Most federal actions against businesses or individuals for failure to comply with the environmental laws are resolved through settlement agreements. On March 10, the U.S. Environmental Protection Agency (EPA) issued a newly revised 2015 Update to its Supplemental Environmental Project (SEP) Policy, thereby superseding prior Supplemental Environmental Project (SEP) policies. According to EPA, a SEP “is an environmentally beneficial project or activity that is not required by law, but that a party agrees to undertake as part of the settlement of an enforcement action – usually in return for penalty mitigation.” As part of resolving either administrative or judicial enforcement actions, “the final settlement penalty will be lower for a violator who agrees to perform an acceptable SEP, compared to the violator who does not.”
EPA’s 2015 SEP Policy Update consolidates all existing EPA guidance on the use of SEPs and it improves and explains EPA policy on several important points -- and in that capacity alone it is of great value. It provides an authoritative source to guide SEP negotiations and hopefully expedite and encourage the use of this useful enforcement settlement tool. For more information, click here.
Future Trends in EPA Enforcement
In related news, AGC recently reported that the enforcement chief at EPA headquarters has directed agency staff to incorporate advanced monitoring, electronic reporting and independent third party auditing into settlement agreements to resolve alleged environmental violations. These “Next Generation” tools may be incorporated through injunctive relief, mitigation measures and SEPs. AGC expects this to facilitate citizen oversight of environmental laws.
For more information, please contact Leah Pilconis at pilconisl@agc.org.