STATE CIVIL PENALTY AUTHORITIES. AND POLICIES
A Report prepared by the
Environmental Law Institute
for the U.S. Environmental Protection Agency
. Submitted pursuant to
EPA.Order Number 6W-2773-NASA
by the Environmental Law Institute
1616 P Street, N.W.
Washington, D.C. 20036
September 30, 1986
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TABLE OF CONTENTS
page
ACKNOWLEDGMENTS
INTRODUCTION
i
CHART: STATES COMMENTING ON SUMMARY CHARTS
OF CIVIL PENALTY AUTHORITIES iii
I. ANALYSIS OF STATE CIVIL PENALTY AUTHORITIES I
A. WHAT VIOLATIONS GIVE RISE TO CIVIL
PENALTY LIABILITY? 1
B. LIMITS 5
MINIMUM/MAXIMUM LIMITS CHARTS 10
CHART FOOTNOTES 15
C. ARE THE PENALTIES MANDATORY
OR DISCRETIONARY? 18
D. REMISSION/MITIGATION 20
E. PENALTY CRITERIA 22
CHART: STATES WITH STATUTORY CRITERIA FOR
MAJOR PROGRAMS 23
CHART: STATES USING BOTH ECONOMIC BENEFIT
AND SERIOUSNESS OF THE VIOLATION 28
CRITERIA CHARTS 29
SUMMARY CHART 39
CHART FOOTNOTES 40
F. INSTITUTIONAL AND PROCEDURAL ISSUES 42
CHART: TYPE OF CIVIL PENALTY AUTHORITY 43
G. WHERE DOES THE MONEY GO? 49
MONEY DISPOSITION CHARTS 51
SUMMARY CHART 66
H. ANALYSIS OF STATE CIVIL PENALTY POLICIES 67
INTRODUCTION 67
CHART: STATES SUBMITTING INFORMATION
ON POLICIES 68
A. OVERVIEW 69
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Table of Contents (continued)
B. SUMMARIES OF POLICIES 72
ARKANSAS '72
COLORADO '72
DISTRICT OF COLUMBIA !'! *73
FLORIDA 74
IDAHO | .'75
ILLINOIS 76
INDIANA 77
KENTUCKY 79
LOUISIANA 79
MAINE 80
MASSACHUSETTS 81
NEW YORK 81
NORTH CAROLINA 81
NORTH DAKOTA 82
OHIO 83
OREGON 83
PENNSYLVANIA 86
UTAH 89
VIRGINIA 90
WASHINGTON 91
in. STATE CIVIL PENALTY IMPLEMENTATION 93
COLORADO 98
ILLINOIS 99
MARYLAND 102
NEW YORK 103
OHIO 107
PENNSYLVANIA 109
TEXAS .114
WASHINGTON 121
WISCONSIN 122
APPENDIX: STATE CIVIL PENALTY STATUTE SUMMARY CHARTS
ALABAMA A-l
ALASKA A-2
AMERICAN SAMOA A-4
ARIZONA A-5
ARKANSAS A-6
CALIFORNIA A-8
COLORADO A-18
CONNECTICUT A-20
DELAWARE A-26
DISTRICT OF COLUMBIA A-28
FLORIDA A-29
GEORGIA : A-32
GUAM A-35
HAWAD A-37
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Table of Contents (continued)
IDAHO A_38
ILLINOIS A_39
INDIANA A-40
IOWA :::::::.::::::::::: J4?
KANSAS A_43
KENTUCKY A-45
LOUISIANA A_47
MAINE ;;;;;;; A_48
MARYLAND A_51
MASSACHUSETTS A-52
MICHIGAN ' A_55
MINNESOTA ' A_56
MISSISSIPPI A-58
MISSOURI A_59
MONTANA A-60
NEBRASKA A-61
NEVADA A-62
NEW HAMPSHIRE A-63
NEW JERSEY A-66
NEW MEXICO A-69
NEW YORK A-70
NORTH CAROLINA A-74
NORTH DAKOTA A-76
OHIO A-77
OKLAHOMA A-78
OREGON A-79
PENNSYLVANIA A-81
PUERTO RICO A-82
RHODE ISLAND A-83
SOUTH CAROLINA A-85
SOUTH DAKOTA A-86
TENNESSEE A-87
TEXAS A-89
UTAH A-92
VERMONT A-93
VIRGIN ISLANDS A-95
VIRGINIA A-96
WASHINGTON A-98
WEST VIRGINIA A-100
WISCONSIN A-101
WYOMING A-102
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ACKNOWLEDGMENTS
The Environmental Law Institute prepared this report under the direction of Phillip
D. Reed, who supervised the research, drafted sections of all three chapters, and edited
the report. Mary Jean Marvin, staff attorney, managed the research, compiled, revised,
and edited the numerous charts, and drafted sections of the authorities chapter. Mauro
A. Montoya, Jr., staff attorney, collected and compiled state authorities and drafted
sections of the policies and implementation chapters. Elissa A. Parker, senior staff
attorney contributed to project design and drafted sections of the authorities chapter.
Rob Fischman served as a legal researcher. Nurhan Giampaolo worked tirelessly in the
production of this report. The project benefited also from the patient guidance of
Roger C. Dower, ELI Research Director.
Carol Hudson Jones, Program Analyst with the Compliance, Policy and Planning
(CPP) Branch, Office of Enforcement and Compliance Monitoring, EPA, provided valued
advice and support as Project Officer. CPP Branch Chief Cheryl Wasserman and Peter
Rosenberg, Program Analyst, also greatly assisted the project team.
The project team is especially indebted to the many state officials who reviewed
drafts of this report and resolved many uncertainties about the proper interpretation of
state civil penalty authorities and policies.
The views expressed herein are those of the authors' alone. They do not necessarily
reflect the views of the U.S. Environmental Protection Agency or the Environmental Law
Institute.
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INTRODUCTION
This report describes and analyzes state civil penalty authorities and policies to
assist EPA in assessing the need for and possible direction of a policy governing oversight
of state civil penalty assessments.
The study looks at provisions authorizing imposition of civil money sanctions on
those found to have violated state pollution control statutes. It does not cover Clean Air
Act 5120 penalties, provisions authorizing criminal fines, or those allowing recovery of
damages to natural resources or the environment.
The report is based on a compilation of state civil penalty statutes and regulations
drawn from materials located in Washington, D.C. law libraries; a compilation that has
been updated in accordance with comments from the many state agencies that reviewed
drafts. The states responding are listed on the chart at the end of the Introduction.
Authorities researched include provisions governing violations of air, water, solid waste,
hazardous waste, drinking water, and toxic substance laws. The civil penalty policies
addressed were submitted in response to a recent Steering Committee request. The
collection of policies is incomplete, but illustrates how some states are using penalty
policies.
Though the picture of civil penalty authorities is broad, it does not cover the entire
canvas of state enforcement sanctions. Revocation of permits, criminal sanctions-
including indictment or imprisonment of individual corporate officials, bond forfeitures,
and recovery of environmental damages, all can be heavy sanctions for violators.
Whether a state's civil penalty authority is adequate depends to a significant degree on
what other sanction authorities it has, and more important, on how it uses all its
enforcement powers, including civil penalty authority. This study does not systemati-
cally address implementation of state penalty authorities, although it does identify
implementation issues that may make structural differences in penalty authorities
significant. In addition, the final section summarizes reported state civil penalty cases
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and other information on penalty implementation from selected states. EPA addressed
implementation issues in a series of field studies.
The analysis in this report focuses principally on the factors governing the size of
civil penalties. Within the context of authorities, the critical factors affecting size of
penalties are the statutory maximum and minimum assessments and the statutory and
regulatory criteria for setting penalty amounts. The report also considers other factors
that influence the size of penalties, but more directly concern whether penalties will be
levied in specific cases and how difficult it will be to prosecute penalty actions. These
factors include the types of violations for which penalties can be imposed, whether
penalties are mandatory or discretionary, whether they may be compromised or remitted
once levied, the institutional and procedural context of penalty actions, and what is done
with funds recovered in penalty actions. Together, these factors provide a broad picture
of civil penalty authorities and policies.
11
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STATES COMMENTING ON SUMMARY CHARTS OF CIVIL PENALTY AUTHORITIES
Alabama
X
X
X
X
Alaska
American Samoa
Arizona
Arkansas
California
Colorado
Connecticut
Delaware
District of Columbia
Florida
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
Georgia
Guam
Hawaii
Idaho
Illinois
Indiana
Iowa
Kansas
Kentucky
Louisiana
Maine
Maryland
Massachusetts
Michigan
Minnesota
Mississippi
Missouri
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
Montana
Nebraska
Nevada
New Hampshire
New Jersey
New Mexico
New York
North Carolina
North Dakota
Ohio
Oklahoma
Oregon
Pennsylvania
Puerto Rico
Rhode Island
South Carolina
South Dakota
Tennessee
Texas
Utah
Vermont
Virgin Islands
Virginia
Washington
West Virginia
Wisconsin
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
Wyoming
iii
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L ANALYSIS OF STATE CIVIL PENALTY AUTHORITIES
A. WHAT VIOLATIONS GIVE RISE TO CIVIL PENALTY LIABILITY?
One of the structural issues presented by the compilation of state civil penalty
authorities is the question of what state violations authorize the imposition or
assessment of civil penalties.
Although collection of this information is not the central focus of our survey, a few
key variables should be identified and highlighted, simply because the issue of when civil
penalty liability may potentially attach is fundamental to the issue of whether or not a
state can implement an effective penalty program, notwithstanding the apparent relative
"strength" or "weakness" of the language in its authorities or penalty policy.
An analysis of this issue may focus initially upon whether the activities which
result in potential penalty liability are the same as under the federal statutes. Such an
analysis, for any given state, would require careful exploration of the substance of the
state statutes and regulations, and a comparison of that substance to the federal
coverage. Many of the state civil penalty authorities, the subject of this survey, make
reference only to "violations of this chapter and the regulations of the Department."
Understanding the scope of that authority, and comparing it to federal authority requires
a detailed analysis of the substance of both the state and federal regulations. Are state
penalties recoverable for any unpermitted discharge (harmful or not) to the
groundwaters? To the surface waters? Are penalties available only for violation of a
permit condition? Or only for a "pollutional" discharge? This type of detailed state-by-
state legal analysis is far beyond the scope of this preliminary survey, but illustrates one
important question concerning the effectiveness of state penalty programs. The issue is
most easily (and presumably is) addressed in the EPA review preceding authorization of
state implementation of federal programs.
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Despite these caveats, the survey of penalty authorities does identify several ways
in which the question of which violations can be penalized can affect enforcement. The
variations are numerous. Are penalties available only for violations of statutory
provisions and regulations? What about violations of agency orders? Judicial orders? 1L
Permit conditions? Are penalties available only for violations of agency orders, and not
for violations of statutory provisions and regulations? For example, is the agency
empowered to recover penalties only after the violator has been notified that it has
already violated the act, provided time and an opportunity to comply, and then continues
to violate for at least ten days both the law and the agency's order to abate the
2/
violation? Statutory authority limited in one of these ways can greatly influence the
utility of penalties. It may be easier to enforce the specific terms of an order than the
general requirements of a statutory standard. On the other hand, a state that can only
obtain penalties for violations of orders may have more procedural hurdles to jump and
may find its authority more difficult to use. Some states establish tiers of penalties,
empowering the agency to seek very powerful penalties (e.g., of up to $50,000/day) for
violations of key requirements and lesser penalties for others. $L
A statute may contain language to the effect that civil penalty liability Is not
imposed if "the discharger is not negligent or immediately files [a report of the
violation]"; or if the violation is "insubstantial"; or unless a person violates the law
"knowingly." Under such statutes, the so-called violation, or issue of initial liability may
be so difficult for the agency to establish and in fact be so much more egregious
11- See, e.g.. Vt. Stat. Ann. tit. 3, S2822 (cX4) (Equity 1972 & Supp. 1984).
2/ See Idaho Code §39-108(6) (Bobbs-Merrill 1977 & Michie Supps. 1984 & 1985).
See La. Rev. Stat. Ann. tit. 30, S1073E (West Supp. 1985). See also Pa. Cons. Stat.
Ann. tit. 35, S691.605 (Purdon 1977 & Supp. 1984), (Pennsylvania Clean Streams Law)
which mandates penalty in a sum certain for each day of violation of agency orders
relating to mining operations. This violation supplements the more substantial
penalties authorized for violations of regulations, the Act, and permit conditions.
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than the activities which constitute a violation under the federal program or other state
programs that the statutory penalty authorization is in practical reality of virtually
no value, even to an otherwise aggressive state enforcement agency. Similarly, if a
penalty is excused entirely if the illegal discharge is immediately reported and
4/
removed, then in reality that state's penalty authority i.e., what violations give
rise to a penalty actually differs dramatically from a state statute which imposes
liability, subject to civil penalty assessment, for any Illegal discharge, whether or not the
discharge is reported and/or removed. The two arguably also differ in deterrent effect.
One statute provides that a new (single) violation occurs only once every 30-day period of
noncompliance with an agency order;-^- that each day of continuing violation only after
the "date fixed by the court" is a separate offense^- It is striking to compare this type
of "violation" authorizing civil penalties, to those which authorize the imposition of
penalties for each day of violation of the law, i.e. from the first day the violation
occurred, even before agency notice, before filing a complaint in court and securing a
court order. Violations in one statute may be characterized in ways that make them
difficult to prove, e.g., if a violation is only deemed to occur when conduct is both (a)
initially willful or negligent, and (b) followed by a failure to comply even after the
violation occurs. Other states may characterize liability as strict^.
See Me. Rev. Stat. Ann. tit. 38, S1318 (West 1978 <5c Supp. 1984), Fl. Stat. Ann. tit.
"2T5376.16 (West 1973 & Supp. 1984), Alaska Stat. S46.03.760 (State of Alaska 1982).
5/ Vt. Stat. Ann. tit. 10, S568 (Equity 1984).
i7 Vt. Stat. Ann. tit. 3, §2822 (Equity 1972 & Supp. 1984).
7/
Similarly, one cannot compare a state which can recover civil penalties only after
proving a violation "beyond a reasonable doubt" (Utah Code Ann. §26-13-18, Allen
Smith Co. 1984) to those which require only traditional civil or administrative
burdens of proof. This problem will be discussed further in Section F, infra.
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A related difference in what is treated as a violation stems from the way states
handle force majeure (literally "superior force") issues. Some statutes contain force
provisions which exempt the alleged violator from any liability if it can show
that a discharge occurred because of events beyond its control.-^ Again, the question of
whether a violation has occurred, subjecting a discharger to civil penalties, may
dramatically differ in such programs from those states which impose strict liability for
an illegal discharge. While strict liability states may adjust a penalty to reflect force
majeure events, in such states the force majeure events will not entirely relieve a
discharger, particularly one who causes significant harm, from all liability.
Another type of exculpatory mechanism may influence civil penalties' impact. At
least one state provides that the criminal authority is preempted if a civil penalty is
9/
assessed for a given violation What is the effect of such a provision? How does this
compare to a program in which the civil penalty supplements other penalties and
remedies in the state environmental statute? Differences in the way violations subject
to penalty are defined may be more important in determining the effectiveness of
penalty authority than are the differences in maximum penalties and penalty criteria
considered in this study.
-1 Alaska Stat. S46.03.758(h) (1982).
I7 Mont. Code Ann. 575-2-413(1) (1983).
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B. LIMITS
INTRODUCTION
This section characterizes maximum and minimum civil penalties by program
area. There are eight broad program categories (General, Air, Drinking Water, Water
Pollution/NPDES, Oil Discharges, Wetlands, Hazardous Waste, Solid Waste) and a number
of subcategories for different types of violations. State penalty authorities are listed
under the broadest applicable category. Authorities covering several different programs
fall under "general;" a penalty provision in a clean water law applicable to discharge
permit violations, oil spills, and wetland filling would be listed solely under "water."
Conversely, those authorities listed under "wetlands" would not apply to other water
pollution violations. The federal civil penalties in the categories of Air, Drinking Water,
Water, and Hazardous Waste are included for comparison.
Within each environmental area, states are placed in the chart according to the
magnitude and method of application of the penalty. Minimum as well as maximum
penalties are indicated on the charts, where applicable. The existence of minimum
penalties is significant since it puts a floor under the size of penalties imposed; it does
not, however mean that penalties are mandatory in any given situation. The two major
methods of application of penalties are "per day" and "per violation".-^- A "per day"
penalty is imposed on a violator each day of continuing violation. The maximum penalty
magnitude for a "per day" provision specifies the maximum fine for each day;
theoretically, there is no upper limit to the total penalty that ultimately may be
assessed. How a "per violation" penalty is applied depends on how the state interprets
This survey uncovered on instance in which any violator subject to an agency
emergency order is liable for additional penalties which run "per hour." Ind. Code
Ann. S13-7-13-l(a) and (b) (Burns 1981 <5c Supp. 1984).
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the statute. If individual days of continuing violations are treated as separate violations,
then the penalty is in fact daily. Statutes defining penalty application in these terms are
included in the "per day" category. Statutes applying penalties per violation, with no
explanation, might be interpreted as daily, or a one-time-only assessment for an
improper act. Some statutes authorize a civil penalty but do not describe the method by
which it should be applied. These civil penalty provisions are placed in a third category
in the charts, "unspecified". Since many types of pollution control violations continue for
some time, whether the maximum is per day or per violation can have a tremendous
impact on the size of penalties that may be levied.
AIR
Maximum penalties under most state programs are less than the federal
maximum. The maximum federal civil penalty for air violations is $25,000 per day.
There is no minimum. Thirty-six states have one or more penalty authorities specific to
their air programs. Only nine states have maximum daily penalties as large as or larger
than the federal penalty. In addition four states' general authorities allow penalties of
$25,000 or larger per day which are applicable to air violations. Of the other states
employing a per-day method of assessment, twenty-three have maximum penalties
smaller than the federal statute. Five states provide maximum air program penalties
"per violation," all less than $25,000. Two states, however, do have general authority
applicable to air programs, to levy penalties of $25,000 per violation. Three set
maximum penalties, again all under $25,000, without specifying how they are applied.
Thus, at most 15 states (nine air, per-day; four general, per-day; two general, per-
violation) could match the EPA maximum (assuming per-violation penalties are
interpreted to apply daily). Some state statutes specify more than one maximum
penalty. For instance, Colorado sets a maximum daily penalty as large as the federal
penalty for some air violations but sets smaller penalties for other air violations.
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Colorado, therefore, is listed on the chart both as a state with a daily penalty as large as
the federal one and as a state with a smaller penalty, but counted above only in the
former category.
In all, six states have minimum daily penalties for air violations. Only in the solid
waste category do as many states provide for minimum penalties.
DRINKING WATER
Most state drinking water penalty authorities match or exceed the maximum under
federal law. The maximum federal civil penalty for drinking water violations is $5000
per day. Of the 36 states that impose per-day penalties, twenty-five have maximum
penalties greater than or equal to the federal program. Eleven states authorize
maximum daily penalties less than the federal maximum. Tennessee and Texas establish
minimum daily penalties ($50 per day and $10 per day, respectively).
A number of states have general penalty authority that could match the federal
maximum for this program. Indiana and Mississippi, with general penalty authority
applicable to a drinking water program, authorize maximum penalties equal to or greater
than the federal maximum. Two other states (Arkansas and Vermont) have general
authority with maximum amounts equal to or greater than the federal maximum, albeit
per violation.
WATER
The maximum federal civil penalty for water quality violations is $10,000 per day
and the overwhelming majority of states provide for penalties as large or larger. Thirty-
six states provide for maximum daily penalties $10,000 or larger. Six additional states
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have general penalty authority apparently applicable to water pollution violations with
maximum daily penalties equal to or greater than those provided by federal law. Five
states provide for maximum daily water program penalties less than $10,000. Five states
establish minimum daily penalties. As noted in the Air discussion above, several states
are listed in the charts more than once because their statutes set penalties as large as
the federal for some water violations but smaller for others (e.g., Arizona). These states
are counted only in the category covered by the largest penalty authority.
Of the three states with water penalty maxima in the per-violation or unspecified
categories (i.e., Delaware, Vermont and Puerto Rico), two set penalty amounts equal to
or greater than those in federal law.
HAZARDOUS WASTE
The majority of state hazardous waste programs have authority to levy penalties as
large as the largest federal maximum under RCRA. The chart below identifies one or
more penalty maxima for 48 states. Federal daily civil penalties for hazardous waste
violations (under RCRA and CERCLA) involve two maxima: $5,000 for RCRA monitoring
or testing violations, or for CERCLA violations; and $25,000 for other RCRA violations.
Twenty-six state authorities nave maximum daily penalties greater than or equal to
$25,000, in one case (UT) only for second offenses. Twenty-one states that do not also
have authority for penalties in the $25,000 and up range have maximum daily penalties
between $5000 and $24,999. All three of the states with maximum daily penalties less
than $5,000 also have larger maxima for other violations and are represented in the other
tallies. Three states authorize minimum daily penalties.
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Two states (Alaska and Pennsylvania) without apparent authority for daily penalties
have authority to levy penalties of $25,000 or greater per violation. From the
information collected, it is generally unclear whether general penalty authorities apply
to RCRA and CERCLA violations for that small number of states that do not have
separate statutes governing hazardous waste.
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General
Substantive Violations
Penalty (in dollars)
0 - 4999
5000 -9999
10,000 - 24,999
Over 25,000
Max/day ID, NE, OR8 WI DE, FL, ME3, OK, IN, LA, MS, PR
SC, VA, WI24, WY
Min/day DE, ME, WI
Max/ DC29, HI, VT6 AK2, CT1
violation MA, NY1
Min/violation AK, VT
Max IA 13
(unspecified)
General
Violations of Orders (emergency,
or cease & desist)
Max/day VA LA
Max/violation HI11 VT CT2 PR
Max/ hour IN
General*
Procedural Violations
(failure to file monitoring reports)
Max/violation CT l, MA
Min/violation MA
10
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AIR
Max/day
M in/day
Max/
violation
Min/violation
Max
(unspecified)
Max/day
Min/day
Max/
violation
Max
(unspecified)
0-4999 5000-9999 10,000-24,999 Over 25,000
AZ, CA32, CO, AR16, CA32, AL, CA32, KY, MA5, CO, CA, NH, OH, TN,
CT43, GU, KS, IA, MO, NC, MD, ME, MN, MT, TX45, UT38, VA, WI
MA.MD41, NM, NV, WA ND, OR, UT FEDERAL ($25,000)
NV19, RI, WA,
WV
AZ, MA, OR9, TN,
TX, WI
MA, NY1'31, VT IL1, NY1,
PA1
DE27, MA, NY
DE27, NJ SD
DRINKING WATBR/UIC
AS, IL, KY, ME, AL, AR, CT, FL, CO, MN, NJ48, LA
MT, NH, OR, RI, GU, HI, IA, KS, OH, OK
SD, TX, UT MD, ML. NC, ND,
NV, PA, PR,
SC, TN, UT, VA
FEDERAL ($5000)
TN, TX
CA, GA1, CA, NJ IL l'23
MO
DE, ME, NY, WI DE, VI
Min- DE, WI
(unspecified)
11
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WATER; NPDES
Water Quality Violations
0 - 4999
AZ, CA33,
5000 - 9999
10,000 - 24,999
Over 25,000
Max/day
NM, TX
AR, CA, IA, AL, AZ, CA33, CT43, FL 25, NJ49, UT38,
NE, NM42, CO, GA, IL, KS42, KY, V!
RI MA, MD, ME, MI, MO, MN,
MS, MT, NC, ND, NH, NJ48,
NV, NY, OH, OK, PA,
SD, TN, TX, UT, VA,
WA, WI, WV
FEDERAL ($10,000)
Min/day
Max/
violation
Min/
violation
Max
(unspecified)
Min
(unspecified)
KS42, MS, NC,
NJ49, TX
DE, MD31, CT42, NJ1 DE28
NY1, VT
AL, DE
ME4 PR
ME 4, MD,
VI
WATER
Operating without Permit
Max/day
MA
NM
WATER RESOURCES
Max/day VT 7, WA 10
Max/
violation
CT
12
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OIL DISCHARGES l6
0 - 4999
5000 - 9999 10,000 - 24,999
Over 25,000
Max/day NH46 TX, WA
Max/ VA21 NC NH, OR
violation
Max CA
(unspecified)
WETLANDS
Max/day DE, MA35, MS DE, FL
Min/day OE
Max/ , CT1, CA1, NH,
violation NJ, NY, Rl
Max MS NH47
(unspecified)
Min MS
(unspecified)
SOLID WASTE
Max/day
CA, DE, IA,
KS17, KY, MA,
ME, MI, MO,
MT, NC, ND,
OH, OR, TX
AR, NH, TN
DE, FL, MN, PA,
UT, VA, WV
KS, MS, UT39
M in/day
DE, KS, MA,
OR9, TN, TX
Max/
violation
Min/
violation
AZ, CT, GA1,
NJ, NY1,
RI
CT, NJ 39
ME
17
Max SO
(unspecified)
13
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HAZARDOUS WASTE
Statutory Violations/Violations of Orders
0 - 4999 5000 - 9999
Max/day IA14, ND22, NM, WV
ID 18, FEDERAL38
MO 20 ($5000)
Min/day DE, OR9, TX
Max/ MD40, TN26
violation
Min/ AK, CA
violation
Max
(unspecified)
10,000 - 24,999
AZ, CO, CT, FL,
GU, IA14, ID,
MD, ME, MO, MT,
NC, NE, NM, NV,
OH, OK, OR, Rl,
SD, TN, UT, VA,
VT, WA
CA34
Over 25,000
AL, AR, CA, CO,
CT, DC, DE, FL,
GA, IL, KS, KY,
MA, ME, MI, MN44,
MS, ND, NH, NJ,
NY.SC.TX, UT39,
WL, WV
FEDERAL37($25,000)
AK2, CA,
MD30, PA
ME (clean-up costs)
Min ME
(unspecified)
HAZARDOUS WASTE
Fee Violation*
Max/day
WA
HAZARDOUS WASTE
Permit Violation
Max/day
NV
12
CT
FEDERAL ($25,000)
Min/day
CT
Max
(unspecified)
ME (3 times
appropriate late fee)
14
-------
FOOTNOTES
Includes all states with general environmental protection civil penalties without
regard to whether the penalties apply to all categories of pollution or whether the
state has more specific civil penalty provisions for other categories. Also, general
environmental protection penalties may apply in cases in which specif* state
programs define violations but refer to the general statute for penalties (see e.g
Mr,, wetlands). * '
Additional daily penalty of $100 - 4999.
2
Additional daily penalty of $5000 - 10,000.
A
$25,000 if hazardous waste or repeat violator.
Discharge of certain toxic substances carries a maximum fine of $10,000/day.
Violation of emergency order carries a $10,000/day penalty.
c
After date fixed by court for correction, each day of continuing violation is fined
as a separate violation.
Prohibited alteration of stream flow.
0
Statute includes a penalty for oil discharges which is included in that chart.
g
OR: For Air and Solid Waste violations, minimum ranges from 25 to 100
dollars/day; hazardous waste minimum ranges from 100 to 2500 dollars/day.
Interference with uses of water, e.g., unauthorized withdrawal.
Obstructing duly authorized inspections.
12
Continuous failure to comply increases maximum penalties to $25,000/day.
13 For minor violations.
Failure, to report hazardous spills or conditions brings a maximum penalty of
$1000.
15 AK: $l-10/gal penalty.
16
Penalty is from water statute made applicable to air violations.
Procedural violation.
18 Unauthorized injection of hazardous wastes into wells.
19
For minor violations.
20 Change of use or transfer of uncontrolled or abandoned hazardous waste sites
without approval.
15
-------
21 For oil spills of more than 10,000 gallons the penalty is $10,000 maximum.
22
Monitoring and testing violations.
23 Class n Wells.
24 Will be greater if formulaic penalty is greater.
25 Listed as pollutant spill.
9fi
*° For nondiscretionary violation.
27
Motor vehicle emissions violations.
no
Serving water from a well closed due to presence of restricted chemicals.
29
Maximum for a twelve-month period.
30 Assessed at $10,000/day; penalty may not exceed $50,000.
31
Emergency rule and regulation enforcement.
32 $10,000/day maximum for violations of toxic air contaminants statute; $1000/day
for nonvehicular air pollution control violations; $6000/day for abatement order
violations.
33 No discharge but violation of regional board order.
14
" For misrepresentations.
35 General environmental protection statute: dredge and fill.
36 RCRA monitoring and testing violations, and CERCLA violations.
37 RCRA and TSCA violations.
3* For knowing violation or second offense.
3^ For second offense.
40 Not to exceed $50,000 total.
41 Up to $20,000 total.
42 Pertains to violations including failure to report discharge, tampering with
monitoring equipment, and falsifying records or reports.
43 Administrative penalties for violating orders are as follows: $25,000 maximum
plus $1000/day that violation continues after receipt of civil penalties final order.
44 MN: With respect to pollutant releases presenting imminent and substantial
danger and releases of hazardous substances from facilities the maximum penalty
is $20,000 per daft-
16
-------
45 TX: Maximum administrative penalty is $10,000/day (judicial maximum is
$25,000/day).
NH: Pertains to underground storage facilities.
47
NH: Disobeying order or misrepresentation with respect to dredge and fill
regulations.
Aft
NJ: For violations of statute, orders, or failure to pay penalty.
49 NJ: Willful or negligent violations.
17
-------
C. ARE THE PENALTIES MANDATORY OR DISCRETIONARY?
Penalty authority means little if it is not used. In theory, the greater the assurance
that violators will be penalized, the stronger the deterrence. One question posed in this
study is whether state laws not only authorize penalties, but mandate them in any
circumstances. The question cannot be answered in full from the survey, but mandatory
penalties appear to be rare.
A surface review of the penalty statutes does not reveal whether the penalties are
mandatory or discretionary. The question of whether a penalty is mandatory requires a
determination of (a) whether the statutory language is apparently subject to that
interpretation; (b) whether the enforcement agency, by regulation or policy, applies that
interpretation; and (c) whether any relevant administrative review board and the
judiciary agree with the agency's interpretation. Thus, the question cannot be answered
from the statutory summaries.
Experience suggests that legislatures generally do not make penalties mandatory.
