The U.S. Environmental Protection Agency (EPA) has made much of its “Next Generation Compliance” initiative, created “to increase compliance with environmental regulations by using advances in pollutant monitoring and information technology combined with a focus on designing more effective regulations and permits to reduce pollution.” This involves more effective regulations and permits that include built-in compliance mechanisms, such as continuous monitoring for stationary sources; advanced monitoring, including fence-line monitoring and infrared camera systems; greater transparency, including public availability of electronic data and third-party audits; and “innovative” enforcement, including incorporating these elements in administrative and judicial settlements and injunctive relief demands. This column briefly outlines these new initiatives so Chemical Processing readers can take advantage of these programs.
Next Generation Compliance
The initiatives’ concepts already are making headway in settlement agreements with significant results. For example, HollyFrontier Refining & Marketing LLC settled alleged Clean Air Act (CAA) violations by agreeing to install next-generation pollutant detection technology during the implementation of mitigation projects required under the settlement. This included using a third-party professional engineer to verify compliance with the terms of the mitigation projects.
Marathon Petroleum Corp. agreed, as part of a settlement, to use infrared gas imaging technology to determine if “there are any significant gaseous emissions.” Under the settlement terms, if tank defects are found, Marathon must undertake the repairs.
The implications of these next-generation tools are profound. The expanded use of electronic reporting and the public dissemination of data as a regulatory tool ups the ante considerably for instances of potential non-compliance and its repercussions. The EPA’s Office of the Inspector General, for example, has on several occasions expressed interest in understanding better why the EPA isn’t relying on Toxics Release Inventory (TRI) reporting data required under Section 313 of the Emergency Planning and Community Right-to-Know Act (EPCRA) to identify potentially unregulated facilities and evaluate their compliance with requirements for surface-water-discharge permitting and Risk Management Program reporting. In addition, enhanced reliance on enforcement to pilot new and arguably unproven technologies could be used inappropriately as a surrogate for rulemaking, sidestepping the sometimes inconvenient need to undertake cost/benefit analyses as required under law and a routine part of formal rulemaking.
The eDisclosure portal is another relatively new EPA program. In late 2015, the EPA launched the portal, providing companies with a new way to self-report violations of environmental law. The portal implements the EPA’s “Audit Policy,” titled “Incentives for Self-Policing: Discovery, Disclosure, Correction and Prevention of Violations.” According to the agency, thousands of companies have availed themselves of the benefits offered under the Audit Policy and continue to do so each year. The eDisclosure portal, in part, is intended to streamline the self-disclosure process for the EPA and regulated entities. Firms that disclose potential violations through the new portal may qualify for one of two types of automated treatment, Category 1 or Category 2.
For disclosures that qualify for Category 1 treatment, the eDisclosure system will automatically issue an electronic Notice of Determination (eNOD) confirming the violations are resolved with no assessment of civil penalties, conditioned on the accuracy and completeness of the submitter’s disclosure. The EPA will spot check Category 1 disclosures to ensure compliance with EPCRA, and that disclosure meets the conditions of the Audit Policy, the Small Business Compliance Policy, and eDisclosure.
For disclosures that qualify for Category 2 treatment, the eDisclosure system automatically will issue an Acknowledgement Letter noting the EPA’s receipt of the disclosure and that the EPA will make a determination as to the entity’s eligibility for penalty mitigation if and when the agency considers taking enforcement action for environmental violations. The EPA will screen Category 2 disclosures for significant concerns such as criminal conduct and potential imminent hazards.
It remains to be seen if the new portal will be a hit with the regulated community, or if companies instead will opt not to self-disclose and take their chances in the event non-compliance is discovered. While there is some measure of corporate comfort to be had in self-disclosing indiscretions, not everyone is convinced self-disclosure is the best or only way to go, especially when prompt correction of the problem on the entities’ own initiative arguably achieves the goals of environmental compliance.
Lynn is managing director of Bergeson & Campbell, P.C., a Washington, D.C.-based law firm that concentrates on conventional, biobased, and nanoscale chemical industry issues. She served as chair of the American Bar Association Section of Environment, Energy, and Resources (2005-2006).