On June 10 and 15, 2015, the U.S. Environmental Protection
Agency (EPA) rolled out a new system for e-reporting violations being disclosed
pursuant to EPA’s audit policy, eDisclosure, which is expected to go online as
soon as Fall 2015. The new system was designed to streamline the implementation
of the audit policy, resolve routine disclosures quickly, and save the time and
resources of EPA and the regulated community.
The new system divides reported violations into Tier I and
Tier II. Tier I violations are limited to most Emergency Planning and Community
Right-to-Know Act (EPCRA) violations if they meet the nine existing EPA audit
policy conditions. Tier II violations include all other violations, as well as
EPCRA violations involving release reporting or those violations not identified
in the course of an audit. Under the new system disclosures must be e-filed
within 21 days of discovery of the violation and a compliance report must be
e-filed within 60 days of discovery.[i]
Upon the filing of the compliance report, Tier I violations will trigger an
immediate electronic notice of determination, confirming that the violations
are resolved, subject to the accuracy of the disclosure. Tier II violations
will trigger an acknowledgement letter noting that EPA will determine the
applicability of the audit policy to the disclosed violations if and when it
considers potential enforcement. The new system does not apply to new owners of
existing businesses that qualify for special audit policy treatment, though
they can use the new system if they choose to do so.
Disclosures may be withdrawn from the system before the
deadline for e-filing the compliance report. If the disclosure is not
withdrawn, and the compliance report is not timely filed, the system will
record the reported violation and send the discloser a notice of
non-qualification. A filer can request a 30-day extension to file the
compliance report, and it will be granted automatically.[ii]
If more time is needed, the request must include a justification. While the
system will reflect the additional time, the extension is not considered
automatically granted, and EPA can later determine that the violation was not
promptly corrected. EPA will screen Tier II submittals for significant concerns
such as potential criminal conduct or imminent hazards. As with current policy,
EPA will release information regarding resolved disclosures in response to FOIA
requests, but may withhold information regarding unresolved disclosures on a
case-by-case basis under the enforcement exception. EPA has also established a
procedure for addressing unresolved disclosures that are pending when the new
system comes on line.
If you have any questions regarding the new eDisclosure
system, the benefits of conducting an environmental compliance audit, or the
procedures for securing penalty reductions, immunity and/or privilege protection
under the EPA and state environmental audit programs, please contact Sharon
Newlon, 313.223.3674 or snewlon@dickinsonwright.com or Kelly Martorano,
248.433.7274 or kmartorano@dickinsonwright.com.
