Washington, DC — As states move to electronic reporting, the ability to introduce e-documents in court as evidence of environmental violations is in doubt, according to Public Employees for Environmental Responsibility (PEER). A long-awaited U.S. Environmental Protection Agency program designed to ensure the “legal dependability” of these e-reports will be formally postponed by a filing later this week.
The legal capacity to authenticate documents, safeguard against unauthorized alteration and verify signatures are critical to enabling electronically submitted reports to be used as evidence. Yet, as more than half the states now have adopted some form of electronic reporting for federally delegated environmental programs implementing statutes such as the Clean Air Act and the Safe Drinking Water Act, the enforcement implications of eliminating hard paper copies of compliance reports submitted by regulated companies remain unsettled.
The enforcement arm of EPA has been pushing for a program to certify the reliability of state systems that receive e-reports since the mid-90s, as major civil and most criminal environmental prosecutions are brought at the federal level and often use compliance reports submitted to states. States with systems to receive e-reports, such as discharge monitoring reports, were supposed to have begun applying for EPA certification in late 2007 but the agency’s Office of Environmental Information (OEI) had deferred this application deadline to October 2008. It is now preparing to move it back again – to 2010. OEI is headed by Molly O’Neill, a Bush appointee known as a main architect behind closing EPA libraries – a decision Congress later reversed – on the ironic and incorrect grounds that all library holdings could be digitized.
“Environmental protection needs to move into the 21st Century, but EPA’s Office of Environmental Information seems determined to keep its state partners in the horse and buggy era,” stated PEER Executive Director Jeff Ruch. “In its last days, the Bush administration is frantically pursuing a raft of very bad environmental rules yet when it comes to something constructive, EPA says there is no rush.”
EPA has already received applications from 19 states seeking “legal dependability” certification by the October 13, 2008 deadline. Although no state has formally asked to push back this deadline, EPA –
- Had published in the Federal Register both a proposed extension and a final extension on the same day, October 17, 2008, on the assumption that it would receive no negative comments and the delay would take effect as a consent item. The extension defers the application deadline for 15 months, until January 13, 2010;
- EPA, however, received two negative comments and had to withdraw its final rule implementing the extension on November 21st. It is preparing a response to these comments and will resubmit a new final extension as soon as December 5th for later Federal Register publication; and
- The deadline is for states to merely submit an application for EPA certification. In addition, the current program allows EPA to grant case-by-case extensions to individual states.
Oklahoma has the only approved electronic system while New Jersey is reportedly one of the few foot draggers. New Jersey’s agency had been headed by Lisa Jackson who is working with the Obama transition team on EPA issues.
“Why would states bother to invest in upgrading systems to support largely federal prosecutions when EPA, the supposed beneficiary, keeps pushing the timelines back?” asked Ruch. “This delay also means that when problems arise the EPA appointees who caused the headaches will be long gone.”
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Look at Federal Register notice proposing 2010 postponement date
Note the identical same-day Federal Register notice (since withdrawn) finalizing the delay
Read one of the two negative comments EPA received
Learn more about the EPA “legal dependability” program for electronic records