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' DiscoveEy Inde endentf . ernment & Third Many regi �d entities have proceeded with Parties-The violation must be isclosed before it is caution in setting up audit programs because of the -� discovered by an agency inspection,by a citizen's vagueness of EPA's promises,and the Audit Policy will enforcement suit or other lawsuit or before it is probably not change the situation dramatically. It reported by a"whistleblower"employee. should also be noted that the Policy establishes no • Correction and Remediation -The violation must evidentiary privilege for audits and internal reports be corrected within 60 days, the company must may be subject to discovery in private litigation(except certify in writing that it has done so and must in those states where a privilege has been enacted). implement any measures EPA determines are Please contact any Group member if you would necessary to remedy the environmental or hum like a copy of the Audit Policy. harm. If the corrective measures will take longer than 60 days,such as in the case of an extensive soil �� SWRCB SIGNALS SHIFT IN or groundwater cleanup, the entity must notify EPA of that fact and execute an agreement or consent order obligating the company to complete FUEL LEAK the work. • Prevent Recurrence - The violator must agree to On December 8, 1995 the State Water Resources take steps to prevent the recurrence of the Control Board ("SWRCB") issued a remarkable letter violation,which may include improvements to its regarding the handling of leaking underground storage environmental audit or environmental compliance tanks("USTs").The letter declares that once a fuel leak efforts. source has been removed, "passive bioremediation should be considered as the primary remediation tool • No Repeat Violations - The incentives are in most cases".This pronouncement is an interim one, unavailable where a violation (or substantially but the SWRCB is considering making revisions to similar violations) occurred within the past three Resolution 92-49 ("Policies and Procedures for years at the same facility or where it is a part of a Investigation and Cleanup and Abatement of "pattern" of violations by the facility's parent Discharges Under Water Code Section 13304"), the organization."Violations"include matters covered basic document governing groundwater cleanup in by consent agreements and acts or omissions for California. Until that time, the SWRCB recommends which the company has previously received that oversight agencies close low-risk soil-only cases penalty mitigation from EPA or a state agency. and replace remediation with monitoring at low-risk • Serious Violations Excluded-The Audit Policy will groundwater cases Ci.e.shallow groundwater of 50 feet not excuse potential penalties for violations which or less and no drinking water wells screened within 250 result in serious actual harm or which present an ft.of the leak). imminent and substantial endangerment to human The SWRCB's letter was largely prompted by a health or the environment or which violate the study directed by the Lawrence Livermore National terms of a specific judicial or administrative order. Laboratory ("LLNL") entitled "Recommendations to • Cooperation-The regulated entity must cooperate Improve the Cleanup Process for California's Leaking with EPA by providing the information necessary Underground Fuel Tanks". The October, 1995 LLNL to determine if the policy applies. That would Report was prepared for the SWRCB and for an include documentation and access to employees. advisory committee created by Senate Bill 1764. The LLNL Report concludes that groundwater cleanup In order to obtain the advantages of the Audit goals have been derived from policies that are Policy, any regulated entity which currently has an inconsistent with the current state of knowledge and internal audit policy or program or written compliance experience.That body of knowledge suggests that fuel guidelines should attempt to conform those policies to hydrocarbons (i.e. gasoline, diesel, heating oil) "have the above criteria. At the same time, however, the limited impacts on human health,the environment,or Audit Policy offers no guarantees regarding California's groundwater resources... The cost of environmental enforcement. EPA thus retains the cleaning un fuel hydrocarbons are often inappropriate ability to treat each case on an individual basis. In when compared to the magnitude of the impact on essence, the complaints that prompted many States to groundwater resources." enact audit privileges are still valid. In exchange for prompt disclosure, complete remediation and full cooperation, the agency is promising only that it will likely treat the violator with leniency. ORRICK,HERRINGTON&SUTCLIFFE 2/ENVIRONMENTAL LAW UPDATE