TSCA Advisory 02 - II

In a Federal Register notice published on June 18, 2002 (67 Fed. Reg. 41,343), EPA amended its Civil Monetary Penalty Inflation Adjustment Rule (40 C.F.R. Part 19) to raise the maximum statutory penalties the Agency can assess in civil and administrative enforcement matters under the statutes that EPA administers, including the Toxic Substances Control Act (TSCA).

Environmental statutes set specific limits on the penalties that EPA can impose for a violation. For example, TSCA sets the maximum civil penalty at $25,000 per violation. The Debt Collection Improvement Act of 1996, however, allows EPA to promulgate rules that increase the maximum penalty for violations of the various environmental statutes that the Agency administers, thereby adjusting such penalties to keep pace with inflation. In 1997, EPA increased the maximum civil penalties by 10% to account for inflation through calendar year1996 (e.g., maximum of $25,000 increased to $27,500).

Using the inflation calculation method specified in the Debt Collection Improvement Act, EPA calculated that the Consumer Price Index increased 13.6% since the prior increase. EPA therefore increased the maximum civil penalties under various statutes, including TSCA, by 13.6%. This latest increase raises the maximum civil penalty that EPA can impose for a TSCA violation to $31,500.

EPA promulgated the new penalty limits as a direct final rule, i.e., without notice and comment rulemaking. If EPA had received adverse comments by July 18, 2002, the direct final rule would have been withdrawn and published as a proposed rule. Because no adverse comments were filed, the rule will go into effect as scheduled, and the new maximum penalty will apply to any TSCA violation that occurs after August 19, 2002.

McKenna Long & Aldridge, L.L.P., distributes its Advisories to clients and friends of the firm free of charge. If you would like to request additions (or deletions) to our distribution list, please call Nina MacLeay at 213-243-6063 or send email to nmacleay@mckennalong.com. For more information, please visit our website at http://www.mckennalong.com.

For more information, please contact: