Higher civil penalties put emphasis on understanding environmental compliance obligations

Civil penalties that were assessed on or after January 12, 2022, have been adjusted to reflect inflation for several environmental programs. This increase makes the need for compliance and the avoidance of these penalties an even larger focal point and highlights the need for businesses to evaluate whether they fall under such environmental statutes.

To avoid such penalties, it’s important to have a basic understanding of these environmental programs and their requirements.

Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) – penalty now $21,805

This statute governs the registration, distribution, sale, and use of pesticides in the United States. FIFRA requires that all pesticides sold or distributed in the US (including imported pesticides) to be registered by EPA. It also requires training for workers in pesticide-treated areas, and certification and training for applicators of restricted use pesticides.

Clean Water Act (CWA) – penalty now $59,973

EPA regulates the discharge of pollutants from point and nonpoint sources under the Clean Water Act. Sources that discharge wastewater to Waters of the United States may need to obtain a federal, state, or municipal permit to do so. Such permit programs include the National Pollutant Discharge Elimination System (NPDES), which regulates discharges of pollution from municipal and non-municipal sources including industrial and construction activity, and Wetlands permitting, which covers activities that affect wetlands.

Safe Drinking Water Act (SDWA) – penalty now $62,689

This Act authorizes the EPA to establish minimum standards to protect tap water and requires all owners and operators of public water systems to comply with primary health-related standards. If your business is a public water system, you are required to secure the services of a certified operator, submit required reports, maintain records, conduct testing and monitoring, and prevent well contamination.

Emergency Planning and Community Right-to-Know Act (EPCRA) – now $62,689

EPCRA was passed in response to concerns regarding the environmental and safety hazards posed by the storage and handling of toxic chemicals. Facilities that maintain Extremely Hazardous Substances (EHS) on-site in quantities greater than threshold planning quantities must meet emergency planning requirements. Facilities must report releases of EHS’s and hazardous substances. If they handle or store any hazardous chemicals, they must submit SDSs and an inventory form (Tier II) of these chemicals to state and local officials and fire departments. Facilities must also complete and submit a toxic chemical release inventory form (Form R) annually.

Resource Conservation and Recovery Act (RCRA) – now $109,024

RCRA established the framework for EPA to regulate solid and hazardous waste management in the United States. The Act requires all businesses to evaluate their waste streams (regulated solid waste, hazardous waste, universal waste, state-specific wastes, and used oil) to determine how that waste is regulated. Depending on the type and amount of hazardous waste generated, a business may fall into a particular waste generator category. At that point, they must obtain an EPA ID number, manage their waste accordingly, mark and label waste containers correctly, train employees, ship the waste to a qualified facility for disposal, and prepare for emergencies. Those facilities with hazardous waste must also manage their accumulation areas properly, keep all required/submitted reports, records, and documents for at least three years.

Clean Air Act (CAA) – now $109,024

To protect public health and welfare nationwide, the EPA has set air quality standards for certain common and widespread pollutants. A facility must recognize the need for a permit if they emit one of the six “criteria pollutants” (carbon monoxide, nitrogen dioxide, particulate matter, ozone, sulfur dioxide, and lead). For any new construction or significant modifications to a facility or new operations that will affect the facility’s emissions to the air, a permit will likely be required.

Enforcing environmental law is a central part of EPA’s strategic plan to protect human health and the environment. Penalties act as an incentive for coming into compliance and staying in compliance with the environmental statutes and regulations. To avoid paying a penalty, employers need to assess their compliance obligations.