1. 1
ENVIRONMENTAL AUDITS,
SELF-DISCLOSURE
AND
ENVIRONMENTAL INSPECTIONS
Presented by:
Brad Sugarman
bsugarman@taftlaw.com
Jeff Stemerick
jstemerick@taftlaw.com
What is an Environmental Audit
Privilege or Immunity?
What is an Environmental Audit
Privilege or Immunity?
• Environmental audit laws typically have
one or both of the following:
– An evidentiary and disclosure privilege that
makes an audit report not subject to discovery
and inadmissible in court.
– Immunity from some penalties or enforcement
for violations that are discovered and
voluntarily disclosed.
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2. 2
Federal & State PoliciesFederal & State Policies
FEDERAL POLICIES
United States Environmental
Protection Agency
– Audit Policy, 65 Fed. Reg. 19,618 (April 11, 2000)
• Officially titled “Incentives for Self-Policing: Discovery,
Disclosure, Correction and Prevention of Violations.”
– Small Business Compliance Policy, 65 Fed. Reg.
19,630 (April 11, 2000)
3
Policy ObjectivePolicy Objective
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3. 3
Federal & State ProgramsFederal & State Programs
STATE POLICY
Indiana Department of Environmental
Management
– Self-Disclosure and Environmental Audit Policy
» Adopted April 5, 1999
» Revised on November 16, 2006, and again on
February 5, 2010
5
• USEPA encourages self-auditing
• USEPA Incentives for Self-Policing (April 2000):
• Can eliminate up to 100% of gravity based
penalties (may still impose economic benefit
penalty)
• Will not recommend criminal prosecution
• Will not make routine requests for audit report
• Protection for New Owners (2008): provides incentives
for owners of new companies (acquisitions/mergers) to
conduct self-audits
6
Why? Penalty ReductionWhy? Penalty Reduction

4. 4
Why? NextGen ComplianceWhy? NextGen Compliance
• eDisclosure Portal
• Coming Fall 2015
• CBI cannot be submitted through
eDisclosure
• Two-Tiered system with different
resolutions:
7
What is Next Generation Compliance?What is Next Generation Compliance?
8

5. 5
Why? SustainabilityWhy? Sustainability
• Detailed review of environmental practices
may lead to money saving ideas
– Elimination of hazardous waste streams in
manufacturing operations
– Greening supply chain
– Improving best practices
9
S u s t a i n a b i l i t yS u s t a i n a b i l i t y
1. Reject sustainability - INACTION
2. Bare minimum - DOING THE ABSOLUTE MINIMUM
TO STAY IN BUSINESS
3. Seen as a cost - PHILANTHROPIC ACTIVITY THAT
IS JUST A COST
4. Cutting Costs - REDUCE CONSUMPTION
5. Risk Management – REDUCE RISK
6. Indirect Benefits –BETTER EMPLOYEES &
SUPPLIERS
7. Opportunities –NEW PRODUCTS & MARKETS
8. Strategic Approach –COHESIVE DIRECTION
9. Integration –EVERYONE AT EVERY LEVEL
10. Continuous Improvement –REFLECTION &
REVISION
Not on
Board
On
Board
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6. 6
• No gravity-based penalties will be assessed against
entities for violations discovered and disclosed pursuant
to the audit policy. The entity may still be subject to a
penalty equaling the amount of economic gain it received
from the violation
• EPA will reduce the gravity-based penalties by 75% for
violations that were not discovered through an
environmental audit or through a compliance
management system, but otherwise meet all the other
requirements of the audit policy
• EPA will neither request nor use an environmental audit
report to initiate a civil or criminal investigation, and will
not request an environmental audit report during routine
inspections
11
EPA Self-Audit Policy:
Scope of Immunity (Civil)
EPA Self-Audit Policy:
Scope of Immunity (Civil)
EPA Self-Audit Policy:
Scope of Immunity (Criminal)
EPA Self-Audit Policy:
Scope of Immunity (Criminal)
• EPA will not recommend to the Department of Justice that criminal
charges be brought against an entity that discloses a potential
criminal violation pursuant to the audit policy (even if the violation
was not discovered through an environmental audit or a compliance
management system), unless EPA determines that the violation is
part of a pattern or practice involving:
– A prevalent management practice that conceals or condones
environmental violations; or
– High-level corporate officials’ or managers’ conscious involvement in, or
willful blindness to, violations of environmental laws.
