Administrative Consent Agreement Fact Sheet

Date: June 2011     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 either accomplished by voluntary agreements entered into between a violator and the Maine Department of Environmental Protection (Maine DEP) or after going before one of Maine’s judicial courts.  This fact sheet reviews the process associated with resolving violations by agreement with Maine DEP, using a so-called Administrative Consent Agreement.

What are Administrative Consent Agreements?

Maine’s legislature has provided Maine DEP with two primary enforcement tools for resolving significant environmental violations in writing — Administrative Consent Agreements 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 and Maine DEP.   If the Administrative Consent Agreement process is initiated, but ultimately fails to result in an agreement, Maine DEP 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 violations are discovered, Maine DEP staff document what they observed.  An Administrative Consent Agreement may be proposed to resolve documented violations when they are environmentally or legally significant, including: where significant harm to human health or the environment is threatened or has occurred; when an alleged violator has not cooperated in resolving environmental threats or harm; when a violator has financially benefited from the violations; when a violator knew of or should have known of the requirement; or where there is a pattern of violations.  Maine DEP staff and management look at the individual facts 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 draft 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 director, and an Assistant Attorney General review and comment on the draft.  Any comments received by the drafter will be resolved prior to the proposed agreement 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 our investigation.  The settlement terms contained in a proposed Administrative Consent Agreement are what Maine DEP believes will constitute a full and fair settlement of the matter as it is understood by Maine DEP.  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 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 up to 80% of a 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 Commissioner of the Maine Department of Environmental Protection and the Attorney General.  After the Maine DEP receives a signed Administrative Consent Agreement from the violator, Maine DEP staff forwards the agreement to the Commissioner for signature.  All administrative Consent Agreements are subject to public comment while pending signature by the Commissioner.  If the agreement is accepted by the Commissioner, it is sent to the Attorney General’s office for signature.  If the agreement is rejected, it is sent back to Maine DEP staff to be either renegotiated or resolved in another manner.

Last revised: 06/2011

Administrative Consent Agreements -4 OC/93-1/r11