Earth Matters - April 2013: Cancelling EPA’s Self Audit Policy Program?

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Explore:  Audits Enforcement EPA

Last Spring, the Office of Enforcement and Compliance Assurance (OECA) released its Fiscal Year 2013 National Program Manager Guidance (“FY 2013 Guidance”), which sets forth, among other things, the methods that the United States Environmental Protection Agency (EPA) should use to work with state and tribal governments to enforce environmental laws. The FY 2013 Guidance message is clear: aggressive enforcement of environmental laws will remain; but, implementation of EPA’s enforcement strategy is shifting. As a result, the implications may be significant for at least one well known program – EPA’s audit policy (the “Self-Audit Policy Program”).

Since its inception in 1995, the Self-Audit Policy Program has provided incentives for regulated bodies to comply with the environmental laws and regulations. For a regulated body to collect Self-Audit Policy Program incentives, that body must voluntarily discover, promptly disclose, and expeditiously correct noncompliance with environmental laws and regulations; resulting incentives to the regulated body include, among other things, decreased or waived fines and/or penalties. In addition, EPA also benefited because the Self-Audit Policy Program reduced the need for the agency to perform formal investigations.

Despite the Self-Audit Policy’s success, the FY 2013 Guidance suggests that, “since implementation of the Audit Policy began in 1995, EPA‘s enforcement program has increased its understanding of environmental compliance auditing, and believes that internal reviews of compliance have become more widely adopted by the regulated community, as part of good management.” What is more, the FY 2013 Guidance states that “EPA has found that most violations disclosed under the Policy are not in the highest priority enforcement areas for protecting human health and the environment.” As a result, EPA believes that it can reduce investment in the Self-Audit Policy Program without discouraging regulated bodies from still performing internal compliance reviews to locate and subsequently correct violations.

Whether there will continue to be any Self-Audit Policy Program, or if a new, similar program will be implemented in its place, remains unclear. In contrast to statements made in the FY 2013 Guidance, EPA officials and other commentators suggest that the Self-Audit Policy Program will cease to exist altogether. Should this occur, EPA will be required to rely on other, or possibly new, enforcement mechanisms. In fact, even the FY 2013 Guidance states that “EPA is considering several options, including a modified Audit Policy program that is self-implementing,” but does not further elaborate on how or when such a modified program may be deployed.

In sum, despite the Self-Audit Policy Program’s success over the last two decades, the FY 2013 Guidance suggests that the Self- Audit Policy Program will be dramatically cut back or possibly even eliminated in 2013. In that event, EPA will be forced to utilize existing (or develop new) enforcement mechanisms to incentivize regulated bodies to comply with environmental laws and regulations.

For more information about the EPA’s enforcement of environmental laws, contact Patrick T. Fitzgerald, Associate in the Phillips Lytle Environment, Real Estate and Telecommunications Practices at (716) 847-8315 or pfitzgerald@phillipslytle.com.