April 24, 1996
MEMORANDUM
SUBJECT:
Approval Procedures for Supplemental Environmental Projects
FROM:
Robert Van Heuvelen, Director
Office of Regulatory Enforcement
TO:
Regional Counsels, Regions I-X
Director, Office of Environmental
Stewardship, Region I
Director, Compliance Assurance & Enforcement
Division, Region VI
Director, Office of Enforcement, Compliance &
Environmental Justice, Region VIII
Regional Enforcement Coordinators, Regions
I-X
In May 1995, we issued the Interim Revised Supplemental Environmental Projects (SEP) Policy. SEPs are environmentally beneficial projects which a violator agrees to undertake in settlement of an enforcement action, but which the violator is not otherwise legally required to perform. This revision provided numerous improvements to the 1991 SEP Policy and tried to provide the Agency with additional flexibility to use SEPs.
After issuance of the revised Policy, the Multimedia Enforcement Division conducted at least one training workshop in each Region to explain the new Policy. In addition, the staff who manage implementation of the Policy in the Multimedia Enforcement Division, as well as the other divisions in the Office of Regulatory Enforcement, routinely respond to inquiries from Regional and Department of Justice staff on proper application of the Policy. These inquiries have been useful and in many of these consultations we have been able to offer suggestions on how to remedy problematic SEP proposals.
We encourage the Regions to continue to routinely consult with us on an informal and early basis concerning any questions they may have regarding implementation of the new Policy. At the same time, we need to clarify the procedures for when formal consultation and approval are necessary. The procedures governing approval of SEPs are set forth in Section I.1 of the Policy. We are now adding guidelines for how these procedures are to be implemented. These guidelines are consistent with the Redelegation of Authority and Guidance on Headquarters Involvement in Regulatory Enforcement Cases, memo issued by the Assistant Administrator, on July 11, 1994.
Section I.1 from the Policy is reproduced below verbatim in italics and the new implementing procedures are set forth in bold text.
The authority of a government official to approve a SEP is included in the official's authority to settle an enforcement case and thus, subject to the exceptions set forth here, no special approvals are required. The special approvals apply to both administrative and judicial enforcement actions as follows [footnote omitted].
a. Regions in which a SEP is proposed for implementation shall be given the opportunity to review and comment on the proposed SEP.
The originating Region should send a short memorandum describing the SEP to each Region with a facility that will be impacted by the SEP.
b. In all cases in which a SEP may not fully comply with the provisions of this Policy, the SEP must be approved by the EPA Assistant Administrator for Enforcement and Compliance Assurance.
If there is an issue or question about whether a proposed SEP is consistent with the Policy (or how a project can be modified to become consistent), the Region should consult with the appropriate Division in the Office of Regulatory Enforcement (ORE). After this consultation, if a question still remains as to whether the proposed SEP is fully consistent with the Policy, the Region should send a memorandum containing a brief description of the SEP and the case to the Director, Multimedia Enforcement Division, ORE, Mailcode 2248-A. I am delegating to this Division the authority to determine that a proposed SEP is consistent with the Policy and thus does not need further review by me and ultimately the Assistant Administrator. If the Multimedia Enforcement Division believes a project is inconsistent with the Policy and the Region still wishes to proceed with the project, the Region may then elevate its request to me or the Assistant Administrator. Please remember that there may be some projects that although inconsistent with the Policy are nevertheless, legally justifiable with such compelling environmental benefits that they could be approved as exceptions to the Policy. Such projects require Assistant Administrator approval and we will strive to make such decisions as expeditiously as possible.
c. In all cases in which a SEP would involve activities outside the United States, the SEP must be approved in advance by the Assistant Administrator and, for judicial cases only, the Assistant Attorney General for the Environment and Natural Resources Division of the Department of Justice.
Memoranda requesting approval for such projects should be sent to the Assistant Administrator, with a copy to ORE's Multimedia Enforcement Division. (The Multimedia Enforcement Division will provide copies to the appropriate media divisions in ORE.)
d. In all cases in which a SEP includes an environmental compliance promotion project, the SEP must be approved by the Office of Regulatory Enforcement in OECA. With time, this approval requirement may be delegated to Regional officials.
Requests for such approval should be sent to the appropriate Division Director in ORE, with a copy to the Multimedia Enforcement Branch Chief. I am delegating to the Division Directors the authority to approve environmental compliance promotion SEPs in their respective programs, after consulting with the Multimedia Enforcement Division.
These procedures are necessary given past interest in SEPs and the need to ensure that all of our SEPs are fully consistent with our legal authority. Further, these review procedures should ensure that this Policy is implemented consistently across the different programs. We do have some concerns about whether the Policy is being implemented consistently. Data for FY 1995 from the case conclusion data sheets indicate that there were 11 SEPs within the compliance promotion category. Pursuant to the 1995 Policy, all compliance promotion projects need advance approval from ORE; we are not aware of any such approvals in FY 95. The 1995 data base also shows 17 SEPs involved an "other" category of projects, yet there is no "other" category in the Policy. All projects that do not fit into at least one of the seven designated categories in the Policy need Assistant Administrator approval; we are not aware that any such approvals were obtained. We anticipate that some of these problems may be data entry errors, but we are concerned that the Policy is not being implemented consistently. Accordingly, please follow these approval procedures. We will revisit these procedures when we finalize the Interim SEP Policy later this fiscal year.
cc: ORE Division Directors
OECA Office Directors
Joel Gross,
DOJ
Bruce Gelber, DOJ