Administrative Consent Agreement Fact Sheet

Date: October 2019     Contact: (207) 287-2811

Summary

Violations of Maine’s environmental laws may warrant resolution in a written binding document that requires corrective actions by a violator and payment of monetary penalties. These written resolutions are accomplished through voluntary agreements entered into between a violator, the Maine Department of Environmental Protection (Maine DEP) and Maine Department of Attorney General (Maine AG). This fact sheet reviews the process associated with resolving violations by agreement with Maine DEP, using an Administrative Consent Agreement.

What are Administrative Consent Agreements?

The Maine Legislature has provided Maine DEP with three primary enforcement tools for resolving significant environmental violations in writing - Administrative Consent Agreements, Administrative Enforcement Hearings and court actions. Maine DEP’s Administrative Consent Agreement authority allows violations to be resolved in a negotiated settlement without the need for going to court. Administrative Consent Agreements are voluntary, and the terms and conditions of such agreements are the product of a negotiation process between the violator, Maine DEP and Maine AG. If the Administrative Consent Agreement process is initiated, but ultimately fails to result in an agreement, Maine DEP or the Maine AG may initiate judicial proceedings to achieve a resolution.

Why are Administrative Consent Agreements proposed?

Maine DEP staff is responsible for inspecting records and sites throughout the State to ensure that people and businesses comply with Maine’s environmental laws. When a violation is discovered, Maine DEP staff documents what they observed and notify those they believe are responsible for those violations. An Administrative Consent Agreement may be proposed to resolve documented violations after Maine DEP staff and management look at the individual facts and factors in a case and determine whether an Administrative Consent Agreement is appropriate.

Who writes and approves a proposed Administrative Consent Agreement?

If Maine DEP determines that an Administrative Consent Agreement is appropriate, Maine DEP staff trained in case evaluation and resolution drafts a proposed agreement. Often the person drafting the Administrative Consent Agreement is the same person that investigated and documented the violations. Once a draft of the proposed Administrative Consent Agreement is created, supervisors, the Maine DEP Enforcement Specialist, and the Maine AG review the draft prior to it being sent to the violator.

What happens once a proposed Administrative Consent Agreement is sent to the violator?

Proposed Administrative Consent Agreements are based on the information known to Maine DEP as a result of its investigations. The settlement terms contained in a proposed Administrative Consent Agreement are what the Maine DEP believes will constitute a full and fair settlement of the matter. The recipient should carefully read the proposed Administrative Consent Agreement and any correspondence accompanying the proposal. If the recipient disagrees with the facts, required corrective actions, or proposed penalty, the recipient has the opportunity to respond to the proposal in writing or request a meeting to discuss the proposal with Maine DEP staff. Maine DEP is required by law to provide a reasonable period of time for the violator to respond to a proposed Administrative Consent Agreement and must offer the violator an opportunity to meet with Maine DEP staff to discuss the terms of the agreement. Any deadline for responding to a proposed Administrative Consent Agreement, or for acknowledging receipt of the proposal, should be respected in order to show negotiation in good-faith.

What are the factors used to calculate the civil monetary penalty?

Maine DEP staff calculates civil monetary penalties through the evaluation of the environmental aspects of a case, the circumstances in which the violation occurred and the deterrent effect the civil monetary penalty may have.

In evaluating the environmental and public health aspects of the case, Maine DEP staff considers:

• the environmental sensitivity where the violation occurred;
• the size of the area affected by the violation; the damage done to the environment and its potential for remediation;
• the type of activity and the general legality of such activities; the degree of deviation from standards and/or limits;
• the potential effect to human health; and
• the type of pollutant involved in the violation.

In evaluating the circumstances of the violation, Maine DEP staff considers:

• the violator's knowledge of the laws;
• the foreseeability of the violation and environmental effects;
• the cause of the violation;
• whether the violator took steps to mitigate the violations;
• how the violation was discovered by the Maine DEP;
• whether there has been restoration;
• the speed in which the violator responded to correct their violation;
• the quality of the violator’s response;
• the potential for recurring violations;
• the level of cooperation with Maine DEP once the violation was discovered; and
• the compliance history of the violator.

Other factors Maine DEP staff considers when calculating a civil monetary penalty include:

• the deterrent effect the penalty may have on the violator and others;
• whether the violator has committed either the same or similar violations in past five years;
• whether the violator received a financial gain that was derived either through avoided costs, economic benefits, or ill-gotten gains; and
• the violator's ability to pay the penalty.

What are Supplemental Environmental Projects?

Maine law authorizes Maine DEP to include environmentally beneficial projects, known as Supplemental Environmental Projects (“SEPs”), as part of an Administrative Consent Agreement. Generally, penalties associated with consent agreements are paid to the State’s general fund or one of several funds dedicated to Maine DEP activities. The SEP law allows the penalty, other than that portion of the penalty addressing economic benefit, to be directed to an SEP. SEPs are not a tool for bringing persons charged with a violation into compliance with environmental requirements. Rather, SEPs are environmentally beneficial activities that a person charged with a violation voluntarily agrees to perform as part of an enforcement resolution, but that the violator is not otherwise obligated or likely to perform.

What happens after the violator signs the Administrative Consent Agreement?

Pursuant to Maine law, all Administrative Consent Agreements must be approved by the Board of the Maine Department of Environmental Protection (Board) and the Maine AG. After the Maine DEP receives a signed Administrative Consent Agreement from the violator, Maine DEP staff submits the agreement to the Board for its consideration and approval, which occur during a scheduled meeting of the Board. If the agreement is approved by the Board, it is sent to the Maine AG for signature. If the Board rejects the Administrative Consent Agreement, it is sent back to Maine DEP staff to be either renegotiated or resolved in another manner.

For statutory authority, please refer to:
38 M.R.S. § 347-A
38 M.R.S. § 348
38 M.R.S. § 341-D

Last revised: 10/2019