Most federal actions against businesses or individuals for failure to comply with the environmental laws are resolved through settlement agreements. As part of a settlement, an alleged violator may voluntarily agree to undertake an environmentally beneficial project related to the violation in exchange for mitigation of the penalty to be paid. These Supplement Environmental Projects (SEP) are intended to enhance public health and the environment and are often a mutually beneficial option for the alleged violator and the community.
EPA recently updated its SEP Policy. The 2015 Updated SEP Policy revises and supersedes the February 1991 Policy on the Use of Supplemental Environmental Projects (SEPs) in EPA Settlements, the May 1995 Interim Revised SEP Policy, and the May 1998 EPA SEP Policy.
The complete SEP Policy can be found here.
Characteristics of SEPs
Because SEPs are part of an enforcement settlement, they must meet certain legal requirements.
- There must be a relationship between the underlying violation and the human health or environmental benefits that will result from the SEP.
- A SEP must improve, protect, or reduce risks to public health or the environment, although in some cases a SEP may, as a secondary matter, also provide the violator with certain benefits.
- The SEP must be undertaken in settlement of an enforcement action as a project that the violator is not otherwise legally required to perform.
In addition, there are several guidelines that a SEP must meet.
- A project cannot be inconsistent with any provision of the underlying statute(s).
- A SEP must advance at least one of the objectives of the environmental statute that is the basis of the enforcement action.
- EPA must not play any role in managing or controlling funds used to perform a SEP.
- The type and scope of each project should be defined in the settlement document.
Categories of Acceptable SEPs
EPA has set out eight categories of projects that can be acceptable SEPs. To qualify, a SEP must fit into at least one of the following categories:
- Public Health: SEPs may include examining residents in a community to determine if anyone has experienced any health problems because of the company’s violations.
- Pollution Prevention: These SEPs involve changes so that the company no longer generates some form of pollution. For example, a company may make its operation more efficient so that it avoids making a hazardous waste along with its product.
- Pollution Reduction: These SEPs reduce the amount and/or danger presented by some form of pollution, often by providing better treatment and disposal of the pollutant.
- Environmental Restoration and Protection: These SEPs improve the condition of the land, air or water in the area damaged by the violation. For example, by purchasing land or developing conservation programs for the land, a company could protect a source of drinking water.
- Emergency Planning and Preparedness: These projects provide assistance to a responsible state or local emergency response or planning entity to enable these organizations to fulfill their obligations under the Emergency Planning and Community Right-to-Know Act (EPCRA.) Such assistance may include the purchase of computers and/or software, communication systems, chemical emission detection and inactivation equipment, HAZMAT equipment, or training. Cash donations to local or state emergency response organizations are not acceptable SEPs.
- Assessments and Audits: A violating company may agree to examine its operations to determine if it is causing any other pollution problems or can run its operations better to avoid violations in the future. These audits go well beyond standard business practice.
- Environmental Compliance Promotion: These are SEPs in which an alleged a violator provides training or technical support to other members of the regulated community to achieve, or go beyond, compliance with applicable environmental requirements. For example, the violator may train other companies on how to comply with the law.
- Other Types of Projects: Other acceptable SEPs would be those that have environment merit but do not fit within the categories listed above. These types of projects must be fully consistent with all other provisions of the SEP Policy and be approved by EPA.
The 2015 Update supersedes the 1998 Policy, and is effective immediately.