EPA Compliance Audit Guidance: New Owner, Voluntary Disclosure, Admission of Liability, Penalty Mitigation
Course Details
- smart_display Format
On-Demand
- signal_cellular_alt Difficulty Level
Intermediate
- work Practice Area
Environmental
- event Date
Tuesday, November 28, 2023
- schedule Time
1:00 p.m. ET./10:00 a.m. PT
- timer Program Length
90 minutes
-
This 90-minute webinar is eligible in most states for 1.5 CLE credits.
The CLE course will address the EPA's most recent guidance for environmental counsel related to its audit policy. The panel will provide an overview of the EPA's incentives to companies that voluntarily discover their own violations and disclose those violations to the federal government. The panel will also address how EPA exercises its enforcement discretion and how the audit policy may dramatically impact enforcement outcomes and businesses subject to these environmental regulations.
Mr. Wierenga has a diverse environmental law practice that includes counseling clients on a broad range of regulatory compliance obligations under the Clean Air Act, the Clean Water Act, the Comprehensive Environmental Response, Compensation, and Liability Act, and other federal and state environmental statutes. He has litigated and negotiated disputes over environmental matters relating to air, water, and hazardous waste permit issues, as well as transportation, cleanup, and disposal of hazardous substances. Mr. Wierenga also assists on the environmental aspects of corporate and real property transactions, including the environmental due diligence undertaken to support those transactions. He is a former attorney at the Federal Energy Regulatory Commission.
Ms. Goodwin represents clients in the energy, oil and gas, solid waste, agriculture, and many other industries in matters involving environmental permitting, counseling, and litigation. Drawing on more than 30 years of experience, she assists with acquisition, development, and siting of pipeline landfills, power plants, solar, and wind projects. Ms. Goodwin’s understanding of the complexities of securing government approvals is informed by her own current and past connections to government. She is a member of the New Jersey Clean Water Council, which serves as an advisor to the New Jersey Department of Environmental Protection and was chair in 2012 and 2013 and vice chair from 2008-2011. Early in her career, Ms. Goodwin also served as special counsel to the Advisory Committee for Public Participation in Hazardous Waste Management in Pennsylvania, sponsored by the Pennsylvania Department of Environmental Protection.
Ms. Mulkey works on a wide range of federal and governmental regulatory matters and environmental issues and related transactions. She delivers insightful and informed advice and services to the firm's clients across a broad range of legal matters. Ms. Mulkey has a special interest in environmental compliance and enforcement, chemical regulation, and matters connected to her recently concluded service with the U.S. Environmental Protection Agency, where she long served as regional counsel for the Mid-Atlantic region along with positions as national director of the offices of pesticides programs, site remediation enforcement, and policy, economics, and innovation.
Environmental audits allow companies to proactively identify and address environmental problems before civil litigation or enforcement actions arise. The EPA and many states have established policies to offer companies incentives to encourage compliance, including the potential for reduced or eliminated gravity-based civil or administrative penalties.
Whether a newly acquired or long-standing business, companies and their counsel must take measures to ensure ongoing environmental compliance and environmental audits provide an avenue for detecting and correcting potential problems. Regular self-auditing can help reduce penalties and limit injunctive relief faced in enforcement actions, apart from voluntary disclosure of noncompliance to regulatory agencies.
There are potential risks associated with voluntarily uncovering and documenting violations and the disclosure of violations. Audit findings can be evidence of compliance gaps and a company's knowledge of those holes. Audit disclosures may not always lead to a clean resolution of disclosed violations with the regulatory agency, particularly under the Biden administration. This risk is especially acute where audit policies impose deadlines for corrective action to address any identified noncompliance. Disclosed information could lead to enforcement action and may provide unfortunate ammunition in private actions against the disclosing party. Some policies provide privilege protections to help mitigate risks associated with citizen enforcement.
Listen as our panel of environmental attorneys examines the current environmental enforcement policies and auditing programs. The panel will discuss privilege and its exceptions and the pros and cons of voluntary disclosure. The panel will also offer strategies for responding to enforcement actions.
- Environmental compliance auditing
- Privileges available to protect audit-derived information
- Voluntary audit disclosure
- EPA program under Biden administration
- Current state programs
- Audit opportunities for new owners
- Complications for auditing and disclosure arising from recent enforcement trends
The panel will review these and other key issues:
- How can companies and their counsel use environmental audits to improve compliance and soften the impact of a government enforcement action?
- What are the best practices for counsel to advise clients that are considering utilizing environmental compliance audits?
- What are the expected costs and risks of environmental self-audits from a legal standpoint?
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