United States: EPA Updates Implementation Of Self-Disclosure Policies

The US Environmental Protection Agency recently modernized implementation of its two primary self-disclosure incentive policies by creating a web-based "eDisclosure" portal to receive and automatically process regulated entities' self-disclosed civil violations of environmental law.

The Audit Policy and the Small Business Compliance Policy provide penalty mitigation and other incentives for businesses that discover, disclose and correct environmental violations and take steps to prevent future violations.

Going forward, all self-disclosed civil violations (except for disclosures under EPA's New Owner Policy) must be made through the eDisclosure portal. Entities that disclose potential violations through the portal may qualify for one of two types of automated treatment, Category 1 or Category 2. Category 1 disclosure is available only for minor violations of the Emergency Planning and Community Right-to-Know Act (EPCRA). For Category 1 disclosures, the eDisclosure system automatically issues an electronic Notice of Determination confirming that the violations have been resolved with no assessment of civil penalties, on the condition that the certified eDisclosure is accurate and complete.

Category 2 disclosures include all non-EPCRA violations, EPCRA violations where the entity can certify compliance with all of the Audit Policy's nine conditions except that the method of violation discovery was systematic, violations of CERCLA/EPCRA chemical release reporting requirements, and EPCRA violations with "significant economic benefit." For these disclosures, the eDisclosure system automatically issues an electronic Acknowledgement Letter confirming EPA's receipt of the disclosure and promising that EPA will determine eligibility for penalty mitigation if and when it considers taking an enforcement action.

EPA states that it has not changed the substantive conditions in its Audit Policy or Small Business Compliance Policy. However, anyone considering using the eDisclosure portal should be aware that EPA's longstanding approach to responding to FOIA requests for disclosures under these policies has significantly changed.

Until now, EPA has generally withheld unresolved disclosures pursuant to FOIA's "law enforcement proceeding" exemption, Exemption 7(A). This exemption protects from disclosure "records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information (A) could reasonably be expected to interfere with enforcement proceedings..."

Now, EPA has replaced this practice of withholding unresolved disclosures with a presumption in favor of releasing regulated entities' voluntary disclosure information to the public. In responding to FOIA requests for individual unresolved disclosures, EPA will determine on a case-by-case basis whether it "reasonably foresees that release would harm an interest protected by a FOIA exemption," and will aim "to be as accommodating as possible in responding to such requests."

This policy shift could reduce the perceived benefits of the Audit Policy and Small Business Compliance Policy for some in the regulated community and provide a disincentive to self-report. Although EPA contends that this shift will not result in more citizen suits, potential eDisclosure portal users are legitimately concerned about arguably premature releases of disclosure information, and should carefully evaluate their circumstances, under the guidance of knowledgeable environmental consultants and legal counsel, before making any disclosure.

Greg Smith is chairman of the Administrative Law Department and Environmental Practice Group at McLane Middleton. Betsy Mason is an attorney in the firm's Environmental Practice Group and Corporate Department.

Published in NH Bar News (9/21/2016)

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