January 01, 2016

A Few Thoughts on EPA’s Updated SEP Policy

Colin G. Van Dyke

Earlier this year, the U.S. Environmental Protection Agency (EPA) issued an “update” to its 1998 Supplemental Environmental Project (SEP) Policy. According to EPA, the updated SEP Policy (Updated Policy), available at www2.epa.gov/sites/production/files/2015-04/documents/sepupdatedpolicy15.pdf, “reflects and incorporates” the numerous guidance documents published and practices developed subsequent to its 1998 Policy. The Updated Policy is intended to “facilitate and streamline” the use of SEPs in settlements. This article reviews the role of SEPs in settlements with EPA, summarizes a few key features of the Updated Policy, and observes that EPA’s primary objective in updating its SEP Policy likely is to promote consistency. A focus on consistency should benefit settlement negotiations by leading to earlier and more organized evaluations of whether to include a SEP. It could, however, lead to more rigid evaluations by EPA enforcement lawyers and that, in turn, could discourage consideration and approval of more creative, but equally beneficial, projects.

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