EPA Model Consent Agreement and Final Order

Explanatory text is indicated in bracketed italics type, preceded by the word Note. Placeholder text in which fact specific information should be inserted is indicated in bracketed text.

August 1995 revision.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION __
BEFORE THE ADMINISTRATOR

In the Matter of)
)
[Respondent's Name]) Docket No.
[Respondent's Address])
)
Respondent)

CONSENT AGREEMENT AND ORDER

Complainant, the United States Environmental Protection Agency ("EPA"), having filed the Complaint herein on [date] against Respondent [Respondent's Name], the Parties herein; and

Complainant and Respondent having agreed that settlement of this matter is in the public interest, and that entry of this Consent Agreement and Order without further litigation is the most appropriate means of resolving this matter;

NOW, THEREFORE, before the taking of any testimony, upon the pleadings, without adjudication of any issue of fact or law, and upon consent and agreement of the Parties, it is hereby Ordered and Adjudged as follows:

1. PRELIMINARY STATEMENT
   
   
   1. EPA initiated this proceeding for the assessment of a civil penalty, pursuant to [statute and regulations].
   3. The Complaint alleges that Respondent [describe conduct] in violation of [relevant legal requirements].
   6. Respondent filed an Answer and requested a hearing pursuant to [statute and regulations].
   8. This Consent Agreement and Order shall apply to and be binding upon Respondent, its officers, directors, servants, employees, agents, successors and assigns, including, but not limited to, subsequent purchasers.
   10. Respondent stipulates that EPA has jurisdiction over the subject matter alleged in the Complaint and that the Complaint states a claim upon which relief can be granted against Respondent. Respondent waives any defenses it might have as to jurisdiction and venue, and, without admitting or denying the factual allegations contained in the Complaint, consents to the terms of this Consent Agreement and Order.
   12. Respondent hereby waives its right to a judicial or administrative hearing or appeal on any issue of law or fact set forth in the Complaint.
2. TERMS OF SETTLEMENT
   
   
   1. Pursuant to section _________of [statute], the nature of the violations, Respondent's agreement to perform a SEP and other relevant factors, EPA has determined that an appropriate civil penalty to settle this action is in the amount of [___________ dollars ($______)].
      [Note: In order to avoid conflicts with the Miscellaneous Receipts Act, the civil penalty provisions must be drafted separately from the provisions for implementation of the SEP.]
   3. Respondent consents to the issuance of the Consent Agreement hereinafter recited and consents for the purposes of settlement to the payment of the civil penalty cited in the foregoing paragraph and to the performance of the Supplemental Environmental Project.
      [Note: Remember that the Respondent must consent to the issuance of the Final Order and the performance of the SEP]
   5. Within thirty (30) days of receiving a copy of this Consent Agreement and Order signed by the EPA Regional Administrator, Region , Respondent shall submit a cashier's or certified check, to the order of the "Treasurer, United States of America," in the amount of [_____ dollars ($_____)], to:

Respondent shall provide a copy of the check to:

and

Interest and late charges shall be paid as specified in Paragraph 21 herein.