To test this perception ELI searched the most recently enacted class of state statutes
that contain civil penalties, the hazardous waste statutes. Seven out of more than 50
provisions reviewed use language that could possibly be construed to make penalties
mandatory.' Legal analysis beyond the scope of this study would be necessary to
' Conn. Gen. Stat. S22a-131 (West 1975 & Supp. 1985) ("shall be fined").
Va. Code S32.1-186 (Mich. 1979 & Supp. 1984) ("shall. . .be assessed").
Or. Rev. Stat. S459.995 (1983) ("shall incur a civil penalty").
Kan. Stat. Ann. S65-3444 (1980 & Supp. 1984) ("shall incur. . .a civil penalty").
Wash. Rev. Code S70.105.080 (West, Bancroft-Whitney 1975 <3c West Supp. 1985)
("shall be subjected to a penalty").
Minn. Stat. Ann. S115B.18 (West 1977 & Supp. 1984) ("shall forfeit and pay to the
state a civil penalty").
Okla. Stat. Ann. tit. 63S1-2005(AX2) (West 1982 & 1983 Supp.) ("shall. . .result in the
carrier being fined").
Examples of phrases rejected as possibly mandatory are:
"shall be subject to a civil penalty"
"shall be liable for"
"may fine"
the attorney general "shall institute" an action. . .to recover penalties.
The distinction between the two categories is subtle, but real. The seven statutes
listed above as possibly mandatory seem to link penalties automatically to
violations. The second set of statutes appears to say that violators are subject to
the possibility of penalties. Again, attempting to interpret such differences in
18
-------
determine whether these provisions are mandatory. Agencies and courts are likely to
regard apparently mandatory language of this type as directory, rather than mandatory.
Mandatory penalties may not be a boon to enforcement. Agencies may prefer flexibility
in choosing among an array of enforcement options. Courts may be reluctant to accept a
construction of the law requiring penalties regardless of equitable considerations. An
agency, review board, or court may avoid the rigidity of the mandatory penalties simply
by finding that no violation exists in many cases. Indeed an agency that tries to impose
penalties automatically risks making bad law if the statute does not unambiguously
require it to do so and a case where penalties seem inequitable gets before a judge.
Furthermore, none of these seven provisions specify a minimum penalty amount, which
supports the hypothesis that the penalties are not intended to be mandatory^
The general survey did uncover one example of a mandatory penalty provision,!!/
set forth in a state clean water law and regulations adopted pursuant to that law, that
only applies to surface and underground mining-related violations. That statute provides
for a mandatory penalty of a given amount for each day of violation of an administrative
14/
order, and the regulations also provide various mandatory penalties of specified
amounts (e.g. for conducting certain activities, or discharging, without authorization by
permit). It appears that this state program example is an exception.
statutory language in the abstract is a risky business; these observations are
hypotheses, not conclusions.
12/
Other, randomly noted statutory provisions which contain language similar to those
seven set forth in footnote 1 appear in Iowa Code Ann. S455B.187 (West 1981 &
Supp. 1985); Conn. Gen. Stat. S22a-459 (West 1975
-------
D. REMISSION/MITIGATION
A number of civil penalty provisions authorize the mitigation of a penalty. That
authority may be important to the operation of a state's penalty program. For one thing,
it could result in gross differences between the penalties initially levied and those
actually collected, for example, if penalties routinely are forgiven should the violator
come into compliance on the schedule set in an enforcement order. If this is the case,
penalties may be very effective in bringing violators into compliance, but "ineffective"
as a deterrent. Mitigation authorities take many forms.
In some states the enforcement agency directors may mitigate penalties in such
Ifi/
manner and amount as they deem proper. If used liberally, such broad mitigation
authority could undermine a penalty policy in any of several ways: staff might, without
reason and consistency, avoid the mandates of the policy; administrative review boards
or courts might employ the language as an excuse to avoid granting the penalty sought by
an enforcement agency; or the agency may be unable to withstand political pressure to
weaken or eliminate specific penalties.
Other statutes explicitly empower an agency to compromise or settle a civil
penalty.' The procedures may authorize such compromise and settlement only after
approval of a commission; by a court or a board; by the agency director; or by the
Attorney General, with the approval of the director. Some statutes authorize
i s/
compromise and settlement only upon a finding by a board^ by the agency director
See e.g. Wash. Rev. Code Ann. S70.94.431 (West, Bancroft-Whitney 1975 <5c West
Supp. 1985); Conn. Gen. Stat. Ann. S22a-6b(e) (West 1975
-------
(with the concurrence of the Attorney General), ^ or by the agency^7 of a part of the
penalty (up to a given percentage)^' only if the violation is eliminated or corrected.
While mitigation authority may raise some concerns about the effectiveness of
state penalty programs, it should be noted that express authority may not be needed to
remit penalties. The authority to settle and compromise penalties may be within the
agency's inherent power and experience suggests that many agencies so construe their
authority. If so, the only issue with which the agency may struggle concerns what
procedures to use to effect such a settlement, once the penalty has been formally
imposed or litigation has been instituted.7
Md. Health-Environmental Code Ann. S2-610 (Michie 1982 <5c Supp. 1984).
N.J. Stat. Ann. S26:2C-19 (West 1952 & Supp. 1984-85).
01 /
Alabama - 90%; Maryland - 75%; New Jersey - 90%.
' Such issues generally do not arise when a settlement is effected prior to formal
assessment or institution of administrative complaint for penalties. For example, in
Pennsylvania's environmental agency, which deems settlement of penalties to be
within its inherent powers, the independent administrative review board's rules
suggest that any penalty assessed or in litigation before the board may only be
settled after publication of the proposed settlement, and with the consent of the
board. There is no requirement that the agency provide public notice of any
proposed penalty settlement which is in litigation before any court, or (with the
exception of certain* mining matters) any proposed settlement of penalties occurring
before penalty assessment or initiation of litigation.
21
-------
E. PENALTY CRITERIA
Many state civil penalty authorities specify criteria to be taken into account in
setting penalties. These statutory and/or regulatory criteria could constrain the type of
penalty policy the state may implement. Thirty-one states have authorities specifying
one or more penalty-setting criteria in at least one of the major program areas covered
by the survey (air, water, solid waste, hazardous waste and drinking water). The numbers
range from 23 states for hazardous waste programs to 11 for drinking water. (See
accompanying charts.)
The criteria are diverse. They fall into 10 broad categories (which are explained in
more detail in the footnotes to the charts at the end of this section):
1. The economic benefit from delayed compliance,
2. The nature or gravity of the violation,
3. The degree of the violator's culpability,
4. The extent of the violator's good faith efforts to comply,
5. The history of prior violations,
6. The economic impact of a penalty on the violator,
7. The deterrent effect of the penalty,
8. The costs to the state of enforcing against the violator, or of cleaning up its
pollution,
9. A balancing of the competing interests served by penalizing or not penalizing
the violator, and
10. Other relevant factors.
The charts at the end of this section identify the number of state authorities that
prescribe criteria of each of the 10 types.
The authorities prescribe penalty criteria in several different ways. Most that
specify criteria identify more than one (but see Florida, Montana, New Hampshire and
Washington data in summary charts). Many list five to seven criteria and add that any
22
-------
STATES WITH STATUTORY CRITERIA FOR MAJOR PROGRAMS
Alabama
Alaska
American Samoa
Arizona
Arkansas
California
Colorado
Connecticut
Delaware
District of Columbia
Florida
Georgia
Guam
Hawaii
Idaho
X
o«
X
X
X
X
o»
X
X
X
X
o»
X
X
X
o»
X
0»
X
X
X
o«
o»
X X
X X
X
X
X
o«
X
X
X
X
Illinois
Indiana
Iowa
Kansas
X
X
X
X X
X X
Kentucky
Louisiana
Maine
Maryland
X
X
X
X
X
X
0« X
X
X
Massachusetts
Michigan
Minnesota
Mississippi
o*
X
X
X
X X
Missouri
Montana X
Nebraska X
X X
Nevada
New Hampshire
New Jersey
New Mexico
New York
North Carolina X
X
X
o«
X
X X
North Dakota
Ohio
X
Oklahoma O*
Oregon X
Pennsylvania X
XXX
XXX
Puerto Rico
Rhode Island
South Carolina
South Dakota
Tennessee X
Texas X
X X X
XXX
Utah
Vermont
Virgin Islands O*
0»
Virginia X
Washington X
West Virginia
Wisconsin
Wyoming
No civil penalty authority.
1. Twenty-two states have air criteria.
2. Twenty-one states have water criteria.
3. Twenty-three states have hazardous waste criteria.
4. Eleven states have drinking water criteria.
23
-------
other relevant factors may be taken into account (see, e.g. Louisiana, Oregon, and
Tennessee in Air chart).
The New Jersey water poUution control regulations set forth the method of
calculating a civil penalty. Criteria include seriousness and type of violation. The
seriousness criterion is subdivided into four degrees (as defined in the regulation) of
damage or harm caused or likely to be caused by the unlawful discharge, with a "schedule
of factor values" set in ranges for each degree of harm, as follows:
Seriousness Factor Values
(1) Serious damage 2.00-1.50
(2) Moderate damage 1.50 - 1.00
(3) Slight damage 1.00 - 0.50
(4) Insignificant damage 0.50
The type of violation criterion is also subdivided into four degrees (as defined in the
regulation), with assigned values, as follows:
Type Factor* Values
(1) Willful 1.00
(2) Highly foreseeable 1.00 - 0.75
(3) Unintentional but foreseeable 0.75-0.50
(4) Unintentional and unforeseeable 0.50
*If the discharge involves a hazardous pollutant, an additional
number between 0.10 and 0.25 (depending on harmful
characteristics or inherent toxicity) is added to the type factor.
"This is intended to reflect the higher standard of care in the
storage and use of hazardous pollutants which the Department
seeks to encourage." N.J. Admin. Code tit. 7, 57:14-8.10 (Supp.
May 21, 1984).
The basic penalty for the discharge is then calculated as follows:
(Seriousness) x (Type) x ($5000) = Basic Penalty.
This part of the regulation concludes: "[i]f the penalty computed by this method is
greater than $5,000, the $5,000 maximum basic penalty shall be assessed." N.J. Admin.
Code tit. 7, 57:14-8:10.
24
-------
This "basic penalty" is that which the Commissioner is authorized to assess in the
first instance for a violation. Note that an additional $500 per day is authorized to be
levied for each day during which a violation continues after receipt of an order (i.e., a
Notice of Assessment of a Civil Administrative Penalty) from the Department. [This
regulation also sets forth penalty assessment procedures for non-discharge violations,
construction of unpermitted facilities, and for violations of the "Water Supply and
Wastewater Operators Licensing Act."]
Some authorities make the criteria mandatory considerations, among others the
penalty-setter finds relevant (e.g. Connecticut, Title 22a, S6b(c)-"the commissioner
shall consider all the factors which he deems relevant, including, but not limited to, the
following"; Maine, water pollution, Title 38, S349.5-"the court shall consider, but shall
not be limited to, the following;" Pennsylvania, Title 35, $4009.1"the hearing board
shall consider . . . [three specific criteria] . . . and other relevant factors;" California
Health & Safety Code Div. 26, S42403"the court shall take into consideration all
relevant circumstances, including, but not limited to, the following:"). The Summary
Chart immediately proceeding the criteria charts following the text of this section
indicates that only 20 authorities have "other relevant factors" language. A second group
includes no broad authority to add criteria, and could be construed to limit the choice of
criteria to those listed (e.g. NY. Article 71, S71-1941"the commissioner or court shall
consider: . . ..[three specified factors]"; Nebraska, Title 81, S81-1508(lXc)"the amount
of such penalty to be based on the size of the operation and the degree and extent of the
pollution"). Arguably the penalty-setter may have inherent authority to consider
additional factors, but the answer to that question depends on the narrowness with which
state courts construe legislative grants of authority to agencies and courts. The actual
legal significance of these passages cannot be determined from this simple recitation of
their terms, but the foregoing does illustrate the variety such provisions contain.
25
-------
These legislative or regulatory statements could constrain the development of
policies governing penalty amounts. In the extreme, a statute specifying that penalties
must be based on the nature of the violation alone would seem to bar a policy dictating
that penalties be set on the basis of economic benefit from delayed compliance. Few, if
any, authorities are that specific, however, and most leave the penalty-setting entity
flexibility, either by specifying no criteria (other than maximum amounts) or by
indicating that the specified criteria are not exclusive. In such cases, the fact that a
criterion that the state agency wants to take into account in a penalty policy is not
mentioned in the statute does not preclude its use in the policy, if it is broadly relevant
to the enforcement action. Listed criteria can be a policy constraint in another fashion,
however. If the statute indicates that the penalty-setter "shall consider" a specific
factor, it would seem to preclude an administrative policy based exclusively on other
factors.
It is not possible to determine from this analysis which states' authorities are
compatible with the EPA penalty policy, which is of interest because one of the EPA
penalty oversight options being considered is requiring adoption of the EPA policy. The
federal policy relies principally on consideration of two factors: economic benefit and
seriousness of the violation, with several others taken into account in mitigating or
adding to the basic penalty calculated with reference to those factors. Thirty-four of
the state authorities surveyed specify economic benefit as a penalty criterion, and 73
include the seriousness of the violation. Thirty-three authorities that specify economic
benefit also mention seriousness, but this is a small subset of the universe. The survey
covers five programs (air, water, solid waste, hazardous waste, and drinking water) in 55
states, or 275 programs; only 12 percent of these programs have express authority to
consider both factors.
26
-------
The limited purpose of this section is to review state authorities to determine to
what extent statutory penalty criteria constrain state penalty policy options. We do not
address the question of how the criteria are construed or will be used, or whether any
particular set of criteria will result in larger or smaller penalties under a given set of
circumstances. One criterion can cut either, or both ways. For example, state penalty
authorities which require consideration of "culpability" and "history of violations" as
factors could be used (1) only to augment base penalties for "bad actions," (2) only to
reduce base penalties for "good actions," or (3) to do either.
27
-------
STATES USING BOTH ECONOMIC BENEFIT
AND SERIOUSNESS OF THE VIOLATION
AIR WATER
Alask* Alaska
Arkansas Arkansas
Connecticut California
Georgia Connecticut
towa Iowa
Louisiana Louisiana
North Carolina North Carolina
Tennessee
SOLID WASTE HAZARDOUS WASTE
Alaska Alaska
Arkansas Arkansas
Connecticut Connecticut
Iow* Georgia
Kansas lowa
Pennsylvania Kansas
Tennessee Pennsylvania
Tennessee
DRINKING WATER
Arkansas
Iowa
Tennessee
28
-------
STATUTOHY AND REGULATORY
CRITERIA USED TO DETERMINE CIVIL PENALTY!
AIR VIOLATIONS
K>
\O
Alabama (A L)
Alaska (AK)
A.Samoa (AS)
Arizona (AZ)
Arkansas (AR)12.**
California (CA)
Colorado (CO)
Conn. (CT)
Delaware (DE)
D. of Columbia (DC) <
Florida (FL)
Georgia (GA)
Economic
Benefit of
Non com-
pliance1
AK
AR
CT
»
GA
Nature.
Eilenl
and Degree of
Gravity Culpability/
of Viola- Wilful-
Uon* ness3
AK
AR AR
CA CA
CO CO
CT
GA
Good Faith
Efforts to
Comply*
AR
CA
CT
FL
GA
History
of Prior
Viola-
tions5
AR
CA
CT
GA
Costs to
State to
Economic Enforce/
Impact of Deterrent Abate/
Penalty on Effect of Correct
Business6 Penalty7 Damage8
AK
AR
CO
CT
GA
No
Balance Specific
Competing Statutory
Interests Any Other or
and Relevant Regulatory
Factors9 Factors10 Criteria"
AL
AZ
CO
CT"* CT
GA GA
Guam (GU)
Hawaii (HI)" HI III
Idaho (ID)
Illinois (IL)
Indiana (IN)
Iowa (IA) IJ IA IA IA
Kansas (KS)
Kentucky (KY)
Louisiana (LA) LA LA LA LA
Maine (ME) ME ME
Maryland (MD) MD MD MD
Mass. (MA)
Michigan (Ml)
Minnesota (MN)
Mississippi (MS)
No civil penalty authority; AS, DC, Ml. OK and VI authorize criminal penalties only.
IA
LA
ME
LA
MD
MN
LA
ME
In this chart the criteria listed for these states appear in a general penally provision governing pollution incidents. The criteria have been i
to the best of our knowledge these provisions encompass violations covered by Ihe chart. In many cases, e.g.. Alt. I L and OB. references k
explicit, and, some stales (e.g.. CI and OK) have additional statutory or rcinjlulorv authority
GU
ID
IL
IN
KS
KY
MA
MS
included here because
to these provisions ore
l-'ur open burning violations only.
-------
STATUTORY AND REGULATORY
CKITERIA USED TO DETERMINE CIVIL PENALTY:
AIH VIOLATIONS (continued)
Nature, Cosls lo NO
Exlenl Slate to Balance Specific
Economic and Degree of History Economic Enforce/ Competing Statutory
Benefit of Gravity Culpability/ Good Faith of Prior Impact of Deterrent Abate/ Interests Any Other or
Noneom- of Viola- Wilful- Efforts lo Viola- Penalty on Effect of Correct and Relevant Regulatory
pllance1 lion1 ness3 Comply* lions5 Business6 Penally7 Damage8 Factors9 Factors10 Criteria"
Missouri (MO)
Montana (MT)
Nebraska (NE)
Nevada (NV)
New llamp. (NH)
New Jersey (NJ)
New Mexico (NM)
New York (NY)
N. Carolina (NC)
N. Dakola(ND)
Ohio (OH)
Oklahoma (OK)
Oregon (OR)
Penn. (PA)
Puerto Rico (PR)
R. Island (HI)
S. Carolina (SC)
S. Dakola (SD)
Tennessee (TN)
Texas (TX)
Ulah (UT)
Vermont (VT)
V. Islands (VI)
Virginia (VA)
Washinglon (WA)
W. Virginia (WV)
Wisconsin (Wl)
Wyoming (WY)
MO
MT
NE NE
NV
NH
NJ
NM
NY
NC NC NC NC NC NC
ND
OH
OR OR OR OR OR OR OR
PA PA PA
PR
HI
SC
SD
TN TN TN TN TN
TX TX TX TX TX
UT
VT
VA VA
WA
WV
Wl
WY
No civil penalty authority; AS, DC, Ml, OK and VI authorize criminal penalties only.
In this chart the criteria listed for these slules appear in a general penally provision governing pollution incidents. The criteria have been included here liecause
lu the hest of our knowledge these provisions encompass violulions covered ' the chart. In many cases, e.g., AH, l-'l. und Oil, references lo Ilit-se provisions are
explicit, and, some stales (e.g., CT and UK) have additional statutory or r jry authority.
-------
STATUTORY AND REGULATORY
CRITERIA USED TO DETEItMINE CIVIL PENALTY:
WATEK VIOLATIONS
Economic
Benefit of
N on com-
pliance'
Alabama (AL)
Alaska (AK)" AK
A. Samoa (AS)
Arizona (AZ)
Arkansas (AH)12," AH
California (CA) CA
Colorado (CO)
Conn. (CT) CT
Delaware (DE)
0. of Columbia (OC)
Florida (FL)
Georgia (GA)
Guam (GU)»
Hawaii (HI)
Idaho (ID)
Illinois (ID
Indiana (IN)
Iowa (1A) IJ IA
Karoas(KS)
Kentucky (KY)
Louisiana (LA) LA
Maine (ME)
Maryland (MD)
Mass. (MA)
Michigan (Ml)
Minnesota (MN)
Mississippi (MS)
Nature,
Extent
and Degree of History
Gravity Culpability/ Good Faith of Prior
of Viola- Wilful- Effort, to Viola-
tion* ness' Comply* lions
AK
AR AR AR AR
CA CA CA CA
CT CT CT
FL
III III III
IA IA
LA LA LA LA
ME ME ME
MD MD Ml) MD
Costs to No
Stale to Balance Specific
Economic Enforce/ Competing Statutory
Impact of Deterrent Abate/ Interests Any Other or
Penalty on Effect of Correct and Relevant Regulatory
Business6 Penally7 Damage8 Factors9 Factors10 Criteria"
AL
AK
AZ
AR
CA CA
CO
CT
DE
GA
IU
1L
IN
IA
KS
KY
LA LA
ME
MD
MA
Ml
MN
MS
No civil penally authority; AS, IJC and (JU authorize criininul |>ciiuUics only.
In I his chart Hie criteria listed for these stales appear in u general penally |HO vision governing pollution incidents. The crileriu liuve been included hero because
lo Hie liesl of our knowledge these provisions cncompuss violulimi* covered liy Iho chart. In many cases, e.g., AH, I'l. ami UH, references to Iliese provisions are
explicit, anil, some stales (e.g., CT and OK) liuve udililionul stiilulury or regulatory authority.
-------
STATUTORY AND REGULATORY
CRITERIA USED TO DETERMINE CIVIL PENALTY:
WATER VIOLATIONS (continued)
Missouri (MO)
Montana (MT)
Nebraska (NE)
Nevada (NV)
New Hamp. (NH)
New Jersey (NJ)
New Mexico (NM)
New York (NY)
N. Carolina (NC)
N. Dakota (ND)
Ohio (OH)
Oklahoma (OK)
Oregon (OR)
Penn. (PA)
Puerto Rico (PR)
R. Island (HI)
S. Carolina (SC)
S. Dakota (SD)
Tennessee (TN)
Texas (TX)
Utah(UT)
Vermont (VT)
V. Islands (VI)
Virginia (VA)
Washington (WA)
W. Virginia (WV)
Wisconsin (Wl)
Wyoming (WY)
Nature, Costs to NO
Extent Stale to Balance Specific
Economic and Degree of History Economic Enforce/ Competing Statutory
Benefit of Gravity Culpability/ Good Faith of Prior Impact of Deterrent Abate/ Interests Any Other or
Noncom- of Viola- Wilful- Efforts to Viola- Penalty on Effect of Correct and Relevant Regulatory
pllance1 tion2 ness1 Comply4 tions5 Business6 Penalty7 Damage8 Factors9 Factors10 Criteria11
MO
MT
NE NE
NV
NH
NJ NJ
NM
NY NY NY
NC NC NC NC NC NC
ND
OH
OK
OR OR OR
PA PA PA PA
PR
HI
SC
SD
TN TN TN TN TN TN TN
TX
UT
VT
VI
VA
WA
WV
Wl
WY
In this chart 11 if crileria listed for these stules upprar in u gcnrml penally provision governing pollution incidents. The enter in Imve been included here because
to Hie liesl of our knowledge these provisions eiicoinpnss viulnlions covered l>y the churl. In many cuses, e.g.. All, I-11. und Oil, references to these provisions ore
explicit, und, some stales (e.g., (."I1 und OK) have additional statutory or r '-ilory authority.
-------
U)
STATUTORY AND REGULATORY
CRITERIA USED TO DETERMINE CIVIL PENALTY:
SOLID WASTE VIOLATIONS
Economic
Benefit of
Non com-
pliance1
Nature,
Eitent
«id
Gravity
of Viola-
tion2
Degree of
Culpability/
Wilful-
ness
Good Faith
Efforts to
Comply
History
of Prior
Viola-
lions5
Economic
Impact of
Penalty on
Business
Deterrent
Effect of
Penally7
Costs to
State to
Enforce/
Abate/
Correct
a
Damage
Balance
Competing
Interests
and
Factors9
Any Other
Relevant
Factors10
No
Specific
Statutory
or
Regulatory
Criteria"
Alaska (AK) AK
A. Samoa (AS)
Arizona (AZ)
Arkansas (AH)12," AR
California (CA)
Colorado (CO)
Conn. (CT) CT
Delaware (DE)
D. of Columbia (DC)
Florida (PL)
Georgia (GA)
Guam(GU)*
Hawaii (111)
Idaho (ID)
Illinois (It)
Indiana (IN)
lowa(IA)11 IA
Kansas (KS) KS
Kentucky (KY)
Louisiana (LA)
Maine (ME)
Maryland (MO)
Mass. (MA)
Michigan (Ml)
Minnesota (MN)
Mississippi (MS)
AK
AR AR
CT
AR
CT
FL
AR
CT CT
AK
AR
HI
IA
KS
111 HI
IA
IA
KS
KS
MN
AL
AZ
CA
CO
DE
UA
IU
IL
IN
KY
ML)
MA
Ml
MS
No civil penally author.ly; AS, DC, UU, LA and Mt (und NM if general slolulc- applies) authorize criminal penalties only.
In (his churl the criteria lisled for these stales uppeur in a general (tenuity provision governing pollulion incidents. Tlie criteria liuve been included hrre because
to I he best ol our knowledge these provisions encompass violations covered by the chart. In many cases, e.g., AH, II. ajid OH, references to these provisions are
explicit, and, some slates (e.g., CT and Oil) Imve additional statutory or regulatory authority.
-------
STATUTORY AND REGULATORY
CRITERIA USED TO DETERMINE CIVIL PENALTY:
SOLID WASTE VIOLATIONS (continued)
CO
Nature, Costs to No
Eitent State to Balance Specific
Economic and Degree of History Economic Enforce/ Competing Statutory
Benefit of Gravity Culpability/ Uood Faith of Prior Impact of Deterrent Abate/ Interests Any Other or
Noncom- of Viola- Wilful- Efforts to Viola- Penally on Effect of Correct and Relevant Regulatory
pJiance1 lion2 ness3 Comply4 lions5 Business6 Penally7 Damage8 Factors9 Factors10 Criteria"
Missouri (MO)
Montana (MT)
Nebraska (NE)
Nevada (NV)
New damp. (Nil)
New Jersey (NJ)
New Meiioo(NM)*
New York (NY)
N. Carolina (NC)
N. Dakota (ND)
Ohio (Oil)
Oklahoma (OK)
Oregon (OR)
Penn. (PA)
Puerto Rico (PR)
R. Island (Rl)
3. Carolina (SC)
S. Dakota (SO)
Tennessee (TN)
Texas (TX)
Utah (UT)
Vermont (VT)
V. Islands (VI)
Virginia (VA)
Washington (WA)
W. Virginia (WV)
Wisconsin (Wl)
Wyoming (WY)
MO
MT
NE
Nil
NJ
NY
NC NC NC NC NC
ND
OH
OK
OR OH OR OR OR OR OR
PA PA PA PA PA
PR
HI
SC
SD
TN TN TN TN
TX TX
UT
VT
VI
VA
WA
WV
Wl
WY
No civil penally authority; AS, DC, GU, I.A and ML (mid NM if general statute applies) authorize criminal penalties only.
In this chart (he criteria lislcd for these stales uppcur in a general |>cnu> vision governing pollution incidents. The criteria have been included hurt bccau:
to Hit! best of our knowledge' these provisions encoinpuss violations to via I he chart. In many cases, e-g., Alt, I'l. and Oil, references to these provisions ar^
explicit, ami, some stales (e.g., <-"(' ami OH) Imvu iidililionul slnlulory or r^.-iulory authority.
-------
STATUTORY AND REGULATORY
CRITERIA USED TO DETERMINE CIVIL PENALTY:
HAZARDOUS WASTE VIOLATIONS
OJ
Alabama (AL)
Alaska (AK)
A. Samoa (AS)
Arizona (AZ)
Arkansas (AR)I2,«»
California (CA)
Colorado (CO)
Conn. (CT)
Delaware (DE)
D. of Columbia (DC)
Florida (FL) *
Georgia (GA)
Guam (GU)
Hawaii (HI)
Ida ho (ID)
Illinois (IL)
Indiana (IN)
lowa(IA) n
Kansas (KS)
Kentucky (KY)
Louisiana (LA)
Maine (ME)
Maryland (MD)
Mass. (MA)
Michigan (Ml)
Minnesota (MN)
Mississippi (MS)
Nature,
Extent
Economic and Degree of
Benefit of Gravity Culpability
Noncom- of Viola- Wilful-
pUance' lion2 ness3
AL
AK AK
AR AR AR
CA
CO CO
CT CT
DE
GA GA
III
ID
IA LA IA
KS KS
ME
MD ML)
MN
Costs to
Slate to
History Economic Enforce/
Good Faith of Prior Impact of Deterrent Abate/
Efforts to Viola- Penalty on Effect of Correct
Comply* lions5 Business6 Penally7 Damage8
AL
AK AK
AK AR AH
CA CA
CO CO
CT CT CT
DE
FL
CA GA GA
III III
ID
KS KS
ME ME
ML) MD MD
MN MN
No
Balance Specific
Competing Statutory
Interests Any Other or
and Relevant Regulatory
Factors9 Factors10 Criteria"
~
AZ
CO
DC
GU
It
IN
IA
KY
MA
Ml
MS
No civil penally uulliorily; AS and LA authorize criminal pcnultics only.
In this churl the crileria listed for these sidles u|i|>eur in u i;enerul |M:nully (iroviMon i^vc-rninf |wlluliun incidents. Tin; critcriu liuvc been included here IMJCUUSC
ID Hie best of our knowledge these |>russ violutmn, covered l>y the churl. In niuny cuscs, e.g., All, 1-1. uiid OH, rufuruiiuiis lo Ihc^f jiroviiioiii urc
L>|>licil, olid, sunn: ululcs (i-.j;., LT uiid (III) hnvi: udililionnl slnlulury pr I i^nlulul y niilliurily.
-------
STATUTORY AND REGULATORY
CRITERIA USED TO DETERMINE CIVIL PENALTY:
HAZARDOUS WASTE VIOLATIONS (continued)
Nature, Costs to No
Bitenl Slate to Balance Specific
Economic and Degree of History Economic Enforce/ Competing Statutory
Benefit of Gravity Culpability/ Good Faith of Prior Impact of Deterrent Abate/ Interests Any Other or
Noncom- of Viola- Wilful- Efforts to Viola- Penalty on Effect of Correct and Relevant Regulatory
pliance1 lion2 ness3 Comply4 tions5 Business6 Penalty7 Damage8 Factors9 Factors10 Criteria"
Missouri (MO)
Montana (MT)
Nebraska (NE)
Nevada (NV)
New Hamp. (NH)
New Jersey (NJ)
New Mexico (NM)
0? New York (NY)
N. Carolina (NC)
N. Dakota (ND)
Ohio (OH)
Oklahoma (OK)
Oregon (OR)
Penn. (PA)
Puerto Rico (PR)
R. 1st and (Rl)
S. Carolina (SC)
S. Dakota (SD)
Tennessee (TN)
Texas (TX)
Utah (UT)
Vermont (VT)
V. Islands (VI)
Virginia (V A)
Washington (WA)
W. Virginia (WV)
Wisconsin (Wl)
Wyoming (WY)
MO
MT
NE NE
NV
NH
NJ
NM
NY
NC NC NC NC NC
ND
OH
OK
OR OK OR OR OR OR OR
PA PA PA PA PA
- PR
Rl
SC
SO
TN TN TN TN
TX TX
UT
VT
VI
VA
WA
WV
Wl
W Y
III lliis chart Ihe criteria listed for these stales appear in a general penalty j- on governing pollution incidents. The criteria have been included here because
to Ihe best of our knowledge these provisions cncompiis:, violations covered I . churl. In many cases, e.g., All, I'l. und OH, references to these (irovi^ions are
explicit, and, .sonic slules (e.g., I'l and OK) huvc mlililionnl slululory or regulatory milliurily.
