On August 1, 2016, maximum civil penalties imposed by the US Environmental Protection Agency (EPA) and the Occupational Safety and Health Administration (OSHA) increased significantly pursuant to interim final rules these agencies published to implement a little-observed statute called the Federal Civil Penalties Inflation Adjustments Act Improvements Act of 2015, writes Mehran Massih at law firm Shearman & Sterling.
The new law, which became effective on November 2, 2015, requires federal agencies to make an initial “catch-up” adjustment through interim rulemaking, capped at a 150% increase over values in effect as of November 2, 2015. Thereafter, agencies must annually provide a review of statutory civil penalties accounting for inflation by January 15 on each year, beginning in 2017.
The maximum increases announced by EPA and OSHA apply to civil penalties assessed after August 1, 2016 for violations that occurred after November 2, 2015.
Under the EPA’s interim final rule, the maximum civil penalty EPA may recover varies depending on the regulations EPA is enforcing.
- Relevant key examples are as follows:
- Maximum penalties for violations under the Clean Air Act, 42 U.S.C. section 7413(b), for failure to comply with permits for major stationary sources increased from $37,500 to $93,750 per day per violation
- Maximum penalties for violations of hazardous waste rules under the Resource Conservation and Recovery Act, 42 U.S.C. section 6928(g), increased from $37,500 to $70,117 per day per violation
- Maximum penalties for violations of an effluent limit under the Clean Water Act, 33 U.S.C. section 1319(d), increased from $37,500 to $51,570 per day per violation
- Maximum penalties for violations under the Emergency Planning and Community Right-to-Know Act, 42 U.S.C. section 11045(b)(1)(A), and the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. section 9606(b)(1), for failure to comply with release reporting requirements increased from $37,500 to $53,907 per day per violation.
In determining whether to seek a maximum penalty, EPA will continue to apply its civil penalty policies, which take into account a number of fact-specific considerations such as 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 the violator’s ability to pay. On July 27, 2016, EPA made changes to several of its civil penalty policies in light of these increases, applying inflation adjustment multipliers under certain circumstances.
In its interim final rule, OSHA increased maximum civil penalties by 78%, as OSHA had not made any inflationary increase since 1990.
Relevant key increases are as follows:
- Maximum penalties for willful and repeated violations increased from $70,000 to $124,709 per violation
- Maximum penalties for serious and other-than-serious violations increased from $7,000 to $12,471 per violation
- Maximum penalties for failure-to-abate violations increased from $7,000 to $12,471 per day per violation
The Department of the Interior also increased civil penalties across a range of their bureau agencies, including the Office of Natural Resources Revenue, The Bureau of Land Management and the Office of Surface Mining Reclamation and Enforcement.
The effective dates spanned from mid-July to early August 2016, with increases reflecting a range of 78% to 150%, depending on the agency. Some of the interim final rules provided comment periods.