Self Assessments and Self Assessments and Environmental Audits Environmental Audits 2010 Michigan Environmental 2010 Michigan Environmental Compliance Conference Compliance Conference Amy Kohlhepp Amy Kohlhepp
Environmental Audit Program & the Environmental Audit Program & the Environmental Health and Safety Guide - - Process Process Environmental Health and Safety Guide
Why was the Law Passed? Why was the Law Passed? To encourage use of audits in identifying and To encourage use of audits in identifying and correcting environmental problems and conditions correcting environmental problems and conditions Program Program facilities may facilities may By helping By helping requires requires alleviate be alleviate be prompt prompt fear fear encouraged encouraged disclosure disclosure associated associated to perform to perform and and with with environmental environmental correction correction disclosure of disclosure of self- -audits. audits. self of violations of violations violations ... violations ... found. found.
Benefits of Michigan’ ’s s Benefits of Michigan Environmental Audit Privilege Environmental Audit Privilege and Immunity Law and Immunity Law Part 148 of NREPA Natural Resources Environmental Protection Act Enacted March 18, 1997 Amended November 13, 1997 Environmental Audit Report: Self Disclosure Privileged Document I mmunity MCL 324.14802 – 324.14808 MCL 324.14809
Privilege Privilege Protection from Disclosure Protection from Disclosure Privileged Information in the Privileged Information in the “Environmental Audit Report: Privileged document Environmental Audit Report: Privileged document” ” “ Privilege also Privilege also provides provides protection to protection to persons from persons from testifying about testifying about the report the report Not subject to Not subject to Not admissible Not admissible discovery in civil in civil discovery evidence in civil in civil evidence or administrative or administrative or administrative or administrative legal proceedings legal proceedings legal proceedings legal proceedings
Exceptions to Privilege Exceptions to Privilege Information Information Industrial Industrial and data and data Machinery Machinery Pretreatment Pretreatment required by required by and and Program Program statute, rule statute, rule equipment equipment monitoring monitoring or permit or permit records records results results Information Information obtained by Information obtained by Information regulatory from a regulatory from a agency via person not agency via person not observation, associated observation, associated sampling, or with the sampling, or with the monitoring audit monitoring audit
The Environmental Audit Report: The Environmental Audit Report: Privileged Document Privileged Document ► Reminder: The Act identifies an audit under ► Reminder: The Act identifies an audit under this part in very broad terms and defines this part in very broad terms and defines that the report be labeled: that the report be labeled: Environmental Audit Report: Environmental Audit Report: Privileged Document Privileged Document ► Please do NOT send us a copy of your ► Please do NOT send us a copy of your actual Audit Report – – even if you voluntarily even if you voluntarily actual Audit Report disclose violations for immunity purposes disclose violations for immunity purposes
Immunity Immunity ► Freedom from duty or penalty ► Freedom from duty or penalty ► For identified NREPA civil and administrative ► For identified NREPA civil and administrative fines and penalties, some criminal fines and fines and penalties, some criminal fines and penalties (not for gross negligence nor penalties (not for gross negligence nor various criminal parts of NREPA – – many many various criminal parts of NREPA LWMD) LWMD) ► Immunity does not apply to the responsibility ► Immunity does not apply to the responsibility to correct the violation, remediate or to pay to correct the violation, remediate or to pay damages. damages.