• The audit policy only protects the entity itself. It does not protect
employees. EPA may still recommend the prosecution of criminal
acts committed by individual employees and managers, even if the
company complies with the audit policy.
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7. 7
The Nine ConditionsThe Nine Conditions
1. Systematic Discovery
2. Voluntary Discovery
3. Prompt Disclosure
4. Independent Discovery and Disclosure
5. Correction and Remediation
6. Prevent Recurrence
7. No Repeat Violations
8. Certain Violations Excluded
9. Cooperation
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Condition #1:
Systematic Discovery
Condition #1:
Systematic Discovery
• The violation must be discovered through an
environmental audit or a compliance
management system reflecting the regulated
entity’s due diligence in preventing, detecting,
and correcting violations
• EPA will still reduce gravity-based penalties by
75% if this condition is not met
• This condition is not necessary for the criminal
component of the audit policy
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8. 8
Condition # 2:
Voluntary Discovery
Condition # 2:
Voluntary Discovery
• The disclosure must be voluntary and not through
legally mandated monitoring or sampling required
under the law, a permit, judicial order, or consent
decree. The following disclosures are not “voluntary”:
– Emissions violations detected through a continuous
emissions monitoring device where such monitoring is
required
– Violations of an NPDES permit detected through required
sampling or monitoring
– Violations discovered through a compliance audit required
to be performed by a consent decree or settlement
agreement (unless the audit is a component of a
comprehensive environmental management system to be
implemented under the settlement agreement)
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Condition # 3:
Prompt Disclosure
Condition # 3:
Prompt Disclosure
• The violation is fully disclosed to the EPA
in writing within 21 days of discovery
(unless a statute or regulation requires a
particular violation to be reported in a
shorter time period)
• “Discovery” occurs when an officer,
director, employee or agent has an
objectively reasonable basis for believing
that a violation has, or may have, occurred
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9. 9
Condition #4:
Independent Discovery & Disclosure
Condition #4:
Independent Discovery & Disclosure
• The violation must be discovered and disclosed
before any of the following occurs:
– Federal, local, or state government begins an
inspection or investigation or issues an information
request
• If the EPA determines that the entity did not know its facility
was under investigation, and the disclosure of a violation was
made in good faith, the EPA may use its discretion and waive
or reduce penalties
– Notice of a citizen suit
– The filing of a complaint by a third party
– The reporting of the violation by a whistleblower
employee
– Imminent discovery by a regulatory agency
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Condition # 5:
Correction & Remediaiton
Condition # 5:
Correction & Remediaiton
• The violation must be corrected within 60 days
of discovery
• An extension may be requested from EPA, but
the EPA may require a written settlement
agreement, administrative consent order, or
consent decree as a condition of obtaining relief
under the audit policy
• EPA reserves the right to order correction or
remediation in less than 60 days if a shorter time
period is feasible and is necessary to protect
public health and the environment
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10. 10
Condition # 6:
Prevent Recurrence
Condition # 6:
Prevent Recurrence
• The regulated entity must agree in writing
to take steps to prevent recurrence of the
violation
• Preventative steps could include
improvements to environmental auditing
efforts or compliance management
systems
19
Condition # 7:
No Repeat Violations
Condition # 7:
No Repeat Violations
• The same violation (or a closely related
violation), has not occurred within the past
3 years at the same facility, and has not
occurred within the past 5 years as part of
a pattern at multiple facilities owned by the
same entity.
• The clock begins to run when the violator
is given notice of a specific violation by the
government or a third party not when the
violation occurred
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11. 11
Condition # 8:
Certain Violations Excluded
Condition # 8:
Certain Violations Excluded
• Penalty reduction is not available for:
– Violations that result in serious actual harm
– Violations that may have presented an
imminent and substantial endangerment to
public health or the environment
• This exclusion does not necessarily preclude
application of the Audit Policy solely because the
violation resulted from a release of pollutant
– Violations of the specific terms of a judicial or
administrative order or a consent agreement
21
Condition # 9:
Cooperation
Condition # 9:
Cooperation
• The regulated entity must cooperate with
the EPA and provide such information as
is necessary for EPA to determine the
applicability of the audit policy.
