Negotiating EPA Penalties: EPA’s Penalty Policies and the 2013 Civil Monetary Penalty Inflation Adjustment Rule

September 2014
Citation:
44
ELR 10757
Issue
9
Author
Matthew Thurlow and Douglas Bushey

On December 6, 2013, the U.S. Environmental Protection Agency (EPA) increased the statutory maximums for 20 of the 88 civil penalties it administers. At the same time, EPA also revised its civil penalty policies and increased the gravity-based component of all penalties by 4.87% for violations occurring after December 6, 2013. These recent increases are an important reminder that EPA has the statutory authority to pursue significant, and in some cases enterprise-threatening, penalties for environmental violations. But in assessing civil penalties in environmental enforcement cases, EPA case managers and attorneys do not simply apply statutory maximums; instead, they are guided by EPA’s well-established penalty policies, which require the Agency to assess a number of aggravating and mitigating factors before determining an initial penalty demand.

Matthew Thurlow and Douglas Bushey are attorneys at Latham & Watkins LLP. Matt Thurlow was a trial attorney in the U.S. Department of Justice Environmental Enforcement Section from 2008 to 2011.

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