EPA Launches eDisclosure Portal And Other Recent EPCRA Developments
EPA Launches eDisclosure Portal:
On December 9, 2015, the U.S. Environmental Protection Agency (EPA) announced that it is modernizing implementation of its self-disclosure policies by creating a centralized web-based ”eDisclosure” portal to receive and automatically process self-disclosed civil violations of environmental law. 80 Fed. Reg. 76476. Under the automated eDisclosure system, “large and small businesses will quickly be able to get some of their more routine types of disclosures resolved.” The new eDisclosure portal will handle only disclosures under EPA’s Audit Policy and its Small Business Compliance Policy; the new owner self-disclosures and potential criminal violations disclosed to the Voluntary Disclosure Board will continue to be accepted and processed outside of the eDisclosure system. Potential violations through the new eDisclosure portal may qualify for one of two types of automated treatment:
- Category 1. Category 1 disclosures include: Emergency Planning and Community Right-to-Know Act (EPCRA) violations that meet all Audit Policy conditions; and EPCRA violations that meet all Small Business Compliance Policy conditions.
- Category 2. Category 2 disclosures include: All non-EPCRA violations; EPCRA violations where the discloser can only certify compliance with Audit Policy Conditions 2-9 (i.e., discovery was not systematic); and EPCRA/Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) violations excluded from Category 1.
For disclosures that qualify for Category 1 treatment, the eDisclosure system automatically will issue an electronic Notice of Determination (eNOD) confirming that the violations are resolved with no assessment of civil penalties, conditioned on the accuracy and completeness of the submitter’s disclosure. For disclosures that qualify for Category 2 treatment, the eDisclosure system automatically will issue an Acknowledgement Letter (AL) noting EPA’s receipt of the disclosure and promising that EPA will make a determination as to eligibility for penalty mitigation if and when it considers taking enforcement action for environmental violations. EPA will spot check Category 1 disclosures to ensure conformance with EPCRA, the Audit Policy, the Small Business Compliance Policy, and eDisclosure requirements. EPA will screen Category 2 disclosures for significant concerns, such as criminal conduct and potential imminent hazards. The eDisclosure system has an automated process for handling requests for extension of deadlines for correcting violations:
- For Category 1 disclosures, to obtain an eNOD, disclosers must correct their violations within 60 days of the date of discovery for disclosers under the Audit Policy; or within 90 days of the date of discovery for disclosers under the Small Business Compliance Policy. Extensions of the violation correction deadline and corresponding compliance certification deadline are not allowed for Category 1 disclosures. If an entity requests an extension of the violation correction deadline for an EPCRA disclosure that is potentially eligible for Category 1 treatment, the disclosure will be potentially eligible only for Category 2 treatment.
- Category 2 disclosers under both the Audit Policy and the Small Business Compliance Policy can make an online request for up to 30 additional days to correct their violations, with no explanation required. Such extensions will be considered granted at the time of the request, and the Compliance Certification due date will automatically be extended.
- Category 2 disclosers under the Audit Policy can make an online request for more than 30 additional days to correct their violations, provided the violation correction date does not extend beyond 180 days after the date of discovery, but disclosers must include a justification for such extension and the request is not considered automatically granted at the time of the request.
- Category 2 disclosers under the Small Business Compliance Policy can make an online request for more than 90 additional days to correct their violations, provided the violation correction date does not extend beyond 360 days after the date of discovery, but disclosers must include a justification for such extension and the request is not considered automatically granted at the time of the request.
Entities wishing to disclose potential violations through the eDisclosure system must follow a three-step process: (1) register with EPA’s Central Data Exchange (CDX) system; (2) submit disclosure of any violation, within 21 calendar days of the entity’s discovery that such potential violations may have occurred to be considered prompt; and (3) submit a Compliance Certification, within 60 days for an Audit Policy disclosure and within 90 days for a Small Business Compliance Policy disclosure, identifying the specific violations, and certifying that the violations have been corrected and that policy conditions have been met. These modifications to the implementation of EPA’s Audit Policy and Small Business Compliance Policy, and the launch of the eDisclosure portal, became effective on December 9, 2015. General information on EPA’s eDisclosure portal is available online.
EPA Issues Final Rule Adding 1-Bromopropane To EPCRA Section 313 List:
On November 23, 2015, EPA issued a final rule adding 1-bromopropane to the list of toxic chemicals subject to reporting under Section 313 of EPCRA of 1986 and Section 6607 of the Pollution Prevention Act (PPA) of 1990. 80 Fed. Reg. 72906. 1-Bromopropane has been classified by the National Toxicology Program (NTP) in its 13th Report on Carcinogens (RoC) as “reasonably anticipated to be a human carcinogen.” EPA has determined that 1-bromopropane meets the EPCRA Section 313(d)(2)(B) criteria because it can reasonably be anticipated to cause cancer in humans. The final rule is effective November 30, 2015, and applies for the reporting year beginning January 1, 2016, with reports due July 1, 2017.