U.S. EPA slightly increased its maximum monetary civil penalties for violations of air, water, chemical, and hazardous waste programs on December 23, 2020. The increases in maximum penalty amounts were implemented to keep pace with inflation. The new maximum penalty amounts shown below will apply to environmental violations that occurred after November 2, 2015 and for which penalties are assessed on or after December 23, 2020.

While typical environmental violations don't result in maximum penalties, these figures will guide EPA's enforcement decisions in the new year. A summary of maximum penalties per day, per violation for various programs are as follows.

Even incremental increases in the statutory maximum civil penalties for a single violation can add up to significant penalties where the violation is defined on a per-day basis. 

How to avoid EPA penalties:

To avoid EPA penalties, companies should have robust compliance programs that identify and manage compliance. A company may decide not to invest in compliance programs to save costs. However, the risks of penalties become greater each year and the value of a good compliance program in preventing violations is enormous when the costs of non-compliance are considered.

EPA considers a range of factors before assessing a civil penalty. These include:

• severity of the violation;

• the facility's good faith efforts to ensure compliance;

• economic benefit gained from non-compliance; and

• ability to pay. 

To avoid civil penalties for environmental non-compliance, you must know which regulations apply to your organization and how those regulations impact your activities. If you discover a violation while performing an audit of your facility or records, it may be possible to lower your penalties by self-disclosing the violations. EPA and most states maintain a self-audit and/or self-disclosure policy that enables facilities to reduce the civil penalty assessment for violations. 

Criminal Pollution Cases

Criminal prosecution and convictions of polluters fell to quarter-century lows under the Trump administration’s Environmental Protection Agency, deepening three years of overall enforcement declines, according to Justice Department statistics. The EPA stated recently it is focusing on quality over quantity in pollution cases, using its enforcement resources to go after the biggest and worst offenders. However, the criminal pollution cases initiated and won in 2020, appear to be smaller one-offs, such as an Alaska fishing captain who dumped waste overboard into an Alaskan strait in 2017.

Although the EPA and state agencies assert that there are no monetary quotas for annual fines or numbers of enforcement cases, a 25 year low in recent years may result in an increase in enforcement cases that are filed in 2021 and subsequent years. 

The increase in maximum penalties and the potential for an increase in enforcement activities after a transition to a Biden Administration, provide more reasons than ever for organizations to implement methods of reducing their risk of violations and fines. The Biden Administration may also allow, once again, the implementation of Supplemental  Environmental Projects as part of enforcement settlements. 

Supplemental Environmental Projects (SEPs)

Prior to March 2020, the EPA allowed organizations undergoing enforcement to complete Supplemental Environmental Projects (SEPs) and receive a credit for payment of a portion of the monetary fine that was imposed. 

Implementation of an Environmental Management System (EMS) was one option for a SEP.  Other examples include land conservation, education programs, and community projects.  For decades, SEPs had resulted in significant environmental benefits, helping affected communities recover or avoid future harmful emissions. In March 2020, the Department of Justice announced the program was discontinued. Under the Biden Administration, this may be reversed. 

Benefits of an Environmental Management System (EMS)

Whether an organization implements an EMS as an SEP or prior to being issued an enforcement action, a robust EMS provides organizations a uniform way of reducing their compliance risks. An EMS includes methods for identifying an organization’s environmental impacts and compliance status. In addition to reducing the risk of violations, the implementation of an EMS will also increase your ability to find opportunities for operational efficiency and cost reductions.

An EMS helps an organization address its regulatory demands in a systematic and cost-effective manner. This proactive approach can help reduce the risk of non-compliance and improve practices for employees and the public. An EMS can also help address non-regulated issues, such as energy conservation, and can promote stronger operational control and employee stewardship. In addition, maintaining an EMS can help an organization:

• improve environmental performance

• enhance compliance

• prevent pollution and conserve resources

• reduce/mitigate risks

• attract new customers and markets

• increase efficiency

• reduce costs

• boost employee morale

• enhance recruitment of new employees

• elevate the image with the public, regulators, lenders, and investors

• achieve/improve employee awareness of environmental and sustainable development issues and responsibilities

KERAMIDA's FastTrack® Management System Program provides on-site Management System development assistance from KERAMIDA staff. We have found that this process identifies the most important risks and opportunities in your operations and requires minimal internal resources and interruptions. With FastTrack®, development of the EMS creates a fully documented system ready to implement in record time - no more than six on-site days. Fill out our quick response form or call (800) 508-8034 to speak with one of our professionals today.

Kristen Belcredi, P.E., C.H.M.M., ISO Auditor
Senior Vice President, Engineering Services
KERAMIDA Inc.

Contact Kristen at kgb@keramida.com