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Voluntary Self-Disclosure of Federal Violations

What Policies Does EPA Have Regarding Voluntary Self-Disclosure?

To better safeguard human health and the environment, the U.S. Environmental Protection Agency (EPA) maintains two policies designed to enhance protection of human health and the environment by encouraging regulated entities to voluntarily discover, disclose, correct and prevent violations of Federal environmental requirements.

1. The Small Business Compliance Policy (65 F.R. 19629, April 11, 2000) is for businesses with 100 or less employees. The Small Business Compliance Policy implements, in part, the Executive Memorandum on Regulatory Reform (60 F.R. 20621, April 26, 1995) and Section 223 of the Small Business Regulatory Enforcement Fairness Act (SBREFA) (signed into law on March 29, 1996).
2. The Incentives for Self-Policing: Discovery, Disclosure, Correction and Prevention of Violations Policy (revised, April 11, 2000) (commonly referred to as the "Audit Policy") provides incentives for regulated entities to detect, promptly disclose, and expeditiously correct violations of Federal environmental requirements.
   
   On August 1, 2008, EPA issued an Interim Approach to Applying the Audit Policy to New Owners (“Interim Approach”). The purpose of this approach is to tailor Audit Policy incentives for new owners that want to make a “clean start” at their recently acquired facilities by addressing environmental noncompliance that began prior to acquisition.

What Are the Benefits of Self-Disclosing?

The Small Business Compliance Policy and Audit Policy encourage voluntary and systematic environmental audits.

The Policy incentives include:

• No routine requests for audit reports from those who conduct environmental audits.
• An EPA determination not to recommend criminal prosecution for disclosing entities that meet all applicable conditions contained in the Policy (ultimate prosecutorial discretion resides with the U.S. Department of Justice).
• Penalty mitigation.
• Disclosing entities that meet all conditions contained in EPA's Small Business Compliance Policy are eligible for 100% mitigation of all gravity-based penalties.
• Disclosing entities that meet all conditions contained in EPA's Audit Policy are eligible for 100% mitigation of all gravity-based penalties if all nine of the Policy’s conditions are met; reduction of gravity-based penalties by 75% where the disclosing entity meets all of the Policy’s conditions except Condition 1 - detection of the violation through a systematic discovery process.

EPA retains its discretion to collect any economic benefit that may have been realized as a result of noncompliance.

What Information does Region 4 Need to Process a Voluntary Disclosure?

The voluntary disclosure, whose submission must be made in writing within 21 days of discovery, must clearly indicate whether it is being submitted pursuant to the Small Business Compliance Policy (i.e., the facility has 100 or fewer full time employees) or the Audit Policy. If no indication is given, then it will be assumed the disclosure is being submitted pursuant to the Audit Policy.

Although submission of the facility's audit report is not required, the disclosure must provide information on whether the facility has met policy criteria and information needed for EPA to determine if the disclosed violation is in fact a violation. Therefore, to avoid or minimize the need for EPA to request additional information, a disclosure should try to provide the following:

1. Factual information related to the disclosure. Depending on which policy is applicable, the disclosure needs to include all available factual information which addresses conditions one through nine of the Audit Policy or one through four of the Small Business Compliance Policy.


2. General information on the potential violation(s) (e.g., facility name, street and mailing address; contact name, including contact information (e.g., phone, email, mailing address)).


3. Specific information on the potential violation(s). To ensure that EPA fully understands the potential violation being disclosed and that it has enough information to successfully process the disclosure, please include the following information for each disclosed potential violation:

• Nature of potential violation(s) and federal statute believe to have been violated
• Dates of possible noncompliance (e.g., March 1, 2003 - present);
• Chemical(s) involved (if appropriate)
• Quantity of material(s) (lbs.) (e.g., amount stored, released, spilled, or disposed of; amount of waste uncharacterized; etc.)
• Date audit commenced/completed
• Date facility returned to compliance
• Actions taken to return to compliance
• Cost of returning to compliance (e.g., costs may include becoming familiar with the regulations (either internal staff or outside consultant’s time to train staff), determining which chemicals meet/exceed reporting thresholds, preparing forms, plans or permits, submitting forms to appropriate agencies, fees collected by state or other regulatory agencies, funds for installing release detection equipment, secondary containment or start-up costs of plan implementation, etc.)

To further help with gathering the type of information needed for a robust disclosure, please review the following example templates:

• Example Template for Use in Submitting a Voluntary Self-Disclosure Pursuant to the EPA Audit Policy
• Example Template for Use in Submitting a Voluntary Self-Disclosure Pursuant to the EPA Small Business Compliance Policy

Does EPA Have an Electronic Self-Disclosure System for Submission of a Disclosure?

No. EPA did run a web-based pilot program in the past that made it easier and faster for companies nationwide to self-report potential environmental violations of the Emergency Planning and Community Right-to-Know Act (ECPRA). This pilot system was known as eDisclosure. However, effective July 1, 2013, eDisclosure is no longer available for online submission of EPCRA disclosures. Although eDisclosure has been decommissioned and is now off-line, entities can still make EPCRA disclosures via fax, U.S. mail or email.

Who in Region 4 Should Receive Voluntary Disclosures?

