January 13, 2016

EPA Launches eDisclosure Portal to Streamline Self-Policing

Historically, EPA has encouraged self-disclosure of environmental violations by offering potential penalty mitigation and possibly forgoing criminal prosecution. The agency has previously issued policies to define the self-disclosure process for the regulated community:

Incentives for Self-Policing: Discovery, Disclosure, Correction and Prevention of Violations—April 11, 2000; 65 FR 19618. These incentives are often referred to as the “Audit Policy.”
Small Business Compliance Policy—April 11, 2000; 65 FR 19630.
Interim Approach to Applying the Audit Policy to New Owners—August 1, 2008; 73 FR 44991. The purpose of this “New Owner Policy” was to tailor Audit Policy incentives for new owners that wanted to make a “clean start” at recently acquired facilities by addressing environmental noncompliance that began prior to acquisition.

EPA recently launched a web-based portal to streamline self-disclosure of violations found during self-policing. [December 9, 2015; 80 FR 76476] The portal was created to save time and resources for both regulated entities and EPA by quickly resolving more routine (Category 1) disclosures. More serious disclosures (Category 2) are compiled and sent to EPA for review. The portal was designed to be used with EPA’s Audit and Small Business Compliance Policies, both established in 2000. Those who choose to self-disclose under the 2008 New Owner Policy should continue to self-report outside of the eDisclosure portal.

The portal has a three-step procedure with which users must comply:

Register with EPA through its Central Data Exchange (CDX) system. EPA’s eDisclosure website has a “Getting Started Checklist,” “User’s Guide,” and “Tutorial Video” to assist with this process.
Disclose the violation(s) within 21 days of discovery.
Submit an online Compliance Certification describing how the noncompliance was corrected. This is normally due within 60 days from the date of submission or 90 days for Small Business Compliance Policy disclosures. Various extensions are available under certain circumstances.

There is flexibility within the new system to report possible noncompliance and later rescind it where the entity determines after disclosure that no violations actually occurred. The portal is up and running, so check it out.

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This document addresses issues of a general nature related to the federal RCRA regulations. Persons evaluating specific circumstances dealing with the RCRA regulations should review state and local laws and regulations, which may be more stringent than federal requirements. In addition, the assistance of a qualified professional should be enlisted to address any site-specific circumstances.