By: Erik S. Mroz; Drewry Simmons Vornehm, LLP
In a previous Blog Post, we advised our readers that Congress is requiring all federal agencies to increase their civil monetary penalties. This increase applies to every federal environmental law, including CERCLA, RCRA, the Clean Water Act, the Clean Air Act, the Emergency Planning and Community Right-to-Know Act, The Toxic Substances Control Act and the Federal Insecticide, Fungicide and Rodenticide Act.
On January 10, 2018, the EPA published a Final Rule in response to this Congressional mandate. EPA’s newly increased penalties represent the maximum potential penalty assessment on a per-day / per-violation basis. However, EPA is clear that “[t]he rule does not necessarily revise the penalty amounts that EPA chooses to seek pursuant to its civil penalty policies in a particular case.” EPA goes on to explain that its “civil penalty policies … take into account a number of fact-specific considerations, e.g., the seriousness of the violation, the violator’s good faith efforts to comply, any economic benefit gained by the violator as a result of its noncompliance, and a violator’s ability to pay.”
The new increased penalties will be set forth in Table 2 of 40 CFR § 19.4 and are specified in the Final Rule. For example, civil penalties under CERCLA will increase from $25,000 (as originally enacted) to $55,907. Certain civil penalties under RCRA will increase from $25,000 (as originally enacted) to $72,718. Certain civil penalties under the Clean Water Act will increase from $25,000 (as originally enacted) to $53,484. All of these increased civil penalties will apply to violations that occurred after November 2, 2015 and that are assessed on or after January 15, 2018.