BEP FAQ

Beneficial Environmental Projects - FAQs

What is a Beneficial Environmental Project (BEP)?

 

A Beneficial Environmental Project is one that provides for environmental mitigation which the Respondent is not otherwise legally required to undertake. The Respondents are usually industrial or municipal facilities that have been issued an enforcement action by the Louisiana Department of Environmental Quality (the Department) for violating state environmental laws and regulations. Enforcement actions issued by the Department require the defendant/respondent to mitigate any environmental damages resulting from a violation.

 

Both DEQ and the Respondent must agree to include the BEP in the settlement agreement.  The Respondent must voluntarily agree to undertake the beneficial environmental project as a component of a Settlement Agreement stemming from any environmental violation(s), enforcement action or penalty assessment.  It is important to note that BEPs are developed in the context of settlement negotiations in which confidentiality between the agency and the respondent is essential to open exchange and exploration of settlement options.

 

When were the BEP regulations promulgated and what were are the general requirements? 

 

The BEP regulations were promulgated in August 2000.

 

The BEP regulations apply when the department has decided to enter into a settlement in which a beneficial environmental project (BEP) is utilized. The department reserves the right to settle for the amount of cash penalty, if any, it deems appropriate in considering all of the circumstances relating to the case in which the settlement is perfected. The decision to enter into a settlement that includes a BEP is solely within the discretion of the department. Nothing in the regulations requires that the department enter into a settlement or that the settlement include BEPs. Any BEP may be accepted if it meets the terms of these regulations.

 

A BEP must be within one or more of the following categories.

 

1.     Public Health. A public health project provides diagnostic, preventative, and/or remedial components of human health care that is related to the actual or potential damage to human health caused by a violation of environmental law or mismanagement of substances containing constituents detrimental to human health.

 

2.     Pollution Prevention. A pollution prevention project is one that reduces the generation of pollution through "source reduction," i.e., any practice that reduces the amount of any hazardous substance, pollutant, or contaminant entering any waste stream or otherwise being released into the environment, prior to recycling, treatment, or disposal. In all cases, for a project to meet the definition of pollution prevention, there must be an overall decrease in the amount and/or toxicity of pollution released to the environment, not merely a transfer of pollution among media.

 

3.     Pollution Reduction. If the pollutant or waste stream already has been generated or released, a pollution reduction approach, which employs recycling, treatment, containment, or disposal techniques, may be appropriate. A pollution reduction project is one that results in a decrease in the amount and/or toxicity of any hazardous substance, pollutant, or contaminant entering any waste stream or otherwise being released into the environment by an operating business or facility by a means which does not qualify as "pollution prevention."

 

4.     Environmental Restoration and Protection. An environmental restoration and protection project is one that goes beyond repairing the damage caused by the violation to enhance the condition of any ecosystem or geographic area.

 

5.     Assessments and Audits. The four types of assessments/audits are: pollution prevention assessments; site assessments; environmental management system audits; and compliance audits. These assessment or audit projects must be performed by an entity approved by the department. Assessments and audits may not include projects that are required by enforcement and/or legal requirements.

 

6.     Environmental Compliance Promotion. An environmental compliance promotion project provides training or technical support to identify, achieve and maintain compliance with applicable statutory and regulatory requirements; avoid committing a violation with respect to such statutory and regulatory requirements; go beyond compliance by reducing the generation, release, or disposal of pollutants to a level below the legally required limits; or promote environmental education, including awareness of potential risks or harm to the public health and the environment. In all cases, the department will specify the approved party responsible for developing and providing the environmental compliance promotion project.

 

7.     Emergency Planning, Preparedness, and Response. An emergency planning and preparedness project provides assistance to a responsible state or local emergency planning, preparedness, or response entity.

 

8.     Other Projects. Projects determined by the department to have environmental merit that do not fit within at least one of the seven categories above may be accepted if they are otherwise fully consistent with the intent of these rules.

 

Can anyone propose a BEP?

 

Yes, anyone can propose a beneficial environmental project at any time using the BEP suggestion website.

 

Are there general guidelines for proposing a BEP?

 

The form on the website has the general information needed. Before submitting your BEP idea for consideration, please make sure that it meets the requirements set forth by the regulations. Failure to do so may prevent the Department from adding it to the Citizens' Listing. Inclusion of your BEP idea on the Citizens' Listing does not guarantee its selection for future settlement agreements.

 

Proposed BEP ideas are subject to review by the Department and must meet the requirements of the BEP regulations outlined in LAC 33:I.Chapter 25.

 

Can I propose a BEP for a specific company or facility that has been the subject of an enforcement action?

