SUPPLEMENTAL SUPPLEMENTAL ENVIRONMENTAL ENVIRONMENTAL

PROJECTSPROJECTS

KEY CHARACTERISTICS KEY CHARACTERISTICS OF A SEP OF A SEP

Projects must improve, protect or reduce Projects must improve, protect or reduce risks to public health or environment.risks to public health or environment.

Be undertaken in settlement of an Be undertaken in settlement of an enforcement action.enforcement action.

Must be projects that alleged violator is Must be projects that alleged violator is not otherwise legally required to perform.not otherwise legally required to perform.

If a court is likely to order a particular activity as If a court is likely to order a particular activity as injunctive relief, then such action does not qualify injunctive relief, then such action does not qualify as a SEP.as a SEP.

Federal Considerations for Federal Considerations for SEPS:SEPS:

Project cannot be inconsistent with any Project cannot be inconsistent with any provision of the underlying statute.provision of the underlying statute.

All penalty payments must be deposited All penalty payments must be deposited into the U.S. Treasury unless otherwise into the U.S. Treasury unless otherwise authorized by law.authorized by law.

All projects must advance at least one of All projects must advance at least one of the objectives of the environmental the objectives of the environmental statutes that are the basis of the statutes that are the basis of the enforcement action and must have enforcement action and must have adequate nexusadequate nexus. .

What is Adequate Nexus?What is Adequate Nexus?

Nexus is the relationship between the Nexus is the relationship between the violation and the proposed project.violation and the proposed project.– Relationship exists only if:Relationship exists only if:

project reduces likelihood that similar violations project reduces likelihood that similar violations will occur in the future; ORwill occur in the future; OR

project reduces adverse impact to public health project reduces adverse impact to public health or environment to which the violation at issue or environment to which the violation at issue contributes; ORcontributes; OR

project reduces the overall risk to public health project reduces the overall risk to public health or environment potentially affected by the or environment potentially affected by the violation at issue.violation at issue.

Federal Considerations Federal Considerations Continued . . .Continued . . .

Agency may not play any role in managing or Agency may not play any role in managing or controlling funds that are set aside to controlling funds that are set aside to perform the SEP.perform the SEP.

Type and scope of the project must be Type and scope of the project must be defined in the signed settlement agreement.defined in the signed settlement agreement.

Project cannot be used to satisfy the Project cannot be used to satisfy the Agency’s statutory obligation to perform a Agency’s statutory obligation to perform a particular activity.particular activity.

Project may not provide any federal Project may not provide any federal agency/federal grantee with additional agency/federal grantee with additional resources to perform a particular activity for resources to perform a particular activity for which Congress has specifically appropriated which Congress has specifically appropriated funds.funds.

Categories of SEPS approved Categories of SEPS approved by EPAby EPA

Pollution Prevention – reduces the Pollution Prevention – reduces the generation of pollution through “source generation of pollution through “source reduction.”reduction.”

Examples: Examples: – equipment or technical modificationsequipment or technical modifications– process or procedure modificationsprocess or procedure modifications– reformulation or redesign of productsreformulation or redesign of products– improvements in housekeeping, maintenance, training, improvements in housekeeping, maintenance, training,

inventory control or other operation and maintenance inventory control or other operation and maintenance proceduresprocedures

Pollution ReductionPollution Reduction May include the installation of more effective end-May include the installation of more effective end-

of-process control or treatment technology, or of-process control or treatment technology, or improved containment.improved containment.

SEP Categories Continued …SEP Categories Continued …

Public Health -- diagnostic, Public Health -- diagnostic, preventative and/or remedial preventative and/or remedial components of human health care.components of human health care.– acceptable where the primary benefit of acceptable where the primary benefit of

project is the population that was project is the population that was harmed or put at risk by the violations.harmed or put at risk by the violations. Example: Example: Violator agrees to hook up a non-Violator agrees to hook up a non-

filtered water system which poses health risks to the filtered water system which poses health risks to the communities being served to a filtration plant communities being served to a filtration plant meeting SDWA requirements.meeting SDWA requirements.

SEP Categories Continued …SEP Categories Continued …

Environmental Restoration and Environmental Restoration and Protection -- enhances the condition Protection -- enhances the condition of the ecosystem or immediate of the ecosystem or immediate geographic area adversely affected.geographic area adversely affected.– Examples: Examples:

Restoration of a wetland in the same Restoration of a wetland in the same ecosystem in which the facility is located. ecosystem in which the facility is located.

Violator purchases and manages watershed Violator purchases and manages watershed area to protect drinking water supply that area to protect drinking water supply that was affected by unreported discharges.was affected by unreported discharges.

SEP Categories Continued . . SEP Categories Continued . . . .

Assessments and AuditsAssessments and Audits Emergency Planning and PreparednessEmergency Planning and Preparedness Environmental Compliance Promotion Environmental Compliance Promotion

– provides training or technical support – provides training or technical support to other members of the regulated to other members of the regulated community community – Example: Example:

Violator developed Violator developed website to educate website to educate college laboratories on RCRA college laboratories on RCRA compliance issues.compliance issues.

Projects Which Are NOT Projects Which Are NOT Acceptable SEPSAcceptable SEPS

General public educational or public General public educational or public environmental awareness projects.environmental awareness projects.

Contributions to environmental research at a Contributions to environmental research at a college or university.college or university.

Conducting a project which is beneficial to a Conducting a project which is beneficial to a community but is unrelated to environmental community but is unrelated to environmental protection. protection.

Assessments without a requirement to address Assessments without a requirement to address the problems identified in the study.the problems identified in the study.

Projects which violator will receive federal Projects which violator will receive federal financial assistance (i.e., low-interest federal financial assistance (i.e., low-interest federal loans, federal contracts, federal grants).loans, federal contracts, federal grants).

Final settlement penalty Final settlement penalty may be lower for a violator may be lower for a violator who agrees to perform an who agrees to perform an acceptable SEP compared acceptable SEP compared to the violator who does to the violator who does not agree to perform a not agree to perform a SEP.SEP.

Calculation of the Final Calculation of the Final PenaltyPenalty Net Costs to be incurred by a violator in Net Costs to be incurred by a violator in

performing a SEP may be considered as one factor performing a SEP may be considered as one factor in determining an appropriate settlement amount.in determining an appropriate settlement amount.– Final settlement penalty (cash paid) must equal or Final settlement penalty (cash paid) must equal or

exceed either:exceed either: the economic benefit of noncompliance plus 10% of the economic benefit of noncompliance plus 10% of

the gravity component; or the gravity component; or 25% of the gravity component only; whichever is 25% of the gravity component only; whichever is

greater.greater.

– Dollar for Dollar credit for SEP cost is generally not Dollar for Dollar credit for SEP cost is generally not consistent with policy. consistent with policy. Generally penalty mitigation percentage should not Generally penalty mitigation percentage should not

exceed 80% of the SEP Cost.exceed 80% of the SEP Cost.

EPA Policy and Guidance EPA Policy and Guidance Documents can be found at :Documents can be found at :

http://cfpub.epa.gov/compliance/resources/policies/civil/seps

DiscussionDiscussion