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Environmental
HOW SKI AREAS CAN (AND SHOULD) TAKE ADVANTAGE

OF ENVIRONMENTAL SELF-DISCLOSURE LAWS AND POLICIES

BY SCOTT REISCH, JENNIFER BIEVER, SEATON THEDINGER, & MARTA ORPISZEWSKA OF HOGAN LOVELLS

WHEN MOST PEOPLE THINK of ski areas, they think of bluebird program and management systems. A good audit provides
powder days in Mother Nature’s backyard. They don’t think an important training opportunity for environmental staff,
of ski areas and resorts as subject to complex environmental and knowing your compliance status can help you evaluate
rules and regulations. Yet, ski areas frequently operate fuel how to best deploy resources to address potential risks to
storage tanks, emergency generators, and boilers; conduct human health and the environment and to comply with
construction and vehicle repair activities; and generate waste, air environmental laws. Often, an audit can be the first step in
emissions, and water discharges—all of which may be subject developing a better environmental management system that
to federal, state, and local environmental permitting, planning, can help ensure future compliance.
recordkeeping, and reporting requirements. • SIGNIFICANT PENALTY MITIGATION. Civil penalties for vio-
In recent years, federal and state enforcement agencies lation of environmental laws can be significant. Statutory
have expanded their focus beyond manufacturing industries penalties for common federal statutory frameworks are as
that have been the traditional target of environmental regula- high as approximately $55,000 per day, though actual pen-
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tors. Increased regulatory scrutiny brings with it more frequent alties are typically much lower. Addressing non-compliance
inspections and the risk of penalties, required corrective actions, under federal and state audit laws and policies can result in
and adverse publicity. significant savings. For example, EPA will waive up to 100
If you are concerned that you may not be aware of or in percent of the gravity component of a civil penalty under its
compliance with all applicable environmental requirements, Audit Policy (i.e., all but the “economic benefit” of avoiding
you may be able to benefit from federal and state environmen- or delaying compliance).
tal self-disclosure laws and policies that allow businesses to • REPUTATIONAL BENEFITS. Companies that value environ-
voluntarily conduct self-audits and disclose and correct any vio- mental compliance and voluntarily undertake self-audits and
lations identified during the audit in exchange for full or partial self-report their findings are often viewed more positively by
penalty immunity. the public than companies that are pursued by EPA or state
For instance, the US Environmental Protection Agency environmental agencies in enforcement actions. This benefit
(EPA) has published a voluntary self-audit and disclosure policy can be especially valuable in an industry whose customers
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(“Audit Policy”) and a related policy for new owners (“New value the outdoor environment.
Owner Policy”) that under certain circumstances waive all or a • RELATIONSHIPS WITH REGULATORS. Because regulatory
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majority of any civil penalties that would be imposed for violations agencies often place importance on a company’s cooperation
of federal environmental laws. Many states have modeled their in addressing non-compliance matters, a self-audit can help
self-audit policies and laws after EPA’s policies, and impose similar build beneficial working relationships with regulators.
requirements and provide similar penalty mitigation for entities • NO RECOMMENDATION FOR CRIMINAL PROSECUTION. EPA
that voluntary disclose violations of state environmental laws. indicates that it will not recommend criminal prosecu-
Here is a brief overview of (1) the benefits of conducting a tion for violations that are self-disclosed provided that the
self-audit and voluntarily disclosing violations, (2) EPA’s Audit company was acting in good faith and adopted a systematic
Policy and New Owner Policy, (3) state audit laws and policies, approach to preventing recurring violations.
and (4) tips to remember when considering a self-audit.
EPA’s Audit Policy and New Owner Policy
Key Benefits of Self-Audits and Self-Disclosure To benefit from EPA’s Audit Policy, companies must meet
Conducting an environmental self-audit and voluntarily dis- the following conditions:
closing any violations discovered under these policies can 1. SYSTEMATIC DISCOVERY. To get the full benefit of the Audit
have many benefits, including: Policy, the violation must be discovered through environmen-
• EVALUATION OF ENVIRONMENTAL COMPLIANCE. An environ- tal audits or implementation of a compliance management
mental self-audit provides an opportunity to develop a better system. The Audit Policy describes the key elements of a
understanding of your company’s compliance with envi- compliance management system, including developing com-
ronmental laws and identify any gaps in your compliance pliance policies; assigning responsibilities for overseeing

14 | NSAA JOURNAL | EARLY WINTER 2017