• The entity must not hide, destroy, or
tamper with evidence once a violation is
discovered.
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12. 12
EPA Self-Audit Policy:
The Self-Disclosure Letter
EPA Self-Audit Policy:
The Self-Disclosure Letter
• Disclosure letter must address the nine prerequisites for
Policy protection
• EPA may choose only to mitigate the penalty, and
depending on other factors, choose enforcement action
• Check prior history of company compliance, including
other locations. The Policy is less likely to provide
protection for repeat offenders
• Expect EPA to follow-up.
23
EPA Small Business PolicyEPA Small Business Policy
• EPA will waive gravity-based penalties if all
conditions are met
• Applies to entities with 100
or fewer employees
• Provides no criminal protection
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13. 13
EPA Small Business Policy: ConditionsEPA Small Business Policy: Conditions
• Voluntary discovery
• Prompt disclosure
– Written disclosure must be made within 21 days
• Prompt Correction
– Violations must be corrected in 90 or 180 days with
the submission of a written schedule
– Correction requiring installation of pollution prevention
measures may take 360 days to correct
25
When EPA’s Small
Business Policy Does Not Apply
When EPA’s Small
Business Policy Does Not Apply
• The business has previously received a warning letter,
NOV, field citation, citizen suit, or other enforcement for the
same violation in the last three years
• There has been a penalty reduction under the policy or a
similar state policy in the last three years
• Subject to two or more enforcement actions involving any
environmental regulation in the past five years
• Violation discovered through an information request, inspections,
field citations, reported to the agency by a third party or
whistleblower employee, identified in notices of citizens suits*
• The violation is discovered through a monitoring or sampling
required by statute, regulation, permit, or judicial or administrative
order
• The violation caused actual serious harm to public health, safety,
or the environment
• The violation involves criminal conduct
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History of
Non-
compliance

14. 14
EPA’s Audit Policy for New
Owners
EPA’s Audit Policy for New
Owners
• Interim Approach to Applying the Audit Policy to New
Owners, 73 Fed. Reg. 44991 (Aug. 1, 2008)
• Effective August 1, 2008
• New owners have an opportunity to make a “clean start”
• Provides tailored incentives for penalty mitigation
• Extends deadlines for disclosure and includes certain
mandatory disclosures as eligible
27
Indiana’s Self-Audit & Self-
Disclosure Protection
Indiana’s Self-Audit & Self-
Disclosure Protection
• Very similar to USEPA Policy
• Statute: creates a privilege to protect the self-audit
• Nonrule Policy: establishes reductions in penalties for
self-disclosure
• Up to 100% civil penalty reduction through voluntary
disclosure
• No enforcement for violations where the conditions are
satisfied
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15. 15
Indiana’s Audit Protection
Conditions
Indiana’s Audit Protection
Conditions
• Nine Conditions, almost identical to the USEPA policy
• Discovered voluntarily through audit or systematic
evaluation
• Disclosure within 45 days (as opposed to 21)
• Correct violations within 60 days
• Agree in writing to prevent recurrence
• Label: “Environmental Audit Report; Privileged
Document”
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Indiana’s Statutory ProtectionIndiana’s Statutory Protection
• An internal, voluntary audit is privileged and inadmissible
in civil cases (exceptions for criminal matters, fraud, and
failure to make efforts to achieve compliance)
• Can be waived by giving it to IDEM
• Attorney-client and work-product privileges continue to
apply if applicable
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16. 16
What is an
Environmental Audit?
What is an
Environmental Audit?
• A systematic, documented, periodic and objective review
by regulated entities of facility operations and practices
related to meeting environmental requirements
• USEPA’s Audit Policy (2000)
• A systematic, documented and objective review of an
audited entity to evaluate its compliance status relative
to audit criteria
• ASTM Standard E2107-06 (Reapproved 2014)
• ISO 14001 Certification Process
31
What is a
Compliance Management System?
What is a
Compliance Management System?
• A “Compliance Management System”
encompasses the regulated entity’s
documented systemic efforts, appropriate
to the size and nature of its business, to
prevent, detect and correct violations
through six required components.
