Small Business Initiatives/Policies/Laws

EPA issued the revised Final Policy on Incentives for Self-Policing: Discovery, Disclosure, Correction and Prevention of Violations, in the April 11, 2000 Federal Register (65 FR 19,617). Commonly referred to as the EPA Audit Policy, it provides regulated entities of all sizes with incentives to voluntarily discover, disclose, and correct violations of environmental laws and requirements. Under the Audit Policy:

EPA will not seek gravity-based penalties from entities that systematically discover potential environmental violations, promptly disclose them to EPA, expeditiously correct them, and meet all other conditions of this policy.
For entities that disclose violations that were not systematically discovered, EPA will reduce gravity-based penalties by 75% provided all other policy conditions are met.
EPA will generally not recommend criminal prosecution for entities that discover, promptly disclose, and expeditiously correct violations that are potentially criminal, provided all other policy conditions are met.
The policy excludes repeat violations, violations that result in serious actual harm, and violations that may present an imminent and substantial endangerment. EPA retains its discretion to recover any economic benefits realized as a result of noncompliance.

Issuance of the revised policy followed a two-year evaluation of the 1995 Audit Policy. Key revisions include lengthening the period for prompt disclosure from 10 to 21 days, clarifying that the Audit Policy is available in the multiple-facility context, and clarifying how the prompt disclosure and repeat violation conditions apply in the acquisitions context.

For more information on this policy, contact Catherine Malinin Dunn at: (202) 564-2629.

Summary of Enforcement Response Policy

EPA issued the Enforcement Response Policy, effective August 12, 1994, to encourage small businesses to attain help for complying with the 1990 Clean Air Act Amendments from the state Small Business Assistance Programs (SBAPs) established under Section 507 of the Act. The policy provides small businesses with a limited grace period to correct violations revealed during requested assistance from a SBAP.

Under the policy, two options are provided:

Correction-period option: SBAPs may offer small businesses a limited correction period for violations detected during compliance assistance. Small businesses may have up to 90 days to receive compliance assistance from the SBAPs, with the possibility of an additional 90 days to correct any violations discovered under the program. After that time, violations would be subject to existing enforcement response policies. State programs offering this correction-period option may not give guarantees that they will keep violations information confidential. This option is preferred by EPA since it allows for increased open relations between the SBAPs, small businesses, and other state officials.
Confidentiality option: States may offer a guarantee that information that can identify specific small businesses with violations detected through compliance assistance would be kept confidential. However, the state retains the ability to investigate and/or take enforcement actions at any time for violations discovered independently from the Section 507 program. Further, under the Small Business Compliance Policy, small businesses that receive confidential assistance from the SBAP may receive a correction period if the small business voluntarily discloses the violation to the appropriate regulatory agency.

For more information on this policy, contact Ginger Gotliffe, Office of Compliance, at: (202) 564-7072.

Summary of Final National Policy: Role of the EPA Inspector in Providing Compliance Assistance During Inspections

This Final National Policy, issued on June 25, 2003, is applicable to EPA, but may be of interest to small businesses who receive EPA inspectors at their facilities. The Policy will:

Provide more consistency in how and when EPA inspectors provide compliance assistance.
Respect the states' role in providing compliance assistance by limiting EPA inspectors to only providing assistance on state regulations that are identified to federal regulations.
Clarify, not change, the existing practice of providing appropriate compliance assistance during inspections (recent results from the Inspection Conclusion Data Sheet project indicate that inspectors currently provide assistance during 75% of compliance inspections).

The Policy's major points include:

EPA compliance inspectors are encouraged to provide appropriate general, and limited site-specific, compliance assistance, consistent with the primary purpose of compliance determination. The Policy provides examples of general and site-specific compliance assistance.
The Policy is not intended to address every inspection scenario or situation. The Policy does not supplant the need for prudent judgement by EPA inspectors, based on their knowledge, experience, and expertise.
EPA inspectors should not provide site-specific interpretive technical assistance during compliance inspections.
EPA inspectors should not provide site-specific interpretive legal assistance during compliance inspections.
EPA inspectors should not make applicability determinations in the field.
Specific activities occurring during the inspection should be documented and reported after the inspection, including potential violations, actions taken to address potential violations, and compliance assistance provided.
Facilities receiving compliance assistance are not shielded from possible enforcement actions for violations identified during the compliance inspection.

If you have any questions, contact the Compliance Assessment and Media Programs Division (CAMPD) at: 202/564-2300.

Summary of MOU Between NPS and EPA

On March 13, 2003, a Memorandum of Understanding was signed to establish a partnership between the National Park Service (NPS), Concession Stand Management Program and the EPA, National Center for Environmental Innovation. The purpose of the Network is to promote environmental management system (EMS) approaches that are good for the environment and for business. Goals and actions include sharing information and expertise on opportunities, challenges, and solutions related to improving the environmental performance of businesses, and other organizations in contractual relationships with the government.

