Water Quality Control Board Discusses SEP Ratio
04.20.11 9:43 AMAt the April 2011 meeting of the Water Quality Control Board, Board members discussed at some length the ratios for offsetting civil penalties through supplemental environmental projects (SEPs). It seems that many Board members believe the ratio should be at least 2:1, that is, two dollars in a SEP would offset a dollar in penalty. SEPs facilitate settlements and allow money that would otherwise go to the TDEC's Environmental Protection Fund for administrative expenses to go into environmentally useful projects. Projects allowed by SEPs are for voluntary projects; so, they would not otherwise be required and may not otherwise be done without the SEP. The confusion before the Board manifested itself when the Division presented agreed orders from two separate municipal governments that contained SEPs for replacing broken laterals. One of the agreed orders provided a SEP at a 1:1 ratio and the other a 2:1 ratio. With regard to the 1:1 SEP agreed order, the Board said they would accept the agreed order only conditioned upon it being changed to 2:1. At the conclusion of the meeting Board members appeared to be poised to formally adopt a minimum 2:1 policy for all future SEPs. Patrick Parker advised the Board that such a policy would be contrary to the Department's SEP policy for all other programs and would also be more stringent than EPA's SEP policy. The Board requested a description of the policy from the General Counsel and noted that it would take up the matter again at the July Board meeting.
Service by Board members is truly appreciated by the public. It is time consuming and often painstaking. So, Boards need adequate information to address enforcement matters. Both the Board and the Uniform Administrative Procedures Act encourage informal resolution of contested cases. Settlements are usually arrived at based on the parties' assessment of the relative strength and weaknesses of their case. Therefore, a one size fits all settlement policy, while administratively convenient, will lead to less informal resolution and perhaps unfair results. The various Boards, including the Water Quality Control Board, routinely state that they "want to be consistent" with other cases. True, if all cases were identical, a consistent civil penalty and SEP could be easily adopted; however, many cases have significant differences in terms of risk of litigation, severity and other issues. Thus, it appears to me that the Boards should weigh each case on its own merits rather than trying to hold fast to consistency.
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