Last week, the EPA introduced a change in FOIA policy to accompany their new eDisclosure system, an online portal where regulated entities can submit self-audits, allowing the EPA to more efficiently receive and process violations disclosed under self-reporting options (starting this fall, according to the EPA). This new FOIA policy may increase the amount of FOIA access to environmental information, but it may also cast a chilling effect on companies who self-audit.
The EPA has announced that, with the introduction of the eDisclosure system, the agency will change its 1997 policy of withholding self-disclosures from FOIA release until the polluters have negotiated settlements with the agency. The 1997 self-disclosure confidentiality memo says that when self-disclosed materials may be associated with settlement negotiations, those materials should be withheld from FOIA transparency under Exemption 7(A) to “minimize interference with settlement negotiations.”
The new policy, articulated in a June, 2015 webinar on the new disclosure portal, supports FOIA disclosure of unresolved cases (with few case-by-case exceptions), giving the public earlier and fuller access to self-disclosure information that polluters provide to the EPA. As the agency reports in its webinar, “EPA generally expects to make Tier 1 and Tier 2 disclosures publicly available within a relatively short period of time after their receipt.” The new policy is seen by the EPA as a way to provide more environmental information transparency to the public.
Voluntary disclosure is a major venue that the EPA uses to collect information from regulated entities. Many environmental laws contain self-policing and reporting measures, and a lot of information that ultimately becomes FOIA-able EPA agency record is submitted to the agency by the very polluters that the records discuss. Although leaving the burden of demonstrating environmental compliance to the polluters may seem like a somewhat absurd scenario (allowing polluters to self-police sounds like a risky proposition to many environmentalists), the EPA maintains that the self-audit system provides a powerful incentive to the regulated community by alleviating violation penalties in exchange for participation in the audit programs. The EPA enforces hefty administrative, civil and criminal penalties against environmental law violators (For example EPCRA violators can face penalties as high as $37,500 per day, per violation.) and major penalty reductions for companies that properly report are one benefit of using the self-auditing programs.
Practically, it is uncertain whether lifting the exemption from this pre-final violation will make a difference for environmental information seekers. Theoretically, it seems that public access to self-audit information prior to the conclusion of long settlement processes could pave the way for citizen suits and active remediation in a much more timely fashion. Pre-settlement access may also guarantee the release of more information, overall, before it gets attached to settlement negotiations or litigation, which bring about a host of other confidentiality considerations. However, removing 7(A) protection from self-auditing data may also deter regulated entities from the self-audit process. This may create a chilling effect on regulated entities, leading to less data entry and less overall information collected through the self-auditing system.
Jason Hutt and Tim Wilkins, attorneys at Bracewell & Giuliani, warn that some regulated entities fear disclosure without the protection of Exemption 7(A) to withhold their documents pre-settlement, which may reduce the perceived benefits of self-auditing and negatively impact their incentive to audit, decreasing the amount of willing participants in the audit program and stifling information provisions.
The EPA also warns that the regulated community shouldn’t submit confidential business information (CBI) traditionally protected by FOIA’s Exemption 4, as the new system will not be designed to manage CBI. This lack of CBI protection could also lead to a chill in information provision by wary self-reporting facilities.
Also, as most of the EPA’s online reporting system, including the EPCRA disclosure system, demonstrate, the EPA’s preferred style of online information collection is through clunky, fill-in-the-blank online questionnaires. These box-filling Q&A style input systems often make it difficult for self-reporters to explain their particular situations, and they fail to appropriately capture accurate information. Hutt and Wilkins hope that “EPA will continue to be open to appropriate sidebar communications about square peg issues that may not fully fit in eDisclosure’s round holes…” If the EPA fails to allow polluters to properly describe violations, then the correct information will never find its way to the proper government administrators, much less to the public.
The transparency outcomes of this new self-audit FOIA policy have yet to be seen, but the determination within the EPA that environmental information access should not be held in the balance by negotiation settlements is a step in the right direction, transparency-wise. We will have to wait and see what outcomes this new eDisclosure portal and its accompanying practices will have on information flow and agency records in the EPA.