The U.S. Environmental Protection Agency has developed a new online system designed to make reporting environmental violations as easy as the click of a button. The agency’s Web site features an EPA criminal investigator’s badge with the words “Report Environmental Violations” across it. Anyone wanting to report a violation can simply click on the badge and fill out an environmental violation report form. The form requires complainants to complete certain fields, such as the suspected violator’s name and address, but allows the complainant to remain anonymous if he or she so chooses. The badge button is also featured on the Web sites of all 10 EPA regions. This program complements another EPA program called Enforcement and Compliance History Online or “ECHO” . ECHO focuses on facility compliance and EPA/state enforcement of environmental regulations at some 800,000 facilities in the United States. A user need know only the city and state or zip code of a facility to find out about its compliance history.
This new online reporting feature, which has been up and running for about a year, is the brainchild of Granta Nakayama, EPA’s assistant administrator for enforcement. Nakayama wants to replicate the success of a similar reporting tool used by the Consumer Product Safety Commission to report defective consumer products. Nakayama believes that the Web site “changes the paradigm of enforcement” because it can generate a large number of leads but is not resource intensive. Whether this approach will yield similar results for EPA remains to be seen. EPA released data showing that as of mid-November 2006 it had received 4,500 tips with as many as 500 of those addressing possible criminal violations. Sources inside EPA indicate that the vast majority of these tips concern civil or administrative violations that have mostly been referred to the states for further action. Only a handful of leads have been referred for further criminal investigation and none to date has resulted in a criminal prosecution.
Nonetheless, companies should be aware of the new reporting feature and the interplay between it and the company’s own whistleblower hotline. For example, it is neither improper nor illegal for a whistleblower to bypass the company hotline and report environmental violations directly through EPA’s Web site. Disciplinary action taken against a whistleblower for use of the EPA site could compound an already serious problem or create one where none exists. Also, frequent complaints made through EPA’s Web site may suggest that the company’s own whistleblower hotline is being under utilized. Companies interested in examining the effectiveness of their hotline can obtain a report that contains industry benchmarks for hotline usage at https://www.csoexecutivecouncil.com. Often low usage of a hotline can be traced back to deficiencies in training and communication programs.
Many federal environmental statutes contain whistleblower protection provisions. Company officers and managers with responsibility for environmental compliance should be aware of these provisions, as well as the company’s own whistleblower protection policy. Managers should also be trained in responding to a whistleblower’s complaint. Waiting for a formal complaint before formulating a response strategy can be a recipe for disaster. In upcoming advisories, we will be discussing managing the first 72 hours after a employee complaint has been lodged.
Federal Environmental Whistleblower Provisions
1) Clean Air Act; 42 U.S.C.A. § 7622
2) Clean Water Act; 33 U.S.C.A. §1367
3) Comprehensive Environmental Response, Compensation, and Liability Act; 42 U.S.C.A. § 9610
4) Resource Conservation and Recovery Act; 42 U.S.C.A. § 6971
5) Surface Mining and Reclamation Act of 1977; 30 U.S.C.A. §1293
6) Toxic Substances Control Act; 15 U.S.C.A. § 2622