Steps to Pursue Immunity Steps to Pursue Immunity (Only from Various Parts of NREPA) (Only from Various Parts of NREPA) File Notice of Intent (must be before the audit) File Notice of Intent (must be before the audit) 1. 1. Conduct the Audit/Self Assessment (within a Conduct the Audit/Self Assessment (within a 2. 2. reasonable time – – not more than 6 months) not more than 6 months) reasonable time Make a Good Faith Effort (Try Hard) to Achieve Make a Good Faith Effort (Try Hard) to Achieve 3. 3. Compliance and promptly correct Noncompliance Compliance and promptly correct Noncompliance Develop a “ “Return to Compliance Return to Compliance” ” Plan Plan Develop a 4. 4. Promptly File a Voluntarily Disclosure Promptly File a Voluntarily Disclosure 5. 5. (‘ ‘promptly promptly’ ’ starts when you learn of the violations) starts when you learn of the violations) (
Step 1: Send Notice First Step 1: Send Notice First ► Important: Important: ► Sending in a Notice Sending in a Notice before conducting the before conducting the Audit is a Condition Audit is a Condition that must be met to that must be met to receive Immunity receive Immunity
Send Notice First Send Notice First Part 148 Only Applies to NREPA (Not Federal) Part 148 Only Applies to NREPA (Not Federal) PARTS OF NREPA COVERED BY PART 148 Chapter 7: Remediation Article II Pollution Control Chapter 1: Point Source Pollution Control 201 Environmental Response Part Description 31 Water Resources Protection Chapter 8: Underground Storage Tanks 33 Contamination of Waters 211 Underground Storage Tank Regulations 35 Iron Ore Beneficiation 213 Leaking Underground Storage Tanks 37 Water Pollution Control Facilities 215 Underground Storage Tank Financial Assistance 39 Cleaning Agents 41 Sewerage Systems Article III: Natural Resources Management 43 Waterworks Systems, Sewers, and Disposal Plants Chapter 1: Habitat Protection 47 Sewage Disposal and Water Supply Districts 301 Inland Lakes and Streams 49 Construction of Collecting Sewers 303 Wetlands Protection 51 Wastewater Disposal 305 Natural Rivers 53 Clean Water Assistance 307 Inland Lake Level 55 Air Pollution Control 309 Inland Lake Improvement 67 Motor Fuels Quality 311 Local River Management 313 Surplus Waters Chapter 2: Nonpoint Source Pollution Control 315 Dam Safety 81 General Nonpoint Source Pollution Control 321 The Great Compact 83 Pesticide Control 323 Shorelands Protection and Management 85 Fertilizers 325 Great Lakes Submerged Lands 87 Groundwater and Freshwater Protection 327 Great Lakes Preservation 89 Littering 329 Great Lakes Protection 91 Soil Erosion and Sedimentation Control 333 Coastal Beach Erosion 95 Watercraft Pollution Control 335 Surplus Waters Management 337 Flood, Drainage, or Beach Erosion Control Chapter 3: Waste Management 339 Control of Certain State Lands 111 Hazardous Waste Management 341 Irrigation Districts 113 Landfill Maintenance Trust Fund 343 Great Lakes Conservation 115 Solid Waste Management 353 Sand Dunes Protection and Management 117 Septage Waste Services 119 Waste Management and Resource Recovery Finance Chapter 3: Management of Nonrenewable Resources 121 Liquid Industrial Wastes 615 Supervisor of Wells 617 Unitization Chapter 4: Pollution Prevention 619 Drilling in the Pigeon River State Forest 147 PCB Compounds 625 Mineral Wells 631 Reclamation of Mining Lands Chapter 5: Recycling and Related Subjects 635 Surface and Underground Coal Mine Reclamation 161 Plastic Products Labeling 637 Sand Dune Mining Peat Extraction From State Owned Lands 163 Plastic Degradable Containers 641 167 Used Oil Recycling 169 Scrap Tires Battery Disposal 171
For Federal Violations: For Federal Violations: US EPA Policy US EPA Policy Incentives for Self- -Policing: Discovery, Disclosure, Policing: Discovery, Disclosure, Incentives for Self Correction and Prevention of Violations Correction and Prevention of Violations Contact: Jodi Swanson- -Wilson Wilson Contact: Jodi Swanson swanson- -wilson.jodi@epa.gov wilson.jodi@epa.gov swanson Phone: (312) 886- -0879 0879 Phone: (312) 886 U.S. EPA Region 5 - - Mail Code E Mail Code E- -19J 19J U.S. EPA Region 5 77 West Jackson Blvd., Room R1918 77 West Jackson Blvd., Room R1918 Chicago, IL 60604- -3507 3507 Chicago, IL 60604
Federal or State Federal or State ► Spill Prevention, Control and Countermeasures ► Spill Prevention, Control and Countermeasures SPCC (40 CFR Part 112). (40 CFR Part 112). SPCC ► Superfund Amendments and Reauthorization Act, ► Superfund Amendments and Reauthorization Act, (SARA) Title III (Emergency Planning and (Emergency Planning and (SARA) Title III Community Right to Know Act, (EPCRA)) Community Right to Know Act, (EPCRA)) ► Occupational Safety and Health Standards Occupational Safety and Health Standards ► (29 CFR 1910) (29 CFR 1910) ► Some companies consider: ► Some companies consider: “ “Who Who’ ’s My Inspector s My Inspector (DNRE or Federal)” ”? ? (DNRE or Federal)
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