-------
U)
STATUTORY AND REGULATORY
CRITERIA USED TO DETERMINE CIVIL PENALTY:
DRINKING WATEH/UIC VIOLATIONS
Nature,
Extent
Economic and Degree of
Benefit of Gravity Culpability
Noneom- of Viola- Wilful-
pliance1 Uon2 ness1
Alabama (AL)
Alaska(AK)
A. Samoa (AS)
Arizona (AZ)
Arkansas (AH)1 2,*** AR AR AR
California (CA) CA
Colorado (CO)
Connecticut (CT)
Delaware (DE)
District of
Columbia (DC)
Florida (FL)
Georgia (GA)
Guam (GU)
Hawaii (HI)
Idaho (ID)
Illinois (IL)
Indiana (IN)
lowa(IA)13 IA IA IA
Kansas (KS) KS
Kentucky (KY)
Louisiana (LA) LA
Maine (ME)
Maryland (MU)
Muss. (MA)
Michigan (Ml)
Minnesota (MN)
Mississippi (MS)
Costs to NO
State to Balance Specific
History Economic Enforce/ Competing Statutory
Good Faith of Prior Impact of Deterrent Abate/ Interests Any Other or
Efforts to Viola- Penally on Effect of Correct and Relevant Regulatory
Comply4 lions5 Business8 Penalty7 Damage8 Factors9 Factors10 Criteria"
AL
AK»
AS
AR AR AR
CA CA
CO
CT
DE
FL
GA
GU
III
ID
IL
IN
IA
KS KS
KY
LA
ME
MO
MA
Ml
MN
MS
Unless included under general environmental penalty statute.
** No civil penalty authority; IJC, NM and VI authorize criiiiinul penalties only.
UK: criteria listed litre are found in the general eivil penally regulation for Arkunsus which governs umlergrouiiO injeclion control (in addition lo air.
solid und liuaurdous waste violations).
water, and
-------
STATUTOHY AND REGULATORY
CRITERIA USED TO DETERMINE CIVIL PENALTY:
DRINKING WATEll/UIC VIOLATIONS (eonUnued)
u>
oo
Nature,
Extent
Economic Md Degree of History
Benefit of Gravity Culpability/ Good Faith of Prior
Noncom- of Viola- Wil/ul- Efforts to Viola-
pllance1 Uon1 ness3 Comply« Uons5
NH
OR OR
PA PA PA
TN TN TN
TX TX TX
general cnvironmmiihl iu>miiiu ciut..i«
Costs to ~
State to Bailee Specific
Economic Enforce/ Competing Sl-tut
Impact of Deterrent Abate/ Interests Any Other or
Penalty on Effect of Correct and Belevan, Regulatory
Business" Penalty' Damage" Factor," Factors'" Criteria"
MO
MT
NE
NV
NJ
NY
NC
ND
Oil
OK
OR
PR
HI
SC
SU
TN TN
UT
VT
VA
WA
WV
Wl
WY
Missouri (MO)
Montana (MT)
Nebraska (NE)
Nevada (NV)
New Hamp. (NH)
New Jersey (NJ)
New Mexico (NM)
New York (NY)
N. Carolina (NC)
N. Dakota (NO)
Ohio (OH)
Oklahoma (OK)
Oregon (OR)
Penn. (PA)
Puerto Rico (PR)
8. Island (HI)
S. Carolina (SC)
S. Dakota (SO)
Tennessee (TN)
Texas (TX)
Utah (UT)
Vermont (VT)
V. Islands (VI)
Virginia (VA)
Washington (WA)
W. Virginia (WV)
Wisconsin (Wl)
Wyoming (WY)
^_^__
Unless included under
No civil penally authority; DC. NM and VI authorize criminal
,,,,.
-------
SUMMARY CHART
NUMBER OF STATE STATUTORY AND REGULATORY AUTHORITIES USING THE CRITERIA
U)
VO
EPA GENERAL
POLICY *
AIR
WATER
SOLID WASTE
HAZARDOUS WASTE
DRINKING WATER/
UIC
Economic
Benefit of
Noncom-
pliance
X
9
7
7
8
3
Nature,
Eitent
and
Gravity
of Viola-
tion2
X
18
IS
II
20
9
Degree of
Culpability/
Wilful-
ness'
X
8
10
6
9
3
Good Faith
Efforts to
Comply
X
M
12
6
IS
7
History
of Prior
Viola-
tions5
X
10
9
5
8
4
Economic
Impact of
Penalty on
Business
X
II
8
4
6
2
Deterrent
Effect of
Penalty7
2
3
1
3
1
Costs to
State to
Enforce/
Abate/
Correct
Damage8
S
8
7
10
2
Balance
Competing
Interests
and
Factors9
3
1
0
0
0
Any Other
Relevant
Factors10
7
3
3
4
3
No
Specific
Statutory
or
Regulatory
Criteria"
27
31
35
30
40
TOTAL
34
73
36
S4
36
31
10
32
20
163
EPA "Policy on Civil Penalties" (General Enforcement Policy I GM-21) and framework for Statute-Specific Policies (IGM-22).
EPA Policy considers that penalties equal to economic benefit plus some amount reflecting the gravity of the offense will deter violations.
-------
FOOTNOTES FOR CRITERIA CHARTS
- Includes, without limitation, concepts such as and relating to: amount of money
violator saved by not having made necessary expenditures; profit realized/
advantages gained by noncompliance; and, economic savings realized.
2/
- Includes, without limitation, concepts such as and relating to: seriousness of
violation; type of violation or waste; character of violation; amount of discharge-
frequency, duration, persistence of violation; whether repeated or continuous-
whether discharge susceptible to cleanup or abatement; likelihood of permanent
injury; population at risk; and, degree of harm, potential harm, effect on or risk to
public health, safety and welfare, the environment, or the reasonable use of
property.
3/
- Includes, without limitation, concepts such as and relating to: whether violation was
reported or concealed; whether cause of violation was result of accident, mistake, or
omission, negligent or intentional act, gross negligence, reckless, wanton
misconduct, wilfullness, recalcitrance, defiance or indifference, misrepresentations,
knowing falsities, fraud or recurrent pattern; and, degree of care to prevent spills or
violations. K
4/
- Includes, without limitation, concepts such as and relating to: cooperativeness of
violator; effectiveness of response actions or corrective measures and efforts to
comply; available technology; ability to comply; time necessary to comply;
opportunity and degree of difficulty to correct; technical practicability and
economic reasonableness of reducing or eliminating discharge; whether mitigation of
violation; voluntary cleanup; unproven or innovative nature of control equipment;
extent to which violation continued after order to correct; and, amount necessary to
insure immediate and continued compliance.
- Includes, without limitation, concepts such as and relating to: previous compliance
record; and, record of maintenance.
- Includes, without limitation, concepts such as and relating to: effect of penalty on
ability to continue in business; appropriateness of penalty to size of business;
violator's ability to pay; economic and financial status of violator; gross revenues of
violator; and, size of operation.
II
Includes, without limitation, concepts such as and relating to: amount which would
constitute actual and substantial economic deterrent to violation for which it is
assessed; and, penalty substantial enough to deter others from similar violations.
8/
- Includes, without limitation, concepts such as and relating to: costs of investigation,
enforcement and cleanup; restoration of environment and natural resources;
replenishing wildlife; other extraordinary costs to state; and, reasonable
compensation for adverse environmental effects determined by toxicity,
degradability, and dispersal effects of substances discharged, sensitivity of receiving
environment and degree of existing environmental quality.
40
-------
CRITERIA CHART FOOTNOTES (continued)
9/
- Includes, without limitation, concepts such as and relating to: weighing societal
costs and benefits by considering advantages and disadvantages to residents and
businesses, social and economic value of activity, use of property, area suitability
and practicability of reducing or eliminating discharge. '
Category represents only statutory language that is general in authorizing states to
consider other criteria, such as states that list specific criteria and add the phrase
"and any other relevant factors." Category does not include miscellaneous criteria
not otherwise covered in the charts. Such miscellaneous criteria, in the case of
Arkansas, for example, have been highlighted by dropping an explanatory footnote
from the state name on the appropriate chart.
These charts represent only criteria included in state statutes and regulations
available for analysis.
12/
-z-' Arkansas is the only state that includes the following factor among its criteria for
air, water, solid and hazardous wastes and underground injection control violations:
"Whether any part of the noncompliance is attributable to the action or inaction of
the state government itself." This factor does not appear as a separate category in
the charts.
13/
These criteria are used to adopt schedules of penalties and to determine
administrative penalties for minor violations of Iowa's air, water, drinking water and
waste laws. It is unclear whether these factors can be used to set penalties for
major violations, violations not fitting within schedules, or for violations which
should be referred to the attorney general for legal action.
-------
F. INSTITUTIONAL AND PROCEDURAL ISSUES
The usefulness of state agency penalty authority and the success of a penalty policy
are, at least in part, a function of the institutional mechanisms and procedures for
assessing or seeking penalties. An agency that must present an "administrative" civil
penalty case to a hearing board before a penalty is collected, and then go to court, repre-
sented by an attorney general, to collect the penalty, must convince three other
organizations of the wisdom of its penalty rationale. If the necessary procedures at any
or all steps are unduly complicated, penalty authority, no matter how powerful on the
face of the statute, will rarely be used. This survey of penalty authorities does not
identify the full range of institutional and procedural requirements associated with state
civil penalties. This section identifies issues that could determine the impact of
different institutional and procedural arrangements on the efficacy of a state penalty
policy initiative.
Institutionally, penalty programs can be divided into three categories: those with
administrative penalty authority, those that have both judicial and administrative
authority, and those that are limited to judicial penalty authority. The survey makes
possible a first-cut division of state authorities into these three categories. The
categorization of authorities is subject to some uncertainty, since statutory authorities
are not always clear on how penalties are to be assessed. Many state agencies reviewed
the initial characterizations of their authorities, correcting any errors, and project staff
rechecked the authorities for states not commenting by press time. While errors may
persist, they are not so numerous as to affect the general findings. As the chart on the
next page indicates, there is great diversity among and within states on this issue.
Twenty-four states must go to court to impose civil penalties in all their programs
authorizing such penalties. Eight states have solely administrative civil penalty
authority (though they may have to go to court if defendants refuse to pay). The
remainder have some mix of administrative and judicial authority, either with some
42
-------
TYPE OF CIVIL PENALTY AUTHORITY
*/ */ */ v/ v/ */ **/ Oc/
Alabama
Alaska
American Samoa
Arizona
Arkansas
California
Colorado
Connecticut
Delaware
District of Columbia
Florida
Georgia
Guam
Hawaii
Idaho
Illinois
Indiana
Iowa
Kansas
Kentucky
Louisiana
Maine
Maryland
Massachusetts
Michigan
Minnesota
Mississippi
Missouri
J
J
O«
J
A
J
J
A/J
J
O«
J
A
J
A/J
J
A/J
J
J
J
J
A/J
J
A/J
J
O»
J
A/J
J
J
J
O»
J
A
A/J
J
A/J
J
0»
J
A
0»
A/J
J
A/J
J
J
A
J
A/J
J
A/J
J
J
J
A/J
J
A
J
0»
J
A
J
J
A/J
A/J
A/J
J
A
J
A/J
A/J
A/J
A/J
J
A/J
J
O«
J
A/J
J
J
J
A/J
J
J
J
J
0*
A
J
J
J
J
O»
J
A
A/J
A/J
J
A/J
J
J
A
J
A/J
J
J
J
J
J
A/J
J
Montana
Nebraska
Nevada
New Hampshire
New Jersey
New Mexico
New York
North Carolina
North Dakota
Ohio
Oklahoma
Oregon
Pennsylvania
Puerto Rico
Rhode Island
South Carolina
South Dakota
Tennessee
Texas
Utah
Vermont
Virgin Islands
Virginia
Washington
West Virginia
Wisconsin
Wyoming
A/J
J
A
J
J
J
A/J
A
J
J
O»
A
A/J
A
A/J
A/J
J
A/J
A/J
J
J
0«
J
A
J
J
A
A
J
A
J
A/J
J
A/J
A
J
J
J
A
A/J
A
A/J
A/J
J
A/J
J
J
J
J
J
A
J
J
A
A/J
J
A
J
J
J
A/J
A
J
J
A/J
A
A/J
A
A/J
A/J
J
A/J
J
J
J
0»
J
A
J
J
A
A
J
A
J
A/J
O»
A/J
A
J
J
J
A
A/J
A
A/J
A/J
J
A/J
J
J
J
J
J
A
J
J
A
A = Administrative civil penalty authority.
J = Judicial civil penalty authority.
A/J = Administrative and judicial civil penalty authority.
O* = No civil penalty authority.
* = Minor violations subject to administratively assessed penaltii
43
-------
programs solely administrative and others solely judicial, or with authority in a program
to impose penalties either administratively or in court. Twenty-two states have both
options in at least one program. A majority of states (31) have administrative authority
in at least one program. Administrative penalties authority is somewhat more common
in hazardous waste programs (26 states), than in the others: air (21 states), water (23
states), and drinking water (21 states).
The distinction between administrative and judicial authorities is important;
administrative penalty authority offers the state agency great flexibility and may
expedite the final imposition of the penalty,/ but a complete understanding of the
effect of penalty assessment procedures upon the effectiveness of the program requires a
look beyond this simple categorization. In this study we can identify issues that might be
addressed, but lack the information on state procedures to analyze them. One might
compare, for example, those statutory provisions that authorize the agency enforcement
unit to assess penalties unilaterally, without a prior adjudicatory hearing, to those
provisions that authorize an agency only to seek the imposition of penalties before an
23/
See for example, the United States General Accounting Office Report "Illegal
Disposal of Hazardous Waste: Difficult to Detect or Deter" (Feb. 22, 1985):
California, Illinois, Massachusetts, and New Jersey environ-
mental agencies do not have administrative authority to issue
civil penalties for RCRA programs. In these states, such matters
must be referred to the state attorney general to bring civil
suit. However, state officials believe that administrative
penalty authority would expedite enforcement action. The
Enforcement Program Manager of the Illinois Environmental
Protection Agency said that the length of time, often 3 to 4
years, required to litigate a case is a problem. He believes the
time would be much shorter with administrative order authority
because it would not necessarily require court proceedings. The
Chief of the Massachusetts Attorney General's Environmental
Protection Division, the Chief of the Toxic Substances Control
Division of the California Department of Health Services, and
-------
independent administrative board. While both penalty schemes are "administrative," the
ability of the agency to secure swift action may differ dramatically. Similarly, the
agency's ability to control the penalty amount and to recover a penalty in each case
which is consistent with its penalty policy may differ in these two settings.
74/
Reference to one administrative mechanism^' that authorizes the enforcement
agency to assess the penalty unilaterally, with no more than a conference or informal
meeting with the alleged violator prior to the assessment, illustrates key institutional
and procedural issues. If the violator wishes to challenge the assessment, and receive a
formal hearing on the issue of the propriety of the agency's finding that it violated the
law or on the issue of the propriety of the particular penalty assessment, it must, within
a specified period, appeal the agency's action to a quasi - judicial administrative board.
(footnote 23 continued...)
the Director of New Jersey's Department of Environmental Protection each made
similar statements, (pp. 41-42)
* * *
In commenting on a draft of this report, EPA emphasized its position that state
administrative authority to issue civil penalties would be helpful in expediting
enforcement actions, (p. 42)
* * *
The report states that administrative authority to issue civil penalties is helpful in
expediting enforcement actions. This is a position which EPA has taken for some
time. The demonstrated result of "swift justice" is an increase in voluntary
compliance. (GAO Report, Appendix II)
ii/ Pa. Cons. Stat. Ann. tit. 35, S691.605 (Pennsylvania Clean Streams Law). The
provision discussed in the text pertains to surface and underground mining-related
violations.
45
-------
However, the appeal is only perfected if the alleged violator also posts in an agency
escrow account the entire amount of the penalty, or posts a surety bond in the entire
amount of the penalty.'
Because the agency's completed penalty assessment action is being reviewed by the
board, and the agency is not merely seeking imposition of a penalty, the board will defer
to the agency's findings and determinations.^7 This means that the agency's penalty
policy, even if not embodied in formal regulations, is likely to be given some deference
as well. The agency retains more control over the process, both before the board and
before the reviewing court which, in turn, is likely to afford the board's decision judicial
27/
deference*-^-'
In such a system, justice is swift: the penalty is either paid by the violator within
the specified time period (30 days) or the penalty assessment becomes final.7 The
violator is discouraged from challenging the penalty without cause, which reduces the
expenditure of agency resources in lengthy hearings and allows the agency to direct more
attention to inspection and investigation.
25/
This procedure, which requires pre-payment of the penalty before a penalty can be
challenged, or a formal hearing obtained, has been upheld as constitutional. See e.g.
Boyle Land
-------
An administrative or judicial procedure where the agency must seek a penalty poses
more obstacles. The penalty may not be imposed until after hearing and a period of
delay. The administrative board or court may not be required to give any deference to
an agency penalty policy or determination as to what penalty is appropriate. The board
or court may have no interest in the agency's desire to assure consistency among the
penalties imposed by the board/court as well as those recovered in voluntary
settlement. An enforcement agency that must obtain the assistance of a separate
agency (e.g. the Attorney General) in seeking the initial imposition of the penalty, either
before an administrative board or court, also may be less likely to sustain use of its
penalty policy. Finally, the agency may be less likely to actually recover the penalty. In
the above example, under the "pre-payment" appeal requirement, the penalty is in an
escrow account, accruing interest, during the pendency of the appeal process; where an
agency is merely empowered to seek penalties, it may not actually recover the penalty
for years, with a loss of the interest which would otherwise be accruing and the possible
loss of the entire penalty if the violator files for bankruptcy and/or goes out of business.
A substantive issue that may be hidden in procedural requirements is whether
penalties can be imposed for the initial violation of law. A statutory provision that only
authorizes the imposition of a penalty after the agency notifies the violator of the
violation, provides time to comply under an order, and then finds the violator to have
29/
violated the agency's order to comply, places on the enforcement agency the burden
of qualifying violators for penalties. Such a procedure appears to weaken penalties'
deterrent effect. Other states take the opposite approach, penalizing initial violations
and authorizing more severe penalties when an order is violated.
See e.g. Idaho Code S39 (Chapter 1) (Bobbs-Merrill 1977 <5c Michie Supps. 1984
-------
Other relevant procedures which must be examined in evaluating a penalty
program, or the ability of the program to make meaningful use of a civil penalty policy,
include those which:
establish presumptions as to the existence of criteria to be considered in
determining the appropriate penalty andeither specifies who bears the burden of
proof or shifts it to the alleged violator^7
explicity recognize the finality of findings made in previous administrative or
judicial proceedings, and therefore do not require relitigation of the validity of
the agency order or of the violation for which the agency now seeks a penalty;
impose an extremely heavy burden of proof that the violation has occurred (e.g.
proof beygnd a reasonable doubt) upon the agency before a "civil" penalty may be
imposed, or provide that only "knowing" violations occurring so many days
after agency notice of the violation result in a civil penalty*2Z'
H' Hawaii's statute (Hawaii Rev. Stat. tit. 19 S342-11.5) (Hawaii 1976 3c Supp. 1984)
presumes "that the violator's economic and financial condition allows payment of the
penalty, and the burden of proof to the contrary is on the violator." See also Or.
Admin. R. §340-12-045 (1985) which also specifies that the violator beaFthe burden
of proof and going forward on this issue. See also Pennsylvania Solid Waste Manage-
ment Act, Pa. Cons. Stat. Ann., tit. 35, 56018.611, and Louisiana Solid Waste
Management Act, La. Rev. Stat. S30.1147.1(8) re shifting to the defendant key
substantive burdens in penalty actions.
' Utah Code Ann. S26-13-18 (Allen Smith Co. 1984).
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G. WHERE DOES THE MONEY GO?
The accompanying charts summarize the disposition of the collected penalties, for
each major environmental program. Three categories are used: (1) the general fund or
treasury, (2) special environmental funds, and (3) other special funds.
The majority of state air, water, drinking water, and solid waste statutes direct
that the penalties recovered be deposited in the state treasury or general fund, and a
significant, although lesser, number require deposit in a special environmental fund.
The majority of hazardous waste statutes, the newest group of statutes, direct that
the penalties be deposited in a special environmental funtf^/ such as an "emergency spill
response fund"; "hazardous waste trust fund"; "hazardous waste emergency account"; or
"water pollution abatement grant fund."
Somewhat more intriguing and lesser known provisions are those which authorize
the disposition of penalties to the fund of the local county^ or school district in which
35/
the violation occurred or the award of a percentage of the penalty to any person who
supplies evidence leading to the imposition of that penalty^
The issue of where the penalties go may not directly affect EPA's oversight
responsibilities, but can affect the operation of the penalty program and enforcement
overall. Statutes which authorize rewards (percentages of the penalty) to those who
provide the agency information which leads to the imposition of the penalty may
encourage a greater public awareness of environmental problems and assist the agency to
33/
Although these special environmental funds were available in some states for
penalties collected under the air, water, drinking water, and waste statutes, the use
of these environmental funds appears to be increasing across the country as new
statutes are enacted.
S.C. Code Ann. S48-1-350 (Law. Co-op. 1985).
oe /
H'
36/
'
oe /
H' See. e.g.. Nev. Rev. Stat. §445.601(4) (Nev. Legis. Couns. 1979, 1981
-------
find and investigate pollution and other environmental problems. The existence of an
environmental fund, and/or the public's knowledge of the use to which the fund is put,
may have a beneficial effect on the agency's ability to recover favorable penalty
settlements or its ability to secure Urge penalty judgments from the judiciary. Statutes
which divert all or part of the penalties to the county in which the violation occurs may
encourage environmental awareness by the local officials or community members or
reduce the political pressure upon an agency which seeks a high penalty against a large
local industry.
50
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DISPOSITION OF PENALTY MONEY COLLECTED
AIR
STATE TREASURY/
GENERAL FUND
SPECIAL
ENVIRONMENTAL
FUNDS
OTHER SPECIAL
FUNDS
Alabama
Alaska
American Samoa
Arizona
Arkansas
California
Colorado
Connecticut
Delaware
D. of Columbia
Florida
Georgia
Guam
Hawaii
Idaho
Illinois
Indiana
Iowa
Kansas
Kentucky
Louisiana
Maine
Maryland
Massachusetts
Michigan
Minnesota
Mississippi
Missouri
Montana
Nebraska
Nevada
Actions for State Air
Board-General Fund;
Actions by Atty. Gen. for
district-1/2 to state,
1/2 to district
X
X
X
X
X
X
X
X
X
State DepFt of Envfl
Mgmt Fund
Emergency Response Fund
(up to $150,000 cap) then
to Remedial Action Trust Fund
Actions by district
attorney to district
treasurer
To individual who
provides information
which leads to conviction
State Pollution
Recovery Fund
Environmental Protection
Trust Fund or Wildlife and
Fish Fund in State Treasury
Environmental Management
Special Fund
State says money goes first to
Environmental Emergency Response
Fund, then, if Fund is over
$2,000,000, to Abandoned Hazardous
Waste Site Fund. Statute says
money first to Bond Fund, but
state says it has never been done
Environmental Fund
Water Pollution Abatement
Grant Fund - may be used
for air pollution
County School District Fund
of County where violation
occurred
51
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DISPOSmON OF PENALTY MONEY COLLECTED
AIR (continued)
New Hampshire
New Jersey
New Mexico
New York
N. Carolina
N. Dakota
Ohio
Oklahoma
Oregon
Pennsylvania
Puerto Rico
STATE TREASURY/ SPECIAL
GENERAL FUND ENVIRONMENTAL
FUNDS
X
X
X
X Or Conservation Fund
General Fund unless
penalty recovered by air
quality control authority
then to county of violation
Clean Air Fund
Special Account of
OTHER SPECIAL
FUNDS
Or Deo1! of Tax and Finance
County of violation if
penalty recovered by air
quality control authority,
otherwise to general fund
Rhode Island
Board on Envt'l Quality
S. Carolina
S. Dakota
Tennessee
Texas
Utah
Vermont
V. Islands
Virginia
Washington
W. Virginia
Wisconsin
Wyoming
1/2 to state
If action brought by local
gov't, 1/2 to local gov't,
1/2 to state gov't, otherwise
all to general fund
State treasury unless court
orders it to local government
1/2 to county
General Fund unlei
by local authority
recovered
If recovered by local air
authority, 1/2 to authority
treasury, other half divided
among cities which support
authority on a pro rata basis
of support
School Fund (for violations of
general penalties statute)
52
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DISPOSITION OF PENALTY MONEY COLLECTED
WATER/NPDES/WATER QUALITY
STATE TREASURY/
GENERAL FUND
Alabama
Alaska
American Samoa
Arizona
Arkansas
California
Colorado
Connecticut
Delaware
D. of Columbia
Florida
Georgia
Guam
Hawaii
Idaho
Illinois
Indiana
Iowa
Kansas
Kentucky
Louisiana
Maine
Maryland
MassachuMtti
X
X
X
X
X
X
X
X
X
SPECIAL
ENVIRONMENTAL
FUNDS
State Dep-t of
Envt'l Mgmt Find
Water Quality
Assurance Revolving
Find
Emergency Response Fund
(up to I ISO,000 cap) then
to Remedial Action Trust Fund
State Water Pollution
Cleanup and Abatement
Account of the State
Water Quality Control
Fund
OTHER SPECIAL
FUNDS
Or State Pollution Recovery
Fund
Environmental Protection
Trust Fund or Wildlife
and Fish Find in State
Treasury
For stream pollution:
common school fund
Environmental Emergency
Response Fund (up to
$2,000,000), then to
Abandoned Hazardous
Waste Site Fund
Monitoring and
Surveillance Fund
Environmental Fund
except for Section 27,
Ch. 21 - for oil and
hazardous material
spills - money is
credited to account
used to cleanup spill
and for restoration
Michigan
Minnesota
53
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DISPOSmON OF PENALTY MONEY COLLECTED
WATER/NPDES/WATER QUALITY (continued)
STATE TREASURY/
GENERAL FUND
Mississippi
Missouri
Montana
Nebraska
Nevada
New Hampshire
New Jersey
New Mexico
New York
N. Carolina
N. Dakota
Ohio
Oklahoma
Oregon
Pennsylvania
Puerto Rico
Rhode Island
X
X
SPECIAL
ENVIRONMENTAL
FUNDS
OTHER SPECIAL
FUNDS
Water Pollution Abatement
Grant Fund
County School Fund
Section 58:10-23. llg-
For spills only - N J. Spill
Compensation Fund
Violations resulting
in the killing of fish
or shellfish, to
Conservation Fund
Clean Water Fund of
State Treasury
Special Account of
Board on Envt'l Quality
For other violations,
to the state comptroller
or Dep't of Taxation and
Finance
S. Carolina
S. Dakota
Tennessee
Texas
Utah
Vermont
V. Islands
Virginia
Washington
W. Virginia
Wisconsin
Wyoming
1/2 to state
General Fund unless
local action, then 1/2
to state, 1/2 to local
goVt
X
X
NPDES - state treasury
if local gov-t is violator
Water Quality- oil
spills - into general
fund, or Oil Fund at
governor's discretion
X
X
X
1/2 to county
Water Quality
Control Division
If court orders, to local
government treasury, or to
state treasury
School Fund
54
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DISPOSITION OF PENALTY MONEY COLLECTED
DRINKING WATER/UIC
STATE TREASURY/
GENERAL FUND
SPECIAL
ENVIRONMENTAL
FUNDS
OTHER SPECIAL
FUNDS
A la bam
Alaska
American Samoa
Arizona
Arkansas
California
Colorado
Connecticut
Delaware
D. of Columbia
Florida
Georgia
Guam
Hawaii
Idaho
Illinois
X
X
X
X
X
X
Indiana
Iowa
Kansas
Kentucky
Louisiana
Maine
Maryland
Massachusetts
Michigan
Minnesota
Mississippi
Missouri
Montana
Nebraska
Nevada
X
X
X
State Dep-t of Envtl
Mgmt Fund
Water Quality
Assurance Revolving Fund
Emergency Response Fund
(up to $150,000 cap) then to
Remedial Action Trust Fund
Environmental Fund
Environmental Protection
Trust Fund or Wildlife
and Fish Fund
Environmental Management
Special Fund
Envt'l Emergency Response Fund
(up to $2,000,000) then to
Abandoned Haz. Waste Site Fund
Water Pollution
Abatement Grant Fund
55
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DISPOSITION OF PENALTY MONEY COLLECTED
DRINKING WATER/UIC (continued)
STATE TREASURY/
GENERAL FUND
SPECIAL
ENVIRONMENTAL
FUNDS
OTHER SPECIAL
FUNDS
New Hampshire
New Jersey
New Mexico
New York
N. Carolina
N. Dakota
Ohio
Oklahoma
Oregon
Pennsylvania
Puerto Rico
Rhode Island
S. Carolina
S. Dakota
Tennessee
Texas
Utah
Vermont
v. Islands
Virginia
Washington
W. Virginia
Wisconsin
Wyoming
X
X
X
X
X
X
Clean Water Fund of
State Treasury
Spedal Account of
Board on Envt'l Quality
Water Quality
Control Division
Local Government. Escrow
Account if penalty contested,
or supersedes bond
X
X
X
X
X
X
Owner of well or water
resource
56
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DISPOSITION OF PENALTY MONEY COLLECTED
HAZARDOUS WASTE
STATE TREASURY/
GENERAL FUND
SPECIAL
ENVIRONMENTAL
FUNDS
OTHER SPECIAL
FUNDS
Alabama
Alaska
American Samoa
Arlront
Arkansas
California
Colorado X
Connecticut X
Delaware
D. of Columbia X
Florida
Georgia
Guam x
Hawaii
Idaho
Illinois x
Indiana
Iowa
Kansas x
Kentucky X
Louisiana
Main*
Maryland
Massachusetts
State Dep't of Envtl
Mgmt Fund
Hazardous Waste
Trust Fund
Emergency Response Fund
(up to $150,000 cap) then to
Remedial Action Trust Fund
50% to Hazardous Waste
Control Account
Credited to Emergency
Spill Response Fund
Pollution Recovery Fund
or Hazardous Waste Management
Trust Fund
Hazardous Waste Trust Fund
Hazardous Waste Account
Environmental Protection
Trust Fund, Wildlife and
Fish Fund, or Haz, Waste Fund
Environmental Management
Special Fund
Hazardous Waste Remedial
Fund
Envt'l Emergency Response
(up to $2,000,000) then to
Abandoned Hae, Waste Sit* Fund
Haz. Waste Fund
Monitoring and Com-
pliance Fund
Environmental Fund or to
account used for cleanup
and restoration
25% to Dep't of Health
Services, 25% to office
bringing suit, either city
attorney or Alty. Gen.
