In January 2017, both EPA and OSHA increased civil penalties for new enforcement cases. While the increases became effective just days before the new Administration took office, the increases are a result of Congressional action in 2015 to annually adjust civil penalties for inflation by January 15 of each new calendar year.
Ask any environmental lawyer about statutory civil and administrative penalties under the major environmental laws and she or he may immediately reference the $25,000 per day, per violation standards set forth in the statutory text of the Clean Air Act, Clean Water Act, and RCRA among others. In 2015, however, Congress passed the Federal Civil Penalty Inflation Adjustment Act, codified at 28 USC 2461. “The purpose of the 2015 Act is to maintain the deterrent effect of civil penalties by translating originally enacted statutory civil penalties amounts to today’s dollars.” 82 Fed. Reg. 3633, at 3634.
EPA’s new increased civil fines take effect for penalties assessed by EPA after January 15, 2017, in connection with violations that occurred after November 2, 2015. 82 Fed. Reg. 3633 (January 12, 2017). As a result of the inflationary updates, many of the environmental penalties now range between $52,414 and $54,789, although some of the penalties are as much as $95,284 per day, per violation.
The OSHA penalty increases took effect January 13, 2017. 82 Fed. Reg. 5373 (January 18, 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).