The “Power of SEPs” – Or, How an Innovative Enforcement Settlement Can Have Wide Benefits
Posted on June 4th, 2008 - 10:30 AMAbout the author: Joshua Secunda is the Innovations Coordinator and a Senior Enforcement Counsel with EPA’s Boston office.
Earlier this year, our Region and the U.S. Veteran’s Administration (VA) won an Environmental Business Journal’s 2007 Achievement Award for the creation of innovative pollution prevention and compliance tracking software. The software will perform tasks that cannot be achieved by software systems currently on the market. The VA committed to spend a minimum of $500,000 to design and implement the Supplemental Environmental Project (SEP). Actual costs may reach a million dollars.
In 2003, the Region inspected the VA campus in White River Junction, Vermont. While there, our inspectors discovered potentially explosive hazardous waste on-site. The lab building was evacuated, and the containers removed and detonated. The explosive power of the wastes equaled several sticks of dynamite. Numerous other RCRA (hazardous waste) violations were found.
Although the Region’s Federal Facility program had provided hands-on compliance assistance and lead multimedia inspections since 1994, the VA remained in chronic noncompliance. This puzzled us. Apparently, enforcement actions succeeded in getting the VA’s attention.
Nonetheless, enforcement alone didn’t measurably improve their performance. We decided to use this enforcement action to identify basic causes of the VA’s environmental difficulties, and formulate solutions that might be implemented through a SEP. A SEP is an environmentally beneficial project that a violator voluntarily undertakes as part of an enforcement action settlement.
The best way to do that was in collaboration with the VA itself. We concluded that the VA’s outdated and inaccurate chemical and waste tracking systems were a key contributor to their problems. Due to these inadequate systems, the VA didn’t know where its hazardous materials or wastes were located, their quantities, or whether chemicals were being double or triple ordered.
Working with White River Junction VA personnel, we identified the critical tasks that a computerized “cradle to grave” management system would have to perform: automatically notify on-line chemical purchasers of non-toxic substitutes; reduce the total amount of hazardous products purchased through a chemical “adoption” inventory system; maintain an inventory of hazardous products and wastes and where they are stored; and provide access to a MSDS electronic library.
To achieve these capabilities, a new software system would have to be designed. Ultimately, the VA agreed to create this innovative system and test it at all eleven New England VA hospitals. If successful, the VA hopes to implement it nationwide. The VA is the largest health care organization in the world. Thus, the SEP’s ultimate environmental impact could be significant.
Elements of this story are worth noting. The costs to EPA of achieving environmental improvement go up steadily, while the resources to achieve them shrink. Thus, while litigating, we should simultaneously explore collaborative strategies that identify solutions to institutional environmental problems, and pose solutions to them. EPA has multiple tools to achieve compliance in addition to enforcement. Leveraging enforcement actions to address root causes of chronic noncompliance is an additional tool. Designing SEPs that focus on a sector’s systemic environmental problems should be a central goal of our work.
Suggested Links:
- EPA Region 1 Healthcare Sector Assistance
- Press Release on this settlement
Tags: enforcement
| Permalink | TrackBack
Subscribe to this blog's feed
Follow us on Twitter
Question of the Week
June 4th, 2008 at 11:20 am
From the Post:
“Although the Region’s Federal Facility program had provided hands-on compliance assistance and lead multimedia inspections since 1994, the VA remained in chronic noncompliance. This puzzled us. Apparently, enforcement actions succeeded in getting the VA’s attention.’;
This is a BIG problem with the “Federal Assistance” programs. Once they are in effect, the benefactor of the assistance usually goes into non-compliance, and the agency providing the assistance does not want these facilities to get hit with a violation because it appears as if the program “failed”.
This is widespread and not subject to EPA activities and programs, but to OSHA, and MSHA as well. Their Voluntary Protection Programs and STAR Programs once instituted are looked upon as “successes” and the facilities that fall out of compliance know the agency is not going to take the facility off the “compliance list” or off the STAR or VPP list, because it looks as if the program is failing, when it is.
THis is what the problem is in Governmental Agencies: the “success” is determined in raw numbers of “participating” facilities and entities, rather than “compliant” facilities.
This whole process needs a lot of oversight, and I am a fan of enforcement with punative measures, rather than the “compliance assistance model.
Private sector firms in a capitalistic society will respond more to a punative fine (especially a very hefty fine) and change their behavior to the compliance model of “voluntary participation” and “ccompliance assistance” where there is apparently no downside to the non-compliance and no penality to the bottom line, and EPA, OSHA, MSHA is giving the facility money.
Which one do you think the facility would go for? The one where there is a promise of financial punishment, or the model where they can invite in the agency, paid to participate, and the agency waives it’s enforcement action?
This is where the last 2 Presidential Administration have had a very bad record, the voluntairy participation over the punitative enforcement. That would the Clinton Admin with the development of the processes in the Reich and Browner admin, and the continuance throught the Bush admin.
These are terrible programs, and the states run them terribley. They are active “while the grant money is there” but once the funding dries up, there is no oversight, and the infrastructure of compliance (That would be the private sector IH’s, Env. Professionals, and Safety Professionals) has been decimated by the agencies acting like consultants, and actually making the problem worse.
[Reply]
June 5th, 2008 at 8:29 am
Mr. Secunda:
Thank you for your recent blog regarding the benefits of SEPs. In particular I was interested in the software program developed as part of the VA settlement. Is this software currently available to the public (or soon to be)? Our company presents training workshops on the RCRA hazardous waste program. For many years we have been proponents of “constituents management.” This software tool would be a great plus towards promoting better constituents management within US industries and other organizations.
If possible, can you please direct me twards more information about the VA software pogram and its avaialability?
Regards,
Scottt Dunsmore
[Reply]
June 7th, 2008 at 11:34 am
SEP’s are worthwhile for a variety of reasons, including providing the public with information on exactly how the money to offset a portion of a penalty is being used. Ideally, it seems to me, penalty money should serve to improve environmental conditions or environmental risks associated with the violation. But in the past EPA has stated that if this occurs, then violators will not be discouraged enough to avoid violations in the future because they will know the effects will be mitigated - - in effect, they are paying a fee to do what they want even if it is illegal. So my impression is that the money is deposited into a general fund from whence it can be directed to any activity, including those that are not remotely associated with the problems resulting from or underlying the original violation. That seems like a flawed approach to me, and I think some state penalty policies have better approaches.
Also, my understanding is that an SEP cannot be used by a violator to comply with rules that the violator is legally obliged to obey in the first place. In the case described, the VA didn’t know “where its hazardous materials or wastes were located, their quantities, or whether chemicals were being double or triple ordered.” Is it possible that the VA should get a break via an SEP to help it find out where its hazardous wastes are located? Is there no legal requirement to know this from the start?
[Reply]
June 10th, 2008 at 1:48 pm
Bravo! Interesting article.
[Reply]
September 15th, 2008 at 1:56 pm
Me encanta la página ,solo que yo estoy en Argentina,y aqui hay muchisimo que hacer ,como principal tener inspectores,porque la mayoria de la gente/empresas no cumplen leyes
[Reply]
September 30th, 2008 at 9:44 am
I agree with Bill S., penalty money should go towards environmental conditions - especially when related to the violation.
Interesting insights though, thanks for sharing what you’ve learned.
http://www.manizesto.com
[Reply]