 

Yes, just note in your BEP suggestion which company/facility the BEP suggestion is targeted to address. 

 

If so, how will I know when to propose a BEP?

 

As stated earlier, a BEP may be proposed at any time – it is not necessary to wait until an enforcement action is issued as other facilities or companies may wish to propose a BEP. 

 

Although any enforcement action may be resolved through a settlement agreement, typically settlements are a result of enforcement actions which include a notice that the department is considering a penalty.  These action types are:

Notice of Potential Penalty or NOPP

Consolidated Compliance Order and Notice of Potential Penalty or CONOPP

A Penalty Assessment or PA may also result in a settlement agreement.

 

Although the Department issues many enforcement actions each year as a result of violations of state environmental laws and regulations, not all enforcement actions are resolved through settlements. However, all enforcement actions issued by the Department require the respondent/defendant to mitigate environmental damages caused by said violations.

 

DEQ maintains a list of issued enforcement actions on its website.

 

I have made a BEP proposal. When will it be used in a settlement agreement?

 

While BEP proposal ideas may be considered as a part of a settlement agreement, please realize that BEPs are not mandatory and there is no way to ensure that your project will be adopted. 

 

The decision to enter into a settlement that includes a BEP is solely within the discretion of the Department. The regulations do not require that the Department enter into a settlement or that the settlement include BEPs. Selection of a BEP as a component of a settlement agreement is voluntary. Respondents are not obligated to perform a BEP to settle enforcement actions. Respondents may select any BEP that meets the requirements set forth in the regulations.

 

When and how can the public comment on a proposed BEP that is approved in a settlement agreement?

 

When BEPs are adopted, they are made part of settlement agreements, and all settlement agreements require public notice. Therefore, the public can comment on any proposed settlement agreement which may or may not include BEPs.  All proposed settlement agreements are published in the newspaper, in general circulation, were the environmental violation(s) occurred.  There is a 45-day public comment period for all settlement agreements.  In addition, all proposed settlement agreements are placed on the Department’s Settlement Agreement web page and in EDMS under the Agency Interest (AI) number for the company/facility.

 

How does the Department monitor the progress and completion of a BEP once it is part of a final settlement agreement? 

 

Settlement Agreements containing Beneficial Environmental Projects require the Respondent to submit reports and schedules for the planning, implementation, and completion of such projects.  The Department monitors the progress of Beneficial Environmental Projects by routinely reviewing the required progress reports and conducting follow-up inspections, if necessary.

 

Does DEQ effectively penalize a company when a BEP is used as an enforcement tool? 

 

Yes, the Department agrees to BEPs when they are part of an overall settlement agreement addressing environmental violations.  The Department strives to ensure all BEPs are beneficial to the state.

 

Is the use of BEPs an effective part of the enforcement process?

 

Yes.  The legislature authorized the Department to accept BEPs as part of settlement of enforcement actions.  Settlement agreements with BEPs enable the Department to devote manpower toward more productive activities, rather than litigation, while achieving benefits to the environment that are not otherwise required by law.  Including BEPs in settlement agreements provides the department the opportunity for environmental mitigation that might not otherwise occur.

 

Does a BEP have to relate to the violation? 

 

Not necessarily.  But it does need to be related to improving the environment as outlined in the regulations. 

 

The community would rather a different BEP than the one proposed in the settlement.  Why isn’t the community allowed to decide on the BEP?

 

The settlement negotiation process is between the agency (DEQ) and the respondent.  Both parties sign the agreement. Third party negotiations are not part of the settlement agreement process. The respondent may elect to engage the local community when determining whether to propose a BEP for settlement negotiation purposes. It is important to note that BEPs are developed in the context of settlement negotiations in which confidentiality between the agency and the respondent is essential to the exchange of ideas, potential settlement conditions and open exploration of settlement options.

 

Both DEQ and EPA recognize that not every settlement will include a BEP (or Supplemental Environmental Project “SEP”) or a BEP that is proposed or favored by community members.  BEPs are undertaken voluntarily by the respondent, and not all respondents may be interested in performing BEPs.  Additionally, not all BEP proposals meet the regulatory requirements necessary to be included in a settlement agreement.

 

Can the amount expended by a Respondent to perform a BEP be tax deductible? 

 

No.  La. R. S. 30.2050.7(E)(1) states:

Notwithstanding the provisions of R.S. 30:2205, the secretary may enter into settlements of civil penalty assessments which allow the respondent to perform beneficial environmental projects or provide for the payment of a cash penalty to the state, or both.  Such settlements shall be considered a civil penalty for tax purposes.

 

Are DEQ’s BEP regulations the same as EPA’s SEP policy? If not, how are they different?

