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Environmental Law: PA Brownfields Environmental Law
Time for PADEP to Put SEPs Back in Its Enforcement Toolbox
By Joel Bolstein
Supplemental Environmental Projects or SEPs were part of PADEP's enforcement toolbox for many years. The Ridge Administration used them very effectively. The Department, in fact, still has a guidance document on its website that describes its SEP policy . I'm not sure exactly when it happened, but at some point during the last administration, the Department's leadership decided that SEPs would no longer be accepted as part of the settlement of an enforcement action. The people who made that decision presumably are now gone, but the policy prohibiting SEPs remains, and I am now urging the new leadership of the Department to put SEPs back into the Department's toolbox.
There is no downside to allowing parties to propose SEPs for inclusion in the resolution of an enforcement action. EPA not only accepts SEPs, it welcomes them. It has a page on its website with links to its SEP policy and guidance. I've resolved many enforcement actions with EPA on behalf of my clients, and many of the CO&As that were signed included SEPs. I had a CO&A that was signed recently by a PA municipal sewer authority that included a reduction in the civil penalty paid to EPA in return for the performance of a SEP that sought to educate the users of that sewer system to the need to properly dispose of unused pharmaceuticals. EPA actually gave us the idea for that SEP. We recently completed that SEP and it was very successful.
In December 2007, PADEP was a signatory to a Consent Order and Agreement with EPA that authorized a large chemical company to perform $4.5 million in Supplemental Environmental Projects as part of the settlement of a joint federal/state enforcement action arising out of a chemical release and fish kill. The SEPs included purchasing land, imposing conservation easements, creating a watershed preservation and restoration plan, and installing a biomonitoring system to provide advance warning of threats to fish in the Wissahickon Creek. So, it would appear that PADEP is still willing to allow SEPs in an enforcement action if it involves EPA and the project can be done under EPA's SEP Policy.
In 2007, Hastings College of Law, in conjunction with the ABA Section of Environment, Energy and Resources (of which I am a past officer), published a 50 State Survey of Supplemental Environmental Projects. That survey found that 28 states had formal published SEP policies and 20 other states and the District of Columbia had internal unpublished policies or practices allowing SEPs. At the time the survey was done, only North Carolina and South Carolina rejected the use of SEPs. If it decides to bring back SEPs, PADEP will be able to take comfort from the fact that the overwhelming majority of its sister states allow them.
SEPs are supported by EPA and by the overwhelming majority of states because they really do provide environmental benefits to communities. While fines and penalties go into statewide funds, SEPs must have a nexus with the violation, so their benefits are directed at the area where the harm occurred. Growing Greener used to provide grants to local communities for watershed management and restoration projects. That funding is gone. County and local government budgets have also been cut to the bone. SEPs can help fill those funding gaps and provide funding for worthy local environmental projects.
Again, I never understood why the Department stopped allowing SEPS. It's been a mystery to me. Why not give the Department the discretion to use them in the appropriate circumstances? What harm could come from that?