The United States Environmental Protection Agency (“EPA”) recently launched its “eDisclosure” portal intended to facilitate self-disclosure of civil violations of environmental law. The portal aims to streamline EPA’s Audit Policy and Small Business Compliance Policy, which provide incentives to regulated entities – such as penalty reductions and avoidance of criminal prosecution – for voluntary discovery and correction of federal environmental violations. The eDisclosure portal does not make any substantive changes to the Audit and Small Business Compliance Policies; rather, EPA expects the portal to “result in faster and more efficient resolution of self-disclosures, while saving considerable time and resources for regulated entities and EPA.”
Disclosures made through the new portal may fall into one of two categories. “Category 1” disclosures include violations of the Emergency Planning and Community Right-to-Know Act (“EPCRA”) for which the disclosing entity can show compliance with all conditions of either the Audit or Small Business Compliance Policy. Category 1 disclosures through eDisclosure will automatically generate an electronic Notice of Determination confirming resolution of the violation(s) with no assessment of civil penalties. “Category 2” disclosures include EPCRA violations not covered by Category 1 and all non-EPCRA violations. The eDisclosure portal will automatically generate an “Acknowledgment Letter” for Category 2 disclosures, which will notify the disclosing entity that EPA will determine penalty mitigation eligibility if and when it considers taking enforcement action for the violation(s).
With the launch of eDisclosure, EPA is requiring all self-disclosed civil environmental violations, except new owner disclosures, to be made through the portal. To submit a self-disclosure through eDisclosure, an entity must first register with EPA’s Central Data Exchange (“CDX”), then submit the self-disclosure within 21 days of discovery, and certify compliance within 60 or 90 days after discovery. Entities may not claim confidential business information (“CBI”) on any disclosures submitted through eDisclosure; however, they may submit CBI manually to EPA and coordinate the manual submission and the eDisclosure submission. More information about eDisclosure is available on EPA’s website. Entities considering self-disclosure should seek the advice of counsel.