Both the U.S. Environmental Protection Agency (EPA) and the U.S. Occupational Safety and Health Administration (OSHA) have increased civil penalties for new enforcement cases. This is the second time in six months that these federal agencies have raised their penalties for environmental or safety/health violations.
As previously reported by AGC, in late 2015, Congress amended the Federal Civil Penalty Inflation Adjustment Act of 1990, codified at 28 USC 2461, requiring federal agencies:
- To raise their penalty structures to account for inflation (these one-time “catch-up adjustments” happened in summer 2016); and
- Beginning Jan. 15, 2017, to annually review their statutory civil penalties and make adjustments to account for inflation.
EPA’s new increased civil fines took effect for penalties assessed by EPA after Jan. 15, 2017, in connection with violations that occurred after Nov. 2, 2015. The maximum penalties across the various environmental statutes vary, for example:
- Fines for Clean Water Act (CWA) Section 402 (stormwater discharges) or Section 404 (dredge or fill material discharges) permit violations can reach $52,414 per day, per violation (up from $51,570).
- Fines for Emergency Planning and Community Right-to-Know Act (EPCRA) paperwork violations can reach $54,789 per day, per violation (up from $53,907).
- Fines for Toxic Substances Control Act (TSCA) chemical (e.g., lead-based paint dust) management, reporting, and recordkeeping violations can reach $38,114 per day, per violation (up from $37,500).
- Fines for violations of the Resources Conservation and Recovery Act (RCRA) hazardous waste storage, management, and disposal requirements can reach $71,264 per day, per violation (up from $70,117).
The OSHA penalty increases took effect Jan. 13, 2017. OSHA penalties are now:
- $12,675 per violation (for conduct that is Serious, Other-Than-Serious, Posting Requirements, and Failure to Abate for each day); and
- $126,749 per violation (for conduct that is Willful or Repeated).
States that operate their own Occupational Safety and Health Plans are required to adopt maximum penalty levels that are at least as effective as Federal OSHA's.
2016 Was a ‘Record Year’ for Environmental Enforcement
The Department of Justice’s Environment and Natural Resources Division (ENRD), which handles all environmental litigation on behalf of the United States, recently announced that 2016 was one of the most successful years in its history of over a century. The year 2016 brought in the highest recoveries in environmental enforcement, record-setting recoveries in natural resource damages, and the highest criminal penalties. To learn more, see the division’s 2016 Accomplishments Report. Notably, the report references ENRD’s new responsibility for criminal worker safety prosecutions under the new “Worker Safety Initiative.” ENRD and the U.S. Attorneys’ Offices have been working with OSHA staff to investigate and prosecute worker endangerment violations in conjunction with environmental crimes, which the government believes often occur concurrently on a jobsite. Environmental statutes carry much harsher criminal penalties as well as significant jail time.
Guidelines for Joint State-Federal Civil Environmental Enforcement
In related news, the Department of Justice’s Environment and Natural Resources Division and the National Association of Attorneys General recently announced the availability of Guidelines for Joint State/Federal Civil Environmental Enforcement Litigation. The Guidelines provide a general framework for cooperation between sovereigns in joint civil environmental enforcement litigation. You can access the Guidelines on the ENRD website.
For more information, please contact AGC’s Senior Environmental Advisor Leah Pilconis at pilconisl@agc.org.