The NPS has contracts with approximately 600 businesses (i.e., concessioners) to provide a variety of products and services to visitors in over 130 national parks. As a result, the NPS Concession Environmental Management Program has experience on how to help concessioners improve environmental performance. Some of these methods include implementation of environmental audit systems, environmental award programs, assistance resources, alternative contract terms, and training. EPA has relevant experience as well. In particular, EPA's National Center for Environmental Innovation includes the Small Business Division, which specializes in addressing small business needs relating to environmental compliance, best management practices, and EMS issues. Thus, this MOU will combine efforts of the NPS and EPA to stimulate increased creativity and innovation through a cost effective and collaborative partnership.

In order to do this, the NPS and EPA intend to conduct the following activities through a Network: 1) research challenges and incentives, 2) identify promising opportunities, 3) explore and test innovative approaches, 4) analyze and evaluate results, and 5) communicate lessons learned to NPS and EPA staff and other appropriate stakeholders. Progress reports will be provided to the signers every six months.

Summary of Project XL Program

EPA recently expanded its efforts to find innovative ways to improve protection of public health and the environment. In a June 23 notice in the Federal Register, EPA made specific suggestions and called for more companies, industrial sectors, communities, federal facilities, states and other potential sponsors to propose projects under its Project XL program. This pilot program was created by President Clinton and stands for "eXcellence and Leadership." Under Project XL, EPA offers flexibility in its regulations, policies, procedures and guidance as well as other benefits to encourage development and testing of "cleaner, cheaper, and smarter" ways to protect public health and the environment. Two key conditions for such pilot projects are 1) that they produce better environmental results and 2) that they involve representatives of the public in the project. While the Federal Register notice of June 23, 1998 provides a number of ideas for possible XL projects, the suggested themes in no way preclude any other ideas to be tested. The themes in the notice include testing new strategies, tools, and technologies in areas such as waste reduction, Superfund cleanup, air and water pollution control, multi-media pollution prevention and ecosystem protection. Currently, seven pilot projects are being implemented and twenty more are in development. The current projects are demonstrating that alternative regulatory strategies can greatly increase environmental protection while producing substantial cost savings, greater operational flexibility, better stakeholder relationships, and the ability to adapt processes and products more quickly to changes in consumer demand.

In a complementary Federal Register notice, also published on June 23, 1998, EPA issued a specific and very detailed request for Project XL proposals from publicly-owned-treatment works (POTW). Proposals should explain how a POTW would change implementation of its local pretreatment program if it were to focus more on environmental performance measures rather than current programmatic measures of performance. Both of these FR notices and other materials are available on the Internet at http://www.epa.gov/ProjectXL and through fax-on-demand at 202-260-8590.

In a related action aimed at supporting stakeholder involvement under Project XL, the Institute for Conservation Leadership (ICL) recently announced that it can now accept applications for technical assistance to stakeholder groups involved in XL project negotiations, implementation, or evaluations. Technical assistance worth up to $25,000 per project is available to help meet very specific technical assistance needs of the entire group. ICL is providing this assistance under a cooperative agreement with EPA. For more information, contact Peter Lane at ICL: 301-270-2900.

Summary of Proper Consideration of Small Entities in Agency Rulemaking

Executive Order 13272, signed August 13, 2002, requires federal agencies to consider the impact of proposed regulations on small business before the rules are put into place. The requirements of the executive order are designed to strengthen the current requirements of the Regulatory Flexibility Act (RFA) and to allow the Office of Advocacy to participate as early as possible in the rulemaking process when small business impact is at issue. The executive order requires the following:

Agencies will establish policies on how to measure their impact on small business and will vet those procedures through the Office of Advocacy.
The Office of Advocacy will train agencies on how to properly account for small business impact when agencies draft regulations.
Agencies will submit proposed rules to the Office of Advocacy prior to publication and are required to consider the Office of Advocacy's comments when the rule is finalized.
The Office of Advocacy will report annually on whether agencies are complying with this Executive Order.

The report available above notes that the Office of Advocacy is encouraged by actions taken so far, but that more compliance is needed. The Office of Advocacy has begun training federal agencies in how to properly consider their impact on small business early in the regulatory process. The ongoing training will continue into 2003.

Summary of Public Involvement Policy

EPA Administrator Christie Whitman issued the new Public Involvement Policy on June 6, 2003. The policy gives clear guidance to EPA staff on effective ways to involve the public in all of the agency's programs and activities. The Public Involvement Policy recommends these seven basic steps for effective public involvement: 1) plan and budget; 2) identify whom to involve; 3) consider providing assistance; 4) provide information; 5) conduct involvement; 6) review, use input and provide feedback and 7) evaluate public involvement. The new Policy recognizes: the public's changing needs, new statutes and regulations; expanded public participation techniques and media (e.g. Internet); the importance of partnerships and technical assistance; and increased state, tribal and local government capacity to carry out programs.

