Negotiating Settlements and Penalties Stemming From Environmental Audits

Leveraging Self-Audits to Reduce Enforcement Risks and Minimize Penalties

Recording of a 90-minute CLE webinar with Q&A


Conducted on Wednesday, April 6, 2016

Recorded event now available

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Program Materials

This CLE webinar will provide guidance to counsel negotiating settlements and penalties stemming from environmental self-audits. The panel will discuss commonly negotiated terms and immunity opportunities, as well as leveraging the result of a self-audit in negotiations.

Description

Environmental self-audits are an essential part of a compliance program to ensure regulatory compliance; they offer an opportunity to correct potential violations, and, where violations are found, to reduce enforcement risk through self-reporting and negotiated settlements. While environmental self-audits may also provide evidence of violations, the sentencing guidelines give substantial credit for having strong prevention programs and self-reporting. Companies and their counsel may elect to use the audits in negotiations to prove a lesser penalty is warranted.

When faced with an agency enforcement action, companies should consider settlement of the charges and negotiating penalties. For companies to get in front of an investigation and potential settlement, counsel must recognize that, even though the EPA has published model settlement documents, each settlement provision must be considered on a case-by-case basis as each negotiated document is different.

Penalties are often the focus of settlement consideration, but counsel should expect the EPA to impose compliance obligations on top of penalties. The cost and realistic schedule for compliance should be given serious consideration. Counsel must also explore the possibility of having a portion of a penalty waived in favor of some supplemental environmental project.

Listen as our panel of environmental attorneys examines the key issues associated with a typical negotiated settlement that stems from self-reported violation identified in a self-audit. The panel will discuss commonly negotiated terms, immunity opportunities, and will provide guidance on negotiating penalties. The panel will also explore ways to achieve an outcome that will be fair and workable.

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Outline

  1. Consent agreement
  2. Commonly negotiated issues
    1. Admissions
    2. Waivers
    3. Financial responsibility
    4. Penalties
    5. Termination release/covenants
  3. Best practices for negotiations

Benefits

The panel will review these and other key issues:

  • What factors should companies and their counsel consider when determining whether to seek settlement of an enforcement action stemming from an environmental audit?
  • What are the challenges and pitfalls for negotiating settlements and penalties with the EPA?
  • How can companies leverage the results of an audit in settlement negotiations?

Faculty

McHenry, Thomas J.P.
Thomas J. P. McHenry

Partner
Gibson Dunn & Crutcher

Mr. McHenry practices general environmental law with an emphasis on air quality, hazardous waste, environmental...  |  Read More

Bruce Pasfield
Bruce Pasfield

Partner
Alston & Bird

Mr. Pasfield is an experienced trial attorney whose practice focuses on environmental and business litigation. Clients...  |  Read More

Andrew R. Stewart
Andrew R. Stewart

Counsel
Vinson & Elkins

Drawing upon his experience as a senior manager at the U.S. EPA and nearly 20 years in environmental law, Mr. Stewart...  |  Read More

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