February 9, 2018 Article

Environmental Alert: EPA Bumps Up Civil Penalties

Environmental Alert

Recently the U.S. Environmental Protection Agency (EPA) issued a final rule to adjust civil monetary penalties under statutes it administers. See 83 Fed. Reg. 1190 (January 10, 2018). Penalty amounts are adjusted annually under the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, which sets forth a formula for the annual adjustments. The purpose is to reflect inflation, maintain the deterrent effect of statutory civil penalties, and promote compliance with statutory requirements.

For example, per day penalties applicable to Resource Conservation and Recovery Act (RCRA) violations will now range from $14,543 to $72,718. Penalties for Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and Emergency Planning and Community Right-to-Know Act (EPCRA) violations will now be up to $55,907 per day. Penalties under other environmental statutes administered by EPA have also been adjusted. See 83 Fed. Reg. 1190, 1193-94 (January 10, 2018).

Keep in mind that the annual adjustment will not necessarily result in revised penalty amounts pursued by EPA under its civil penalty policies, which guide enforcement personnel in how to exercise statutory penalty authority and consider fact-specific circumstances (e.g., seriousness of a violation, good faith efforts to comply, economic benefit gained by a violator as a result of noncompliance, and ability to pay).

The final rule became effective on January 15, 2018. The adjusted penalties apply to violations that occurred after November 2, 2015, where penalties are assessed on or after January 15, 2018.

Up-to-date knowledge regarding current penalty policies applicable to violations of EPA statutes and regulations as well as historically pertinent precedents in similar situations is necessary to accurately evaluate and respond to allegations of noncompliance.

Contact Laura Rideout at [email protected] for additional information regarding EPA enforcement practices and penalties that may be applicable to a particular EPA violation.