August Mack Newsletter | February, 2019

Understanding the EPA SEP and How to Incorporate a Compliance-Focused EMS in an Enforcement Settlement
by Mike Ogburn

On February 8, 2018 the Environmental Protection Agency (EPA) released the “Fiscal Year 2017 EPA Enforcement and Compliance Annual Results.". This annually released document outlines the EPA’s enforcement progress in working with federal, state and tribal partners to expand environmental compliance and enforce existing rules and regulations. Some of the notable highlights outlined included an increase of the value by private parties to clean up contaminated sites of more than 1.2 billion dollars which was part of the National Enforcement Initiatives goals for 2017-2019.

In addition to discussing progress on the National Enforcement Initiatives the 2017 report outlined the monetary commitments from settled or concluded cases. What was disappointing in the eyes of many EPA regions was the value, or the lack of value and number of Supplemental Environmental Projects or SEPs. In 2017, there were only 90 SEP cases. In contrast there were over 1200 Final Admirative Penalty Orders.

In 2015, the EPA provided a comprehensive update to the existing 1998 SEP Policy document.  This extensive update included incorporating by reference, all guidance and implementation decisions concerning SEPs and specifically outlined and encouraged facilities to utilize SEPs in civil enforcement cases. It was the Agency’s intent to underscore their continuing strong support for SEPs, which they believed provided a powerful tool to secure significant environmental and public health benefits “beyond those achieved by compliance” and to help address the needs of the communities impacted by violations of environmental laws.

Specifically, the EPA put considerable effort it utilizing and incorporating Environmental Management Systems (EMS) into enforcement cases in an effort to promote positive compliance outcomes and reduce the likelihood of repeat violations.  So strong was the Agency’s commitment that The Office of Enforcement and Compliance Assurance (OECA) took the unusual approach of issuing a statement in support of the Agency’s EMS policy…and together with regional compliance programs they will play a leading role in actively promoting EMS’s as part of injunctive relief. In addition to updating the SEP policy the Agency re-affirmed existing guidance documents on the “Use of Environmental Management Systems in Enforcement Relief” and how to properly utilize “Compliance-Focused Environmental Management Systems Enforcement Agreements (2005)

There are essentially eight main categories of viable SEP projects with various subcategories attached.  Specifically, EMS are geared towards providing a mechanism and process to eliminate the root case of repeat violations by utilizing the twelve elements of an EMS program as outlined in the 2015 SEP policy document (Guidance materials). When properly setup and maintained, an EM,S as defined by the EPA, should provide the community impacted by the violation benefits that would not ordinarily be realized by the facility if they just simply “paid the monetary fine”. 

The Supplement Environmental Projects Policy 2015 update can be a beneficial tool in the event of civil or administrative violations and should be properly considered and applied in the event of non-compliance violations of environmental laws. 

To learn more about this topic, register to attend our free webinar on February 13, 2019.


Mike Ogburn is the eCAP® Program Development Manager with August Mack Environmental, Inc. in the Indianapolis, Indiana office. He has more than 25 years experience and is responsible for designing customer specific web-based regulated chemical tracking systems for industrial manufacturers. Mike also manages August Mack`s web-based Safety Data Sheet module and has detailed knowledge of Emergency Planning & Community Right-to-know Act reporting (EPCRA), SDS management, chemical inventory audits, environmental auditing and environmental management systems (EMS). He can be reached at 317.916.3111 or via e-mail at mogburn@augustmack.com.

 


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