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Besides researching and writing environmental rules, such as the mercury power plant rule recently addressed by the US Supreme Court, the USEPA must also spend a lot of effort enforcing rules – to ensure they are fairly and evenly complied with. Besides the “stick” of fines, potential imprisonment, and bad publicity, the USEPA also uses the “carrot” of encouraging companies to comply. The USEPA enforces a formal policy to waive the punitive portion of penalties that would otherwise be assessed for violations if they are discovered independently by the facility, voluntarily disclosed to the USEPA, and promptly corrected. The USEPA’s “Incentives for Self-Policing: Discovery, Disclosure, Correction and Prevention of Violations” has been around since 2000 (modified in 2008) and been used successfully by companies implementing compliance self-auditing programs, giving many a “clean slate”.
In 2012, during a time of budget cuts and reduced staff, the USEPA signaled that it may reduce involvement or even terminate the Audit Policy program.
However, on June 10, 2015, the USEPA held a webinar to confirm its strong support for the concept of self-auditing and announced changes to its Audit Policy and Small Business Compliance Policy to meet the same goals, while allowing the Agency to reduce its effort spent. (http://www2.epa.gov/compliance/epas-audit-policy) The USEPA is in the process of making the program electronic, creating an “eDisclosure Portal” to more efficiently collect information needed to determine whether a disclosure qualifies for the Audit Policy. Entities and legal representatives should be aware of the changes, which were designed to make the process close to self-executing. The trade-off for this efficiency is reduced flexibility for addressing unique individual circumstances.
For example, the Portal will track initial discovery, disclosure, compliance correction and certification dates, and automatically notify the submitter if a deadline is missed and, therefore, the Audit Policy is non-applicable. The system is supposed to grant up to 30 additional days to complete compliance corrections above the normal 60 days. The applicant can request additional time to comply, but the USEPA will not rule on such a request until it reviews the entire request. Therefore, facilities taking added time to achieve compliance may find their extension request not granted and receive no benefits under the Audit Policy.
Another potential problem with the new eDisclosure system for the user is that even if the system indicates that a facility meets all of the criteria to qualify for the Audit Policy program, such a final determination is only made after a reviews of the information inputted by someone at the USEPA. The system gives the Agency the right to contradict any statement from the system.
The USEPA expects that the new eDisclosure system will ultimately benefit disclosing facilities, reducing their time and costs if they fully understand how to use the new system, collect and disclose all needed information fully, and meet all deadlines.
The eDisclosure system is expected to be launched in fall 2015. The new system may provide less certainty and less flexibility to applicants than current procedures, but will reduce time and costs to submit to the Agency necessary data, providing incentive to continue to use the Audit Policy to quickly disclose and correct violations and be rewarded for doing so.
CCES has the Air Quality experts to help your facilities determine technical aspects of potential violations of federal and state Clean Air Act regulations early in the process, help you implement the technical aspects of correcting them in a cost-effective manner, and initiate monitoring procedures to allow you to monitor your operations effectively. Contact us today at 914-584-6720 or at karell@CCESworld.com.
Marc Karell, P.E., CEM, Principal, Climate Change & Environmental Services, LLC
Reprinted with permission by CCES
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