EPA recently announced it is centralizing its violation self-disclosure process in a new eDisclosure portal. Through the portal, registered users will be able to disclose routine violation and their corrections to EPA. The portal is based on EPA’s “Incentives for Self-Policing: Discovery, Disclosure, Correction and Prevention of Violations” policy issued in 2000 to encourage voluntary discovery, prompt disclosure and correction of violations by incentivizing the regulated community with potential penalty reductions for self-reporting.
The new portal will streamline EPA’s review of noncompliance for a limited range of violations. Of note, the portal requires submission of violations within 21 days of discovery and the violations generally must be reconciled within 60 days. This reconciliation timeframe may be impractical for many violations depending on the circumstances of the facility, such as where a facility is undergoing capital improvement or a significant upgrade. After the violation is corrected, users submit a Compliance Certification through the portal certifying that the violation has been remedied. EPA then categorizes the violation as either Category 1 (only available for minor EPCRA violations) in which case EPA will issue an electronic Notice of Determination (eNOD) confirming that no civil penalty will be assessed due to the self-disclosure; or Category 2 (for a broader range of violations), in which case EPA will issue an Acknowledgement Letter and evaluate the violation and disclosures for possible penalty mitigation if EPA takes an enforcement action.
An additional critical detail of the new portal is EPA’s revised approach to Freedom of Information Act (FOIA) requests. EPA is revising its prior FOIA policy on disclosures and will now grant FOIA requests for eNODS issued through the portal. Previously, EPA operated under a presumption in favor of withholding unresolved disclosures. EPA will now operate under a presumption in favor of disclosure. This policy change presents a substantial risk to users that EPA may release disclosure information to the public through FOIA requests before determining the eligibility of a disclosure for penalty mitigation.
The eDisclosure portal is live and more information is available on EPA’s eDisclosure page here.