Voluntary self-disclosures of potential violations at facilities in U.S. EPA's Region 4 (Alabama, Georgia, Florida, Kentucky, Mississippi, North Carolina, South Carolina, and Tennessee) should be mailed to:

Shelia M. Hollimon
Special Assistant to Associate Director/Engineer
Office of Environmental Accountability
U.S. Environmental Protection Agency - Region 4
Sam Nunn Atlanta Federal Center
61 Forsyth Street, SW
Atlanta, Georgia 30303
Phone: (404) 562-9609
Fax: (404) 562-9663 (FAX)
Email: hollimon.shelia@epa.gov

EPA recommends that voluntary disclosures be sent by certified mail to ensure that the disclosure is received by EPA.

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What If the Disclosure Contains Confidential Business Information (CBI)?

If you have CBI materials in support of your disclosure, you should make that point clear in your submission. Your company is entitled to assert a claim of business confidentiality covering all or any part of the information it submits, in the manner described in 40 C.F.R. Section 2.230(b). It is suggested that if a CBI claim is made, then a good practice would be for the disclosure to also include a defense of the CBI claim (i.e., give specific reasons why certain portions of the disclosure should be protected as CBI).

Information subject to a claim of business confidentiality will be made available to the public only in accordance with the procedures set forth in 40 C.F.R. Part 2, Subpart B.

How Will EPA Region 4 Process a Disclosure?

Upon receipt, the disclosure will be assigned a Docket Number. Based on existing Agency resources and priorities, the disclosure will be distributed to media programs within the Region based on the noncompliance statutes referenced in the disclosure. If needed, the Agency will request additional information to clarify points made in or missing from the disclosure. If, at the time the disclosure is submitted, there are disclosed violations which have not yet been corrected, the discloser will remain obligated to complete the corrective actions necessary to abate any disclosed violations and may, based on the circumstances, need to report on the completion of these corrective actions.

What Audit Policies or Privilege Laws Exist in Region 4 States?

In general, if the violations disclosed occurred in a state with a delegated/authorized enforcement program, and the state has an audit policy or privilege law comparable to the EPA Audit Policy, then Region 4’s general protocol is defer to the state for resolution of the self-disclosure. Disclosures that involve EPA National Priorities, Regional priorities, EPA initiatives, or raise multi-state issues, however, represent self-disclosure types for which EPA may retain the lead. In certain instances, there may be a joint or parallel processing of the self-disclosure by EPA and the state.

As outlined below, five of the eight states that comprise EPA Region 4 have audit policy/privilege law or voluntary self-disclosure policies to encourage the disclosure of potential violations.

Region 4 States with Privilege & Immunity Laws: Several of the states in the southeast have enacted environmental audit privilege and/or penalty immunity laws.
• Kentucky
  • Ky. Rev. Stat. Ann. §§ 224.01-040
  • Created 1994, KY. Acts ch. 430, sec. 1, effective July 15, 1994; Amended 1996 and 2001
  • Contact:
  Jeff Cummins
  Kentucky Department for Environmental Protection
  300 Fair Oaks Lane
  Frankfort, KY 40601
  Phone: (502) 564-2150
  Email: Jeff.Cummins@ky.gov
  
  
• Mississippi
  • Miss. Code Ann. §§ 49-2-71, 49-17-43, 49-17-427, 17-17-29
  • Adopted 1995, effective date July 1, 1995; Amended 2003
  • Contact:
  Roy Furrh, General Counsel
  Mississippi Dept. of Environmental Quality
  P. O. Box 2261
  Jackson, Mississippi 39225
  Phone: (601) 961-5260
  Email: Roy_Furrh@deq.state.ms.us
  
  
• South Carolina
  • S.C. Code Ann. §§ 48-57-10 to -110
  • Adopted 1996, effective June 4, 1996; Amended 2000
  • Contact:
  Rebecca Sproles
  Enforcement and Compliance Assistance Coordinator
  SC Department of Health and Environmental Conservation
  Phone: (803) 896-8883
  Email: sprolemr@dhec.sc.gov

Region 4 States with Self-Disclosure Policies: The following states have adopted self-disclosure policies. The first date in parentheses indicates when the policy was adopted; subsequent dates reflect policy revisions.
• North Carolina
  • Effective date: September 1, 1995
  • Revised July 10, 2000
  • Contact:
  Edythe Mckinney
  North Carolina Department of Environment and Natural Resources
  Phone: (919) 707-8111
  Email: Edythe.McKinney@ncdenr.gov
  
  
• Tennessee
  • Effective date: December 1, 1996
  • Contact:
  Chris Moran, Civil Enforcement Coordinator
  Tennessee Department of Environment and Conservation
  11th Floor, L&C Tower, 401 Church Street
  Nashville, Tennessee 37243
  Phone: (615) 532-0130
  Email: chris.moran@tn.gov

States without Formal State Privilege & Immunity Laws or Audit Policies: The following states do not have any effective laws or self-disclosure policies.
• Alabama
• Florida
• Georgia

Resources:

1. EPA Audit Policy
2. EPA Small Business Compliance Policy
3. Example Template for Use in Submitting a Voluntary Self-Disclosure Pursuant to the EPA Audit Policy
4. Example Template for Use in Submitting a Voluntary Self-Disclosure Pursuant to the EPA Small Business Compliance Policy
5. State Audit Privilege and Immunity Laws & Self-Disclosure Laws and Policies
6. Final Policy Concerning the Occupational Safety and Health Administration's (OSHA) Treatment of Voluntary Employer Safety and Health Self-Audits

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