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17. 17
Compliance Management Systems:
Six Criteria
Compliance Management Systems:
Six Criteria
1. Compliance policies, standards and procedures that
identify how employees and agents are to meet the
requirements of laws, regulations and other sources of
authority for environmental requirements
2. Assignment of overall responsibility for overseeing
compliance with policies, standards and procedures,
and assignment of specific responsibility for assuring
compliance at each facility or operation
3. Mechanisms for systematically assuring that
compliance policies, standards and procedures are
being carried out
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Compliance Management Systems:
Six Criteria
Compliance Management Systems:
Six Criteria
4. Efforts to communicate effectively the regulated entity’s
standards and procedures to all employees and other
agents
5. Appropriate incentives to managers and employees to
perform in accordance with the compliance policies,
standards and procedures, including consistent
enforcement through appropriate disciplinary mechanisms
6. Procedures for the prompt and appropriate correction of
any violations, and any necessary modifications to the
regulated entity’s compliance management system to
prevent future violations
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18. 18
Key Concepts:
Audit Plan
Key Concepts:
Audit Plan
• Document that describes the audit. Components include:
35
Objective Health & Safety
Issues
Special conditions
Scope of the Audit Report Preparation Communication
Identity of the
audited entity
Record retention
and management
requirements
Confidentiality
Audit Schedule Working papers
management
Logistics
Audit Team Authority for audit
Environmental Compliance Audits -
Benefits
Environmental Compliance Audits -
Benefits
1. Reduction or elimination of potential legal and financial liabilities
2. Can improve compliance with legislative and regulatory
requirements
3. Better communication and improved relationships with
governmental agencies
4. Identification of opportunities for environmental management
system (EMS) improvements
5. Provides information for the development of both short-term and
long-term expenditures
6. Increase employee awareness of environmental policies and
responsibilities
7. Helps to identify areas of employee training programs
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19. 19
Additional BenefitsAdditional Benefits
– Can be part of a larger environmental assessment of
business operations
– Identify cost-saving opportunities (waste minimization,
elimination of processes that have inherent
environmental risk)
– Prevents pollution and eliminates waste
– Can facilitate access to new markets
– Can be a catalyst to continually improve operations
– Helps in attracting a high-quality work force
– Can create community goodwill
– Can eliminate criminal exposure
37
Environmental Compliance Audits-
Risks
Environmental Compliance Audits-
Risks
1. Increased potential legal and financial liabilities for the
company if audit findings are not corrected or are not
corrected in a timely manner
2. Disclosure of confidential business information (CBI) or
trade secrets
3. Inadvertent admissions against interest because of the
wording of the audit findings
4. Disclosure of findings intended to be kept confidential
under audit privilege laws or attorney-client privilege or
work-product doctrine
5. Inaccurate audit findings
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20. 20
Preparing the Audit Findings:
Legal Issues
Preparing the Audit Findings:
Legal Issues
1. Qualifying for and maintaining evidentiary privileges
2. Qualification for and maintaining limited immunity
3. Protecting trade secrets and confidential business
information
4. Audit language – what you say and do not say
5. Potential liability for the auditors
6. Appropriately addressing audit findings
39
Implementing an Environmental
Auditing Program
Implementing an Environmental
Auditing Program
• Strategic considerations: what are your objectives?
• Is the company prepared to fix what you find?
• Is this a “one-off”, or part of a systematic plan?
(document systematic approach and schedule regular
audits)
• Forming the audit team and assigning duties
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21. 21
Instructions to Audit Team
Prior to Audit
Instructions to Audit Team
Prior to Audit
• Level of involvement of plant personnel
• Confidentiality: Company Legal Department involvement
• Suggestions regarding recording of observations and
findings
• Audit Report: format, drafts, final, recipients
• Corrective Measures follow-up
• When tempted to use e-mail…..stop….keep it verbal
41
Do’sDo’s
• Hand-pick your audit team carefully (attitude,
competence, ability to work with others, including hourly
employees, can-do approach)
• The team should meet prior to the audit to understand
respective roles
• Give precise instructions: map it out
• Interim verbal reporting to Team Leader of significant
findings
• Verbal internal reporting of violations of law to Company
Legal Department
• Correction of issues on the spot 42

22. 22
Do’sDo’s
• Conduct document review and review their
organization
• Encourage good housekeeping [No. 1 EPA
observation]
• Consider unannounced audits
43
Don’tsDon’ts
• Discuss the audit with anyone outside the team
• Write e-mails discussing the audit
• Take photos unless cleared with legal first
• Confront employees
• Jump to conclusions
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23. 23
Avoiding PitfallsAvoiding Pitfalls
• Carefully evaluate self-reporting vs. notice of violation
from regulatory agency: if the matter is likely to come to
the attention of the agency, the pendulum swings toward
self-reporting, even if self-disclosure policies may not
apply
• Keep your internal audit team small and confidential: set
the ground rules first
• Follow the environmental audit privilege and self-
disclosure requirements
• Before commencing the audit, ensure that company
management understands that corrective measures may
be required. 45
Are You Fully Protected if You
Follows These Steps?