Or State account from which
funds for cleanup were
expended
57
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DEPOSITION OF PENALTY MONEY COLLECTED
HAZARDOUS WASTE (continued)
STATE TREASURY/
GENERAL FUND
Michigan
Minnesota
Mississippi
Missouri
Montana
Nebraska
Nevada
New Hampshire
State Treasury for
imminent hazard
sites
New Jersey
New Mexico
New York
N. Carolina
N. Dakota
Ohio
Oklahoma
Oregon
Pennsylvania
Puerto Rico
Rhode Island
S. Carolina
S. Dakota
Tennessee
Texas
X
1/2 to state
General Fund unle
local action, then
1/2 to state, 1/2
to local goVt
SPECIAL
ENVIRONMENTAL
FUNDS
Environmental Response,
Compensation and Com-
pliance Fund if release
presents imminent hazard
Water Pollution
Abatement Grant Fund
Hazardous Waste Remedial
Fund- if uncontrolled
or abandoned hazardous
waste site. Hazardous
Waste Fund - if hazardous
waste law violations
Hazardous Waste Cleanup
Fund-for strict liability
for cleanup, plus knowledge
on part of his property being
used for illegal treatment,
transportation, storage, or
disposal
OTHER SPECIAL
FUNDS
Hazardous Waste
Remedial Fund
Haz. Waste Site Remedial
Fund (up to $200,000 cap)
Hazardous Waste
Cleanup Special Account
Controlled Industrial
Waste Fund
Solid Waste Abatement
Fund
Or Envt'l Response Fund
Hazardous Waste
Remedial Action Fund
Plaintiff who sues receives
treble damages. Office of
Waste Management - for ex-
penditures from Cleanup
Fund
1/2 to person who provides
information on illegal
treatment, storage or
disposal
1/2 to county
58
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DISPOSITION OF PENALTY MONEY COLLECTED
HAZARDOUS WASTE (continued)
Utah
Vermont
V. Islands
Virginia
Washington
STATE TREASURY/
GENERAL FUND
X
X
SPECIAL OTHER SPECIAL
ENVIRONMENTAL FUNDS
FUNDS
Hazardous Wast* Control
and Elimination Account
W. Virginia Hazardous Waste
Emergency Response Fund
Wisconan
Wyoming X
59
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DISPOSITION OF PENALTY MONEY COLLECTED
SOLID WASTE
STATE TREASURY/
GENERAL FUND
SPECIAL
ENVIRONMENTAL
FUNDS
OTHER SPECIAL
FUNDS
Alabama
Alaska
American Samoa
Arizona
Arkansas
California
1/2 to General Find,
1/2 to county where
action brought unless
brought by county atty
then 100% to county
Colorado
Connecticut
Delaware
D. of Columbia
Florida
Georgia
Guam
Hawaii
Idaho
Illinois
Indiana
Iowa
Kansas
Kentucky
Louisiana
Maine
Maryland
Massachusetts
Michigan
Minnesota
Mississippi
Missouri
Montana
Nebraska
Nevada
New Hampshire
New Jersey
X
X
X
State Dep-t of
Envt'l Mgmt Fund
Emergency Response Fund
(up to $150,000 cap) then
to Remedial Action Trust Fund
Hazardous Waste Management
Trust Fund or Poll. Recovery Fund
Environmental Emergency
Response Fund (up to
$2.000,000) then to
Abandoned Hazardous
Waste Site Fund
Monitoring and
Compliance Fund
Environmental Fund
Water Pollution Abatement
Grant Fund
Municipality or
State Treasury
X
X
60
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DISPOSITION OF PENALTY MONEY COLLECTED
SOLID WASTE (continued)
STATE TREASURY/
GENERAL FUND
SPECIAL
ENVIRONMENTAL
FUNDS
OTHER SPECIAL
FUNDS
New Mexico
New York
N. Carolina
N. Dakota
Ohio Oklahoma
Oregon
Pennsylvania
Puerto Rico
Rhode Island
S. Carolina
S. Dakota
Tennessee
Texas
Utah
Vermont
v. islands
Virginia
Washington
W. Virginia
Wisconsin
Wyoming
Conservation Fund
if fish or shellfish
are killed by violation
Solid Waste Abatement
Fund
X
1/2 to state
General Fund unless
local action then 1/2
to state, 1/2 to local gov"t
State Comptroller or
Dep't of Taxation and Finance
if no death of fish or shellfish
1/2 to county
School Fund
61
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DISPOSITION OF PENALTY MONEY COLLECTED
WETLANDS/DREDGE AND FILL
STATE TREASURY/
GENERAL FUND
SPECIAL
ENVIRONMENTAL
FUNDS
OTHER SPECIAL
FUNDS
Alabama
Alaska
American Samoa
Arizona
Arkansas
California
Colorado
Connecticut
Delaware
D. of Columbia
Florida
Georgia
Guam
Hawaii
Idaho
Illinois
Indiana
Iowa
Kansas
Kentucky
Louisiana
Maine
Maryland
Massachusetts
Michigan
Minnesota
Mississippi
Missouri
Montana
Nebraska
Nevada
New Hampshire
New Jersey
New Mexico
New York
Water Pollution Cleanup
and Abatement Account
Environmental Fund
Environmental Fund
Nonlapsing state fund
for research and investiga-
tion, or used to restore
wetlands
62
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DISPOSmON OF PENALTY MONEY COLLECTED
WETLANDS/DREDGE AND FILL (continued)
STATE TREASURY/
GENERAL FUND
SPECIAL
ENVIRONMENTAL
FUNDS
OTHER SPECIAL
FUNDS
N. Carolina
N. Dakota
Onto
Oklahoma
Oregon
Pennsylvania
Puerto Rico
Rhode Island
S. Carolina
S. Dakota
Tennessee
Texas
Utah
Vermont
V. Islands
Virginia
Washington
W. Virginia
Wisconsin
Wyoming
63
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DISPOSITION OF PENALTY MONEY COLLECTED
OIL
STATE TREASURY/
GENERAL FUND
SPECIAL
ENVIRONMENTAL
FUNDS
OTHER SPECIAL
FUNDS
Alabama
Alaska
American Samoa
Arizona
Arkansas
California
Colorado
Connecticut
Delaware
D. of Columbia
Florida
Georgia
Guam
Hawaii
Idaho
Illinois
Indiana
Iowa
Kansas
Kentucky
Louisiana
Maine
Maryland
Massachusetts
Michigan
Minnesota
Mississippi
Missouri
Montana
Nebraska
Nevada
New Hampshire
New Jersey
New Mexico
New York
N. Carolina
N. Dakota
Oil Spill Mitigation
Account
Hazardous Waste
Control Account
Or Pollution Recovery Fund
Private person if private
fishery is damaged by a spill
64
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DISPOSITION OF PENALTY MONEY COLLECTED
OIL (continued)
STATE TREASURY/ SPECIAL OTHER SPECIAL
GENERAL FUND ENVIRONMENTAL FUNDS
FUNDS
Ohio
Oklahoma
Oregon
Pennsylvania
Puerto Rico
Rhode Island
S. Carolina
S. Dakota
Tennessee
Texas x Saltwater Pit if violator seeks judicial
Disposal Fund review, money joes into
escrow account or posted
supersede as Bond
Utah
Vermont
V. Islands
Virginia X Oil Spill Contingency Fund
Washington X Coastal Protection F und
W. Virginia
Wisconsin
Wyoming
65
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DISPOSITION OF PENALTY MONEY COLLECTED: SUMMARY
CATEGORY
STATE TREASURY/ SPECIAL OTHER
GENERAL FUND ENVIRONMENTAL SPECIAL
FUND FUNDS
AIR
WATER/NPDES/
WATER QUALITY
29
28
11
15
8
6
DRINKING 28
WATER/UIC
HAZARDOUS 21
WASTE
SOLID 19
WASTE
WETLANDS/DREDGE 6
AND FILL
OIL 7
11
28
9
4
6
4
0
2
Note:
Many states have provisions which split money between the general fund and a special fund, or give it to
one or the other depending on the statute, circumstances, court orders, etc. Those which are split are
counted separately and may count in the total for one, two or all of the columns, as appropriate.
-------
n. ANALYSIS OF STATE CIVIL PENALTY POLICIES
INTRODUCTION
This report presents a survey of state civil penalty policies received by EPA in
response to a request from the Steering Committee. The survey includes 22 policy
statements or descriptions from 20 states. A chart identifying the respondents is
presented on the next page. It may not present a complete catalogue of state policies,
because some states may have chosen not to respond to the request, or the policies may
not be formally documented. The absence of a policy for any specific state program
means that no such policy exists, although Connecticut reported that they have no
policies beyond its regulations; the Colorado air program and Michigan hazardous waste
programs likewise reported that they have no policies.
The 22 policy documents and descriptions provide a broad sampling. They cover 20
diverse states in eight different EPA Regions (I, n, HI, IV, V, VI, Vm, and X) that span
varied geographic areas from Florida to Washington, from Maine to Louisiana. The
policies address a variety of programs: six are general, apparently covering all programs
of the issuing agencies; eight cover hazardous waste; four apply to air programs; three
cover water programs, and one covers drinking water.
The diversity of programs is not only between states. The two states for which
more than one policy was submitted are trying distinct approaches in different
programs. Most of the policies submitted (15 of 22) cover only one program, but six
cover entire agencies.
Because the policies on hand represent only a sample of those in existence and we
do not know how many programs operate without policies, it is not possible to make
comprehensive conclusions about the current role of civil penalty policies in state
enforcement. This report simply characterizes the policies, presents some broad
hypotheses that they suggest, and summarizes the policies.
67
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Colorado
STATES SUBMITTING INFORMATION ON POLICIES
GENERAL AIR WATER HAZARDOUS NO FORMAL
WASTE POLICY
Arkansas X
X (Air)
Connecticut
District of
Columbia
Florida
Idaho
X (Drink. Water)
Illinois
Indiana
Kentucky
Louisiana
Maine
Massachusetts
Michigan
X (Haz. Waste)
New York
X**
North Carolina
North Dakota
Ohio
X*
Oregon
Pennsylvania
Utah
Virginia
X***
Washington
* Uses EPA Policy.
** Uses EPA Policy "as a guide."
Directs penalty-setter to "EPA['s] explanation" for particular calculations.
***
68
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A. OVERVIEW
The approaches of the various state policies differ, but can be grouped into three
categories: penalty amount essentially discretionary; factors-to-be-considered specified;
detailed penalty formula. In the last category, some policies track the formula of the
EPA penalty policies, others do not, thus providing two subcategories.
Discretionary
One (MA) specifies categories of violations in which penalties should be sought, but
does not identify factors governing the amounts to be sought.
One (AR) sets ranges for first and subsequent violations of different types (three
exhaustively defined classes in each program), but does not specify factors to govern the
choice of penalties within the ranges.
Factors
EPA Factors Included
Three (IN-air, ME, UT) set rather arbitrary ranges of penalties for different types
of violations, with the specific figure to be set with reference to a variety of factors,
including economic benefit and others identified in the general EPA penalty policy.
Three (DC, LA, CO) specify a number of factors, including EPA penalty policy
factors, to be taken into account, but do not indicate how they affect penalty amounts.
The DC policy expressly recognizes that a great deal of discretion is appropriate in
setting penalties. A fourth policy (WA) appears to fall into this category, requiring
consideration of a long list of factors, including financial incentives to violate and other
EPA civil penalty policy factors, without specifying how the factors are to be used.
However, a document referenced in the materials submitted, but not included, may offer
detailed guidance on using the factors.
69
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A fifth policy (VA-water) lists a number of factors, some of which are based on
EPA's policy factors (including economic benefit) and which, when summed, comprise a
"total penalty." Other factors, such as mitigation, then are evaluated, and a "final
penalty" is recommended.
One (ID - drinking water) uses penalty matrices based on population and number of
violations, taking seriousness of the violation and deterrent effect into account.
EPA Factors Not Included
Oregon's hazardous waste policy mandates consideration of the several statutory
penalty criteria, which do not include economic benefit. However, the agency does
consider economic benefit in setting enforcement priorities, if not penalties.
"Substantial" economic benefit is one factor that goes into determining whether a
violation is "high priority."
Kentucky's policy is not public, but apparently does not include economic benefit in
the list of factors to be considered.
Formula
Similar to EPA Formula
One state (OH) uses the 1977 EPA civil penalty policy, which has been adopted by
its courts. Four states (IN, PA, NC, ND) have adopted hazardous waste penalty policies
utilizing approaches very similar to that of EPA, basing penalties largely on the gravity
of violations and economic benefit. One state (FL) has a draft policy adapting the EPA
RCRA policy to all its programs. One (NY) uses the EPA hazardous waste policy "as a
guide." One (VA) directs the penalty-setter to EPA's explanation for calculating certain
factors such as economic benefit, then incorporates other factors such as mitigation,
inability to pay, and alternative resolutions of new issues presented in calculating the
"final penalty."
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One state's air program (IL) has a policy to seek penalties, within the statutory
maxima, based on economic benefit of delayed compliance and "aggravating factors,"
some of which mitigate, others of which increase the penalty sought.
Different from EPA Formula
One state's water program (PA) sets penalties to be sought on the basis of an
elaborate formula that tracks statutory penalty criteria. Economic benefit is not
considered.
These policies suggest that EPA's penalty policies have been influential with the
states. Most (15 of 19) of the policies reviewed either track the EPA policy or provide at
least lip service to economic benefit of delayed compliance and other factors utilized in
the federal policies. The similarities are most pronounced in hazardous waste programs,
perhaps because the state programs are relatively new and have been forced into the
federal mold by the recent RCRA delegation process.
The EPA model is not always followed precisely; most of the policies preserve
greater flexibility for tailoring the penalty to the facts of specific cases. States are
somewhat more willing to consider the EPA policy factors among others than to lock
themselves into the formal EPA approach.
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B. SUMMARIES OF POLICIES
Arkansas
All Programs
Arkansas's policy simply prescribes different maxima and minima for penalties,
based on the nature of the violation and whether it is a repeat occurrence. The statutes
and regulations prescribe maximum penalties for each program. The policy defines three
classes of violations in each program in great detail. For example, for air pollution it
specifies 11 types of Class I violations, four types of Class n violations, and two types of
Class in violations. The ranges of penalties vary depending on the statutory limits, but
the same principles govern the allowable ranges in all programs there is a maximum for
first-time Class I violations ($5,000 for air), with a minimum ($1,000) and maximum
($5,000) for subsequent violations of the same regulation within six months, and each
"day of a continuing violation may be deemed a separate violation;" for Class II and III
violations, the same pattern is followed, but the maxima and minima are smaller ($1,000
for first-time Class H air offenses, $500 for first-time Class in air offenses).
Colorado
Water
The Colorado Department of Health's June, 1984 Water Quality Compliance
Strategy Report specifies "criteria and procedures for assessing civil penalties." The
stated objective of the penalties is "to deter violations and encourage compliance.
Further, civil penalties are to ensure that a polluter will not benefit by negligence,
mismanagement or defiance. The Department will set penalties sufficient to serve as an
economic incentive to comply with permits issued." (at 25)
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The assessment process begins with the categorization of the violation and the
harm it might cause as severe, moderate, or minor. A maximum penalty is calculated
based on the severity of the violation. The maximum is adjusted after consideration first
of potential damage, willfulness, and violation history. Apparently lack of potential
damage could result in a reduction of up to 65% of the maximum, lack of willfulness in a
further reduction of up to 25%, and violation history of up to 10%. Further deductions
can be made for violators that cooperate with the Department. Additions to the penalty
can be made if it involves failure to report the violation or to submit other required
reports, or if necessary to remove any economic benefit from delayed compliance.
District of Columbia
Hazardous Waste
The District has a "Compliance/Enforcement Strategy" that addresses civil
penalties. The emphasis is on the discretionary nature of the enforcement process and it
is impossible to discern how a specific case would be handled.
"Enforcement decisions are made on a case-by-case basis." No statutory
distinction between majors and minors, but those "cited repeatedly for noncompliance"
are recommended for criminal penalties. The strategy document includes a flow chart
specifying steps in the enforcement process, with time limits for each step before
escalation to the next.
"Although". . .the statute "does not contain standards for assessing penalties,
administrative recommendations are based on the following guidelines:
(a) Severity of the violation;
(b) Actual harm or damage;
(c) Potential harm or damage;
(d) Whether the violation is a first or subsequent violation;
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(e) Deterrence effect; and
(0 Economic benefit gained or to be gained from delayed (sic) noncompliance."
(at 9)
The strategy document also notes that the agency "has in the past followed the
Department of Consumer and Regulatory Affairs Civil Penalty Policy and will continue
to do so. Ultimately, the courts are responsible for determining the penalty to be
imposed." (at 9) It also notes that the Department can exercise discretion in deciding to
refer cases for legal action.
Florida
General
The Florida Department of Environmental Regulation submitted a draft "Civil
Penalty Policy" (undated) that by its terms governs the amounts of penalties to be sought
in negotiating settlements of enforcement actions. Although the Department cannot
assess penalties administratively, it "can obtain penalties as part of a settlement to an
administrative enforcement proceeding, however." (at 1) The policy states that among
the considerations to be made when deciding whether to settle a given enforcement
action are whether enforcement will "result in correction of any economic benefit gained
by the violator" and "does enforcement provide enough of a financial disincentive to
discourage future violations." (at 1) The Department divides violations into Classes A
and B, with a primary distinction being that Class A violations are deemed appropriate
for penalties.
In penalty cases, the Department calculates penalties using the EPA RCRA
approach for all programs, modified to reflect that it has authority to seek maximum
penalties of $10,000 per day as opposed to the $25,000 maximum reflected in the EPA
policy. The state uses a three-by-three matrix matching potential for harm and extent
of deviation from legal requirements. The policy gives detailed examples of how to rate
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violations in each program on these two scales. The economic benefit from non-
compliance is then added to the initial penalty figure.
Idaho
Drinking Water
Idaho submitted a "Water Quality Program Guidance Memorandum" (effective
Feb. 1, 1985), the purpose of which is "tt]o establish uniform guidelines within the Public
Drinking Water Supply Program for stipulated penalties for violation of a Board of Health
and Welfare Order" (at 1 of unpaginated document). Administrative actions, such as
negotiations and public hearings, may be used to develop a Board of Health and Welfare
Order, the violation of which results in the assessment of civil penalties.
Idaho Department of Health and Welfare policy is for compliance orders to contain
stipulated penalties that are negotiated individually for each order, unless the penalty
matrix tables are incorporated. These tables, included in the Guidance Memorandum,
consist of Table 1, the penalty matrix establishing monitoring violation penalties, and
Table 2, the penalty matrix for maximum contaminant level (MCL) violations. The tables
are based on the concepts of population and deferred penalties, with higher per violation
penalties in Table 2 due to the attendant health risks involved.
Fines are based on "the seriousness of the violation and deterrence effect on the
purveyor" (id.). The guidance document states that the Division of Environment will use
a progressive compliance approach for water supply systems failing to voluntarily
comply, thus necessitating use of the Board Order compliance mechanism. The
progressive penalty system is "based on the premise that recurrent violations equate to
increased health risk which should result in higher penalties" (at 5 of unpaginated
document, under the heading "Penalty Matrices Rational"). The penalty matrices in
Tables 1 and 2 set penalties based on population (i.e., size of community served) and
number of violations, with increasing penalties for repeat violators serving larger
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populations. The following excerpt (from the last page of the document) explains the
rationale and imposition of the deferred penalty system in Idaho:
The deferred penalty system combined with a progressive penalty
payment is attractive because it can demonstrate the seriousness
of the Department through collection of small penalties while
deferring the bulk of the penalty. The larger penalty will only be
sought where the entity fails to comply with the provisions of the
Order and then only if four violations occur within a twelve
month period. In other words, the entity is given repeated
chances to comply but if it fails to respond further, more drastic,
measures must be taken to insure that the health of the
consumer is protected.
Illinois
Air
In Illinois, air pollution control penalties are set with reference to five
"considerations:" the statutory maxima, a statutory requirement that the agency
consider the reasonableness of emissions in regulating them, the economic savings for
noncompliance, an enforcement management system that directs the agency to consider
the statutory maxima and economic savings and spells out penalty procedures, and case-
specific "aggravating factors." (Letter from Michael J. Hayes, Acting Manager, Division
of Air Pollution, to Cheryl Wasserman, dated July 18, 1985.)
The agency calculates economic benefit on the basis of the model approved by EPA
in 1980 for the federal penalty policy. Aggravating factors include the compliance
record, good faith efforts, the cost and availability of controls, and the company's
financial condition. If other facilities in the industry are in compliance, a larger penalty
may be sought to eliminate the competitive advantage; if the source cooperates when
cited for the violation the penalty may be reduced. In other words, these factors may
mitigate or increase the penalty. The analysis of these factors is dominated by case-
specific considerations.
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Indiana
Air
The Air Pollution Control Board has approved guidance for setting penalties to be
sought in negotiating consent decrees. The guidance begins at p. V-51 in a section of an
untitled document.
The document presents several "general principles," one of which is that penalties'
main purpose is deterrence. Though recognizing that environmental damage and
economic benefit of noncompliance are relevant, the guidance states that these factors
are too difficult to calculate in practice, but should be used in differentiating among
penalties in different cases. In other words, penalties cannot be set equal to the value of
environmental harm or economic benefit, but can vary from one case to the next on the
basis of the relative volume of pollution (a surrogate for harm) and cost of compliance (a
surrogate for benefit).
The general statement also notes that other factors, "such as relative strength of
the case and the degree of cooperation from the violating party" may be taken into
account, but should not cause major changes from penalties dictated by the formal
factors. Second violations are to give rise to double penalties absent mitigating
circumstances.
The guidance goes on to specify matrices of penalty figures for violations of
different standards or categories of violations, which vary with the volume of
uncontrolled emissions from the source, and in cases involving failure to install controls,
the costs of control.
The copy of this document is missing pages V-52, 54, and 56, so it is impossible to
present a complete picture of this scheme.
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Hazardous Waste
The Indiana Division of Land Pollution Control adopted an 'Interim Civil Penalty
Policy" (CPP) for its Hazardous Waste Program in November, 1984. Adoption by the
Environmental Management Board was pending at the time.
The EPA penalty policy for RCRA violations "has been borrowed from generously in
formulating this CPP." The policy has three steps; "(1) determining a gravity-based
penalty for a particular violation, (2) considering economic benefit of noncompliance,
where appropriate, and (3) adjusting the penalty for special circumstances." (at 3)
The gravity component is calculated using a nine cell matrix with three degrees
(minor, moderate, major) of potential for harm and deviation from standards along each
axis. Each gradation of harm and deviation is defined and illustrated. Minor/minor
gravity components range from $100-499; major/major components, $20,000-25,000.
The economic benefit from noncompliance is added to the gravity component if the
violator "has derived significant savings and competitive advantage." The policy states
that the economic benefit component should be calculated whenever possible, but may be
disregarded if less than $1,000. Economic benefit from delayed and avoided costs is
computed. Violators are directed to present information documenting any challenges to
the agency's calculations.
The penalty based on gravity and economic benefit may be adjusted upward or
downward on the basis of several case-specific factors, including the presence or absence
of good faith efforts to comply, the degree of willfulness or negligence, the history of
compliance, ability to pay, and other unique factors. The policy addresses how each of
these factors is to be taken into account.
The policy specifies circumstances appropriate for multiple penalties (independent
acts substantially distinguishable from each other; violation of different requirements, or
of the same requirement at different locations); and those not appropriate (violation of
two requirements as the result of one act). The policy notes that the Board has the
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authority to levy multi-day penalties for continuing violations, and indicates their utility
in cases of continuing egregious violations, or violations of compliance schedules.
Kentucky
Air
The Kentucky Division of Air Pollution Control has a formal policy which it uses to
determine the amount of a fine for construction or operation without a permit.
However, the Division does not provide copies of the policy to anyone outside their
Cabinet. (Letter from Roger B. McCann, Director, Division of Air Pollution Control, to
Cheryl Wasserman, dated August 15, 1985.) The policy takes into account the nature and
amounts of pollutants emitted, the pollutants' potential danger to public health and
environment, cooperation of the violator, and previous compliance history of the
violator, and determines the penalty within the statutory limits.
The Division has also entered an enforcement agreement with EPA's Region IV that
covers enforcement criteria including the assessment of penalties. The agreement
provided does not give any specific criteria but provides overall guidelines for the
interaction of state and federal enforcement with the goal of reaching compliance.
Louisiana
Air
The Air Quality Division submitted a "Penalty Assessment Form," which is a
checklist calling for a rating on a one to five point scale on each of the following
parameters: compliance history, nature and gravity of the violation, gross revenue,
culpability or cooperation, monetary benefits through noncompliance, risk to health,
reporting, mitigation, enforcement cost, and length of violation.
The document does not indicate how the factors are weighted or how they relate to
penalty amounts.
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Maine
General
The Maine Board of Environmental Protection's "Consent Agreement Policy," as
amended April 23, 1980, outlines factors to be considered by enforcement staff in
calculating penalties sought before the Board. Five variables are included in the
calculus, with a range (e.g. 0-35) "units" to be assigned to the violation under each
variable. The policy specifies factors to be considered in determining how many units a
violation is worth, but not how to weigh them. The total number of units is then
compared to a penalty table and a dollar amount identified (e.g. the high end of the scale
prescribes penalties of $4,000-10,000 for violations assigned 86-100 units).
The first variable is environmental impact (0-35 units). Considered are the size of
the area affected by the violation and its sensitivity to the type of pollution involved, the
duration of the violation, and the relationship between the violation and any applicable
permit conditions.
The second variable is the cause of the violation (0-20 units). The factors to be
considered include whether the violation was foreseeable, the violator acted with
knowledge of the law, the violation could have been prevented, mitigation measures were
taken, and the violator gained financially.
The third variable is the number and nature of previous violations.
The fourth variable is corrective action. The less the violator did to correct the
violation, the higher the tally.
The fifth and final variable is the potential for a recurrence of the violation.
The calculation just outlined produces a recommended penalty range; the Board has
discretion to decide the appropriate penalty within the range. Penalties assessed may be
offset by environmentally beneficial expenditures on activities beyond those required by
law.
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Massachusetts
General
The Commonwealth's Department of Environmental Quality Engineering issued
"Enforcement Policies and Guidelines," dated February, 1985. The policy is applicable to
hazardous and solid waste, air and water pollution control, water supply, and wetlands
programs; and may be used in other programs as appropriate. The policy states that
exceptions to its terms must be exceptional and approved in advance.
The policy specifies categories of violations in which penalties clearly are
appropriate (and which should be referred to the Attorney General for immediate action),
including midnight dumping, and violations involving substantial harm to the
environment, deliberate falsification, chronic violators who have not responded to
administrative enforcement, or discharges of toxic chemicals. The policy spells out the
circumstances in which alternative administrative (notices of violation, orders) and
judicial actions should be taken. The penalty does not include criteria for setting penalty
amounts.
New York
Hazardous Waste
The July 10, 1985 letter sent by the Director of the state's Division of Solid and
Hazardous Waste in response to the Steering Committee's request for information states
that "we are utilizing the federal RCRA-Subtitle C penalty policy matrix as a guide."
North Carolina
Hazardous Waste
North Carolina adopted a "Compliance and Enforcement Strategy" on May 8,
1985. The Strategy identifies circumstances under which penalties should or must be
assessed (if "a second re-inspection reveals noncompliance, a penalty is automatically
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assessed.") (at 14). It also adapts the EPA penalty policy to the authorities and
procedures in the state.
The penalty policy is stated in rather general terms. It includes the three basic
steps of the EPA policy: calculating a "base penalty" based on the degree of harm and
extent of deviation from legal requirements; adding the economic benefit of
noncompliance "if readily determinate," and adjusting the penalty for special factors
including good or bad faith, culpability, compliance history, ability to pay, and other
factors. Upward adjustments are made in calculating the penalty sought; downward
adjustments are made in the settlement process, (at 17)
The policy does not attempt to quantify any of these penalty components, but does
offer further general guidance. "Penalties are calculated on a case-by-case basis with
compliance being the target. Whenever possible, like violations receive the same or
consistent penalties." (at 17)
North Dakota
Hazardous Waste
North Dakota hazardous waste enforcement and penalty policies are included in an
appendix to a document entitled "North Dakota/EPA Hazardous Waste Program
Enforcement Agreement." The policy indicates that the Department seeks fines only in
cases of major violations and minor ones that cannot be corrected through informal
processes. The Department views compliance as more important than collection of
penalties and thus may assess a large penalty, with most or all to be suspended should the
violator achieve compliance on schedule.
