio, a similarly colored large plume of gas was emitted during the November 24 incident in Tennessee.
“We are concerned that incidents involving nitric acid have occurred at two facilities owned by Austin Powder in less than seven months,” CSB Chairperson Steve Owens said in a statement. “While fortunately no one was injured in either incident, we want to ensure that they do not continue to happen.”
The CSB is an independent federal government board that investigates industrial chemical incidents and makes safety recommendations to companies, industry organizations, labor unions, and regulatory agencies, including the Environmental Protection Agency (EPA) and Occupational Safety and Health Administration (OSHA). However, it doesn’t issue citations for regulatory violations or impose any fines. The president appoints board members who are subject to Senate confirmation.
https://ehsdailyadvisor.com/2025/06/labor-department-outlines-criminal-referral-policies/