1. The penalty specified in Paragraph 7, above, shall represent civil penalties assessed by EPA and shall not be deductible for purposes of Federal taxes.
3. [Description of the SEP]
   1. Respondent shall complete the following supplemental environmental project ("SEP"), which the parties agree is intended to secure significant environmental or public health protection and improvements. Within thirty (30) days of receiving a copy of this Consent Agreement signed by the Regional Administrator, Respondent shall [brief description of SEP].
   3. Respondent shall complete the SEP as follows: [Identify key components of the SEP; a milestone schedule may be appropriate if implementation will take longer than 6 months]. The SEP is more specifically described in the scope of work (hereinafter, the "Scope of Work"), attached hereto as Exhibit A and incorporated herein by reference.
   4. [Note: Ensure that the description of the project to be performed is clear, complete and specific. Almost all the details of the project should be set forth in the CAFO or scope of work; negotiations over the type and scope of the SEP must be completed prior to finalization of the CAFO.]
4. [If applicable] [New chemical not more toxic than eliminated chemical] Respondent anticipates that the facility will use [new chemical] as a substitute for [eliminated chemical] in the new systems constituting the SEP. In no event, however, shall any substitute chemical be used in connection with the SEP which is more toxic or hazardous than [new chemical], as such characteristics are described on the material safety data sheet (MSDS) for [new chemical] attached hereto as Exhibit B.]
6. [Cost of SEP] The total expenditure for the SEP shall be not less than [e.g., $x to purchase the equipment and $y to operate the equipment each year for z years], in accordance with the specifications set forth in the Scope of Work. Respondent shall include documentation of the expenditures made in connection with the SEP as part of the SEP Completion Report.
8. [Certification that SEP is not otherwise required]
   Respondent hereby certifies that, as of the date of this Consent Agreement, Respondent is not required to perform or develop the SEP by any federal, state or local law or regulation; nor is Respondent required to perform or develop the SEP by agreement, grant or as injunctive relief in this or any other case.
   Respondent further certifies that it has not received, and is not presently negotiating to receive, credit in any other enforcement action for the SEP.
9. [Note: This language emphasizes that the SEP is not required by any other law (federal, state or local); nor is it required by any other agreement, grant or as injunctive relief in the instant or any other case. In addition, the language precludes Respondent from attempting to obtain double credit for the same project. Also, Respondent cannot be allowed to "bank" projects (i.e. Respondent is not to be given credit for projects it has already commenced or completed in advance of the enforcement action by EPA.)]
11. [SEP Reports]
    1. SEP Completion Report Respondent shall submit a SEP Completion Report to EPA by [construction/installation completion date]. The SEP Report shall contain the following information:
       1. A detailed description of the SEP as implemented;
       2. A description of any operating problems encountered and the solutions thereto;
       3. Itemized costs, documented by copies of purchase orders and receipts or canceled checks;
       4. Certification that the SEP has been fully implemented pursuant to the provisions of this Consent Agreement and Order;and
       5. A description of the environmental and public health benefits resulting from implementation of the SEP (with a quantification of the benefits and pollutant reductions, if feasible).
    2. Periodic Reports Respondent shall submit any additional reports required by the Scope of Work to EPA in accordance with the schedule and requirements recited therein. (Note: For any SEP where implementation is expected to exceed one year, EPA should require submission of periodic reports by Respondent).
    4. Respondent agrees that failure to submit the SEP Completion Report or any Periodic Report required by subsections a) and b) above shall be deemed a violation of this Consent Agreement and Order and Respondent shall become liable for stipulated penalties pursuant to paragraph 20 below.
    6. Respondent shall submit all notices and reports required by this Consent Agreement and Order to [specify name and address] by first class mail.
12. [If applicable] [EPA right to inspect] Respondent agrees that EPA may inspect the facility at any time in order to confirm that the SEP is being undertaken in conformity with the representations made herein.
13. [Note: Consistent with the provisions below for Failure to Complete SEP and EPA To Judge Achievement of SEP, this language provides vehicle for EPA to exercise its discretion in determining if SEP has been completed satisfactorily and whether stipulated penalties should be assessed.]
15. [If applicable:] [Respondent must use SEP] Respondent shall continuously use or operate the systems installed as the SEP for not less than [number] year(s) subsequent to installation, and Respondent shall not reinstate the use of [toxic chemical] at any time.
17. [Document retention and certification] Respondent shall maintain legible copies of documentation of the underlying research and data for any and all documents or reports submitted to EPA pursuant to this Consent Agreement, and Respondent shall provide the documentation of any such underlying research and data to EPA within seven days of a request for such information. In all documents or reports, including, without limitation, the SEP Report, submitted to EPA pursuant to this Consent Agreement, Respondent shall, by its officers, sign and certify under penalty of law that the information contained in such document or report is true, accurate, and not misleading by signing the following statement:I certify under penalty of law that I have examined and am familiar with the information submitted in this document and all attachments and that, based on my inquiry of those individuals immediately responsible for obtaining the information, I believe that the information is true, accurate, and complete. I am aware that there are significant penalties for submitting false information, including the possibility of fines and imprisonment.
18. [EPA acceptance of SEP Report]
    1. Following receipt of the SEP Report described in paragraph 15 above, EPA will do one of the following: (I) accept the SEP Report; (ii) reject the SEP Report, notify the Respondent, in writing, of deficiencies in the SEP Report and grant Respondent an additional thirty (30) days in which to correct any deficiencies; or (iii) reject the SEP Report and seek stipulated penalties in accordance with paragraph 20 herein.
