Updates on Environmental, Administrative and Regulatory Law

On November 6, 2013 the United States Environmental Protection Agency (EPA) gave notice in the Federal Register of a final rule in which certain environmental penalty amounts are being adjusted for inflation.  The Federal Civil Penalties Inflation Adjustment Act of 1990 mandates this adjustment at least every four years.

• Penalty increases for spilling hazardous substances increases from $1100 per barrel to $2100 per barrel
• Administrative penalties for Class II Clean Water Act violations rise from $137,000 to as much as $157,000
• Certain Clean Air violations can rise from $295,000 to $320,000
• Certain hazardous releases under the CERCLA statute rise to $117,500 from $107,500

The highest increases in penalties are under the Safe Drinking Water Act.  A complete list of changes is available at 78 Federal Register 66643 to 66648 (November 6, 2013).

Many federal environmental programs have been delegated by the EPA to be administered by the South Carolina Department of Health and Environmental Control (SCDHEC). The State penalties are not inflation adjusted like the federal penalties, and can be significantly less than when the EPA takes the enforcement lead in a pollution matter.  It would take legislative action to adjust State level penalties.  In fact, certain local environmental groups are urging the legislature to increase penalties, particularly in the case of repeat violations.

In almost all cases, it behooves the regulated community in South Carolina to try to keep the State agency as the lead agency in any enforcement action.