In cases where it deems penalties appropriate, the Department calculates them in a
process adapted from a 1980 EPA document on RCRA penalties. A base penalty is
calculated from one of three matrices matching the damage from the violation against
the degree of culpability of the violator for three classes of violations. The amounts
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range from $100-300 for Class HI violations with minor damage and minor culpability, to
$4,000-5,000 for major/major Class ffl violations, and $500-2,500 for minor/minor Class I
violations and $20,000-25,000 for major/major Class I violations. The matrices provide a
base penalty figure, which then may be adjusted based on nine factors: (1) extraordinary
controls beyond those required by law (cut penalty by their cost); (2) voluntary effort to
mitigate damage caused by violation (cut penalty by cost of that effort); (3) forces
beyond the control of the violator (cut penalty by up to 100%); (4) recalcitrance (increase
penalty by up to 100%); (5) compliance history (increase by up to 100% of base for each
prior violation); (6) intent to violate (increase by up to 100%); (7) enforcement or cleanup
costs to the Department (increase by cost of action, if not otherwise to be reimbursed);
(8) economic benefit to violator (increase by amount of benefit); and (9) ability to pay
(reduce or spread out penalty to avoid bankrupting firm), (at 35)
The policy indicates that penalties thus calculated apply to individual violations,
whether single day or multiple day in duration.
Ohio
General
In a letter from E. Dennis Muchnicki; Chief, Environmental Enforcement, Office of
the Ohio Attorney General, to Cheryl Wasserman, dated August 13, 1985, Ohio reported
that it has no formal penalty policies beyond that "established by U.S. EPA in the late
1970's," which the Ohio courts have adopted.
Oregon
Hazardous Waste
The Hazardous Waste Program Enforcement Response Policy (draft, August, 1985)
by Oregon's Department of Environmental Quality (DEQ) is to attain and maintain a high
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rate of compliance. The policy calls for concentration of enforcement effort on the
most serious violators. Although Oregon has criminal penalties in this area and others
such as water and air, the primary enforcement method is through administrative civil
penalties.
Warning letters and notices of violations as well as stronger actions are used when
necessary in order to achieve compliance. The policy establishes a timetable which
indicates when stronger actions are warranted. Enforcement action must be consistent.
The policy places responsibility for compliance on the regulated community.
Enforcement actions must identify each and every violation, establish compliance
schedules and require the violator's certification that compliance is achieved. Schedules
are for the shortest practicable time and enforcement actions are escalated when
violators fail to comply with time schedules. DEQ may use conferences, conciliation and
persuasion to solicit compliance.
The policy classifies violations and hazardous waste handlers into categories. Each
instance of noncompliance is considered a separate violation, but when several violations
of the same type occur, it is considered a single violation.
A two-step approach is used. Individual violations are divided into Class I
violations that result in the release or threat of release of hazardous waste, fail to assure
protection of groundwater or fail to insure proper delivery* to a permitted facility, and
Class H violations, which are any other violations.
Second, handlers are classified as high-priority violators, Class I violators and Class
n violators. High-priority violators have one or more Class I violations, create potential
or actual harm, have realized a substantial benefit from noncompliance, or are
recalcitrant or chronic violators. Class I violators are not high-priority violators and
have one or more Class I violations. A Class n violator only has Class n violations. High
priority identification is subjective and based on quantity of waste, threats to human life
or health, threats to fish and wildlife and air, land and water resources. Focus is on
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potential harm rather than actual harm. $5,000 is used as a guideline for determining
"substantial" economic benefit.
DEQ established a priority for enforcement, with High-Priority Violators first, then
Class I and Class n violators. Enforcement actions need not be taken for all High-
Priority Violators before any action is initiated against Class I Violators. The DEQ has
discretion to take enforcement action against a Class I Violator which can help prevent it
from becoming a High-Priority Violator.
DEQ staff considers the following factors within each category of violators to help
establish a priority:
(a) magnitude and imminence of the actual or threatened harm;
(b) duration of handler's noncompliance - - violations which have
existed longer are addressed first;
(c) length of time needed to achieve compliance - - longer - term
compliance is addressed first;
(d) strength of case - - stronger cases receive priority if all other
considerations are equal;
(e) willingness of violator to correct violation, plus cooperativeness;
and
(0 potential for setting a precedent.
DEQ may issue a Notice of Violation if compliance can be achieved in 30 days. A
Notice of Intent to Assess Civil Penalty is an enforceable document which can result in
the assessment of a penalty if violated. Assessment of Civil Penalty is the
administrative levying of a penalty from $100 to $10,000 per day per violation.
Considered are prior violations, reasonable steps taken to correct violations, economic
and financial condition of violator, gravity and magnitude of the violation, whether it
was repeated or continuous, whether the cause was repeated or continuous, opportunity
and degree of difficulty to correct the violation, cooperation, efforts to correct the
violation, cost to DEQ and any other relevant factors.
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Pennsylvania
Hazardous Waste
The Pennsylvania "FY 1985 Compliance/Enforcement Strategy for Hazardous
Waste" spells out a civil penalty policy that relies heavily on the EPA RCRA penalty
policy (at 38-62). The policy adheres to the state statutory requirement that the agency
consider severity of harm caused by the violation, costs incurred by the state, economic
benefit, degree of willfulness, promptness in reporting the incident, history of
compliance, and duration of the violation. Some of these factors (e.g. severity of harm,
economic benefit) are included in the EPA policy; others are not.
The policy compares the state approach with that of EPA as follows:
The Commonwealth will use a gravity-based penalty matrix with
the axis being severity of violation and degree of willfulness. The
severity of violation component is similar to the EPA axis of
potential for harm; however, under the Bureau of Solid Waste
Management system, severity relates to actual harm only. Where
as the EPA matrix is heavily weighted toward the potential for
harm axis, the present DER policy places equal weight on both axes
of the matrix with maximum daily penalty per violation being
$25,000 in both the EPA and DER systems.
Although the initial gravity based penalty component will be
calculated using different matrix axis, the EPA economic benefit
adjustment will be adopted in total to supplement our existing
policy on savings to violators, (at 39)
The factors EPA considers in adjusting the gravity/economic benefit penalty can be
considered in the Pennsylvania scheme under authority of the specific list of factors or
language allowing consideration of "other relevant factors." (at 39)
Water
The Pennsylvania Department of Environmental Resources relies on the "Civil
Penalty Assessments Procedure for Pollution Incidents" and "Civil Penalty Assessments
Procedure for Continuing Discharges" for two categories of water pollution violations:
pollution incidents and continuous discharges. The guidance, applying the statutory
factors of severity, damage, willfulness, and violation history, is used to calculate
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maximum penalties to be sought in settlement negotiations. The guidance provides
relatively precise directions on how to calculate these amounts. The approach varies for
each category.
Pollution Incidents
The maximum penalty for pollution incidents is calculated in a four-part procedure.
First, the DER establishes a basic penalty using severity, damage, willfulness, and
violation history.
Severity, based on the nature and volume of pollutant discharged and its effect on
the receiving waters, determines the maximum daily penalty: $10,000 for severe, $7,000
for moderate, and $3,000 for minor violations with some pollution. When there is no
pollution "the cost to DER or summary prosecution" is used.
The basic penalty is calculated, up to the appropriate maximum, by combining
amounts for damage (up to 50 percent of the maximum), willfulness (up to 40 percent of
the maximum), and history of violation (up to 10 percent of the maximum).
The measure of damage is the value of the uses of the affected waters, not actual
damages. The policy for continuing violations includes precise values for different types
of uses, but it is not clear if those figures are used in calculating penalties for one-time
violations. Extraordinary damage is assessed 100 percent of the maximum damage
amount (that is, 50 percent of the maximum penalty; $5,000 per day for a severe
violation). High, moderate, and low damage violations are assessed 75, 50, and 25
percent of the 50 percent damage maximum.
The willfulness component is calculated by multiplying 100 percent times the
maximum willfulness amount (40 percent of the maximum, or $4,000 for a severe
violation) for deliberate violations; 66.7 percent for reckless violations; and 33.3 percent
for negligent violations. Accidental violations give rise to no willfulness penalty, but
still may be assessed a penalty based on the other factors.
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The final component of the basic penalty (up to 10 percent of the maximum, or
$1,000 for a severe violation) is calculated with reference to the compliance history of
the violator. Previous incidents at the same site call for 100 percent of the maximum, at
another site controlled by the violator 50 percent, and no previous incidents, no history
component.
The maximum basic penalty is adjusted on the basis of three considerations.
Failure to report is considered a separate violation. The penalty imposed is related
to the effects of the failure to report. If prompt reporting would have prevented
extensive damage, the full penalty amounts based on the damage and willfulness factors
for one day of violation (i.e. a maximum of $9,000 for a severe, intentional violation
causing extraordinary damage) will be added to the basic penalty. Failure to report
resulting in no added damage is assessed a maximum of $900.
The basic penalty can be further adjusted if the violator has been cooperative. The
policy dictates a reduction of 20 percent for excellent cooperation and 10 percent for
good cooperation.
Finally, DER costs are added to the basic penalty. They may include everything
from salaries to laboratory and legal costs.
Continuing Violations
Penalties for continuing violations (e.g. those resulting from a major breakdown of
a treatment system) are calculated in a different manner. Penalties sought in settlement
negotiations are based on an indirect measure of the value of damages to the affected
waterway and the duration of the violation.
The first step is to determine the value of each of four categories of public uses of
the waterway: aquatic life, water supply, recreation, and special protection. Values are
drawn from a matrix that compares different uses in each category with differences in
the degree to which the affected area is used, on a four-point scale from negligible to
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high use. For example, the values for public or industrial water supply are $250 for high,
$150 for moderate, $50 for low, and $0 for negligible use. The value of other water
supply subcategories in the high use column are $100 for agricultural water supply and
$75 for wildlife water supply. If the use is "probable" instead of "actual," the value
figure is reduced by 50 percent, and by 75 percent if the use if "possible."
The second step is to calculate the damage figure. The agency multiplies the value
by a measure of the severity of the damage: 0 for no damage, 0.1 for slight damage, 0.5
for moderate damage, and 1.0 for complete damage. The resulting figure is multiplied by
a measure of the extent of the damage, in terms of the length of the stream segment
affected. This multiplier varies depending on the category of use, ranging from 1 to 10
per mile for all but special protection streams, which get higher multipliers for shorter
segments.
To summarize the calculation process so far, a violation polluting a stream actually
and heavily used for public water supply ($250), with moderate damage (x 0.5), over a
stretch 10 miles long (x 10) would have a penalty value of $1,125. If other categories of
uses were affected, additional amounts would be added.
The penalty value thus calculated is then multiplied by the number of days for
which the uses were affected (not the number of days of violation). The penalty cannot
exceed the maximum daily penalty times the number of days of violation, however.
Utah
Hazardous Waste
The program office and attorney general's office submitted two documents, an
"Enforcement Strategy" (from the AG) and a "Utah Hazardous Waste Program Penalty
Policy" (from the Solid and Hazardous Waste Committee, a politically appointed
regulatory board served by an administrative and technical staff). The two documents
have the same language governing penalty assessments. The cover letter from the AG
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noted that "The state does not have any other specific penalty policies other than
specified in the State-EPA Agreements. The state agencies generally rely on EPA
penalty policies in the administration of its programs." The Committee refers penalty
cases to the AG. "In determining whether, and how much, of a penalty should be sought,
the Committee will consider, inter alia, the magnitude of the violations; the degree of
actual environmental harm or the potential for such harm created by the violation(s);
response and/or investigation costs incurred by the State or others; any economic
advantage the violator may have gained through noncompliance; recidivism of the
violator; good-faith efforts of the violator to comply; the financial condition of the
violator; and the possible deterrent effect of a penalty to prevent future violations." (at
33 of "Policy," at 96 of "Strategy")
The AG is to ask for maximum penalties in pleadings, but settlement figures are to
be developed within the ranges of $5,000-10,000 for Class I violations, $3,000-6,000 for
Class n, and $500-4,000 for Class HI (Class based on EPA categories) using the above
factors, and multiplying by an "appropriate factor" based on duration.
Virginia
Water
The Virginia Water Control Board submitted a document entitled "Statement
Regarding EPA Penalty Policy" (excerpted from the Proceedings of the Board at its
meeting of Dec. 7-9, 1977). This document states that Virginia's Water Control Board
"has taken the position that the consideration of economic savings is an appropriate
action in evaluating the results of non-compliance with the law and national goals."
(at 1) However, as the policy statement indicates, "the Board realizes that the
imposition of economic penalties in every case may not be warranted and has declared its
position to be an evaluation of penalty assessments on a case-by-case basis. It is the
90
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Board's intent to consider such economic savings for both major and minor discharges,
where appropriate." (id.)
The Water Control Board uses a 5-page form, the "Civil Penalty Evaluation For
Civil Action Against Water Act Violator," to calculate penalty amounts. This form
contains a number of sections to be filled in. Section ni - Information Relating to Civil
Penalty - directs the penalty-setter to EPA's explanation for filling in information about
the following factors: (1) financial information about the source, (2) extent of delayed
compliance and investment, (3) penalty needed to recover economic savings, (4) penalty
justified by environmental harm and injury to public health (including explanation of basis
for amount), (5) penalty justified by purpose fulness of source's disregard of legal
requirement, and (6) penalty attributable to recovery of extraordinary government
expenses including explanation of basis for amount. The "total penalty" calculated is the
sum of factors 3-6, listed above. Other factors then come in to play in reaching the
"final penalty." These factors include: (1) amount of penalty reduction for mitigating
factors, (2) total minimum civil penalty typically to be argued in court as minimum
justifiable, (3) minimum penalty acceptable for settlement, (4) reduction based on
inability of violator to pay, (5) credit for environmentally beneficial expenditure that
would not otherwise have been made, (6) description of new civil penalty issues presented
by the action, (7) facts related to these new issues, (8) alternative resolutions of new
issues presented, (9) recommended resolution of the new issues, and (10) final penalty
recommended.
Washington
General
The Washington Department of Ecology's Enforcement Manual (Jan. 1985) details
civil penalty policies for all of the Department's programs.
91
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The policy states that penalties are to be set in consideration of a list of 13
"Decision Factors" that also are to govern the selection of enforcement responses
generally, (at 6, 4) The factors are: (1) severity of health and environmental impact; (2)
magnitude in terms of the type and amount of pollutant emitted, the resources affected,
and the duration of the violation; (3) culpability; (4) compliance history; (5) the violator's
knowledge of the requirements; (6) relative fault where there are multiple contributors
to a violation;(7) cooperation in reaching compliance; (8) timeliness of corrective action;
(9) financial incentives to violate; (10) compensation for damage to public resources; (11)
whether the violator is a public or private entity; (12) related enforcement actions by
others; and (13) any other considerations required by law. The policy indicates that
penalties are appropriate in cases of well identified or repeat violations. Penalties are to
take account of all relevant factors, including mitigating circumstances; mitigation,
suspension, or cancellation of penalties imposed by the Department is barred except for
circumstances arising after the initial imposition, (at 6) The statutes generally allow a
violator given notice of the Department's intention to impose an administrative penalty
15 days to petition for relief. If no appeal is made, or the appeal is rejected, the penalty
becomes due and payable, and is enforceable in court by the attorney general.
A section of the manual that goes into more detail on penalty assessments was not
included in the materials received, which provide no information on how the 13 factors
are utilized in setting penalties in practice.
92
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HI. STATE CIVIL PENALTY IMPLEMENTATION
To assist EPA in its field visits ELI collected information on civil penalty cases in
the states to be visited and several other states. This report compiles information from
reported cases on civil penalties as well as the National Association of Attorneys General
(NAAG) Environmental Protection Report, which covers both pending cases and
decisions, a chart from Washington State summarizing civil penalties assessed and
collected in recent years, and additional case information submitted by Texas. Nine
states are covered (CO, IL, MD, NY, OH, PA, TX, WA, WI) representing six EPA regions
m, m, v, vi, vni, x).
Penalty amounts in reported cases vary greatly from state to state and within
states. The penalties reported range from $2000 in two Pennsylvania water pollution
cases- to $4,530,000 (of which $3,006,000 was awarded to the federal government) in a
Texas air pollution case.- In a Texas sewage discharge case-^, one penalty was set at
the statutory maximum while the other imposed the statutory minimum. The pending
cases almost always ask for the statutory maximum. Small penalties, those which are
under $100,000, are the most common, while medium ($100,000 to $500,000) and large
(over $500,000) penalties are imposed much less often.
There are some indications that civil penalties increased in size in the late 1970's.
In Washington from 1970 through 1977 civil penalties assessed ranged from 39 per year to
98, with the average amount collected ranging from $375 to $786. From 1978 through
1981, the state assessed between 107 and 135 penalties per year and collected between
- U.S. Steel Corp. v. Dep't of EnvtL Resources. 7 Pa. Commw. 429, 300 A. 2d 508 (Pa.
Commw. Ct. 1973);
Commw. of Pa., Dep't of Envtl. Resources v. South Middleton Twp. Bd. of
Supervisors, 457 A. 2d 1011 (Pa. Commw. Ct. 1983).
& U.S. v. Chevron U.S.A.. Inc.. 639 F.Supp. 770 (W.D. Tex. 1985).
& City of Galveston v. State of Texas. 518 S.W. 2d413 (1975).
93
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$1079 and $2341 per penalty assessed. The figures dropped off in 1982 and 1983, but rose
again in 1984. In reported Illinois decisions, the four penalties sought in the mid-1970's
were $6000 or less each, and were not always imposed; the two sought in the 1980's were
$40,000 and $75,000, though only one was imposed by the court. Information on Texas
civil penalty cases indicates that penalties in the mid to late 1970's averaged around
$33,000, while the state has recently been imposing very large penalties (e.g.f penalties
of $1,000,000 in 1985 and $329,000 in 1986).
The penalty cases reflect consideration of a number of variables. The duration of
the pollution violation and its effects, the amount of pollution released, recalcitrance of
the polluter regarding violations, deterrent effect, the economic benefit of delayed
compliance, the violator's ability to pay and mitigating factors are some of the consider-
ations used when a state is imposing civil penalties.
In Ohio the agency sought penalties based on the EPA civil penalty policy and the
courts accepted that penalty rationale^.' Judgments tend to be larger than in most other
states reviewed. In a 1981 case,^/ the appellate court stated that to be an effective
deterrent, a civil penalty must be large enough to hurt the offender. The court found the
penalty imposed by the trial judge to be inadequate due to the violator's history of
unlawful pollution and illegal profits. The case was remanded to reconsider the penalty
amount. Another Ohio case- from 1982, and a third from 1984-/ imposed $493,500 and
$800,000 penalties, respectively, based heavily on recalcitrance.
I/ State ex rel. Brown v. Dayton Malleable, Inc., 438 N.E.2d 120 (1982).
I/ State ex reL Brown v. Howard. 3 Ohio App. 3d 189 (1981).
c /
' Dayton Malleable, Inc., supra note 4.
11 State ex rel. Brown v. K&S Circuits. No. 79-950 (Ohio Ct. C.P., Montgomery County,
1984).
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Illinois and Pennsylvania consider economic benefit to the violator from delayed
compliance as a major factor and also rely on other variables considered in the EPA
policy. The economic benefit factor is a requirement of EPA policy which many states
are using or beginning to use in setting their civil penalty amounts. Illinois takes into
account whether the violator could demonstrate that compliance would be an arbitrary
and unreasonable hardship in assessing penalties based on economic benefit. Illinois
penalties tend to be in the small range, while Pennsylvania's range from small $2000 to
very large ($1,667,000). In one of the Illinois cases, the court rejected the
administratively prescribed penalty, because the government's expert witness could not
explain clearly how economic benefit had been calculated, suggesting that implementing
economic benefit penalties may pose problems for states.
It would be interesting to examine the role, if any, of the economic-benefit penalty
criterion in setting penalties in Illionis. In the mid-70's cases, which apparently were
brought before the state used economic benefit (there is no mention of the concept in the
opinions from that period and the state was only beginning to consider using the approach
based on the new Connecticut model in 1975) the amounts sought and awarded were much
lower than in the 1980's cases. The small size of the sample and the existence of other
possible explanations (e.g., differences in the violations or the penalty philosophy of the
administrative bodies) precludes implying a cause and effect relationship on the basis of
this information, however.
Pennsylvania has an interesting approach which no other cases reviewed
a
contained. In a 1980 case,-V the state set air pollution standards which were
"technologically impossible" to meet. The court upheld the standards and the penalty
o/
- Commw. of Pa. Dep't of Envtl. Resources v. Pa. Power Co.. 12 Pa. Commw. 212. 316
A. 2d96 (1974), affd 461 Pa. 675, 337 A. 2d 823 (1975). affd penalties for
participates but rev'd those for sulphur dioxide emissions 34 Pa. Commw. 546, 384 A.
2d 273 (1978). rev'd and remanded 416 A. 2d 995 (Pa. 1980).
95
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assessed because state policy was to use the penalty as an incentive to develop new
technology to make the industry devise controls which would meet the standards.
New York tended to impose penalties to encourage future compliance, but also
required substantial evidence of violations. Colorado follows this policy by requiring the
violator to have notice of a violation from the state, as well as substantial evidence
before notice is given, before liability will be imposed. Texas, on the other hand requires
no knowledge of the polluter to impose liability. The jury sets the penalties in Texas
cases, and has discretion in setting the amount within the statutory limits. The jury may
take mitigating factors into account when considering evidence of the violation.
Pennsylvania requires the penalty to "fit" the violation.
Some states impose penalties administratively, with judicial review, and penalties
in other states are imposed by the trial court. No major differences in the manner in
which penalty figures were calculated appears in this limited data base. The courts gave
deference to the agency's findings as long as the evidence in the record supported the
imposition of a penalty. However, they required the agencies to be reasonable in setting
the amount of a penalty. Several cases in different states were remanded for
reconsideration of the amount to increase or decrease the penalty.
Similar cases in different states demonstrate the differences between state penalty
Q/
policies, for example Texas, Ohio, and New York cases^' dealing with NPDES permits (or
the state equivalent). New York imposed an administrative penalty of $18,000 for
substantial violations, including notice and failure to take corrective action on eight
occasions. The court could have found recalcitrance on the part of the company just
from the record, yet this factor was not mentioned by the court as a consideration.
Ohio, at the opposite extreme, imposed a fine of $493,500 for failure to follow an NPDES
9/
City of Galveston, supra note 3.
Day ton-Malleablet Inc., supra note 4.
D.V.C. Industries. Inc. v. Flacke. 86 A.D. 892, 447 N.Y.S. 2d 523 (App. Div. 1982).
96
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compliance schedule. This was a judicially determined penalty, and recalcitrance as well
as economic benefit for noncompliance were considered. (A concurring opinion would
have held that $450,000 of the penalty was for questionable recalcitrance and was not
authorized by statute because it was punitive, not remedial.) The Texas case involved
sewage discharges into Galveston Bay. A total fine of $30,100 was imposed; $23,000 was
for the actual discharges, which was the statutory maximum, while $7,100 was for
noncompliance by the deadline, the statutory minimum. These amounts were determined
by a jury, which had discretion to take mitigating factors into account. The city had
claimed the state water board had granted an extension, but the jury found no evidence
of this and imposed liability.
While this is by no means a systematic review, it does suggest several hypotheses.
First, state civil penalty policies, even fairly complex ones involving economic benefit
and other factors, can effectively sway decisions of administrative boards and courts.
Second, states can implement EPA's penalty policy, although they may falter without the
resources to explain the sophisticated analysis to a judge (Illinois). Third, while use of
the EPA policy can produce large penalties (Ohio) it also can result in small penalties
(Illinois).
97
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CIVIL PENALTY IMPLEMENTATION
COLORADO
Case
Citation
(Year of Statute and
Case) Subject Matte
Penalty
Amount
Criteria; Basis for Penalty
State Policy on Civil Penalties
Comments
Lloyd A. Fry Roofing Company v.
Slate Dcpt. of Health Air Pollution
Variance Board; 553 P.2d BOO (1976)
SS66-24-1 et seq..
66-29-14, 66-29-15,
66-31-7, 66-31-19,
25-7-109, 25-7-119;
air pollution
$3,000
Observation on 83 days of
air emissions in excess of
the opacity standard
allowed
Civil penalties are not penal
in effect and don't require
procedural safeguards of a
criminal proceeding. Slate
policy is to administratively
enforce air pollution laws and
therefore civil penalties are
mandated by the state legislature.
Trial court assessed
penalty of $41,500 for 83
days of violation, or $500
per day. Supreme Court
reduced days of violation
to six because of lack of
notice to defendant on
the other days.
oo
Air Pollution Variance Board v. Western
Alfalfa Corporation. 553 P.2d 811 (1976)
$566-29-2
66-29-5(2)(b,c).
not given
Violation of state opacity
emission regulations.
Basic fairness must be given to
violator through notice of
inspection within a reasonably
short time following the completion
of the inspection. The agency
responsible for enforcement must
show willingness to protect rights
of citizens, and increased cooperation
between regulator and regulated will
be achieved.
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CIVIL PENALTY IMPLEMENTATION
ILLINOIS
Case
CiUlion
(Year of Statute and
Case) Subject Matter
Penalty
Amount
Criteria; Basis for Penally
Slate Policy on Civil Penalties
Comments
Midland v. III. Pollution Control Board.
456 N.E. 2d 914(1983)
Ch. Ill 1/2, par.
1001 el seq.;
water pollution
$40,000 imposed by
Board but overturned
by Court.
Discharge of contaminated
storm water.
vo
Policy is to assess penally based
on violator's economic benefit
from delayed compliance. Violator
failed to demonstrate that com-
pliance would impose an arbitrary
and unreasonable hardship, but
the amount of the fine was not
supported by the evidence because
economic benefit was not well
explained. The court rejected
as a penalty basis that the fine
might be justified under other
statutes, or that the fine was
trivial compared to the violator's
net worth.
Company appealed from
Board's findings of
violations: court found no
foundation or basis for
justification of the fine.
Court remanded for
reconsideration of the
penalty, if any was
justified at all Court
said the violations were
unintentional, mitigated
and the company was
attempting to comply.
Wasteland, Inc. v. III. Pollution
Control Board. 456 N.E. 2d 964 (1983)
Ch. Ill 1/2, par.
1041; solid
waste; (1983)
$75,000
Violations of solid waste
landfill permits, rules and
regulations; acceptance of
unpermitted refuse; accept-
ance of much greater amounts
of material than permitted;
failure to cover daily with
clay; modification without
necessary permit.
Penalty was based on economic
benefit of the violations, and
served the legislative purpose
of deterring violations of
Illinois statutas. It was
within the statutory maximum,
and was supported by the
evidence in the record.
Company appealed from
Board order revoking
permit and imposing
penalties. Court found
blatant disregard for re-
quirements and pro-
cedures for protecting
the environment while
allowing useful
operations. The severity
of Die punishment is
related to the company's
conduct and the serious-
ness of the dangers of
llml conduct.
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CIVIL PENALTY IMPLEMENTATION
ILLINOIS (conl'd)
Case
CiUlion
(Year of Statute and Penally
Case) Subject Matter Amount
Criteria; Oasis for Penally
Stale Policy on Civil Penalties
Comment*
Processing and Books.
jnc. e_l at v. Pollution
Control Board. 351 N. E. 2d
80S (1976)
Ch. Ill 1/2, par.
1042 ct seq.
air pollution
o
o
$3,000 upheld
as not abuse of
discretion.
Odor from chicken manure,
and emissions from incinera-
tors lo dispose of dead
chiekeiis.
Penally based on seriousness and
unreasonable interference with
life und properly. Consider:
I. character and degree of
injury or interference;
2. social and economic value
of source;
3. suitubility and priority of
location in the area involved;
4. technical practicability and
economic reasonableness of reducing
or eliminating emissions.
Penally upheld as within
Board's discretion. Viola-
lion found lo unreason-
ably interfere with life
and properly.
Metropolitan Sanitary
District v. Pollution
Control Uoord. 338 N.E. 2d
392(1975)
Ch. Ill 1/2,
par. 1001
«-'t scq.;
water pollution
$6,000 overturned as
unjustified.
Wulur pollution cuused by
rcplMct inciil of a trickling
filler seul, und el fluent
dibelmrjjL-s causing loss of
ucjuulic life.
Principal reason lo impose
penalties is lo aid enforcement,
nut for punitive considerations.
Dimrd must consider "the leclmical
pruelieubilily of reducing or
eliminating the emissions.
Court found it was not
enough lo find a viola-
tion; all circumstances
and facts bearing upon
the reasonublcne:>s of
the emissions must be
considered, lleie, the
source cooperated fully
and there was no praetie-
ablc way lo change the
filler without some dis-
charge, so penally was
nut warranted.
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CIVIL PENALTY IMPLEMENTATION
ILLINOIS (oonl'd)
Case
Citation
(Year of Statute and
Case) Subject Matter
Penalty
Amount
Criteria; Basis lor Penalty
Slate Policy on Civil PenaJUe
Comments
Mystic Tape w.
Pollution Control
Board. 328 N.E. 2d
5(1975)
Ch. Ill 1/2,
par. SI042; air
pollution.
(3,500 was upheld
by court as warranted.
Installation of pollution
control equipment without
permit after agency had
denied permit.
Board must consider bad faith,
cooperation, statutory limita-
tions, and economic benefit.
Court discussed the viola-
tor's recalcitrance and
lack of cooperation in
Installing equipment after
Board had denied permit.
Court did not discuss how
the amount was
calculated.
Southern Illinois
Asphalt Co. v.
Pollution Control Board
and AirlcK Products. Inc.
w. Pollution Control Board.
326 N.E. 2d 406(1975)
Ch. Ill 1/2, par.
IOI2SI2(f);
NPUES. water
pollution
$5,000 against asphalt
company; $11,000 against
Airlex; both overturned
by court.
Asphalt Co. - failure to
secure permit; Air leu dis-
charge of cyanide into city
storm sewer.
In setting a penalty amount, Board
must consider bad faith, coopera-
tion, statutory limitations and
economic benefit Board has dis-
cretion to set penally amounts,
but (he severity of the penally
must bear some relationship to
the seriousness of the infraction
or conduct. Those violators who
arc honestly trying should not be
penalized.
Court found both com-
panies not to be
be recalcitrant or
dilatory. Both com-
panies cooperated fully
to reduce or eliininutc
the emissions. Asphalt
company's failure to
secure the permit wus in-
advertent and was
immediately corrected.
Court suid penalties
were unjustified in this
situation.
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CIVIL PENALTY IMPLEMENTATION
MARYLAND
Case
Citation
(Year of Statute and
Case) Subject Matter
Penalty
Amount
Criteria; Basis for Penalty State Policy on Civil Penalties Comments
Statutes not cited
but mainly concern
hazardous wastes,
the cite of which
isS7-266; June,
1983.
suit asks for
$200,000
Maintainence of an illegal
dumps!te for hazardous
wastes; pollution of surface
and groundwater.
