Voluntary Disclosures Now Subject to Public Disclosure

On December 9, 2015, the USEPA launched its eDisclosure Portal to receive and automatically process self-disclosed civil violations of environmental law on a streamlined basis.  Ever since the audit policy has been in place, the USEPA has encouraged the regulated community to conduct compliance audits and self-disclose any violations.  The benefit was that the entity would obtain reductions in or even eliminate civil penalties if the disclosure was made on a timely basis and were promptly corrected.

By all accounts, the audit policy has been a success; however, the USEPA soon proved its inability to promptly resolve all of the pending disclosures to determine whether the disclosure qualifies for the benefits of the audit policy.

Now comes the interesting part.  The USEPA’s policy has been not to release any unresolved disclosures under the Freedom of Information Act (FOIA).  That presumption against nondisclosure by the USEPA has now apparently been reversed.  In all other respects, the USEPA’s audit policy has not changed, except for the application of FOIA to “unresolved” disclosures.

The eDisclosure Portal is a good thing.  It makes the self-reporting easier.  Unfortunately, the USEPA’s shift in FOIA application to unresolved disclosures is troubling.  This fact is just one more factor that needs to be considered when deciding to self-report or not.

More later.

As always, feel free to contact me at walter.james@jamespllc.com

WDJiii

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