    3. If EPA elects to exercise option (ii) above, EPA shall permit Respondent the opportunity to object in writing to the notification of deficiency or disapproval given pursuant to this paragraph within ten (10) days of receipt of such notification. EPA and Respondent shall have an additional thirty (30) days from the receipt by the EPA of the notification of objection to reach agreement. If agreement cannot be reached on any such issue within this thirty (30) day period, EPA shall provide a written statement of its decision to Respondent, which decision shall be final and binding upon Respondent. Respondent agrees to comply with any requirements imposed by EPA as a result of any such deficiency or failure to comply with the terms of this Consent Agreement and Order. In the event the SEP is not completed as contemplated herein, as determined by EPA, stipulated penalties shall be due and payable by Respondent to EPA in accordance with paragraph 20 herein.
19. [Stipulated Penalties for Failure to Complete SEP/Failure to spend agreed-on amount]
    1. In the event that Respondent fails to comply with any of the terms or provisions of this Agreement relating to the performance of the SEP described in paragraph 11 above and/or to the extent that the actual expenditures for the SEP do not equal or exceed the cost of the SEP described in paragraph 13 above, Respondent shall be liable for stipulated penalties according to the provisions set forth below:
       1. Except as provided in subparagraph (ii) immediately below, for a SEP which has not been completed satisfactorily pursuant to this Consent Agreement and Order, Respondent shall pay a stipulated penalty to the United States in the amount of $ [50 - 100 percent of the amount by which the settlement penalty was mitigated on account of the SEP].
       3. If the SEP is not completed satisfactorily, but the Respondent: a) made good faith and timely efforts to complete the project; and b) certifies, with supporting documentation, that at least 90 percent of the amount of money which was required to be spent was expended on the SEP, Respondent shall not be liable for any stipulated penalty.
       5. If the SEP is satisfactorily completed, but the Respondent spent less than 90 percent of the amount of money required to be spent for the project, Respondent shall pay a stipulated penalty to the United States in the amount of $[10 - 25 percent of the amount by which the settlement penalty was mitigated on account of the SEP].
       7. If the SEP is satisfactorily completed, and the Respondent spent at least 90 percent of the amount of money required to be spent for the project, Respondent shall not be liable for any stipulated penalty.
       9. For failure to submit the SEP Completion Report required by paragraph 15(a) above, Respondent shall pay a stipulated penalty in the amount of $[amount] for each day after [date in paragraph 15] until the report is submitted.
       11. For failure to submit any other report required by paragraph 15(b) above, Respondent shall pay a stipulated penalty in the amount of $[amount] for each day after the report was originally due until the report is submitted.
    2. The determinations of whether the SEP has been satisfactorily completed and whether the Respondent has made a good faith, timely effort to implement the SEP shall be in the sole discretion of EPA.
    4. Stipulated penalties for subparagraphs (v) and (vi) above shall begin to accrue on the day after performance is due, and shall continue to accrue through the final day of the completion of the activity.
    6. Respondent shall pay stipulated penalties within fifteen (15) days of receipt of written demand by EPA for such penalties. Method of payment shall be in accordance with the provisions of paragraph 9 above. Interest and late charges shall be paid as stated in paragraph 21 herein.
    8. Nothing in this agreement shall be construed as prohibiting, altering or in any way limiting the ability of EPA to seek any other remedies or sanctions available by virtue of Respondent's violation of this agreement or of the statutes and regulations upon which this agreement is based, or for Respondent's violation of any applicable provision of law.
    9. [Note: Language included for payment of an additional penalty for non-completion of SEP or failure to expend amount of funds committed to in Consent Agreement must not appear to give EPA a choice between: 1) collection of an additional penalty; or 2) additional SEP expenditures by Respondent. Such a provision might appear to give EPA control or discretion over the use of penalty dollars. Unlike a SEP, all assessed penalty dollars must be deposited in the Treasury.]
20. Payment Provisions: Pursuant to 31 U.S.C. Section 3717, EPA is entitled to assess interest and penalties on debts owed to the United States and a charge to cover the cost of processing and handling a delinquent claim. Interest will therefore begin to accrue on a civil or stipulated penalty if it is not paid by the last date required. Interest will be assessed at the rate of the United States Treasury tax and loan rate in accordance with 4 C.F.R. Section 102.13(c). A charge will be assessed to cover the costs of debt collection, including processing and handling costs and attorneys fees. In addition, a non-payment penalty charge of six (6) percent per year compounded annually will be assessed on any portion of the debt which remains delinquent more than ninety (90) days after payment is due. Any such non-payment penalty charge on the debt will accrue from the date the penalty payment becomes due and is not paid. 4 C.F.R. Section 102.13(d) and (e).
21. [Note: Penalty and interest provisions and recovery of attorneys fees may vary by statute. If appropriate, substitute a statute-specific collection authority in this paragraph. The maximum non-payment penalty charge is six (6) percent unless a statute specifically provides otherwise.]
23. [Public statements must acknowledge enforcement action]
    Any public statement, oral or written, in print, film, or other media, made by Respondent making reference to the SEP shall include the following language, "This project was undertaken in connection with the settlement of an enforcement action taken by the U.S. Environmental Protection Agency for violations of [citation to legal requirements violated]."
25. [No relief from compliance; no endorsement by EPA]
    This Consent Agreement and Order shall not relieve Respondent of its obligation to comply with all applicable provisions of federal, state or local law, nor shall it be construed to be a ruling on, or determination of, any issue related to any federal, state or local permit, nor shall it be construed to constitute EPA approval of the equipment or technology installed by Respondent in connection with the SEP under the terms of this Agreement.
27. [Force Majeure--if appropriate and requested by Respondent]
    
