The (much!) Higher Cost of Non-Compliance: Federal Civil Penalties Increase

EPA has released an interim final rule with penalty adjustments mandated by a new law (“Interim Rule” or “Rule”). Most importantly, the “catch up” adjustments under the Interim Rule carry quite a wallop for those subject to any of a wide variety of violations (rule available here). For example, the maximum daily penalty for violating the Resource Conservation and Recovery Act (RCRA), which governs treatment, storage and disposal of hazardous waste, was originally $25,000 previously adjusted for inflation to $37,500. But under the Interim Rule’s new increases, EPA can now seek a maximum of $70,117 per day of violation. As it stands today, the Rule applies to penalties arising from violations occurring after November 2, 2015 where penalties are assessed after August 1, 2016. And it is not just EPA hiking the penalties, as we mention at the end of this article, other federal agencies are doing the same.

Why this is Happening – the Legislative Background

In 2015, Congress passed the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (the Act), which required federal agencies to adjust maximum civil monetary penalties (CMP) to account for inflation. Section 701 of the Act mandated two adjustments

• First, the Act required an initial “catch-up” adjustment, capped at 150% of the value of each CMP, as of November 2015. Agencies published notice of their “catch-up” adjustments in the form of interim final rules by or before July 1, 2016; and
• Second, beginning January 15, 2017, agencies must adjust CMPs annually instead of every four years as they previously did. The Act also removed “notice and comment” rulemaking requirements. Instead, agencies will follow annual guidance from the Office of Management and Budget (OMB) on calculating CMP adjustments.

EPA’s Interim Final Rule

Table 2 of the EPA’s Interim Rule identifies over 65 maximum penalty increases across the environmental statutes the agency enforces. Amounts vary, but the Clean Air Act saw the largest hike. In 2014, an operator’s failure to comply with a major stationary source permit could yield a $37,500 maximum penalty. Today, that same violation could result in a maximum penalty of $93,750 per day per violation. Other examples include:

• Clean Water Act – maximum penalties for violations of an effluent limit increased from $37,500 to $51,570 per day per violation.
• Emergency Planning and Community Right-to-Know Act (EPCRA) and the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) – maximum penalties for failure to comply with release reporting requirements increased from $37,500 to $53,907 per day per violation.
• Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) – maximum civil penalties for violations increased from $7,500 to $18,750 per violation.

The increases apply to civil penalties assessed after August 1, 2016 whose associated violations occurred after November 2, 2015. Violations occurring on or before November 2, 2015, as well as assessments made prior to August 1, 2016, will continue to be subject to the civil penalty amounts previously in effect. EPA will continue to weigh fact-specific considerations, including the seriousness of the violation, the violator’s good-faith efforts to comply, economic benefit gained by the violator as a result of noncompliance, and a violator’s ability to pay, when determining the appropriate penalty, up to the new maximum.

Civil Maximum Penalties Increase Across Federal Agencies

The Act applies to federal agencies across the board. Therefore, Final Interim Rules published during the summer of 2016 increased CMPs from enforcement agencies including the Federal Trade Commission (FTC), Consumer Financial Protection Bureau (CFPB), Securities and Exchange Commission (SEC), Department of Energy (DOE), Federal Energy Regulatory Commission (FERC), Department of Transportation (DOT), the Federal Aviation Administration (FAA) and many others.

What does this mean for businesses?

Businesses should look to invest in compliance assessments and be proactive in implementing corrective actions because the cost of non-compliance just went up and will continue to do so each year.