Summary of Small Business Compliance Policy

EPA issued the revised Small Business Compliance Policy on May 11, 2000, to provide small businesses with incentives to participate in onsite compliance assistance programs and to conduct environmental audits. This policy supersedes the June 1996 version and expands upon EPA's 1994 Enforcement Response Policy under the Clean Act Act Section 507 program. The policy implements, in part, the Executive Memorandum on Regulatory Reform (60 Federal Register 20621, April 26, 1995) and Section 223 of the Small Business Regulatory Enforcement Fairness Act of 1996 (signed into law on March 29, 1996) (SBREFA).

Under this final policy, EPA will eliminate civil penalties provided the small business satisfies all the following four criteria:

The small business has voluntarily discovered a violation. These may be discovered by the business by participating in compliance assistance programs, mentoring, use of checklists from the internet, or by voluntary audits.
The small business voluntarily discloses the violation within 21 days. This disclosure must be sent in writing to the regulatory agency. Businesses may disclose to the EPA Region or to the appropriate State and Tribal agencies if they have similar policies.
The small business corrects the violation and remedies any associated harm within 180 days of discovery; an additional 180 days may be granted if pollution prevention technologies are being used.
The small business has not used this policy or been subject to enforcement action for the same or similar violation in the past three years and has not been subject to two or more enforcement actions for environmental violations in the past five years. The violation has not caused serious harm to public health, safety, or the environment; it does not present imminent and substantial endangerment to public health or the environment; and it does not involve criminal conduct.

For more information on this policy, contact Ginger Gotliffe, Office of Compliance, at: (202) 564-7072.

Small Business Strategy Updated--Summary

EPA updated its Small Business Strategy issued back in 1984, EPA Small Business Initiatives: Strategy for Improved Regulation and Compliance. EPA Administrator Whitman presented EPA's proposed Small Business Strategy at the National Summit on Small Business and the Environment on March 13, 2003. The Strategy is intended to make EPA more accessible to small business owners and to improve small business environmental performance by exploring new approaches, simplified regulations, new cost-effective tools, and unified assistance. The Strategy is now final and has been signed by EPA Administrator Whitman.

Summary of Small Business Regulatory Enforcement Fairness Act of 1996

The Regulatory Flexibility Act of 1980 (RFA), which directs agencies to review the effects of rules on small businesses and other small entities, was amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA). This revised law, enacted in March 1996, was intended to foster a government environment that is more responsive to small business and other entities. the Act contains the following six key areas of regulatory reform:

Regulatory Compliance Simplification: Federal regulatory agencies must develop compliance guides written in plain English to help small businesses understand how to comply with regulations that may have a significant effect on them. Agencies must also develop a program for providing small entities with informed guidance on complying with applicable laws and regulations.
Equal Access to Justice Amendments: Under certain circumstances, small businesses can recover attorney's fees and court costs in a court or administrative hearing, even when they lose.
Congressional Review: Congress has provided itself with a process by which it can review and, if necessary, disapprove regulations with which it takes issue.
Regulatory Enforcement Reform of Penalties: Each regulatory agency must establish a policy to reduce and, where appropriate, even waive civil penalties for minor violations under certain circumstances.
Small Business Advocacy Review Panels: For proposed rules subject to the Regulatory Flexibility Act, EPA must solicit input from the small businesses that will be subject to the rules and make these findings public. This process is aided by SBA's Office of Advocacy and the Office of Management and Budget.
Oversight of Regulatory Enforcement: Aida Alvarez, SBA Administrator, appointed Gail McDonald, as the Small Business and Agriculture Regulatory Enforcement Fairness Ombudsman on February 1, 2000. She also appointed the members of ten regional Regulatory Fairness Boards to assist the National Ombudsman in receiving small businesses' comments on enforcement activities of federal regulatory agencies. The five Fairness Board members appointed in each region are small business owners and operators.

For more information, contact Stuart Miles-McLean at: (202) 564-6581.

Summary of Small Local Governments Compliance Assistance Policy

On October 3, 2003, EPA published in the Federal Register a notice listing proposed revisions to the current "Small Communities Policy," including renaming it "Small Local Governments Compliance Assistance Policy." The Agency is requesting public comments until January 2, 2004. Some of the proposed changes include the following:

Allows states to reduce or waive normal non-compliance penalties for local government violations identified by any means, including during required compliance assessments and/or during regulatory compliance inspections.
Allows states to reduce or waive normal non-compliance penalties for repeat local government violators if they are deemed to have operated in "good faith" and to the best of their ability to achieve compliance.
Allows states to reduce or waive normal non-compliance penalties for local government violations if the state has determined that the technical, managerial, and financial capacity of the local government is so limited that the local government is unlikely to achieve and sustain comprehensive environmental compliance without the state’s assistance.
Allows states to reduce or waive normal non-compliance penalties for eligible local governments that enter into an enforceable agreement to: 1) correct known violations, and 2) develop and implement Environmental Management Systems.Allows a local government up to 180 days to correct a violation without entering into a written agreement and schedule. If the local government cannot achieve compliance within the 180 days, allow the local government to enter into an enforceable written agreement with the state establishing a schedule to address violations as expeditiously as practicable in order of risk-based priority.