Environment Reporter™ keeps you fully up to date on rapidly changing developments in courts, Congress, federal agencies, state legislatures, industry, and environmental organizations.
By Jessica Coomes
The Environmental Protection Agency's program that allows regulated entities to self-disclose environmental violations resulted in commitments to reduce 3,000 pounds of pollution in fiscal year 2011, the agency told Bloomberg BNA.
By comparison, all enforcement actions that year led to commitments to reduce pollution by 1.8 billion pounds (42 ER 2763, 12/9/11).
EPA is considering reducing the self-disclosure program under the agency's audit policy because the disclosures are not being made in high-priority enforcement areas. EPA has prioritized reducing pollution that poses the greatest threats to public health and the environment, such as emissions from coal-fired power plants, according to draft national program manager guidance for FY 2013 issued by the EPA Office of Enforcement and Compliance Assurance (43 ER 613, 3/9/12).
Most of the self-disclosures from FY 1999 to FY 2011, 54 percent, were made under the Emergency Planning and Community Right-to-Know Act, which requires reporting on hazardous substances, EPA told Bloomberg BNA March 8.
The audit policy, which EPA issued in 1995 and revised in 2000, provides incentives for regulated entities to voluntarily disclose and correct environmental violations.
Self-reporting has led EPA to eliminate or reduce the gravity component of a civil penalty. Civil penalties are based on two components—an amount based on the severity or gravity of the violation and the amount of economic benefit a violator received by not complying with the law, according to EPA.
For example, New Cingular Wireless PCS agreed to pay a reduced civil penalty after voluntarily disclosing violations of the EPCRA at facilities in 35 states and Puerto Rico, under a consent agreement approved by the Environmental Appeals Board on Feb. 9. New Cingular discovered reporting violations involving lead, diesel, and sulfuric acid at the sites (43 ER 407, 2/17/12).
EPA waived the gravity-based component of the fine under the audit policy, and the company agreed to a total penalty of $125,728. Otherwise, the agency said, the gravity-based portion of the penalty would have been $6.7 million.
The amount of pollution that companies have agreed to reduce has varied each year, according to information provided by EPA.
“Pollutant reductions from audit disclosures vary widely from case to case, resulting in total reduction levels that are also highly variable year to year,” the agency told Bloomberg BNA. “Typically, pollutant reductions are driven by a small number of settlements that account for most of the annual reductions achieved.”
The FY 2011 example illustrates a year with low pollution reductions from voluntary disclosures—just 3,000 pounds out of the 1.8 billion pounds of reductions from all enforcement actions.
The data paint a different picture in FY 2009. That year, 22.9 million pounds of pollution were reduced under the audit policy, out of the total 580 million pounds that were reduced under all enforcement actions.
One settlement with Invista S.a.r.l. accounted for 20.6 million pounds of the 22.9 million pounds, EPA said.
The fiber manufacturer in April 2009 agreed to pay a $1.7 million fine and spend $500 million on environmental controls after it voluntarily disclosed 680 violations of air, water, hazardous waste, emergency planning, and pesticide regulations at 12 facilities (40 ER 880, 4/17/09).
Despite the self-disclosures generally not being in high-priority areas, the FY 2013 guidance document acknowledged that EPA receives “a significant number” of disclosures each year.
In FY 2011, EPA received disclosures from 458 companies covering 855 facilities, according to information the agency provided.
The logistics of how EPA would cut back the audit policy remain unclear. The agency told Bloomberg BNA that it “is still evaluating options to achieve the resource reductions for Audit Policy work.”
The FY 2013 draft national program manager guidance is available at http://www.epa.gov/planandbudget/annualplan/FY13_OECA_DraftNPMGdnce.pdf.
EPA will accept comments on the draft guidance through March 19 from regions, states, and tribes. Details are available at http://www.epa.gov/planandbudget/annualplan/fy2013.html.
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