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Clearing the Air on Supplemental Environmental Projects

Supplemental environmental projects (SEPs) have received a growing amount of attention in recent years, from the Donald Trump Administration banning their use in settlements, to regulation and guidance from the Joseph Biden Administration reversing the ban, to legislative proposals prohibiting them altogether. This Article examines SEPs’ legality under existing law, focusing on claims that they violate the Miscellaneous Receipts Act and the Antideficiency Act. It begins with a brief history of SEPs’ policy evolution and the limitations on the U.S. Environmental Protection Agency’s and U.S.

89 FR 35091

EPA entered into a proposed settlement agreement under the CAA in Nevada Cement Co., LLC v. EPA, Nos. 23-682 and 23-1098 (9th Cir.), that would establish a process and deadlines by which plaintiff would apply to EPA for a case-by-case emissions limit request for its Fernley, Nevada, facility, in exchange for agreeing to lift a judicial stay. 

89 FR 34137

SIP Approval: New Hampshire (revisions to establish nitrogen oxide reasonably available control technology requirements for coal-fired cyclone boilers). 

89 FR 34178

SIP Proposal: California (revisions to San Diego County Air Pollution Control portion of plan to expand existing provision that exempts tub grinders and trommel screens that process green material from permit requirements to include horizontal grinders and processing of mixtures of green material and food material).