States does not pursue civil
penalties very often. Maryland
actively seeks criminal sanctions,
especially in the hazardous waste
area.
This case comes from the Environmental Protection Report. National Association of Attorneys General (NAAG) Newsletter.
O
K>
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CIVIL PENALTY IMPLEMENTATION
NEW YORK
Case
Citation
(Year of SUIute and
Case) Subject Matte
Penalty
Amount
Criteria; Baas for Penalty
State Policy on CivQ Penalties
Comments
Godfrey v. Wlnona Lake Development Co..
194 Misc. 90S. 88 N.Y.S. 2d 531 (N.Y. Sup.
CL. Albany County 1946)
Public Health Law
$47 - construction
of sewage treatment
plant
o
U)
Statutory amount
is ISO/violation.
Total amount imposed
is not given.
Unauthorized construction
of sewage plant Health
Department administratively
Imposed penally and sued to
recover the penalty.
Administrative penalty
assessments are judicial In
nature. Case predates any
formal environmental laws
or current policies.
This 1946 case was
brought under public
health laws and held that
a penalty which was
administratively imposed
was judicial in nature and
not subject to collateral
attack except on the
issue of jurisdiction.
Diamond v. Mobil Oil Corp.. 65 Misc.
2d75. 316 N.Y.S. 2d 734(N.Y. Sup. Ct.,
Erie County 1970)
Cited in case as
Public Health Law
SS 1220 and I22S.
Now recodified as
S7I-I929; water
pollution and
industrial dis-
charges.
$10,000
Failure to comply with
standards established for
river; failure to comply
with abatement order; failure
to submit plans for treat-
ment facility within time-
table of order.
Case decided prior to enactment of State also sought
comprehensive environmental laws.
Policy on penally was to punish
polluter for not ceasing or
abating its industrial waste
discharge, or submitting plans
on time. Penally to encourage
compliance.
injunction which was
denied on basis of no
immediate health threat
and economic harm lo
the community.
Diamond v. Peter Cooper Ind, 65 Misc.
2d 82, 317 N.Y.S. 2d 40 (N.Y. Sup. Cl.,
Ctttturaugus County 1970)
Cited in case as
Public Health Law
$1264 el. scq. Now
((.codified us $7 I-
2103. with possible
application of §71-
1707, mr (Rjlliilioii
und smoke density.
$5,000
Series of violations for
smoke density and air poll-
lion which unreasonably
interfered with comfortable
enjoyment of life and in
properly in affected ureas.
Sanctions (penalty amount) im-
posed to Insure future compliance
with laws and orders of the
Commissioner.
State also sought in-
junction bul dropped
demand because both
parties agreed com-
pliance was a mutter
of proper adjustment of
new pollution - control
equipment
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CIVIL PENALTY IMPLEMENTATION
NEW YORK (confd)
Case
Citation
(Year of Statute and
Case) Subject Matter
Penalty
A mouit
Criteria; Basis for Penalty
State Policy on Civil Penalties
Comments
Gac Farms v. Diamond, 40 A.D. 2d 909,
337 N.Y.S. 2d865(N.Y. App. Div., 3d
Dcpt. 1972)
SI 7-0501,
Water pollution
$5,000
Visual observation of chicken
manure discharged into
streams; testimony of former
employee as to practices of
planter verified visual
sightings.
No policy other than to uphold
administrative fine for
violation, plus cease and
desist order.
Plaintiff brought action
to rescind administrative
penalty and cease and
desist order. Court found
ample evidence of
violations and left the
fine and the order
undisturbed.
Computer Circuits Corporation v. Berlc,
57 A!D. 2d 955, 395 N.Y.S. 2d 101 (App.
Uiv., 1977)
Section not given
in case, but
present statute for
discharges affect-
ing groundwater is
$17-0828.
$50,000
Violation of standards
regarding discharge of
chemical wastes into
grouiidwatcrs.
Substantial evidence of violations
justified penalty amount. Penalty
was "not shocking to one's sense
of fairness."
Defendant also required
post $50,000 bond.
Metropolitan Savings Bank v. Residual
lie-allies. Ltd., 102 Misc. 2d 1105, 425
N.Y.S. 2d508 (1980)
S17-2103 and
SI7-I707; air
pollution.
(a) $1500
(b) $1250
(c)
$500 =
$25U'violalion
$3250 total
(a) failure to obtain
or display certificate
of operation;
(b) no certificate of
operation and defective
equipment;
(e) two smoke emission
violations
Penalty is to help protect the
health and welfare of the citizens
of New York City; fact that
violator is in receivership docs
docs not excuse the violations or
the penalty imposed.
Receivership status docs
not bar actions to recover
penalties imposed due to
violations.
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CIVIL PENALTY IMPLEMENTATION
NEW YORK (cont'd)
Case
CiUlion
(Year of Statute and
Case) Subject Matte
Penalty
Amount
Criteria; Basis for Penalty
State Policy on Civil Peoaltic
Comments
DVC Industries. Inc. v. Flacke. 86 A.D. 2d
892, 447 N.Y.S. 2d 523 (App. Div., 1982)
$71-1929;
State Pollutant
Discharge Elimina-
tion System permit
violation; dis-
charges to ground-
water (SPUES).
$18,000
Eighteen separate violations;
company had not complied with
schedule of compliance for
effluent limitations
contained in permits; company
violated all limits in
permits; company had ample
notice on al least eight
occasions and failed to take
any corrective action.
Penalty amount not arbitrary but
based on substantial violations.
Court preferred that the
fine for each individual
violation be set forth
with specificity. Injunc-
tion also issued.
Stale v. Schcnectady Chemicals. Inc..
459N.Y.S. 2d97l (1983)
SS17-0501.
17-0803 and 17-0807
discharge of wastes
into surface and
groundwalers.
Whether statutory term "dis-
charge" meant the gradual
migration of pollutants
through permeable soil and
ground and surface water
from the original dumpsite
to the surrounding area.
State attempted to collect
penalties, costs and attorneys'
fees based on statutes prohibiting
"discharges," which would broaden
slate's enforcement powers.
Court decided that
although initial dumping
was a discharge, the
seeping of pollutants
gradually over several
years could not be
considered a "discharge"
and therefore no cause of
action was stated. Court
left open a nuisance
cause of actions.
Flacke v. Dio-Tech Mills. Inc., 95
A.D. 2d 916. 463 N. Y.S. 20 899 (N.Y. A pp.
Div., 3d Ucpl. 1983)
$71-1929;
$10.000
Failure to comply with permit
limitations; failure to com-
ply with compliance order;
failure to comply with slip-
ultiled order.
Company continued to emit
effluents in spite of its permit
and a court order, so injunction
not unwarranted. Penally is
sufficient because of injunction
which would economically harm
company.
(he
Defendant was assessed
$2500 per day for four
days of violations.
State appealed penalties
as inadequate and court
upheld because state was
granted an injunction
against defendant.
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CIVIL PENALTY IMPLEMENTATION
NEW YORK (cont'd)
Case
Citation
(Year of Statute and Penalty
Case) Subject Matter Amount
Criteria; Basis for Penalty
State Policy on Civil Penal tit
Comments
Vulcan Fuel Corporation
No statute cited;
firing of employees
seeking information
on chemicals to
which they were
exposed. (February,
1985)
$500 to state; $25,000
in back pay to two
workers.
Two employees fired for
seeking information about the
chemicals to which they were
being exposed because of
adverse health effects both
were suffering.
State policy implies that workers
have a right to know what chemicals
they are being exposed to, and the
potential health hazards of those
chemicals.
This case was reported in the NAAG Environmental Protection Report.
-------
CIVIL PENALTY IMPLEMENTATION
OHIO
Case
Citation
{Year of SUtute and
CMSC) Subject Matte
Penalty
Amount
Criteria; Basis for Penally
State Policy on Civil Penalties
ComraenU
State ex rel Drown v. K&S Circuits; No. 79-950
TOhio Ct. C.P., Montgomery County, 1984)
Statute not given;
water pollution;
(1984)
$800,000
328 violations of company's
NPDUS permit; discharge of
industrial waste into a
storm sewer.
Policy of assessing penalty based
on economic benefit of delayed
compliance, harm inflicted on
the environment, degree of
recalcitrance of the company,
and the deterrent effect of the
penalty.
Court went through
formula to arrive at
amount of economic
benefit and other factors
and arrived at a penally
figure of $946,934.00.
Court then subtracted
mitigating factors such as
internal problems and
changes at company, plus
changes and transfer at
E.P.A.-$146,934.00, so
the net penally was
$800,000. Court said
environmental damage
was devastating, and
recalcitrance of
company bordered on
open defiance, but found
some to be due to EPA
personnel changes, etc.
Slate ex rel Drown v. Dayton Malleable. Inc..
438 N.E. 2d 120(1983)
S6III.03IJ];
water pollution;
$493,500
Failure to follow compliance
schedule of NHUtS permit
Penalty was based on environmental
harm, recalcitrance of company,
company's ability to pay, deter-
rent value, economic benefit and
mitigating factors such as delays
In compliance due to a strike.
Both parlies agreed that EPA (US)
policy was the standard for sel-
ling the penalty.
Supreme Court (Oil) held
that schedules of
compliance are terms or
conditions of NHOKS
permits, so failure to
comply with schedule is
violation of the permit
itself. Trial court did not
abuse its discretion by an
"unreasonable, arbitrary
and unconscionable"
altitude. Concurring
opinion said that over
$450,000 of the $493,000
assessed was punitive, not
remedial and therefore
not authorized by the
civil penalty statutes.
-------
CIVIL PENALTY IMPLEMENTATION
OHIO (cont'd)
Case
Citation
(Year of Statute and
Case) Subject Matte
Penalty
Amount
Criteria; Basis for Penalty
State Policy on Civil Penalties
Comments
State ex rel. Brown v. Howard.
3 Ohio App.3d 189(1981).
S6II 1.09; water
pollution; solid
waste dumping;
O
oo
$2,000(110,000
originally imposed,
reduced by trial court)
judgment vacated as
inadequate.
Operation of solid waste
dump without plan approval
or required permits.
State policy is to use an economic
sanction to deter violations of
water pollution laws, and promote
clean water within the stale. To
be an effective deterrent to
violations, civil penalties should
be large enough to hurt the of-
fender. Court also considered
good or bad faith, financial gain
to defendant and environmental
harm, and attempted to compensate
loss of resources through the
penalty.
Trial court did not con-
sider defendant's history
of unlawful conduct,
profits from illegal
operation or cost of loss
of groundwater resources.
Appellate court vacated
judgment as inadequate
and an abuse of judge's
discretion, and remanded
for reconsideration of the
penalty.
-------
CIVIL PENALTY IMPLEMENTATION
PENNSYLVANIA
Case
CiUlion
iYear of Statute and Faulty
Case) Subject Metier Amount
Criteria; Baste for Penalty
State Policy on CivQ Penalties
Comments
U.S. Steel Corp. v. Dept. of Envt'L
He-sources-. 7 Pa. Commw. 429, 300 A. 2d
508 (Pa. Commw. CL 1973)
O
\o
SS69I.307.69I.
401 and 691.605-
industrial waste
discharges.
$2,000
Violation need not be willful
to assess a penalty. Oil
slick in river is harmful
to waters of the Common-
wealth. Visual observations
and grab samples of river
water are substantial
evidence of violations.
Court found that a penalty in
excess of $2000 would be un-
reasonable and would not 'fit"
the statutory violation.
Board initially set penalty
at $2000, then amended
to $5000 without expla-
nation. Company then
appealed this amendment
and the amendment was
reversed. Penalty stood
at $2000 because no basis
was given for amend-
ment
Middletown Twp. v. Dept. of Envt'L
Resources, 7 Pa. Commw. 545, 300 A.
2d5IS(Pa. Commw. CL 1973)
SS69I.20I and691.
202, discharges
into surface
waters. Violation
of Board order pro-
hibiting further
hookups to town
sewer treatment
facility.
$3.500 ($500 per vio-
lation, 7 violations)
Township Authority allowed
seven new hookups to sewer
treatment facility despite
order from Sanitary Water
Board prohibiting new hook-
ups because system was over-
taxed.
Public policy of Commonwealth is
to prevent further pollution of
the stale's waters and also to
reclaim and restore them to a
clean, unpolluted condition.
Commonweath is using successively
broader definitions of pollution,
successively higher goals of
water quality and successively
sterner penalties for injuries
to this essential resource.
Appeal from Sanitary
Water Board's imposition
of penally. Dissenting
Judge found inadequate
criteria for finding the
penalty amount, saying
the procedure failed lo
adequately explain the
Board's determination of
the penally and the Court
was handicapped in its
review. However, the
judge concurred in the
result.
-------
CIVIL PENALTY IMPLEMENTATION
PLNNSYLVANIA (conl'd)
Case
Citation
(Year of Statute and
Cose) Subject Matter
Penalty
Amount
Criteria; basis for Penally
Stale PoUcy on Civil Pcnallie*
Comments
Commw. of Pa.. Bureau of Air Pollution
Control v. Univ! of Pittsburgh. 37 Pa.
Commw. 117, 388 A. 2d 1163 (Pa. Commw.
Cl. 1978)
§1809.S Allegheny
County Air Pollu-
tion Control
Department Regu-
lations.
$211 assessed, but
expunged.
County said visible air
conluiiiiiiunU from University
incinerator were of greater
of equal to opacity of No. I
on the Itingelman chart.
County failed to show that
University "caused, suffered
or allowed" the emissions.
Many research institutions
used the incinerator and many
wastes were infectious bio-
logical or pathological
wastes which may not be
opened by University
employees.
County first filed
summary complaint
against University,
charging violation of air
pollution regulations. A
justice of the peace found
for the County and fines
and costs totalled
$211.00 University
appealed and court of
common pleas found for
University. County then
appealed to collect
$211.00 to commonweal!)
court which affirmed
judgment.
U.S. V. Pa. Envt'l Hearing Doard. S84
F. 2d !273(3dCir. 1978)
SS69I.I el.
scq. violations
of Clean Stream
Law (1978) Also
Federal Water
Pollution Control
Act, SSIOI el
scrj., 331 et seq..
and 1323.
$1,667,000 assessed
against independent
contractor.
Operation of plant and dis-
charge of pollutants without
a permit; discharging more
oily mid metallic wastes
Iliun nllowed under stale
regulations; luilure to
liulily Department of
Hciourccs.
Government contract specified lhat
contractor would abide by all
stale and local laws. Federal
policy is to luke lead in envi-
ronmental areas. Contractor knew
it was violating Pennsylvania
luw and because of independent
contractor status could not
avoid civil liability lo stale for
discharges. Hoard was acting
in furtherance of its duly lo
ri^ululc Hie discharge of pollu-
Iniil , inlo stole water and there-
fore assessed these penalties.
US filed for injunction
to prevent stale from
collecting penalties
imposed by the
biivironnienlal Hearing
Hoard. District Court
said independent
contractor was not
protected by US
iiiiniunily and upheld
penalties; appellate
court affirmed.
-------
CIVIL PENALTY IMPLEMENTATION
PENNSYLVANIA (cont'd)
Case
Citation
(Yew of Statute and
Case) Sifcjeet Matter
Penally
Aatount
Criteria; Basis for Penalty
Stale Policy on Civil Penalties
Comments
Trevorton Anthracite Coal Co. ». Dep'L
of Lnvt'l. Resources. 42 Pa. Commw. 400
A. 2(1 240 (Pa. Commw. Ct. 1979)
SS 691.307 and
691.308; industrial
discharges into
waters.
$5,700; $200 for one
violation, $500 for
another, and $5000 for
unauthorized construc-
tion of pipe.
Seven discharges from sett-
ling lagoon through overflow
pipe with no new permit
authorizing discharge; con-
flicted with owner's existing
waste treatment permit; pipe
existed for I 1/2 years.
Assessed with three vio-
lations penalties.
Board spelled out basis for each
penalty; the largest penalty
$5,000, was within the statutory
limit and was justified because
of the willfulness of the vio-
lation and the deterrent value.
Therefore, Court affirmed, saying
the penalties were reasonable if
they were fashioned to "fit" the
violations.
Appeal from order of
Environmental Hearing
Board imposing penalties
for three violations -
$200 and $500, respec-
tively, for two separate
discharges, and $5,000 for
unauthorized construction
and use of the overflow
pipe.
Medusa Corp. v. Dep'l. of Envt'L Resources.
SI Pa. Commw. 520, 415 A. 2d 105 (Pa. Commw.
Ct. 1980)
$54009, Air Pollu-
tion Control Act -
opacity, viola-
tions, fugitive
emissions and air
pollution viola-
tions.
$215,000
(see comments)
Opacity violation: OER observers
observed 34 days of violations,
but company got notice for only
19 days. Of those 19 days, many
were start-up conditions, not
normal operating mode, so there-
fore must be reconsidered.
Penalties not justified for these
reasons. Fugitive emissions:
discrepancy on number of days
involved, so must be reconsidered.
Air pollutions violations: Company
filed for rehearing based on new
evidence; court grunted remand.
Review of final adjudi-
cative order of Hoard.
Violations broken down as
follows: opacity vio-
lations, 19 duys at
$500/day =$9,500;
fugitive emissions, 20
duys at $300/day =
$6,000; air pollution
violations 1000 duys at
$200/day = $200,000.
Coir I reversed Hoard
determination uiid
remanded for recon-
sideration und rceoinpu-
lulion because of several
factors.
-------
CIVIL PENALTY IMPLEMENTATION
PENNSYLVANIA (conI'd)
Case
Citation
(Year of Statute and
Case) Subject Matter
Foully
Amount
Criteria; basis for Penalty
SUle Policy on Civil Penalties
Com menta
NJ
Commw. of Pa. Dep't. of Envt'L Resources, v.
Pa. Power Co.. 12 Pa. Commw. 212, 316 A. Id 96
(1974). afPdTsi Pa. 675, 137 A.2d 823 (1975),
ufPd penalties for pnrliculates but rev'd those
for sulphur dioxide emissions 34 Pa. Commw. 546,
384 A.2d 273 (1978). rcvTund remanded 416 A.
2d99S(Pa. 1980)
SI23.II (parlicu-
lulcs) and SI23.22
(sulphur dioxide
emissions of Pa.
Code - Air emis-
sions regulations.
$21,700 (parliculates)
$173,700 (sulphur
dioxide standards).
Emissions of particulutc
mullcr and sulphur dioxide
in excess of standards.
Policy of stale is lo impose a
fine lo act us an incentive lo
industry lo develop processes lo
control unacceptable pollution
levels, or "technology forcing'*
strategy us an alternative lo
complete shutdown of an industry
or company or unbridled pollution.
The assessment of civil penalties
"provides a spurk" lo develop new
technologies and avoid the con-
tinued payment of fines.
Appeal by slate when
commweallh court de-
clared unconslilulionality
of imposing penalties for
"technologically impos-
sible" standards. Case
remanded for fulher con-
sideration.
Mobil Pipe Line Co. v. Dcp't. of Envt'L
Id-sources. 62 Pa. Commw. 145. 435 A.2d 934
(Pu. Commw. CL 1981)
SS69I.30I and 691.
307, Clean Streams
Law.
$3,500 - Mele Construc-
tion Co.; $5,000 Mobil
Pipeline Co. (reversed
as lo Mobil)
Accidental discharge of about
98,500 pilous of gasoline
inlo river. Pipeline owned
by Muliil, l>ul work being done
near pipeline by Mele for a
sunilury iiulhorily. Mele's
was iic-jjIi^cMcc; Mobil's was
fur luilurc to coni|ily wild
(udi.Tnl rc^uliiliuii-. relul-
IM^ lo 1riitlr>|iiirlii I lull of
Im/nl iluur, Mlli:,lt.HC<:j
pipe-..
Mobil - pipeline was constructed
in 1947 or 1948 and liability was
imposed under I9C9 rules, which
were not retroactive. Stale
cniiiiol introduce new theory of
huuilily on u|>|>cul (ubsolule
lJubihly). Mele - their employee
cuuscJ spiling unil had acluul
knuwlod^c of where pipeline
wuj locul^'J. Accident Clinked
Ji.tcluir^c winch ^ive rise to
hiibility.
Appeal from order or
Uoard. Affirmed us lo
Mele, reversed lo Mobil.
-------
CIVIL PENALTY IMPLEMENTATION
PENNSYLVANIA (cont'd)
Case
Citation
(Year of Statute and
Case) Subject Matter
Penalty
AoMMint
Criteria; Basis for Penalty
State Policy on Civil Penallic
Comments
Commw. of Pa.. Dept. of Envt'l. Resources
y. South Middle ton Two. Bd. of Supervisors.
457 A. 2d 1011 (Pa. Commw. Ct. I983J
SS69I.I etseg., $2,000
Clean Streams Law
Violation of terms of permit
to remove heavy underbrush
from creek where heavy
equipment would not be used
in creek; bulldozer was used
in creek causing erosion,
sedimentation and removal
of part of island. Work done
in presence of township
officers.
State is to protect the public
interest through its police power,
and statutory means of enforce-
ment is through civil penalties.
Official immunity has no place
here because the suing parly is
not a private person. The town
officers agreed to the
the permit and knew of the vio-
lation of the terms. Therefore
this is not "unpredictable
liability" which would protect
them from such civil penalties.
Board assessed civil
penalty against town, but
none against town
officers. Department of
Environmental Resources
appealed.
-------
CIVIL PENALTY IMPLEMENTATION
TEXAS
Case
Citation
(Year of Statute and
Case) Subject Matter
Penalty
Amount
Criteria; Basis for Penalty
State Policy on Civil Penalties
Comments
City of Galveston v. State of Texas.
518 S.W.2d 413 (1975)
S2I.2SI
S2I.252;
water pollution
$30,100
Discharge of sewage into bay:
failure to establish chlo-
rination facilities by
deadline.
Slate law requires no knowledge of
polluter to impose liabity. Jury
has discretion on the amount of
penalties and may take mitigating
factors into account, as they did
here in imposing the statutory
maximum in one situation, and the
statutory minimum in the other.
City appealed from trial
court finding of lability.
Judgement affirmed.
Penalty amount broken
down as follows: $1,000
per day for 23 days of
violation = $23,000; $50
per day for 142 days of
noncompliance = $7,100,
total-$30,100.
Lloyd A. Kry Hoof ing Co. v. State.
524 S.W.2d 313 (1975)
Articles 4477-5
SS3.IO(f), 4.02;
air pollution
$43,400 stack sampling;
$19,750 opacity
Failure to install stack-
sumpling facilities on
Board's request; permitting
visible emissions of greater
opacity than allowed.
Trial court awarded penalties
based on jury's answers. Because
of reversals, appelate court did
not reach penalties issues.
Stack sampling penalty
reversed on grounds of
lack of jurisdiction.
(Board hud not exhausted
primary jurisdiction.)
Opacity penally reversed
because of exclusion of
some of defendant's
evidence and other
factors.
-------
CIVIL PENALTY IMPLEMENTATION
TEXAS(cont'd)
Case
Citation
(Year of Statute and Penally
Case) Subject Matter Amount
Criteria; Basis for Penalty
State Policy on Civil PenalUc
Con menta
Stale v. Tesas Pet Foods. Inc.. SSI S.W.Jd 800 (1979)
Articles 4477-S,
$4.02(8), 4477-6,
SI9(b); Water Code
S2l.253(b);air
and water pollution
$25.550
(see comments)
Operation of cooker without
permit; odors were emitted
from plant; company failed
to provide accurate How-
measuring device for water
transmitted to fields.
Jury set penalty amount at statu-
tory minimum for each violation
it found, and determined penally
amount from this. Jury could
reasonably belive that defendant
would immediately apply for a
permit to avoid future imposition
of penalties such as the $23,900
assessed for that violation.
State sued for injunction
and monetary penalties.
State won, defendant
appealed; appellate court
reversed injunction and
modified penalties;
Supreme Court reinstated
permanent injunction uiid
affirmed modified
penalties. Original
penalty set at $29,000 but
reduced because there
was no evidence cooker
was operated on Sunday.
City of Houston v. Clear Creek Basin
Authority. SB9 S.U.2d 671 (1979)
SS26.00I el seg.,
26.124. Texas
Water Code; dis-
charges of waste
water from treat-
ment plant.
not given
Unlawful discharge of waste-
waters by sewuge treatment
plant.
Issued not reached by courts.
Authority sued City; City
moved for summary
judgment which wus
granted; appellate court
reversed and remanded;
Supreme Court reversed
and affirmed district
court judgment. Case
held that local govern-
ment may not sue for
violations outside its
geographic boundaries.
-------
CIVIL PENALTY IMPLEMENTATION
TEXAS (eoafd)
Cm
CiUUon
(Year of SUtuta and
Subject Matter
Penalty
AaiOUDt
Criteria; Basis for Penalty
State Policy on Civil Penalties
Com meats
Air-Air. Inc.
Case reported from
NAAG Envt'l
Protection
Report. April,
1983; water
pollution
Illegal dumping of
pesticides into drainage
ditches.
Stale aggressively pursues
any violator of Texas
environmental protection
laws.
State v. Diamond Shamrock
Case from NAAG
report; September,
1984; solid waste
and water
pollution.
$175,000
Illegal dumping of hazardous
wastes and unauthorized
discharge of treatment
wastewater.
The Texas Attorney General's Office submitted information on these additional cases:
Slate v. City of Austin.
No. 359,468 (Travb County
Dist. Ct. 1984)
Texas Water Code
Violations
$100,000
(agreed final judment)
For violations at City's
Williamson Creek Waste-
water Treatment Plant.
Stale v. City of Austin.
No. 175,605 (Travis County
Dist. Ct.), No. A-85-CA-4I3,
U.S. Dist. Ct.. Western Dist.
of Texas 1985)
Texas Water Code
Violations
$10,000
(agreed final judgment)
For actual and threatened
violations at City's
Williamson Creek Waste-
water Treatment Hani.
-------
CIVIL PENALTY IMPLEMENTATION
TEXAS (eoatM)
Ca*e
Clution
(Year of SutuU and
CM) Subject Mattar
Penally
Aaount
Criteria; Batia for Penally
Slate Policy on Civil Penalties
Comments
State v. City of Austin.
No. 383.063 (Travis County
DUt. CL 1985)
Teias Water Code
Violations
(raw spill from City's
sewage collection
system 'junction
bo*")
$10.000
(agreed final judgment)
State v. Arthur Bayer. Individually
and d/b/a Spring-Bayer Water Syste
No. 81-20379 (ffarrls County DlsL '
Ct. 1986)
Drinking Water Act
violations (Stale
Health Dep't
regulations)
$20,000
Injunction for remedial
actions also issued.
State v. City of Canyon.
No. 17,364-A (Randall County
Dial. CL 1985)
Municipal Solid
Waste Act violations
$30.000
Injunction for clean-up
operations and rehabili-
tation of older facility
also issued.
Slate v. Chaparral Sleel Co..
No. 40,507 (Ellis County Disl.
Ct. 1985)
Texas Solid Waste $75,000
Disposal Acl violations
Injunction Tor remedial
actions also issued.
-------
CIVIL PENALTY IMPLEMENTATION
TEXAS (coatVQ
Cue
Citation
(Yew of Statute awl
Cue) Subject Matter
Penally
Aaraunt
Criteria; Basis for Penalty
Slate Policy on Civil Peneltia
Comment!
State v. Chemical Waste Management.
No. A-122.291 (Jefferson County
Dial. CL 1985)
Violations of Texas
Solid Waste Disposal
Act, Texas Injection
Well Act, and Water
Quality Control Act
$1,000,000
Injunction for remedial
actions also issued.
U.S.A.. the State of Texas, and
the City of El Paso v. Chevron'
USA. Inc.. No. 80-CA-265. U.S. Dist.
CU, Western Uisl. of Texas I98S)
Clean Air Act
violation!
$4,530,000:
$3,006,000 to U.S.A.;
$762,000 to Texas; and
$762,000 to El Paso
(plus 10% interest)
State v. Chromalloy American Corp.,
No. 85-CI-0757 (Bexar County Dist.
Ct I98S)
Improper hazardous
waste management
and spills at two
facilities
$50,000
(agreed final judgment)
Injunction for remedial
actions and installation of
proper procedures
management also issued.
-------
CIVIL PENALTY IMPLEMENTATION
TEXAS (eont'd)
Case
Clution
(Year of SUtute and
Cue) Subject Mattar
Penally
Arnault
Criteria; BOM for Penalty
Stale Policy OB Civil Penalties
Comment!
Stale v. Re» Clemons. Individually
and d/b/a American Utility Co. and
Crest Utility Co.. and Crest Sanitary
Co.. No. 84-6 U97 (Harris County Dial.
UT1986)
Drinking Water Act
violations (Slate
Health Oep't
regulations)
$17.500
Inunction for remedial
actions also issued.
\o
Slate v. Formosa Plastics Corp..
No. 85-10-11452 (Calhoun County
Dist. Ct. I98S)
NESHAPs violations
involving release
of vinyl chlorides
into air
$66,000
Injunction lo require air
pollution control equip-
ment also issued.
Stale v. Larry Pyfca, individually
and d/b/a Chaparral Water System.
No. 5270 (GiUesple County Dist.
Ct. 1985)
Drinking Water Act
violations (State
Health Dep't
regulations)
$16,190
Injunction for remedial
actions also issued.
Slale v. Quality Service Hailcar
Repair Corp. and C.E. Railcar Services
Corp.. No. 32,011 (Eastland County
Dist. Cl. I98S)
Texas Solid Waste
l>iS|K>sal Act
violations
$200,OUU
Injunction for closure
plan also issued.
-------
CIVIL PENALTY IMPLEMENTATION
TEXAS (eoot'd)
Cue
Citation
(Yew of Statute and
Caae) 8i4>jact Matter
PcnaJty
ABKMBI
Criteria; Basu for Penalty
Bute Policy oo Ci*il Penalties
Comments
State v. Cibralter Chemical
Resources. Inc.. No. 8S-2I39
(Smith County Dist. CU I98S)
Teiaa Injection
Well Act violations
$80.000
Injunction for site clean-
up and remedial actions
also issued.
Slate v. Kenyatta Sand A Gravel.
Inc.. and James R. Green. No. 84-7S25-K
(Dallas County Dist Ct. 1986)
Unpermilted oper-
ation of municipal
solid waste site
near Grande Prairie
which allowed for on-
site ponding and no
final cover
$329,000
Permanent injunction
requiring site remedial
action also issued.