    1. If any event occurs which causes or may cause delays in the completion of the SEP as required under this Agreement, Respondent shall notify Complainant in writing within 10 days of the delay or Respondent's knowledge of the anticipated delay, whichever is earlier. The notice shall describe in detail the anticipated length of the delay, the precise cause or causes of the delay, the measures taken and to be taken by Respondent to prevent or minimize the delay, and the timetable by which those measures will be implemented. The Respondent shall adopt all reasonable measures to avoid or minimize any such delay. Failure by Respondent to comply with the notice requirements of this paragraph shall render this paragraph void and of no effect as to the particular incident involved and constitute a waiver of the Respondent's right to request an extension of its obligation under this Agreement based on such incident.
    3. If the parties agree that the delay or anticipated delay in compliance with this Agreement has been or will be caused by circumstances entirely beyond the control of Respondent, the time for performance hereunder may be extended for a period no longer than the delay resulting from such circumstances. In such event, the parties shall stipulate to such extension of time.
    5. In the event that the EPA does not agree that a delay in achieving compliance with the requirements of this Consent Agreement and Order has been or will be caused by circumstances beyond the control of the Respondent, EPA will notify Respondent in writing of its decision and any delays in the completion of the SEP shall not be excused.
    7. The burden of proving that any delay is caused by circumstances entirely beyond the control of the Respondent shall rest with the Respondent. Increased costs or expenses associated with the implementation of actions called for by this Agreement shall not, in any event, be a basis for changes in this Agreement or extensions of time under section (b) of this paragraph. Delay in achievement of one interim step shall not necessarily justify or excuse delay in achievement of subsequent steps.
28. Respondent hereby agrees that any funds expended in the performance of the SEP shall not be deductible as a business expense for purposes of Federal taxes. In addition, Respondent hereby agrees that, within thirty (30) days of the date it submits its Federal tax reports for the calendar year in which the above-identified SEP is completed, it will submit to EPA [identify EPA official] certification that any funds expended in the performance of the SEP have not been deducted from Federal taxes.
29. [Note: If Respondent is not willing to agree to this provision, omit it but then the after-tax cost of the SEP should be used in the Calculation of the Cost of the SEP. See page 12 of the Interim Revised SEP Policy.]
31. This Consent Agreement and Order constitutes a settlement by EPA of all claims for civil penalties pursuant to [cite statute] for the violations alleged in the Complaint. Nothing in this Consent Agreement and Order is intended to nor shall be construed to operate in any way to resolve any criminal liability of the Respondent. Compliance with this Consent Agreement and Order shall not be a defense to any actions subsequently commenced pursuant to Federal laws and regulations administered by EPA, and it is the responsibility of Respondent to comply with such laws and regulations.
33. Each undersigned representative of the parties to this Consent Agreement certifies that he or she is fully authorized by the party represented to enter into the terms and conditions of this Consent Agreement and to execute and legally bind that party to it.
35. Each party shall bear its own costs and attorneys fees in connection with the action resolved by this Consent Agreement and Order.

1. ORDER

The foregoing Consent Agreement is hereby approved and incorporated by reference into this Order. The Respondent is hereby ordered to comply with the terms of the above Consent Agreement, effective immediately.

Date: ________________

______________________________
[Regional Administrator or delegatee]
[Title]
U.S. Environmental Protection Agency
Region __