Are You Fully Protected if You
Follows These Steps?
• No. Third-party citizens’ suits under
environmental laws (RCRA, CWA, CAA) may
not be barred.
• No. Private-party nuisance, trespass and bodily
injury claims are not barred.
• On balance, is self-disclosure the right decision?
Answer: A fact-specific analysis is required. The
disclosure clock is ticking.
46

24. 24
Other StatesOther States
• Arizona (03/97, small business only, 05/98, small business only, 01/02) – Must have
less than 20 employees or less than $2 million in gross income. Must disclose within
10 days
• Arkansas (2008) – Must disclose within 21 calendar days
• California (07/96, 12/98, 10/03) – Must disclose within 21 working days (or such
shorter period provided by law)
• Connecticut (10/96, 03/00, 04/05/02, 07/04) – Must disclose within 30 days (or such
shorter period provided by law)
• Delaware (04/94, 04/97, 06/00, 06/02, 12/02, 03/03, 09/03) – Must disclose within 21
days
• Florida (04/96) – Must disclose within 10 days
• Hawaii (01/98) - * No mention of a timeframe
• Indiana (04/5/99, 11/06, 02/10) – Must disclose within 45 days (or such shorter period
provided by law)
• Maine (01/96, 02/96) (only applicable to small business) – The business must
employ 100 or fewer employees company-wide to be eligible. Must correct the
violation within 90 days from discovery
47
Other StatesOther States
• Maryland: Must disclose within 10 days
• Massachusetts: Must disclose within 21 days (or such shorter period
provided by law)
• Minnesota: No self-disclosure policy. Statutory protection provided for
participants in complex MN Environmental Improvement Program. Under
this program, must disclose within 45 days
• New Mexico: Must disclose within 10 days (or such shorter period provided
by law)
• New York: Must disclose within 30 calendar days
• North Carolina: Must disclose “voluntarily and promptly”
• Oklahoma: Must disclose voluntarily, promptly, and fully before the Division
learns of the violation or is likely to learn of it imminently
• Oregon: Must disclose within 21 days
• Pennsylvania: Must disclose “promptly after the information or knowledge
concerning the violation is discovered”
• South Carolina: Statutory privilege and immunity (Sec. 48-57-10)
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25. 25
Other StatesOther States
• Tennessee: Must disclose within 21 days (policy document)
• Texas: Must notify TCEQ that audit is to commence to take
advantage of immunity, but audit report remains privileged if notice
not provided (provision is statutory)
• Vermont: Must disclose within 10 days (or such shorter period
provided by law)
• Washington: No timeframe, but disclosures and the timeliness of
such disclosures are considered as mitigating factors
• Wyoming: Must disclose within 60 days
• Wisconsin: Requires notification to DNR 30 days prior to audit; audit
report must be submitted to DNR with corrective action plan
(provision is statutory)
49
Handling InspectionsHandling Inspections
• Be cordial and cooperative
• Denying access will invite an
administrative or judicial search warrant
– Denying access will likely set the tone for a
more thorough inspection
– Interfering with execution of a search warrant
can result in criminal penalties
• Being combative or uncooperative will only
make things worse
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26. 26
When the Inspector ArrivesWhen the Inspector Arrives
• Request credentials and make a copy of
business cards
• Ask the inspector why he has come and
what he is inspecting
• Assign an employee to accompany the
inspector
– It is helpful to have a second employee to
take notes
• The inspector should wear all appropriate
personal protective equipment and follow
all safety rules 51
Handling InspectionsHandling Inspections
• The inspector can take photos or videos of
appropriate areas
• Consider split sampling
• Prevent wandering
• Records Inspections
– Be sure to separate privileged documents and
sensitive communications
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27. 27
After the InspectionAfter the Inspection
• Closing Conference Tips
– Correct violations before the inspector leaves
if possible
– Document the inspector’s comments
– Ask if there are best management practices
that should be improved
• IDEM inspectors must orally disclose
violations during the inspection
53
Confidential Business InformationConfidential Business Information
• Both EPA’s and IDEM’s regulations allow for the
confidential treatment of confidential business
information (“CBI”)
• Only certain information defined by regulation qualifies
as CBI
• The CBI claim process must be strictly followed or the
confidentiality claim may be waived
• EPA’s CBI regulations: 40 C.F.R. pt. 2, sub. pt. B.
• IDEM’s CBI regulations: 326 IAC 17.1-4; 327 IAC 12.1-
4; 329 IAC 6.1-4; 329 IAC 3.1-13-4
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28. 28
CBI: What’s Confidential (EPA)CBI: What’s Confidential (EPA)
• Information qualifies as CBI if all of the
following is demonstrated:
– A confidentiality claim has been made that
has not expired or been withdrawn;
– The business takes reasonable measures to
protect the confidentiality of the information
and intends to continue to take such
measures;
– The information cannot be obtained without
the business’s consent or by the use of
legitimate means (excluding discovery during
litigation); 55
CBI: What’s Confidential (EPA)CBI: What’s Confidential (EPA)
• Continued:
– No statute specifically requires disclosure;
– Either:
• Disclosure of the information is likely to cause
substantial harm to the business’s competitive
position; or
• If the information is voluntarily submitted, its
disclosure would likely impair the government’s
ability to obtain information in the future.
– Information is “voluntarily submitted” if EPA has no
authority to require disclosure and submission of the
information is not required to obtain some benefit from
the EPA
56

29. 29
CBI: What’s Not Confidential (EPA)CBI: What’s Not Confidential (EPA)
• Emissions data submitted under the Clean
Air Act
• Effluent data submitted under the Clean
Water Act
• Health and safety data submitted under
the Toxic Substances Control Act
57
CBI: Claiming Confidentiality (EPA)CBI: Claiming Confidentiality (EPA)
• Confidentiality claims must be made at the time
the information is submitted
• Must include a cover sheet, stamp, or other
suitable marking indicating that the document is
confidential
• Confidential portions of otherwise
nonconfidential documents must be clearly
identified
• The business should explain why the information
submitted qualifies as CBI
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30. 30
When EPA Evaluates Confidentiality ClaimsWhen EPA Evaluates Confidentiality Claims
• When it receives a FOIA request seeking
information designated as CBI
• When it determines that it is likely to receive a
FOIA request for the information sometime in the
future
• Whenever it wants to
• EPA will make advance CBI determinations in
some circumstances
59
CBI: What’s Confidential (IDEM)CBI: What’s Confidential (IDEM)
• Trade secrets
– Information that derives economic value from
not being generally known and is not readily
ascertainable by proper means; and
– Is subject to reasonable efforts to maintain
secrecy
• Confidential financial information
• Information required to be kept confidential
by federal law
60

31. 31
CBI: What’s Not Confidental (IDEM)CBI: What’s Not Confidental (IDEM)
• Effluent data
• Information that deals with the existence
of, absence of, or level of contaminants on
drinking water
• Standards and limits included in an
NPDES Permit
• Emissions Data
61
Claiming Confidentiality (IDEM)Claiming Confidentiality (IDEM)
• A written claim of confidentiality must be
made at the time the information is
submitted to IDEM
• The confidential information must be
marked as confidential either with:
– A cover sheet; or
– A confidential stamp on each page of the
confidential information
62

32. 32
Claiming Confidentiality (IDEM)Claiming Confidentiality (IDEM)
• A full justification for confidential treatment must
be submitted to IDEM within 5 working days of
submitting information. It must include:
– Information showing that the submission qualifies for
confidential treatment;
– Whether IDEM has previously determined the
confidentiality of the information;
– The period of time that confidentiality is requested (75
years is the max); and
– If the CBI claim is based on IDEM’s discretion, you
must state:
• The authority that requires submission of the information; and
• Facts demonstrating why the information may be treated as
CBI 63
64