An Introduction to DEP Enforcement Actions and Supplemental Environmental Projects

By: Rudman Winchell Attorney Daniel Burke

In Maine, the Department of Environmental Protection (“MDEP”) is charged with overseeing the State’s natural resources and enforcing its environmental laws. Its legislative mandate is to prevent, abate and control the pollution of air, water and land and preserve, improve and prevent diminution of the natural environment of the State. To that end, MDEP has the authority to regulate activities that may have an impact on the air, water and land and require the licensing and regulation of those activities. To ensure compliance at regulated facilities, MDEP can utilize, based on the severity of a violation, a number of enforcement actions including documented compliance evaluations, Letters of Warning, Notices of Violation, Administrative Consent Agreements, and civil actions in District or Superior Courts.

As part of administrative and civil enforcement actions, MDEP has the authority to impose civil monetary penalties as well as per diem penalties that can range from $100 up to $10,000 per day and up to $25,000 per day when hazardous substances are involved with a violation. These monetary penalties, at the very least, are designed to re-capture any economic benefit realized by the violator by non-compliance. The per diem penalties, if utilized, are meant to encourage the speedy resolution of violations.

In what has proven to be an effective and popular method of defraying a portion of penalties that may be assessed against a regulated party for a violation, MDEP may incorporate environmentally beneficial projects, known as Supplemental Environmental Projects (“SEPs”) into settlement agreements. SEPs are not implemented to bring a regulated facility into compliance with environmental requirements, but are part of a voluntary, negotiated resolution of a violation. Whether or not to implement a SEP is left to the discretion of MDEP and/or the Attorney General’s office.

A SEP is designed as a project that primarily benefits public health or the environment by furthering MDEP’s statutory mission and confers significant, direct benefit on the public health or the environment which substantially outweighs any benefits that may accrue to the regulated party charged with a violation. SEPs generally include pollution prevention and reduction, environmental enhancement and awareness, scientific research and data collection, and public health projects.

It is the responsibility of the violator to develop and implement a SEP proposal for inclusion in a settlement agreement with MDEP. If approved and incorporated into the final settlement agreement, MDEP may mitigate up to 80% of a monetary penalty based on approved out-of-pocket expenses associated with a SEP, excluding the portion of the penalty addressing the economic benefit of non-compliance.

Incorporating a SEP into an enforcement action may be advisable in many situations. However, SEPs are not applicable to all situations. If you have received correspondence from MDEP concerning an existing or potential violation of the State’s environmental laws, it is best to consult with a qualified attorney. This brief overview is for informational purposes only.