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Concerned about reporting for the first time, we can help!

For the companies that discovered that they may have not been complying with Federal and State Environmental requirements and now have concerns about reporting to the EPA and State agencies by submitting applications or reports.

The EPA has an established policy for these categories of companies. If a company completes a self-audit to determine compliance status, then next step is identifying a path of achieving compliance. The EPA and most states require a complete review and not a partial approach to compliance.

• If all of the requirements of the Policy are met an entity may be eligible for elimination of the "gravity" component of an environmental penalty (i.e., the part of the penalty that reflects "the egregiousness of the violator's behavior and constitutes a punitive portion of the penalty").

• A recommendation from EPA against pursuit of criminal enforcement; and

• To the extent the violations were discovered as the result of an environmental audit, EPA will refrain from requesting a copy of the audit report.

Benefits for self-disclosure

The first two conditions are related.

1. To qualify for a full reduction in the gravity portion of the penalty, the violation(s) must have been discovered through an environmental audit or compliance management system. Even if the violation is discovered in some other way, a reduction in the gravity portion of the penalty of up to 75% may be available.

2. In addition, discovery must be "voluntary." Thus, any violations found as a result of required monitoring, sampling, or other testing procedures, whether imposed by regulation, permit condition, or some other mechanism will likely not be considered voluntary. " The "voluntary" requirement pertains to discovery and therefore, even if some other legal requirement compels reporting of the violation, it may still qualify for the benefits under the Policy.

3. The third condition involves prompt disclosure; entities must self-report within twenty-one days from "when the entity discovers that a violation has, or may have, occurred." The standard is an "objectively reasonable basis" for believing that a violation has or may have occurred.

4. The fourth condition requires that violations must be discovered and identified before a regulator, through its own investigation or based on third-party information, would have identified the issue.

5. Once a violation is discovered, it must be corrected expeditiously in order to comply with the fifth condition.

6. In addition, steps must be taken to prevent recurrence of the violation in order to comply with the sixth condition.

7. The seventh condition – the matter at issue cannot be a repeat violation.

8. Condition eight precludes use of the Policy when violations either result in serious actual harm to the environment or present an imminent and substantial endangerment to public health or the environment.

9. Condition nine demands full cooperation with government.

Several Midwest States have joined into this Privilege and Immunity policy

Arkansas – (Privilege only), Colorado, Iowa, Kansas and Nebraska

Missouri does not have a specific law. • Missouri does not have a specific law, regulation, or policy concerning environmental audit privilege or penalty immunity for the voluntary disclosure of environmental violations. State regulations, however, do allow the Missouri Department of Natural Resources (DNR) to subtract from the total amount of an administrative penalty after considering documentation that the violator has voluntarily reported noncompliance, or took measures to remedy a violation before detection by DNR. • Administration and enforcement. DNR has the authority to adjust administrative penalty amounts for violations.

Self-evaluations or audits can help companies in Missouri discover potential violations and take measures to remedy them before they are detected.

We can be your advocate in dealing with State and Federal agencies and taking care of these actions before this becomes necessary.

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