EPA's Audit Policy
On March 29, 2019, EPA finalized its Oil and Natural Gas Exploration and Production New Owner Audit Program. This voluntary, self-disclosure program is tailored for new owners of upstream oil and natural gas exploration and production facilities. This Program will ensure environmental protection, while providing certainty at upstream oil and natural gas exploration and production facilities based on the EPA’s analysis of these facilities’ unique operations. This is an opportunity to achieve timely and cost-effective public health and environmental protections and Clean Air Act compliance. EPA Announces New Owner Audit Program Agreement for Oil and Natural Gas Exploration and Production Facilities.
On May 15, 2018, EPA announced a renewed emphasis on encouraging regulated entities to voluntarily discover, promptly disclose, expeditiously correct, and take steps to prevent recurrence of environmental violations. Specifically, EPA is taking steps to enhance and promote: (a) its already highly successful online “eDisclosure” program; (b) the additional flexibility available to new owners who self-disclose violations; and (c) opportunities to increase compliance through use of existing self-disclosure policies or tailored audit programs. EPA Announces Renewed Emphasis on Self-Disclosed Violation Policies (3pp, 138K, About PDF) (5/15/2018)
To encourage the continued and expanded use of these self-disclosure tools, EPA:
- clarified several features of its self-disclosure policies in response to some common misconceptions in the regulated community. See Refresh statement;
- plans to supplement its 2015 eDisclosure FAQs, its 2007 Audit Policy Frequently Asked Questions (FAQs), and the 1997 Audit Policy Interpretive Guidance to address a number of additional issues that the regulated community has raised to EPA;
- is expanding its outreach and education efforts to the regulated community and other stakeholders concerning its New Owner Policy, and will supplement its New Owner FAQs and/or interpretive guidance as needed to address interpretive issues that arise during such efforts; and
- is developing a New Owner Clean Air Act Audit Program tailored to the oil and natural gas sector and focused on, at a minimum, tank battery vapor control systems, designed to help new owners to achieve prompt and cost-effective return to compliance.
On December 9, 2015, EPA announced that it is modernizing implementation of its violation self-disclosure policies by creating a centralized web-based “eDisclosure” portal to receive and automatically process self-disclosed civil violations of environmental law. Under the automated eDisclosure system, large and small businesses will be able to resolve quickly some of their more routine types of disclosures.
The EPA Audit Policy (April 2000) 65 FR 19,618 (04/11/00), formally titled “Incentives for Self- Policing: Discovery, Disclosure, Correction and Prevention of Violations,” safeguards human health and the environment by providing several major incentives for regulated entities to voluntarily discover and fix violations of federal environmental laws and regulations.
- Summary of Incentives
- Making a Voluntary Disclosure
- Conditions for Penalty Mitigation
- Additional Information about the Audit Policy
To take advantage of these incentives, regulated entities must voluntarily discover, promptly disclose to EPA, expeditiously correct, and prevent recurrence of future environmental violations.
Summary of Incentives
Significant penalty reductions. Civil penalties under the environmental laws generally have two components: (1) an amount assessed based upon the severity or “gravity” of the violation; and (2) an amount assessed to recapture the economic benefit a violator received from failing to comply with the law.
- Reduction of 100% of gravity-based penalties if all nine of the Policy’s conditions are met. EPA retains its discretion to collect any economic benefit that may have been realized as a result of noncompliance.
- Reduction of gravity-based penalties by 75% where the disclosing entity meets all of the Policy’s conditions except detection of the violation through a systematic discovery process.
No recommendation for criminal prosecution for entities that disclose criminal violations if all of the applicable conditions under the Policy are met. “Systematic discovery” is not a requirement for eligibility for this incentive, although the entity must be acting in good faith and adopt a systematic approach to preventing recurring violations. Refer to the Audit Policy for a complete discussion of issues relating to disclosure of criminal violations.
No routine requests for audit reports. EPA reaffirms its Environmental Auditing Policy Statement, in effect since 1986, to refrain from routine requests for audit reports. (i.e., EPA has not and will not routinely request copies of audit reports to trigger enforcement investigations.
