United States: The U.S. EPA Intends To Slash Federal Enforcement Programs And End Support Of Voluntary Disclosures Under Its Audit Policy

The U.S. EPA's Office of Enforcement and Compliance Assurance has issued its draft guidance on the Fiscal Year 2013 enforcement program ( FY 2013 Draft Guidance). The FY 2013 Draft Guidance identifies EPA's intent to significantly cut back traditional federal enforcement strategies across all major federal environmental programs, and to eliminate the voluntary disclosure program long relied upon by industry to disclose violations discovered during compliance audits.

Change in Enforcement Focus

Although the tone of the guidance suggests that federal enforcement will continue to be strong, the details underscore a significant change in the EPA's traditional enforcement strategy. The EPA intends to rely less on on-site inspections and more on non-physical investigations in the form of Requests for Information, administrative subpoenas, and electronic montoring and reporting. The EPA also intends to focus enforcement "in communities that are disproportionately affected by pollution" and other vulnerable communities, mainly urban areas and areas identified as "Environmental Justice"("EJ") communities.

In addition to focusing on industry in EJ areas, the EPA intends to continue to pursue enforcement initiatives nationwide against: (1) mining and mineral processing activities, (2) concentrated animal feedlot operations; (3) facilities using flares to control emissions; (4) facilities subject to Clean Air Act Leak Detection and Repair ("LDAR") programs, (4) and companies having excess emissions associated with startups, shutdowns and malfunctions ("SSM"). Other industrial enforcement targets include the "usual suspects": (1) facilities that are considered large sources of air pollution (the coalfired utility, acid, cement, glass and natural gas industries); (2) waste disposal and recycling facilities; (3) manufacturers and users of "high concern chemicals"; and (4) facilities subject to the Clean Air Act Risk Management Program.

Major Program Emphasis Areas

The EPA announced its focus in the major programs to be as follows:

  • RCRA enforcement will focus on: financial assurance, surface impoundments, and TSDs; EPA will target corrective action sites that have not made meaningful progress; EPA will scale back UST enforcement and will rely on states to address USTs;
  • TSCA enforcement will focus on: lead based paint affecting children in schools and housing, reducing exposure to pesticides, and the formaldehyde rule;
  • CAA enforcement will focus on: the Section 112(r) Risk Management Plan (RMP) program, flares used to control HAPS, compliance with LDAR provisions, and excess emissions during SSM; EPA indicated that other program areas, such as GHG reporting and CFCs, will be "addressed" in settlements of New Source Review and other CAA enforcement cases; EPA indicated that the Regions should focus enforcement efforts on major sources and those that are 80% synthetic minors.
  • CWA enforcement will be directed mainly at municipalities and municipal sewer systems and will focus on keeping raw sewage and contaminated stormwater out of rivers, streams and lakes; Regions 2, 3, 4 and 5 are directed to continue efforts to protect the Chesapeake Bay from water as well as air pollution; EPA indicates that it will target industrial facilities that have spills into waterways;
  • FIFRA enforcement will focus on: worker safety, fumigants, retail marketing, and container labeling and management;
  • CERCLA and EPCRA enforcement will be practically nonexistent; EPA is minimizing the Brownfields program, insisting that "CERCLA's self-implementing landowner liability protections" replace the need for the Brownfields program.

Inspection/Enforcement Numbers To illustrate the diminished level of federal enforcement identified by the FY 2013 Draft Guidance, EPA indicates that each Region is expected to evaluate 20 facilities for EPCRA Section 313 nonreporting using Requests for Information. Similarly, EPA indicates that nationally there will be 12 inspections of mineral processing facilities, and that each region is to inspect 6 hazardous waste LQGs (even though thousands of LQGs exist). EPA indicates that 90% of TSCA enforcement resources at the Regional level should be spent on lead based paint.

EPA's Audit Policy

The EPA's Audit Policy offers incentives for companies to audit their facilities and to promptly disclose and correct violations. In 2008, the EPA also issued an Interim New Owner Audit Policy providing even greater incentives for new owners to audit, self disclose, and promptly correct potential environmental violations. The Executive Summary for the FY 2013 Draft Guidance describes significant changes from the FY 2012 guidance, including specific changes regarding the Audit Policy which can only be described as negating the benefits of self-disclosure to the EPA under the Audit Policy.

The FY 2013 Draft Guidance explains that the Audit Policy "is one of the areas where OECA will reduce its program work to a minimal national presence." The FY 2013 Draft Guidance instructs the EPA Regions to "consult with Headquarters before initiating any new work in response to selfdisclosures." The only explanation provided by OECA is that, "Although the Audit Policy/Self- Disclosure program has yielded a significant number of annual disclosures, the environmental benefit from those disclosures is estimated to be significantly less than from traditional enforcement, and the disclosures have generally not focused on the highest priority areas." What this conclusion overlooks, of course, is the fact that issues identified by companies making self disclosures under the Audit Policy and the Interim New Owner Audit Policy would not have been identified by the EPA in the first place under its traditional inspection and enforcement approaches. With the announced cuts to the EPA's traditional enforcement programs, it appears unlikely that the EPA will focus

resources to identify potential environmental violations unless the violations are in program areas on which the EPA is focusing. The EPA is taking comment from the Regions, States and Tribes on the FY 2013 Draft Guidance and related program guidance until March 19, 2012. The process for providing comments is described here.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
McLane Middleton, Professional Association
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
McLane Middleton, Professional Association
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions