WASHINGTON - 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