Making a Voluntary Disclosure Under EPA’s Audit Policy
A regulated entity has 21 days from the time it discovers that a violation has, or may have, occurred to disclose the violation in writing to EPA. Discovery is when any officer, director, employee or agent of the facility has an objectively reasonable basis for believing that a violation has, or may have occurred. Entities must now make almost all disclosures through the eDisclosure System.
Voluntary self-disclosures for civil violations by New Owners or for criminal violations should be sent to the appropriate Audit Policy Contact. In the event of new owner violations affecting more than one Region, entities should contact EPA Headquarters.
Disclosures submitted outside the eDisclosure System (i.e., new owner or potential criminal violations) should, at a minimum, identify the means of discovery, type of violation, and facility location.
Conditions for Penalty Mitigation
Regulated entities that satisfy the following conditions are eligible for Audit Policy benefits. Even if an entity fails to meet the first condition - systematic discovery - it can still be eligible for 75% penalty mitigation, and a recommendation for no criminal prosecution of the violations.
- Systematic discovery of the violation through an environmental audit or the implementation of a compliance management system.
- Voluntary discovery of the violation was not detected as a result of a legally required monitoring,sampling or auditing procedure.
- Prompt disclosure in writing to EPA within 21 days of discovery or such shorter time as may be required by law. Discovery occurs when any officer, director, employee or agent of the facility has an objectively reasonable basis for believing that a violation has or may have occurred.
- Independent discovery and disclosure before EPA or another regulator would likely have identified the violation through its own investigation or based on information provided by a third- party.
- Correction and remediation within 60 calendar days, in most cases, from the date of discovery.
- Prevent recurrence of the violation.
- Repeat violations are ineligible, i.e., the specific (or closely related) violations have occurred at the same facility within the past 3 years or those that have occurred as part of a pattern at multiple facilities owned or operated by the same entity within the past 5 years; if the facility has been newly acquired, the existence of a violation prior to acquisition does not trigger the repeat violations exclusion.
- Certain types of violations are ineligible such as those that result in serious actual harm, those that may have presented an imminent and substantial endangerment, and those that violate the specific terms of an administrative or judicial order or consent agreement.
- Cooperation by the disclosing entity is required.
Additional Information about the Audit Policy
Please refer to the Audit Policy (April 2000) (PDF)(10 pp, 294K, About PDF) "Incentives for Self-Policing: Discovery, Disclosure, Correction and Prevention of Violations", 65 FR 19,618 (04/11/00) for a more detailed discussion of eligibility and the application of the Audit Policy. Additional information about the Audit Policy and its use is available from the following:
- Questions and Answers concerning U.S. EPA's Audit Policy (also called Self-Disclosure Policy). Audit Policy Interpretive Guidance (January 1997) This guidance was developed to answer frequently asked questions regarding the implementation of the original Audit Policy issued in 1995 (60 FR 66,706 (December 22, 1995).
- Audit Policy: Frequently Asked Questions 2007 This document describes the differences between the original Audit Policy and the 2000 Policy and is intended to supplement the 1997 Interpretive Guidance.
- EPA's Interim Approach to Applying the Audit Policy to New Owners describes tailored Audit Policy incentives for new owners that want to make a “clean start” at their recently acquired facilities by addressing environmental noncompliance that began prior to acquisition.
- Other Policies Related to Audits and the Audit Policy
- Environmental Compliance Audits as a Component of Injunctive Relief in Enforcement Settlements (7/25/02)
- Confidentiality of Information Received Under Agency’s Self-Disclosure Policy (1/16/97)
- State Audit Privilege and Immunity Laws & Self-Disclosure Laws and Policies (updated 5/2015) Some states have enacted environmental audit privilege and/or penalty immunity laws.
Audit protocols assist the regulated community in developing programs at individual facilities to evaluate their compliance with environmental requirements under federal law. The protocols are intended solely as guidance in this effort. The regulated community's legal obligations are determined by the terms of applicable environmental facility-specific permits, underlying statutes and applicable state and local law.
Audit Policy eDisclosure and Regional Contacts for New Owner Disclosures
Once a violation has been discovered, a company has 21 days from the time of that discovery to disclose in writing the violation to EPA. All disclosure of civil violations should be made through eDisclosure. Initial disclosures of criminal violations or civil violations under the New Owner Policy should identify the means of discovery, type of violation, and facility location.