OSHA, EPA and FWS Finalize New Maximum Civil Penalties
The financial penalties that federal agencies may impose on the regulated community as restitution (or a deterrent) for any violation of statutes/regulations or permit requirements are about to go way up, some by as much as 150 percent. The U.S. Occupational Safety and Health Administration (OSHA), the U.S. Environmental Protection Agency (EPA), and the Fish and Wildlife Service (FWS) – to name a few – all have finalized penalty increases that take effect this summer.
The impending higher fines stem from recent legislation requiring federal agencies to adjust their civil penalties in two significant ways. First, the agencies must promulgate initial “catch up” adjustments through “interim final” rulemakings (meaning without first publishing proposed rules), with the higher penalty levels to take effect no later than Aug. 1, 2016 – as previously reported by AGC (click here and here). Second, looking ahead, federal agencies must make adjustments for inflation “every year” — a change from the prior frequency of “once every 4 years.”
‘Catch-up’ and ‘Annual’ Adjustments
For many agencies, the one-time “catch up” adjustment is significant. Most notable, OSHA’s maximum penalties have increased by approximately 80 percent across the board. Similarly, EPA published more than 65 penalty increases across the various environmental statutes that it administers. For example, the maximum civil penalties for National Pollutant Discharge Elimination System (NPDES) or Section 404 “wetlands” permit program violations (initially set by Congress at $25,000 per day per violation and eventually bumped up to $37,500 in 2009) are now set at $51,570 per day per violation. EPA also increased the Clean Air Act penalty amounts to a new limit of $93,750 — the maximum increase of 150 percent (of the level in effect in November 2015) that is allowed under the 2015 Adjustment Act. In addition, FWS increased the civil penalties for various violations, with some reaching 150 percent of originally enacted values.
As indicated above, federal agencies are required to publish in the Federal Register annual inflation adjustments for civil penalties no later than January 15 of each year, starting in 2017. The 2015 Adjustment Act specifically authorizes agencies to make these subsequent annual adjustments without public comment.
Implementation, Opportunities for Comment
For each federal agency, the effective date of the “catch-up” penalty increase varies, based on when their interim final rule was published in the Federal Register. For OSHA and EPA, for example, the higher penalty amounts take effect on Aug. 1, 2016. For FWS, the penalties go up on July 28, 2016.
In addition, each agency varies regarding the applicability of the adjustments to violations that occurred prior to their respective rule’s effective date. For example, for OSHA and EPA, the new maximum civil penalty amounts will apply to all civil penalties assessed on or after Aug. 1, 2016, for violations that occurred after Nov. 2, 2015 (when the 2015 Adjustment Act was enacted). OSHA and EPA’s existing civil penalty levels will continue to apply to: (i) violations that occurred on or before Nov. 2, 2015, and (ii) violations that occurred after Nov. 2, 2015, where the penalty assessment was made prior to Aug. 1, 2016.
AGC members may wish to submit comments on the impending higher fines for violations of safety and environmental (endangered species-related) requirements, per the instructions and timelines bulleted below.
- OSHA is accepting public comment on its increased penalties until Aug. 15, 2016 – click here to submit comments to the online Docket.
- For FWS’ increased penalties, the public comment period will remain open until Aug. 29, 2016 – click here to submit comments to the online Docket.
- There is no opportunity for public comment on EPA’s increased penalties – click here to view the online Docket.
Consult the above-referenced rulemaking dockets for the relevant Federal Register notices, revised penalty tables and related information.
Note: All federal agencies that have authority to assess civil penalties, not just OSHA, EPA and FSW, will see penalty increases. For instance, AGC members may also be interested that several other Department of Interior agencies increased civil penalties (e.g., Bureau of Land Management and Surface Mining Reclamation and Enforcement Office), as well as other agencies within the Department of Labor (e.g., Wage and Hour Division) and the U.S. DOT’s Pipeline and Hazardous Materials Safety Administration —all effective by August 1 and all open for public comment for varying lengths of time.
If you have further questions, please contact AGC’s Leah Pilconis at pilconisl@agc.org (environmental matters) or AGC’s Kevin Cannon (safety matters) or stay tuned the next issue of these AGC issue-specific newsletters – click here to subscribe.