 

While the DEQ BEP regulations were patterned after the EPA SEP policy, they are not identical.  See the table below.

 

 

DEQ BEP regulations

EPA SEP Policy

BEP CATEGORIES

 

SEP CATEGORIES

 

Public Health. A public health project provides diagnostic, preventative, and/or remedial components of human health care that is related to the actual or potential damage to human health caused by a violation of environmental law or mismanagement of substances containing constituents detrimental to human health.

 

Public Health. SEPs may include examining residents in a community to determine if anyone has experienced any health problems because of the company's violations.

 

Pollution Prevention. A pollution prevention project is one that reduces the generation of pollution through "source reduction," i.e., any practice that reduces the amount of any hazardous substance, pollutant, or contaminant entering any waste stream or otherwise being released into the environment, prior to recycling, treatment, or disposal.

 

Pollution Prevention. These SEPs involve changes so that the company no longer generates some form of pollution. For example, a company may make its operation more efficient so that it avoids making a hazardous waste along with its product.

 

Pollution Reduction. A pollution reduction project is one that results in a decrease in the amount and/or toxicity of any hazardous substance, pollutant, or contaminant entering any waste stream or otherwise being released into the environment by an operating business or facility by a means which does not qualify as "pollution prevention."

 

Pollution Reduction. These SEPs reduce the amount and/or danger presented by some form of pollution, often by providing better treatment and disposal of the pollutant.

 

Environmental Restoration and Protection. An environmental restoration and protection project is one that goes beyond repairing the damage caused by the violation to enhance the condition of any ecosystem or geographic area.

 

Environmental Restoration and Protection. These SEPs improve the condition of the land, air or water in the area damaged by the violation. For example, by purchasing land or developing conservation programs for the land, a company could protect a source of drinking water.

 

Assessments and Audits. The four types of assessments/audits are: pollution prevention assessments; site assessments; environmental management system audits; and compliance audits. These assessment or audit projects must be performed by an entity approved by the department. Assessments and audits may not include projects that are required by enforcement and/or legal requirements.

 

Assessments and Audits. A violating company may agree to examine its operations to determine if it is causing any other pollution problems or can run its operations better to avoid violations in the future. These audits go well beyond standard business practice.

 

Environmental Compliance Promotion. An environmental compliance promotion project provides training or technical support to identify, achieve and maintain compliance with applicable statutory and regulatory requirements; avoid committing a violation with respect to such statutory and regulatory requirements; go beyond compliance by reducing the generation, release, or disposal of pollutants to a level below the legally required limits; or promote environmental education, including awareness of potential risks or harm to the public health and the environment.

 

Environmental Compliance Promotion. These are SEPs in which an alleged violator provides training or technical support to other members of the regulated community to achieve, or go beyond, compliance with applicable environmental requirements. For example, the violator may train other companies on how to comply with the law.

 

Emergency Planning, Preparedness, and Response. An emergency planning and preparedness project provides assistance to a responsible state or local emergency planning, preparedness, or response entity.

 

Emergency Planning and Preparedness. These projects provide assistance to a responsible state or local emergency response or planning entity to enable these organizations to fulfill their obligations under the Emergency Planning and Community Right-to-Know Act (EPCRA.) Such assistance may include the purchase of computers and/or software, communication systems, chemical emission detection and inactivation equipment, HAZMAT equipment, or training. Cash donations to local or state emergency response organizations are not acceptable SEPs.

 

Other Projects. Projects determined by the department to have environmental merit that do not fit within at least one of the seven categories above may be accepted if they are otherwise fully consistent with the intent of these rules.

 

 Other Types of Projects. Other acceptable SEPs would be those that have environment merit but do not fit within the categories listed above. These types of projects must be fully consistent with all other provisions of the SEP Policy and be approved by EPA.

All BEPs are voluntary in nature

All SEPs are voluntary in nature

Not necessary for the BEP to relate to the violation

SEP must have “nexus” or relationship with the violations

Negotiations with Respondent are held confidential until the Settlement Agreement is Final

Negotiations with Respondent are held confidential until the Consent Agreement is Final

Any individual may submit a BEP proposal

Any individual may submit a SEP proposal

The BEP is subject to Public Comment when the draft Settlement Agreement is public noticed

The SEP is subject to Public Comment when the draft Consent Agreement is public noticed

Third Parties are not part of settlement negotiations

Third Parties are not generally part of settlement negotiations

Louisiana Department of Environmental Quality 602 N. Fifth Street Baton Rouge, LA 70802
Call or e-mail a hotline · Office Address/Phone listing · Locate a DEQ employee
Call 1-866-896-LDEQ or e-mail our Customer Service Center with questions or comments