Editors' Summary: In May 1984, EPA's Office of Solid Waste issued the first Civil Penalty Policy under RCRA. Since then, EPA has been criticized for assessing penalties that are not large enough to offset the economic benefits of noncompliance. On the heels of this criticism, EPA issued its revised RCRA Civil Penalty Policy in October 1990. EPA issued the document to ensure that civil penalties in both judicial and administrative cases are assessed in a fair and consistent manner, reflect the gravity of RCRA violations, deter noncompliance, and eliminate economic incentives to violate the law. The Policy's penalty assessment framework uses complex mathematical and computer models, which incorporate a gravity component, a benefit component to remove any economic benefit of noncompliance, a multiday component, and various adjustment factors.

This Article describes the evolution of the RCRA Civil Penalty Policy and examines the effect of the double jeopardy doctrine, as articulated by the U.S. Supreme Court in United States v. Halper, on assessing penalties under the Policy. The 1990 Halper ruling established a two-prong test for double jeopardy cases: whether Congress indicated in the relevant statutory scheme a preference for either civil or criminal penalties, and whether the statutory scheme is so extreme and divorced from the government's damages to constitute punishment. The Article concludes that Halper encourages a single proceeding with criminal and civil penalties included, and that Halper's second prong is limited to the rare case in which a sanction against a small-gauge offender is overwhelmingly disproportionate to the environmental damage caused. Finally, the Article urges EPA to revisit the RCRA Civil Penalty Policy in light of Halper.