State v. City of Lufkln.
No. 20.401-44-4 (Angelina
County Dist Ct. 1984)
Actual and
threatened
violations of
Teias Water Code
$32.000
(agreed final judgment)
Noncompliance at City's
Hurricane Creek Waste-
water Treatment Plant.
-------
CIVIL PENALTY IMPLEMENTATION
WASHINGTON
Chart Supplied by Washington Department of Ecology
ENFORCEMENT ACTIVITIES - OCTOBER 1. 1984 THROUGH DECEMBER 31, 1984
Summary 1968 - 1984
Yew
1968
1969
1970
1971
1972
1973
1974
1975
1976
1977
1978
1979
1980
1981
1982
1983
1984
ToUl
=======
No.
17
57
98
59
80
79
52
39
62
82
117
135
114
107
70
83
131
1,382
i=========3========:
ASMMd
$14,300
36,200
102,030
90,100
78,900
59,900
50,900
21,750
46,975
87,075
402,450
196,100
175,685
175,550
70,826
146,300
442,250
$2,197,291
=============
Paid
$8,200
20,950
42.555
30,020
30,019
52,450
33,025
16,750
36,925
64,475
273,975
145,775
132,635
130,900
47,250
76,000
203,950
$1,345,854
Ponding with
AG-PCHB
$
20,000
1.250
4,050
2,600
6,000
77,250
$111.150
=============================
Remitted/
Mitigated
$6,100
15,250
59,475
60,080
28,881
74 en
,450
17,875
5,000
10.050
22,600
128,475
50,325
40,800
35,200
19,976
21,750
11,800
$541,087
=============
Outstanding
$
^ ^_^^__
~^ «
1,000
5,400
1,000
42,550
149,250
5199,200
Money received October 1. 1984 through December 31, 1984 for:
PemlUel aaMMed during?
1976 $ 2,500.00
1984 $ 61.400.00
Total $ 63,900.00
Resouv* Damage CUima
1984
ToUl Action* for 1M4<
$ 1,104.12
No. of Total actions
Air Quality
Flood Control
Well Construction and
Licensing
Water Resources
Water Quality
Shorelines
Hazardous Waste
Resource Damage Assessment
Total
1st
6
1
30
0
49
0
4
0
====
90
2nd/3rd
42
1
49
13
223
0
19
1
==========
348
4th Total
17
0
73
6
47
1
8
1
===========
153
65
2
152
19
319
1
31
2
3 = = 3 = = 3!
591
Penalties
Assessed
$ 127,150.00
100.00
259,500.00
55,500.00
2,373,47
Penalties
Paid
$ 98,400.00
100.00
94,950.00
10,500.00
1,104.12
==========2====3SS3====3=S==r==s=ss=sr====================3
121
-------
CIVIL PENALTY IMPLEMENTATION
WISCONSIN
Cose
Citation
(Year of Statute and
Case) Subject Matter
Penalty
Amount
Criteria; Basis for Penalty
State Policy on Civil Penalties
Comments
The following are all Wisconsin cases reported in the National Association of Attorneys General Environmental Protection Report Manv do not
amounts and only descr.be the case and the topic of case, without statutory citations or case names and citations. They e S by S *me
dollar
K>
Jor-Mac Corp.;
air pollution;
January, 1985
Proctor & Gamble;
air pollution
December, 1984
Ed's Masonry A
Trucking; solid
and hazardous
waste; July 1984
James B. Downing
Compuny; waste Dis-
charges into stream;
July, 1984
Wausau Paper Co.;
air pollution;
June, 1984
Phillips Plating
Corporation; water
pollution; March,
1984
Nuclear Engineering
Services, Inc. and
National Interiors;
I'CII coiituiniiiutiun;
Murch, I'JHl
not given
$39,100
not given
$87,500
$23,500 and costs
and assessments
$14,050
$1,000 to state school
fund.
Emission of volatile organic
compounds into the air (over
20 tons annually).
Bark-burning unit of paper
mill failed to meet air
quality standards.
without a permit
Operation
Operation of unlicensed
hazardous waste site, and
other regulations violations.
Past violations of dis-
charging wastes into the
Milwaukee Kiver.
Violation of sulphur dioxide
emission standards of 47
separate occasions.
Exceeding effluent limits
for copper, nickel,
chromium and hexavalcnt
chromium.
Improper handling, storage
and disposal of I'CIJs
Lawsuit settled out-of-court.
Lawsuit settled out-of-courL
Air quality standards are set to
protect public health and prevent
harm to the environment.
State took criminal action and
got convictions; also filed this
civil action.
Court settlement.
State asks for civil
forfeitures and penalties.
34 days of operating
without a permit
$1,000 per day = $34,000,
plus 15% penalty of
$5,100
State asks for civil
forfeitures, penalties,
costs, restoration and
cleanup costs, and a
groundwater monitoring
program.
Plus $8,000 for
monitoring, and to lake
remedial cleun-up
measures.
Also paid $2,500
reimbursement costs for
investigation.
-------
CIVIL PENALTY IMPLEMENTATION
WISCONSIN (cont'd)
Cose
Citation
(Year of Statute and
Case) Subject Malic
Penalty
A moult
Criteria; Oasis for Penalty
SUte Policy on Civil PenaJUc
Comments
City of Monroe,
Wisconsin; sewage
treatment;
February. 1984
Waste Control,
Inc.; solid waste;
January, 1984
not given
not given
Frigo Cheese Corp.; $ 15,000
water pollution;
December, 1983
Weychauscr Co,;
water pollution;
November, 1983
Rosen Metals, Inc.;
hazardous waste
dumping; September,
1983
Scrap Processing
Company, Inc.,
water pollution;
March, 1983
City of Prairie du
C In en and Super-
inluntlanl of city
sewage treatment
plant; water
pollution; March,
1-J83
$445,900
forfeiture
not given
not given
not given
Noncompliance with compliance
schedule; violation of permit
discharge levels.
Failure to close and maintain
landfill site properly in
violation of agreement
reached at lime of closure.
Violations of slate water
pollution laws.
Illegal discharge of pollu-
tants on more than 400
occasions. Company displayed
utter disregard from law
and deliberately continued
production when they knew
they were in violation.
Deposit of motor vehicle and
industrial casings at unlicensed
dumpsite.
Discharges of hazardous
substances.
Falsification of monitoring
reports.
Stale will not allow city to
"drag its feet" on improvements
to plant.
Lawsuit setlled out-of-court.
"A discharger must strongly
consider environmental
and health hazards."
Suit asks for civil
forfeitures of up to
$ 10,000 per day for each
day of violation.
Suit asks for forfeitures
of up to $5,000 per day
for each day of violation.
When mandatory slautory
penalty assessments arc
added to the forfeiture,
the total penally exceeds
$500,000.
Suit asks for up to
$10,000 per day of
violation.
Suit asks for up to
$10,000 per duy of
violation.
-------
CIVIL PENALTY IMPLEMENTATION
WISCONSIN (cont'd)
Case
Citation
(Year of Statute and Penalty
Case) Subject Matter Amount
Criteria; Basis for Penalty
State Policy on Civil Penalties
Comments
Uniroyal, Inc. and
Waste Management
of Wisconsin, Inc.;
toxic waste; March,
1983
Village of LaFarge;
water pollution;
February, 1983
Wisconsin Electric
Power Co,; water
pollution; January,
1983
not given
$11,400
$15,000
Disposal of toxic, hazardous
and other solid wastes in
gravel pits.
Violation of discharge
permits.
Discharge of 42 tons of
flyash into Lake Michigan.
Lawsuit settled out-of-court.
Lawsuit settled out-of-court.
Suit asks for forfeitures
from $10 to $5,000 for
each violation of
hazardous substance law.
Village also must pay
$15,200 minus $5,000
previously spent of
sewage treatment
improvements.
Total forfeiture of
$17,000 less credit for
remedial measures by
WEPCO.
-------
APPENDIX
ANALYSIS OF STATE CIVIL PENALTY AUTHORITIES
A Report prepared by the
Environmental Law Institute
for the U.S. Environmental Protection Agency
Submitted pursuant to
EPA Order Number 6W-2773-NASA
by the Environmental Law Institute
1616 P Street, N.W.
Washington, D.C. 20036
September 30, 1986
-------
ALABAMA CIVIL PENALTY STATUTES
Typ* SMUOO
WATBIt Judicial S22-22-9
DUNKING Judicial 522-23-52
NATE It
A1H Judicial S22-28-22
HAZARDOUS Admin. $22-30-19
HASTE
Max $ Mia $
$10,0007 $100
violation and
for each day
of continuing
violation
I5.000/
violation and
for each day
of continuing
violation
$10,0007
violation and
for each day of
continuing violation
$25,0007
violation and
for each day of
continuing violation
Where Who
$ Go Enforce*
Alabama Ala. Dep'l of
Dep'l of Envfl Mgmt
Envl'l through Ally. Gen.
Mgmt Fund or district
attorney
*
"
" Oep't of Envl'l
Mgml through
Ally. Gen.
Criteria
Violation of any
order, rule, regula-
tion or permit; dis-
charge of sewage or
other wastes into
waters without
permit.
Violation of any rule,
order, regulation,
variance or exemption.
Violation of air
pollution control
act, rule, order,
or regulations.
Seriousness of
violation, good
faith efforts to
comply, failure to
take corrective action
considered. Viola-
tion of order only.
Conncnta
Civil action for damages
may include punitive and
compensatory damages
in cases of wilful or
wanton conduct; com-
pensatory alone if
negligence was cause.
See also S22-22-9(q) re
pollution resulting in
death of fish or wildlife.
Knowing violations
result in criminal
penalties.
Assessed penalties must
be collected by com-
mencing civil action.
Compromise and settle-
ment of penalty
available.
-------
ALASKA CIVIL PENALTY STATUTES
>
Nl
Type SeetioB Hut Hin $ Where Who Criteria
$ Go Enforces
GBNBBAL Judicial $46.03. $100.0007 $SOO/ Stale Oep-t of Envl'l Assessment reflects: (1)
760 (a) initial inilial Conservation, Ally. reasonable compensation
violation, violation Gen. (sum assessed (liquidated damages) for
$S,000/ by court) adverse envt'l effects
each day determined by toxicity,
thereafter degradability and
dispersal characteris-
tics of substance dis-
charged, sensitivity of
receiving env*t, and
degree of degradation
of existing envf 1
quality; (2) reasonable
costs incurred by state
in detection, investiga-
tion and attempted
correction of violation;
(3) economic savings re-
alized by person in non-
compliance. "Economic
savings" means that sum
which a person would be
required to expend for
planning, acquisition.
siting, construction,
Installation and opera-
tion of facilities
necessary to effect com-
pliance with standard
violated (S46.03.760
(d)).
" $46.03. - - - - " "
760 (e)
Coo meat*
Re: Civil actions for causing
pollution, violating envt'l
protection chapter, regulations.
permits or orders of Deo1! except
radiation and haz. waste viola-
lions. Actions not used for
punitive purposes except when
needed to deter future noncom-
pliance under $46.03.760 (fX4)
re radiation and haz. waste
violations. Court, upon its own
or dep*t motion, may defer
assessment of all or part of
economic savings factor condi-
tioned upon person complying
within shortest feasible time,
with requirement for which a
violation is shown. SS46.03.
760 (b), (c). Alaska Admin. Code,
Title 18, Ch. 70 at 18 AAC 70.086
stalest in deciding whether to
Initiate water quality enforce-
ment actions Dep*t will consider
whether activity was conducted in
compliance with permit condi-
tions, engineering plans or best
mgmt practices.
Section provides thai in addition
to liability under SS 46.03.760 (a)-
(d), a person who violates
SS46.03.740 - 46.03.7SO (re oil
pollution and ballast water
discharge) is liable under
$46.03.822 (strict liability for haz.
substance discharge) for full
amount of actual damages to
stale, including direct and
indirect costs associated with the
abatement, containment or
removal of pollutant, restoration
of envM to its former stale and all
incidental admin, costs.
-------
ALASKA CIVIL PENALTY STATUTES (continued)
>
U)
Tjp« SoeUoo
RADIATION Judicial S46.0S.
ANDHAZ. 760(0
WASTE
OIL Judicial $46.03.
POLLUTION 7S8 (b)
Mu $ Min $
$100.0007 $5007
initial initial
violation, violation
tlO,000/day
thereafter
«IO/gal
of oil
entering
freshwater
env1! with
significant
aquatic re-
sources;
$2. 50/gal
entering
estuarine,
Interlidal
or confined
saltwater
env1!;
* I/gal
entering
un confined
saltwater
public
land or
freshwater
env*t without
significant
aquatic
resources.
Where Who Criteria Coaoents
f Go En/crees
Stale Dep't of Envt'l Violations of radiation
Conservation, Ally. and hazardous waste
Uen. (sum assessed protection provisions
by court) (SS 46.03.2SO-.3I4),
orders, permits, approvals
or acceptances. Criteria
same as listed in General
Section 46.03.760U) plus
additional factor: the need
for an enhanced civil penally
to deter future noncompliance.
S46.03.760 (f).
Oil Spill " Schedule of penalties For grossly negligent or inlen-
Miligalion varies re: loxicity, lional acts or if discharger did not
Accounl degradabilily and lake reasonable cleanup measures,
dispersal character- penally is determined by mulliply-
istics of oil, sensiliv- ing maximum fixed penalty by a
ity and productivity factor of five. For unpermitted
of receiving env*L discharges in excess of 18,000
Maximum penalties gallons joint and several liability
apply to discharges in attaches al maximum allowable
most sensitive areas by regulation or $100,000, which-
wilh decreasing penal- ever is less, to: owners, lessees
ties for less sensi li ve and operators of com m ercial or
areas. See regula- industrial facilities; owner or
lions at Alaska Admin. operator of vessels; owner of oil
Code, Title IB, Ch. 7S, carried as cargo (see S46.03.7S8
esp. 18 AAC 7S.S70: (e) (2) (B)); and lessee of tract
Schedule of Civil and operator of offshore plat-
Penalties, forms (S46.03.7S8 (e)). Court
shall deduct from penalties
that amount of oil removed by
cleanup unless cleanup under-
taken by gov*l agency. Evidence
of mitigating circumstances
relating to effects of discharge
on environment may be received
and court may reduce or totally
eliminate penally. Liability under
this section is in lieu of liability
under $46.03.760 (a). Kor
unpermilted discharges of 18,000
gallons or less, liability attaches
under $46.03.760 (a); however,
court may impose penally of less
than $500 for (lischarut
(S46.03.7S8 (i)).
-------
AMERICAN SAMOA CIVIL PENALTY STATUTES
Typ* 8«etioB
DRINKING Judicial S25.JOIO
WATER
S2S.JOIO
Mu $ Mia $ Where
tGo
$I.OOO/
day
fl.OOO/
day
Who
Enforce*
Director of
Health Agency
N
Criteria
Violation of
statute.
Violation of
emergency
orders for
Imminent
hazards.
CotBBcnU
Penalty is for willful
violation.
Penally is for willful violations
or failure or refusal to comply
with orders.
-------
ARIZONA OVO. PENALTY STATITTES
>
T»«
WATEB Admin.
Judicial
A1B Judicial
HAZ. WASTE Judicial
SOLID Judicial
WASTE
Section Max $
S36-II2 »20/day
$16-1864.01 IIO.OOO/
day
S36-I720 1 1,000 f
(state) day
S16-7B9 $300/day
(county)
$J6-2824(A) $IO,000/
day
$36-31 SI(B) tl.OOO/
violation
Min $ Where Who
$ Go Enforee*
Department of
HeallhSar vices
(See also
R9-2I-2IJ:
Enforcement by
Water Quality
Control
Council)
Water Quality Attorney
Assurance General
Revolving Fund
$50/oay
ISO/day
Hazardous Waste Attorney
Trust Fund General
Criteria
Violation of
terms of cease
and desist
order, or know-
Ing operation
of a facility
in violation
of standards.
Violation of
water quality
regulations
or orders.
Violation of
article or any
rule, regulation
or order.
Violation of
article or
permit, rule,
regulation or order.
Violation of solid
waste regulations;
open burning with-
out variance;
scavenge, damage
or destroy signs or
dump solid waste
on public or
private land
Comments
Statute is general in describing
Department's duties. This sub-
section deals only with onsite
wastewaler treatment
facilities.
All criteria deal with actions
at a public facility. Note Ihut
under $36-3135 authorized
cities and towns may provide
for civil and criminal penalties
for local solid waste violations.
-------
ARKANSAS CIVIL PENALTY STATUTES
AIB
T»e
Section
Hut
Mint
Where
tUo
Who
Enforces
Criteria
Comments
Admin. $82-1909, tS.OOO/day
Rag- 17, K
>
Emergency Uep't of The following criteria
Response Pollution apply to penalty assess-
Fund (until Control & ments for air, water,
it contains Ecology solid and hazardous waste
1150,000) and underground injection
then to control violations:
Remedial seriousness of noncompli-
Action Trust ance and its effect on
Fund. env*t, including degree
of risk or harm to public
health; whether cause was
unavoidable accident;
violator's cooper a liveness
and efforts to correct;
history of violator in taking
all reasonable steps to
correct noncompliance;
violator's history of
previous documented viola-
tions within last six months,
regardless of whether admin.,
civil or criminal proceedings
commenced therefore; whether
cause was intentional act or
omission on part of violator;
economic benefit; whether
investigation enforcement
action has resulted in unusual
or extraordinary costs to Dep*t
or public; whether any part of
noncompliance is attributable
to action or inaction of state
govM itself. Regulation No.7,
This is a general statute made
applicable to air by $82-1940.
Costs and damages available.
Authority for Slate Clean Air
programs.
IIAZ. WASTE Admin.
BCHA Admin.
$82-4213, $2S,000/day --
Reg. 17,
$6
$82-4223 $25,000/day - -
Pollution
Control
Commission
Pollution
Control
Commission
See Air, in general Know-
ingly making false state-
ments, disposal of hazar-
dous wastes at unlicensed
facility, or to store, trans-
port or treat hazardous waste
contrary to the Act or rules.
Sec Air, in general.
Transportation of liazur-
wosles into stales for
for disposal in slate
May also recover related costs of
investigation and cleanup.
May also recover costs of
investigation, cleanup and
compensation for actual
damages.
transportation or out of
state Dcp't permission,
or transportation to uiiollitT
slate, all unless in accorduncc
with interstate agreements.
-------
ARKANSAS CIVIL PENALTY STATUTES (continued)
T».
STATE . Admin.
8UPRRPUMD
REMEDIAL Admin.
ACTION
TRUST
FUND ACT
NPDES/ Admin.
WATER
SOLID Admin.
WASTE
BacUoi Max $ Mia $
Act 4S2 f 2S.OOO/
of IMS day
Act 479 $2S,000/
of I98S day
SS, $S,000/day
Regulations;
Keg. 17. $7.
Reg. 17, $S,000/day
$4;
$82-2711
Where Who
$ Co Enforces
Emergency *
Response
Fund
Remedial "
Action
Trust Fund
Emergency "
Response
Fund then to
Remedial
Action Fund
Criteria ConuMoU
To knowingly make false
statement; to violate the
Act, order, regulation, or
rule, to fail to implement
response actions in accordance
with representations made
by liable persons.
To knowingly make false
statement, or to violate
any order issued by Dep't.
See Air, in general. Any violation of these regulations is
subject to $82-1909 penalties, and
Reg. 17.
See Air, in general.
Violations of stale solid
wastes statute ($82-2701)
or code.
UIC
Admin.
Reg. 17, $S,000/day
S8
See Air, in general
Violations of underground
Injection control code,
Part I of state water and
air poll, control act,
violations of permits,
orders, rules or agreements.
-------
CALIFORNIA CIVIL PENALTY STATUTES
>
00
Type Section Max $
TOXIC Judicial SJ9674 $10,0007
AIR (Health day
and Safety
Code)
NONVEHIC- Judicial SS42402 - $IOOO/
ULAR AIR 42406 day
Min $ Where
IGo
- -
(1) Actions on
beliair of district
(by Ally. Gen.):
1/2 of penally
collected is paid lo
district treasurer,
1/2 lo stale
treasurer for deposit
in General Fund (2)
Actions on behalf of
state board (by Ally.
Gen.): entire penalty
collected paid to
slate treasurer for
deposit in General
Fund. (3) Actions by
disL ally, or ally.
for district: entire
provides that civil penal I
penalty collected is
paid to district treasurer.
Who
Enforce*
Slate Air
Resources
Board,
Ally. Gen.
Ally. Gen.,
district
ally..
ally, in any
district
where viola-
lion occurs
(in court of
competent
Jurisdic-
lioni*
y
Criteria
Violations of Art.
4- Control of Toxic
Air Contaminants,
Ch. 3.5 of Part 2 -
Stale Air Resources
Board, Div. 26- Air
Resources. (For viola-
tions of rules, regula-
tions, emission limita-
tions or permit conditions
adopted thereunder.)
Eitenl of harm caused
by violation, nature
and persistence of
violation, length of
time over which viola-
tion occurs, frequency
of past violations,
record of maintenance,
unproven or innovative
nature of control equip-
ment, and corrective
action, if any, taken
by defendant.
(See $42403.)
Com Bents
Re Control of loiic air
contaminants. No liabil-
ity if affirmative defense
of nonnegligenl or uninten-
tional conduct.
Violations re: Nonvehicular air
pollution control (Part 4, Div.
26); $423 16 (City of Los Angeles;
mitigation of air quality impacts
on water activities; reasonable
fees imposed by Great Resin air
pollution control district); or
any rule, permit or order of any
district, district hearing board or
slate board issued pursuant to
Part 1 (commencing with $39000)
to Part 4 (commencing with
S4ISOO). Actions for civil
penalties preclude prosecution
under misdemeanor penally
section ($42402) for same
offense. No liability if
affirmative defense of non-
negligent or unintentional
conduct. $42406 provides that
civil penally imposed on opera-
tion of vessel shall be secured by
a district's lien on the vessel
Injunctlve relief available for
violations (S4ISI3). Penalties
under this section apply to pro-
hibited acts of non-agricultural
burning (SS4 1800-4181 2). Re
agricultural burning: in addition
lo $42400 penalties, the cost of
putting out fires caused by vio-
lation of the orchard and citrus
grove heater provision ($41860)
will be imposed upon violators of
that section. Penally provisions
are also applicable (in general) lo
violations of gasoline cargo tank
and vapor control laws (SS4I9SO-
41974). (For alternatives to
criminal penalties see $41970.)
I urly-fivc locul air pollution control districts huvu primary uulliorir
nunvehicular sources of emissions.
-------
CALIFORNIA CIVIL PENALTY STATUTES (continued)
Type
NONVEHIC- Judicial
ULAB AIM
(can't)
SecUoo Hut Min$ Where
$Go
S4140I ' $60007 - - »
day
Who
Enforce*
It
Criteria
Intentional or
negligent viola-
tion of abatement
orders issued by
district ($42450),
by hearing board,
($42451), or by state
ComaienU
Re Abatement orders prohibiting or
limiting discharge of air contaminants
Into the air.
board (S4ISOS).Crileria
same as above, $42403.
WATER Judicial
AND WATER
SYSTEMS
(DUNKING
WATER)
Judicial
Judicial
54033 (a) $5000/
(Health violation
and Safety
Code. Ch. 7
of PL 1
(Sanitary
Provisions)
of Div. 5-
Sanitation)
$4033 $250/
(b) violation
$4031 $50
/ V
(c)
DepM of
Health
Services re-
quests Ally.
Gen. to pe-
tition court
to impose,
assess and
recover
penalties
(S4034X
n
Failure to comply
with primary
drinking water
standards. Criteria
for assessments
under $4033 (a),
(b) and (ck ex-
tent of harm,
nature and persis-
tence of violation,
length of time
over which viola-
lion occurred, and
any corrective
actions taken.
Failure to
to comply with
any secondary
drinking water
standards.
Failure to comply
with any drinking
For $4033 subsections (a), (b) and (c) civil
penalties may be imposed when any person inten-
tionally or negligently violates cease-and-desisl
orders issued, reissued or amended pursuant to the
provisions of section 4031. Note that Part 2
(Garbage and Refuse Disposal) of Div. 5 - Sanita-
tion, of the Health and Safety Code contains Ch. 4
on Pollution of Waters and Public Places.
Violations of this chapter including dumping
garbage in navigable waters or the ocean, con-
lamination of water supplies by livestock, and
other discharges into waters - result in the mis-
demeanor penally. See SS4400 - 4485.
water standard,
dep*t rule or regula-
tion that has only
minimal relationship
to health of users.
-------
CALIFORNIA CIVIL PENALTY STATITTIS (continued)
TyfM SacUcai Nail
Mint
Where
$Co
Who
Bnforc
Criteria
CooncnU
WATER
QUALITY
Admin. S 1)3 JO
Judicial (d)
(Water
Code)
I
(-
o
JSOOO/ - - Slate Water Regional For Intentional or negligent
day Pollution boards violations of cease and desist
adminia- Cleanup and assess orders, cleanup and abatement
tratively, Abatement adminislra- orders or waste (including oil
$13350 (d) Account of live penal- or petroleum residues) dia-
(Ih f 15,0007 the State lies pursu- charge requirements, orders or
day Water ant to SS prohibitions. Strict liability
Judicially, Quality I3323-II327. for unlawful discharge of
S13350 (d) (2) Control Superior hazardous waste into or on
Fund courts waters of state that creates
(admin- assess pollution or nuisance. Factors
istered by judicial considered in assessing admin-
state water penalties istrative penalties are listed
resources pursuant to in SI332? which slates: "In
control SS 13350- determining the amount of
board). 13351 and civil liability, the regional
SS 13360 - board, and the state board
13361 upon upon review of any order
petition pursuant to Section S13324,
by Atty.Gen. shall take into consideration
at request the nature, circumstance, ei-
of regional tent, and gravity of the viola-
or state lion, or violations, whether
water re- the discharge is susceptible
source to cleanup or abatement and
control with respect to the violator,
boards. the ability to pay, the effect
on ability to continue in
business, and voluntary cleanup
efforts undertaken, any prior
history of violations, the
degree of culpability, economic
savings. If any, resulting from
the violation, and such other
matters as justice may require."
In judicial proceedings the
court shall take all relevant
circumstances into consideration
including: extent of harm, nature
and persistence of violation,
length of time over which viola-
tion occurs and corrective action,
if any, taken by discharger
(SI33SO (g». Additionally, SI33SI
lists factors to be considered in
imposing liability under this
chapter (i.e., Ch. 5- Enforcement
and Implementation). These include:
"the nature, circuuisluncc, extent
He; Discharges that occur and
cleanup and abatement order is
issued pursuant to S13304.
Principles of contribution and
comparative fault apply to
judicial proceedings (SI 3 3500)).
SI33SO (j) states that remedies
hereunder ere in addition to all
civil and criminal remedies,
except that no liability shall be
recovered under S13350 (b) (re
hazardous substance discharges
into waters) for any discharge
for which liability is recovered
under SI3385 (see below). Penal-
ties issued pursuant to orders
are to be paid within 30 days.
See, e.g.,SI3323(d).
Note: The State Board has not yet
adopted regulations establishing
"reporlable quantities" of hazard-
ous substances. Thus, under
Water Code SI3050 (p)(2)(0) there
is not yet strict liability for dis-
charge of haz. substances to land
that results in discharges to
groundwater. See also the follow-
ing sections relating to hazard-
ous waste discharges: 25189.5,
25191, 25191.5 and 25195.
-------
CALIFORNIA CIVIL PENALTY STATUTES (continued)
Sectic
Hut
Mini
Where
tGo
ho
Bnlorc
Criteria
Commeoti
WATER
QUALITY
(con11)
and gravity of the violation or
violations, whether the discharge
is susceptible to cleanup or abatement,
and, with respect to the violator,
the ability to pay, the effect on
ability to continue In business,
any voluntary cleanup efforts under-
taken, any prior history of viola-
tions, the degree of culpability,
economic savings,!! any, resulting
from the violation, and such other
matters as justice may require."
WASTE
MQ4**U A Qf^B
UD 131 A HUH
(re Water
Quality)
Admin. SI 3350
Judicial (e)
SI 3350
(0
Admin. SSI326I
S Judicial (), (b)
$$13261
(c), (d)
SI 3265
(a), (b)
$|Q/
gallon
of waste
discharged
(admin, penalty),
$13350 (e)(l);
120/gallon of
waste discharged
(judicial penalty),
$ 13350 (e) (2)
IIOOO/ -- "
day
(admin.,
$13350(0(0);
|IO,000/day
(judicially)
$13350(0(2)).
1 IOOO/
^
day
(admin.,
SI326l(b)(l));
ISOOO/day
(judicial. SI 3261
(b) (2))
$5000/
day
(admin..
$13261 (d)
(I)); $25,000
(judicial
SI 3261 (d)(2»
$IOOO/day --
(admin.,
$13265 (l))(l));
$50UO/day
(judicial.
$13260 (b)(2»
N
H
* Failure to furnish
or district report required
attorney by SI 3260 when
requested by
region.
" Hat waste dischargers
or district who knowingly or wilfully
attorney furnish false reports, who
fail to file reports or who
withhold material informa-
tion.
" Violations of
or district S 13264 (i.e.,
attorney restrictions on
new discharge or
material change
in discharge).
He Discharges that occur and
cleanup and abatement orders are
not issued pursuant to $13304.
He: No discharge but order issued
by regional board is violated.
Violations are misdemeanors and
may also result in civil liability
under $13261 (b).
Violations are misdemeanors and
may also result in civil liability
under $ I326l(d). This subdivision
is nolapplicable to waste dis-
charges subject toSS 13370-
13389. See below.
Violations are misdemeanors and
may result in civil liability under
SI 3265 (bX
-------
CAUFOBNIA CIVIL PENALTY STATUTES (continued)
>
I
NPOES/
DBBDGB
AND
FILL
(re Water
Quality)
Type Section
SSI326S
(e), (d)
Admin. SSI 3268
Judicial (a), (b)
SSI3268
(c), (d)
Judicial S 13385
(HO
$13385
M (2)
$13385
(a) (3)
Hat $ Hin f Where
I Go
ISOOO/day - -
(admin.,
SI3285(dXI));
f 2S.OOO/day (judicial,
SIJ265(d)(2))
II.OOO/
day
(admin.,
SI 3268 (b)
(I)); $S,000/day
Uudicially,
SI3268(b)(2»
I5.000/
day (admin.,
SI3268(d)(D);
$2S,000/day
(Judicially,
SI326B(d)(2))
$15,0007 -- Slate Water
day Pollution
Cleanup and
Abatement
Account
$20/
gallon of
waste discharged
$ IO.UOO/
day
Who
Enforces
n
or district
attorney
or district
attorney
n
or district
attorney
Atty. Gen.
at request
of regional
or state
boards
petitions
superior
court to
impose,
assess and
recover
penalties
($l3386(a)).
N
"
Criteria
Discharging haz.
waste in violation
of $13264.
Failing or refusing to
furnish technical or
monitoring program report
re water quality (S 13267
(b)) or falsifying any
Information therein.
Any person discharging haz.
waste who knowingly fails
or refuses to furnish
technical or monitoring
program reports required
under SI 3267 (b), or who
knowingly falsifies any
information provided therein.
Unlawful discharge of pollutants
or dredged or fill material;
violations of cease and desist
orders or cleanup and abatement
orders, prohibitions, waste
discharge requirements, dredged
or fill material permit,
effluent limitations, water
quality limitations, nat'l
standards of performance, pre-
treatment or toxicity standards,
or S 13382 violations re wells
andgroundwater pollution.
a
CoauMnls
Violations are misdemeanors and
may also result in civil liability
under $13265 (d). Liability not
Imposed if discharger is non-
negligent and files report of
discharge with board, or if
regional board determines S 13264
violation was insubstantial. This
liability provision is not applicable
to waste discharge subject to
SSI3370 - 13389. See below.
Violations are misdemeanors and
may also result in civil liability
under S 13268 (b).
Violations are misdemeanors and
may also result in civil liability
under SI 3268 (d). Not re waste
discharge subject to SS 13370-
13389. See below.
Re: Discharge occurs and cleanup
and abatement order is issued
pursuant to SI 3304. Note: With
respect to violations of waste
discharge requirements or cease
and desist orders, remedies
under $13385 are in lieu of civil
monetary remedies provided
for in $13350. Sec SI 3386 (c).
See SI 3387 (a) and (b) for
criminal penalties.
Re: Discharge occurs and cleanup
and abatement order is not issued.
He: No discharge but order of
regional board is violated.
-------
CALIFORNIA CIVIL PENALTY STATUTES (continued)
U)
Tjpo Saetioa
HAZARDOUS Judicial $115189
WASTE (a), (b)
(Health
and Safely
Code, Div.
20-Misc.
Health and
Safety
Provis-
ions, Ch.
6.5- Haz.
Waste
Control)
$25189
(c)
* $25 189
(d)
Hu$ Mint
$25,000/
violation
or, for
continuing
intentional
violations.
for each day
of continuing
violation.
$25,0007 $1.0007
violation violation
$25,0007
violation
Where Who
$ Go enforce*
50% to City Ally.,
llaz. Waste Disl Ally.,
Control or Atty.Gen.
Account of at request
General of State
Fund, Dep't of
25% to Health
office of Services
city ally.,
or Ally.
Gen. (which-
ever brought
the action),
25% to Def/l of
Health Services
and used to
fund enforce-
ment activi-
ties by local
health officers
pursuant to
$25180. $25192 (a).
M
tl II
Criteria
Intentional or
negligent false
representations
In labels, permits.
manifests, records.
or other documents
such as applica-
tions or reports
(S25I89U)).
Intentional or
negligent violation
of chapter, permit.
rule, regulation,
standard or re-
quirement, eicept
as provided in
$$25l89(c)or(d)
(see below).
Intentional
disposal or
causing disposal
of any has. or
extremely haz.
waste at
unauthorized point
Negligent disposal
or causing disposal of
any haz. or extremely
Com a) eats
$ 25191.7 states that any person who provides
information materially contributing to
imposition of civil penalties for violations of
$$ 25189 (a),(b). or (c) shall be paid a reward
by the Oeffi equal to 10% of amount of
penalty collected, not to exceed $5000.
S25I92 (b) states that if a reward is paid
pursuant to $25191.7, the amount of reward
shall be deducted from amount of civil
penalty before amount is apportioned
pursuant to S25I92 la). The haz. waste
control law also authorizes criminal
penalties and rewards for supplying
material information contributing to
convictions.
Note also that S 25188 authorizes a maximum
$25,0007day civil penalty for failure to
comply with a schedule of compliance.
Violator may be ordered to disclose the fact
of this violation or these violations to those
persons as the court may direct. Each day
the deposit remains is a separate additional
violation unless person immediately files
report of deposit with Oep*t and is complying
with order issued by director or court for
cleanup.
H
lux. waste at unauthorized
S25I89.
2 (aMb)
$10,0007
violation
and for each
day of con-
tinuing viola-
lion thereafter.
n «
point.
Making false
statements or
representations
in labels, permits.
manifests, records,
applications or
other documents.
Violations of chapter,
rules, etc., except as
provided in $$25189.2
(c) or (d). Sec below.
No person may be liable for a civil penalty
imposed under this section and for a civil
penalty imposed under $25 189 for the same
act or failure to act ($25189 (d)).
-------
CALIFORNIA CIVIL PENALTY STATUTES (continued)
I
I-1
*^
Type Section
HAZARDOUS * S2SI89.
WASTE S (e)
(cont'd)
Mu $ Min $ Where
SGo
$10,000
Who Criteria Com menu
Bnforee*
* Disposal or
causing disposal Violator may be ordered to disclose the fact
of any haz. or ex- of violation to those persons as court may
tremely haz. waste direct. Each day deposit remains is separate
at unauthorized violation
point report of
unless person immediately files
deposit with Uep*t and is complying
with order issued by director or court (or
S2S198
(re Toxic Judicial $25208.
Pits) 9 (a)
25%
of fair
market
value of
land and
improvements,
25% of sale price
of land and
improvements, or
$50,000, whichever
has been established
and is greatest
$IO,000/ $l,000/
day day
report report
is not is not
received received
cleanup.
" Knowing violations
of $25221 (a)
(application for
designation as haz.
waste property or
border zone property)
or SS2S2J2 (a) or (b)
(prohibited actions on
land without specific
variance).
Regional Failure to file required hydro-
board shall geological assessment report
submit any with regional board (nolwilh-
report which standing $25 189). Criteria for
contains $$25208.9 (a) and (b): Extent
fa be infor- of harm caused by violation,
mation to nature of violation and period
Slate Board of time over which it occurred,
for Geolog- frequency of past violations.
ists and and corrective action, if any,
Qeophysicia- taken by person.
Is for
disciplinary
action
pursuant to
57860 of
Business and
Professions
Code or to
Slate Board
of Registra-
tion for
Professional
Engineers and
Land Surveyors
for disciplinary
action pursuant to
S 6775 of Business
and Professions
(.'ode, as appropriate
($25208.9 (d».
Re: Surface impoundments
(Art. 9.5 of Ch, 6.5 - llaz. Waste
Control Law).
-------
CAUFOBNIA CIVIL PENALTY STATUTES (continued)
T»e
(re Toxic Judicial
Pita)
Section
S2S208.
(b)
Mail
$25.0007
day
false
informa-
tion goes
Min$ Where
$Go
$2,0007
day false
information
goes uncorrected
Who
Enforces
Criteria Comment*
Submitting false "
information to
regional board.
uncorrected
(re Disposal) Judicial
on Public
Land)
UNDER- Judicial
GROUND
STORAGE OF
HAZARDOUS
SUBSTANCES
Judicial
«
S2S242.
2
S25299U).
(b)
SIJI73
(Water
Code)
SI3I73
ts.ooo/
day
»5,000/
day
state-
ment
not
rec'd
$20,0007
day false
informa-
tion goes
uncorrcc-
led
(See
comments.)
$5007 Haz. Waste
day Control
Account,
General Fund
or local
gov-l
(varies)
$5007 State
day Water Poll
slate- Cleanup and
menl Abatement
not Account
rec'd
$20007
day false
informa-
tion goes
un correc-
ted
Deo1! of
Health
Services,
plaintiff.
Dep'l of
Health
Services,
Regional
Water
Quality
Board, city,
county and
enforceable
by respec-
tive attys
in court
Stale
Water Board,
Ally. Gen.
fl
Unlawful haz. Owner, lessee or lessor of affected land
waste disposal may recover compliance costs from
responsible party; lessee who Is not
responsible for unauthorized disposal may
recover compliance costs from owner if
responsible party cannot be located or is
unable to compensate lessee for costs. All
feasible civil and criminal actions may be
pursued.
Operating or owning Re Liability of owners and operators of
unpermitled storage underground storage tanks. Penalties ore
tank; failure to: in addition to other civil and criminal
monitor tank, maintain penalties and remedies under chapter;
record, report un- criminal penalties authorized.
authorized release.
properly close tank,
obtain permit, repair tank;
abandonment or improper
closure; knowing failure
to take reasonable steps
to assure compliance.
Criteria for court to
consider: extent of
harm or potential harm,
nature of violation
and period of lime
over which it occurred,
frequency of past viola-
tions, and corrective
action, if any, taken by
permit-holder ($25299 (d)).
Failure to submit haz. Re: Storage of haz. substances in concrete
substance storage sumps, nonvaulted buried tanks or other
statement and fee underground containers (except as provided
(per conlainerX in $13174 - Underground farm storage tanks
storing fuel).
Submitting false . "
information to Uoard.
-------
CAUFOBNIA CIVIL PENALTY STATUTES (continued)
Section
Mut Mla$
Where
I Go
Who
Bnfi
Criteria
COBMCMU
HAZARDOUS
SUBSTANCES
(in general)
>
The California Hazardous Substances Act
(Ch. 13 of Div. 22 of the Health and Safely
Code) authorizes criminal penalties for
violations of its provisions which Include
manufacturing, importing and selling
misbranded or banned haz. substances or
tampering with labels, etc. Note also that
the Revenue and Taxation Code contains Part
22 - the Hazardous Substances Tax Law which
provides penalties for nonpayment of taxes on
generation of waste and for failure to file
returns or required reports.
Additionally, $25343 imposes a $500 civil
penally for failure to file annual disposal
report required under S25342. There is a
maximum $2S,000 penally for S2S3S8 viola-
lions, such as intentionally making false
statements or refusing to provide information
in reports.
OIL
Judicial SIS I, $6,000
Ch. 4 plus
(Harbors cleanup
and costs
Navigation
Code)
If more than Amount of discharge,
one agency likelihood of permanent
has respon- Injury. Int. jiliuml or
slbility for negligent ol
waters in oil into sute waters.
question, the
agency which
conducts
cleaning or
abating
activities is
the agency
authorized to
proceed under
this section.
-------
CALIFORNIA CIVU. PENALTY STATUTES (continued)
Saetioo
Mail
Min$
Where
$Co
Who
Enfore
CriUrU
ComneoU
SOUO
WASTE
Judicial seem.
(Qov-t
Code)
II.OOO/
day of
violation
1/2 lo
General
Fund;
1/2 to
County
where
action
brought;
or 100%
lo City
or County
if brought
by their
altys.
Authorized
attorney
petitions
superior
court to
impose,
assets and
recover sums;
Ally. Gen.
Operating unpermitted
solid waste facility;
permit or standard
violations.
S66796.62 provides for petition
for reinstatement of permit or
reduction of penalty after I year
from effective date of decision.
-------
COLOBAOO CIVIL PENALTY STATUTES
>
!-
00
Type Section Man $ Hint
AIR Judicial S2S-T-I22 $25,0007
(IXa,b) day
Admin. $25-7-115
(5)
House Bill
HOB
Judicial S25-7-I22 $IOO/day
(l)(c) for
violating
$25-7- IU
Judicial $25-7-123 flOO/dayfor
incinerator
and open
burning
without
permit
Judicial $25-7-128 $300/day
HAZ. WASTE Judicial $25-15-212 $10,0007
day for
violating
Arl. 15,
PI. 2: lluz. waste
disposal sites
Where Who
I Co Enforce*
General Ally. Gen., Air
Kund Pollution Control
Oiv. (DepM of
Health), or DisL
Ally, for district
where violation
occurred.
Air Pollution
Control Div.
It
Local air
pollution control
authority in addi-
tion to those listed
above.
General Waste Mgml
Fund Div. (l)ep't of
lluallli), Ally.
(Jen., lid. of
county cmmn'rs,
municipality.
Criteria
Size of business,
economic impact of
penally on business
of violator, seriousness
of violation, and other
relevant factors. Court
also considers whether
violation due to
malfeasance or non-
feasance, in addition
to reasons for admin, or
judicial review (whether
legal or factual issues
raised were frivolous or
used for purposes of delay).
Re permit approval
or
denial see
$25-7-123(2).
Seriousness of violation,
whether willful or due
to mistake, economic
impact of penalty on
on violator, other
relevant factors.
Coaanenta
Penalty assessment may be
adjusted if U.S. EPA finds
it insufficient to meet
federal act. Maximum applies
to violations of final orders
and for each day of continued
operation after receipt of
notice of violation or non-
compliance.
House Bill 1 109 gives the state
authority to carry out the non-
compliance penalty provisions
In conform ance with SI20 of
the federal Clean Air Act, using
the federal act formula.
Reimbursement for
of cleanup by local
is paid out of fund
attributable to penally.
-------
COLOBADO CIVIL PENALTY STATUTES (cont'd)
Judicial SIS-U-309 »25.000/dey
for viola-
ling Art. IS,
PL JiSute
ha*, waste
management
program
DUNKING Judicial
H,O
NPOBS/
VATBB
Judicial
S8S-4-608
$25-8 -«08
$IO,000/day
$IO,000/day
General Fund Water Quality
Control Div.
(Dep-t or Health),
Atty. Gen.
General Fund Water Quality
Control Div.
(Dep-t or Heallh).
Ally. Gea
H-
VD
-------
CONNECTICUT CIVIL PENALTY STATUTES
K)
o
Type Sadie* Hut Mia $ Where Win Criteria
$ Go Enforce*
GENERAL Judicial S22a-6a - - - - General Ally. Gen. Reasonable costs and
Fund expenses of state in
investigating and
abating violation, for
restoring resources,
or for damages to
resources. Violation
may be caused by
negligence or with
knowledge.
Admin. S22a-6b -- -- " Comm'r of Def/l Amount of assessment
(b), (c) of Envf 1 Prolec- necessary to Insure
lion immediate and conti-
nued compliance, and
the character and de-
gree of injury to (1)
public health, safety
or welfare, (2) public
trust, (3) reasonable
use of property caused
by activity. Other
factors include impact
on natural resources,
conduct of violator in
achieving compliance,
prior violations and
financial status of violator.
Admin. S22a - $ 1,000 plui -- " " Violations under this
6b
-------
CONNECTICUT CIVIL PENALTY STATUTES (continued)
>
N>
tys» Stella* Uai$ Mui $
Admin. S21a-6b $25.000 plus
(aX1.3) $l.000/day
of continuing
violation after
finaJ assessment.
Admin. S22a-6b $25,000 plus
(aX«) $S.OOO/day of
continuing
violation
after assessment.
Admin. S22a-«b $2S,000/day
(aKS)
WETLANDS Judicial S22a-3S $1,000'
offense and
for each day
of continuing
violation.
Where Who CriUrla
$Go Boforea
" " Assessments are calculated
in four broad steps (1)
gross cash flow of required
compliance expenditures
(facility and operating
costs) is estimated: (2)
net cash flow U establish-
ed taking lai and other
savings into account; (3)
net cash flow is discounted
to present value; and (4)
Individual monthly civil
penally Is calculated as
that amount which would, if
paid monthly, amortize net
present value of project
See section 22a-6b-503(e)
of the Regulations tab.
(For violations of
emergency orders or
cease and desist orders.)
«
(This part pertains to RCRA
General Alty. Gen. Cost of wetland
Fund (upon complaint restoration.
of comm'r)
CoameoU
(Violations under this
part include discharges,
emissions, removal or
disposal of substances and
violations of final orders
or permits.) Penalties
may be mitigated and
corrected.
violations.)
Knowing violations
only.
-------
CONNECTICUT CIVIL PENALTY STATUTES (continued)
K)
K>
Type Sectioa Max $
Admin. S22a-44
.Judicial (re inland
wetlands)
Min f Where Who
$ Go Bnforcea
Money Inland wetlands
damages agency (admin.);
Criteria
n
resulting comm'r, govM wit.
from court or person (judicial)
HAZ. HASTE Judicial S22a-I21 $IO.OOO/day
(re constuc-
Uon of haz.
waste facilities
See also GENERAL
penalty section
above, S22a-6b
(aX6). re RCRA.
Judicial $228-131 $25,000/
(S22a-I3la day
is criminal
only for knowing
violations)
suit go to
person who
brought suit;
moneys collec-
ted to be used
by comm'r to
restore wetland,
whenever posable.
$l,000/day General Ally. General
Fund in Superior
court for any
Judicial
district
affected by
violation
General Ally. General
Fund and
credited
emergency
spill
response
fund.
Construction or
operation in material
violation of chapter
or certificate
(permit).
For violations of
stale's tax. waste
program that has been
approved in accordance
with RCRA.
Comments
Reasonable attorney's
fees included in assess-
ment of court costs.
Knowing or wilful viola-
tions result in criminal
penalties. Comm'r and
Conn. Siting Council can
issue cease and desist
orders, or suspend or
modify permits after
opportunity for hearing.
Courts also can issue
injunctions and restrain-
ing orders. Remedies mid
penalties are cumulative.
..
-------
CONNECTICUT CIVIL PENALTY STATUTES (continued)
AIR
N>
CO
rift
Admin.
Judicial
Admin.
Section
$2»a-l7S(a)
(reopen
burning)
S22a-I80
S22a-fi-b
600 et
seg.
(reguU-
lions)
Max t Hin t Where
f Go
ISO/first - - General
violation; Fund
$200/sub-
aequent
violations
$5.000/week - - General
for violation Fund
$25,000 plus - - General
$IOOO/day Fund
of unabated
activity after
receipt of
civil penalties
final order.
Who Criteria ComnenU
Enforces
Comm'r Balancing lest
($228-176): Comm'r is
to weigh equities
involved and advantages
and disadvantages to
residents and businesses
(includes social and
economic value of activ-
ity; use of properly; area
suitability and practicability
of reducing or eliminating
discharge).
Ally. General Re: violations Penally assessment commences
of orders. on the tenth day after expira-
tion of lime fixed for taking
preventatlve or corrective
measures in an order.
Comm'r Amount of assess- For violations of emission
ment necessary to standards (see sec. 22a-6b-
Insure immediate 602(d)). Maximum amounts
and continued com- assessed represent economic
pliance, and the advantages a person responsible
character and for unabated activity could gain
degree of injury from delay in complying.
to ( 1) public Gross and net cash flow are
heally, safety or determined and civil penally
welfare, (2) public is assessed. Re assessment
trust, (3) reason- of civil penalties for viola-
able use of proper- lion of terms of an order to
ty caused by acliv- abate emissions violation,
ily. Other factors see sections 22a-6b-603(a) to
include impact on (i) (at Regulations tab), citing
natural resources, same criteria and maximum
conduct of violator penalty amounts.
in achieving com-
pliance, prior viola-
tions and financial
status of violator.
-------
CONNECTICUT CIVIL PENALTY STATUTE! (continued)
T»
SOLID Judicial
WASTE
Judicial
WATER Judicial
RESOURCES
DAMS AND Judicial
RESERVOIRS
WATER Judicial
Judicial
Judicial
Scetloa
$22a-:46
(re-
beverage
container
law)
S22a-»0
(re litter
control
law)
$22a-376
(re-water
diversion)
$22a-407
$22a-
438(8)
$22«-450
$22a-457
Max $ Mm $ Where
$IOO/first ISO/first General
offense; offense; Fund
$200/second $IOO/second
offense; offense;
$500/lhird $250/lhird
offense offense
$IOO/for $ ID/first General
subsequent offense Fund
offenses
$l,000/ -- General
offense and Fund
for each day of
continuing
violation
$500/of fense - -
and for each
day of con-
tinuing violation
$IO,000/ -- General
offense and Fund
for each day
of continuing
violation
$1,000;
employer
fined $5,000.
$5,000
Who Criteria
Enforce*
Comm'r,
Ally. General
Comm'r,
Ally. General
Ally. General $22a- 376(c)
imposes a maximum
$10,000 fine (if
convicted) for
knowingly making
false statements
or misrepresenta-
tions in a report
or application, or
for tampering with
monitoring equipment
Ally. General Pertains to NPDES
(upon com- and water quality
plaint of violations.
Comm'r)
" Failure to report
discharge, spill, loss,
seepage or filtration.
" Failure of
financial responsi-
bility (bond).
Comments
Court has discretion
to order other
appropriate remedy.
Note that $ 22a-363
provides for a criminal
penalty ($ IS-minimum,
$50 or imprisonment
(or both)-maximum) for
unlawful dredge and
fill activities.
Remedy includes injunc-
tion against construc-
tion and use of structure.
Criminal penalties for
knowing violations are
set out in $22a-438(b)
and(c).
Pertains to discharging or
receiving cargo of oil or bulk
products.
-------
CONNECTICUT OVIL PENALTY STATUTES (continued)
:>
K)
WATBB
(continued)
DUN UNO
WATBB
Typ* 8«cUo« Mai$ Miof
Judicial SMa-ttt Municipal-
it / share
of cost of
compliance
plus l/IOof
1% of such
share. If
knowing violation:
$ 1,000 for each
day of continuing
violation.
Admin. S22a-6b $25.000 plus
503 $IOOO/dey
that order
assessment
period con-
tinues after
receipt of
civil penalties
final order.
Judicial SS2S-12C, fSOOO/day
2S-I6
Where Who
f Go KnforeM
General Fund A tty. General,
Comm'r,
Comm'r of
Admin.
Services (in
case of
municipal
violator)
" Comm'r
" Dep-l of
Health
Services
Criteria
Pertains to failure
to establish pollu-
tion control
authority.
See General
penalty provisions
at S22a-6b (b),(c)
for criteria.
Failure to comply
with order; safe
Comments
If violator (ails to pay prior
penally for same violation,
charge is $500 minimum for each
day of continuing violation.
Re violating terms of order to
abate pollution or to correct
potential water pollution sources.
For monitoring report violations
see General penalty provisions
at S22a-6(b) (a) (1) and regula-
tions at S22a-6b-S04 et seq.
_
drinking water violations.
-------
DELAWARE CIVIL PENALTY STATUTES
Tjpe SaetioB
Hail
Min$
Where
$Go
Who
Enforce*
Criteria
Comment*
QBNEBAL Judicial MOOS $IO,000/day
(ULT)
$IOOO/day Department of Secretary of
Natural Resources Natural Resources
& Envt'l Control & Envt'l Control
May also claim expenses for
(I) abating the violation
(2) controlling pollution
related to the violation
(3) cleanup and restoration.
AlB Judicial
HAZ. WA8TB Admin.
Judicial
SOLID WASTE Judicial
Judicial
Judicial
Judicial
Judicial
Judicial
Judicial
S6702 (100 $30
S6309(aX2) $2S.OOO/day
S6309(b) t2S,000/day ll.OOO/day
S64I7 $l.000/day $100/day
(tit 7)
Reg. 5.01 $l,000/day $IOO/day
SI704 $100 $15
(tit 16)
SI706 $ SO plus $10
(tit 16) costs of suit
SI707 $25
(lit 16)
S6025 $500/day JlOO/day
$6005 $IO,000/day tl.OOU/day
(til. 7)
" Emissions S deals with motor vehicle
of smoke or emissions.
other air
contaminants.
" Seriousness; Failure to take corrective
good faith action wilnin time specified
efforts to in compliance order.
comply.
Superior Violation of Subsection (b) is in lieu of
Cod chapter, subsection (a), compliance
conditions order proceedings. May also
of permit, seek injunctions.
or orders
of secretary.
Solid Waste Violation of May also seek injunction.
Authority license con-
dition or
regulation.
" Violation of
regulation.
Dumping of refuse.
Dep*t of Natural Dumping un- Violator can be imprisoned
Resources & treated for nonpayment of civil fine.
Envt'l Control blood, carrion
& refuse from
poultry industry.
Burning of refuse
or other materials.
Secretary Disposal or Fine cannot be suspended
of Dep'l disclwrgu of Also provides for removal
solid waste of improperly disposed-
inlo any of waste by violator.
surfiico or
ground wuler.
-------
DELAWARE CIVIL PENALTY STATUTES (cont'd)
DRINKING
HjO
Type Seetloa Hut Hin $ where
tGo
Judicial SI10I $5,000 $1.000
(UL 16)
Who Criteria
Enforce*
Discharge of
chemicals or
other
pollutants
into drinking
water supply.
ConmeoU
S provides (or abatement,
by arrest of the violator
and the closing of the
offending business if
necessary.
Judicial SI302
$100
Placement of S provides for immediate
privy, hogpen abatement of nuisance.
or slaughterhouse
near source of
drinking water.
NPDES Admin. SI 50 7 $IOO/flrst
offense,
$200/sub-
sequent
offenses
Judicial S6034(a) first offense
written
warning, sub-
sequent
offenses
$500
Judicial $603 4(b) $IOO/first
offense,
$I.OOO/
subsequent
offenses
Judicial S6034(c) $IO,000/
first
offense
WETLANDS Judicial S66l7(a) $IO,000/day
Judicial $66l7(b) $SOO/dsy
Judicial S66l7(v) $IO,000/day
$IO/firsl
offense,
$25/sub-
sequent
offenses
$ I.OOO/
first
offense
$500/dny
$50/day
$I.OOU/Uay
Alderman of Violation of S deals with State Board of
town where any rule, Health rules, regulations
violation regulation and orders.
occurs or refusal to
comply.
Secretary of Sale or S deals with sewage system
Department dislribu- cleaners and additives.
lion of sewage
system cleaner
containing restricted
chemicals in excess
of 1 part per hundred.
* Use of such
cleaner or additive
in any sewage system,
surface or ground waters.
" Serving water Subsequent violations
from well result in closing of
closed due to the entire facility
presence of until new source Is
restricted found.
chemicals.
Ally. Gen. Intentional or S also has provision
knowing allowing Ally. lien, to
violation. sue for coils of restora-
tion of wetlands.
" Violation of
rule, regulation
or order.
" Violation of chu|ilvr,
liinilulion iii permit,
rule or regulation.
-------
DtSTHlCT OF COLUMBIA CIVIL PENALTY STATUTES
I
to
00
Type
A1B Admin.
WASTE
DRINK. MATCH
NPDES
HjO
HAZARDOUS Admin.
HASTE Judicial
Section
M-Zi726(b)
$8-531
$6-408
ISOI.I
S6I0.2
$6-«04
$8-2:8 IS
D.C. Law
5-103 S2h
"a. $ Mia $
$1000 in a
12-month
period
~
- -
_ _
*25,000/
violation
and each day
constitutes
separate
offense.
Where Who
I Go Enforces
Private Administrator
individual
- -
--
D.C. Enforcement
Treasury Div. of D.C.
Office of Com-
pliance, D.C.
Corp. Counsel,
Mayor.
Criteria CoomenU
Information which D.C. provides mostly
leads to convic- criminal penalties with this
lion under one section as a "reward"
statute. section for individuals who
give information which
leads to a conviction for
violations.
All criminal penalties.
AU criminal- penalties.
All criminal penalties.
All criminal penalties.
Violation of Upon continued violation
haz. waste laws of corrective order in
and regulations. Notice of Violation
enforcement action may be
taken by various admin.
and judicial measures.
Section provides both civil
and criminal penalties.
-------
FLORIDA CIVIL PENALTY STATUTES
GBNEBAL
ro
Type Section Max* Mio « Where Who
f Go Enforce*
S403.087 - - - - - - Dep-t of
(1) Envl'l .
Regulation
Judicial $40). 121 IIO.OOO/ -- Stale pollu-
(1) day lion recovery
fund
($403.165)
used for
restoration
Admin. S403.I2I -- -- " *
(2)
Judicial $401. 141 $10,0007
offense and
for each day
of continuing
offense
Judicial S401.I6I $10.000 as --
per $403.141
Criteria
Any injury to air,
Mat era or property
(Including animal,
plant, and aquatic
life) of the state
caused by any viola-
lion.
N
For violations
listed in $403.161
(1). Violator is
liable to state for
reasonable costs of
stale In tracing
pollution, in con-
trolling and abating
source and pollutants
and for restoration.
Causing pollution
that Injures human
Comment*
Section stales that air and
water permit violations of
sec. 403.087 are punishable
under Ch. 403.
Court may receive evidence
In mitigation. Sec. 403.131
slates that judicial and
administrative remedies to
recover damages are alter-
native and mutually ex-
clusive. Injunclive relief
available. Each day
constitutes a separate
violation.
Admin, proceedings used to
establish liability and re-
cover damages (judgment
enforced by court); also to
order prevention, control
and abatement.
Court may receive evidence
in mitigation. Joint and
several liability if two or
more persons cause pollu-
tion of air or waters and
damage is indivisible.
Section does not apply to
damage from application of
chemicals to waters for
control of insects, aquatic
weeds or algae. See
$403.141 (4).
Section stales that violators
are subject to civil penal-
health or welfare,
animal, plant or
aquatic life or
properly. Failure
to obtain permit
Failure to comply
with any lawful rule,
order, regulation,
permit or certifica-
tion adopted or
issued by l»cp'l of
linvt'l Regulation.
ties under $403.141. Legis-
lative intent that penalties
Imposed by court be of such
amount as to insure imme-
diate and continued com-
pliance with Envl'l Control
Act. See $403.161(5).
Approved louul program* muy have separate aulliorily under their ordinances or special stale laws to enforce some or all of department's environmental laws
und regulations. Sec $401.182.
-------
FLORIDA CIVIL PENALTY STATUTES (continued)
Type Section
SOLID Judicial 1403.708
WASTE
HAZ. WA8TB Judicial $403.726
Hut Mia$
IIO.OOO/
day
$2S.OOO/
day
Where
$ Go
State
Pollution
Recovery
Fund or
Hazardous
Waste Mgmt
Trust Fund
($403.725
(3)).
n
Who
Boforeea
Dep-l of Envl'l
Regulation, any
county or munici-
pality
Dep-l of Envl'l
Regulation
CriUria
Unlawful burning or
disposal of solid
wastes into water or
on land
Spill or release of
hazardous waste
creating Immediate
and substantial
danger to human
health, safety, or
C oatmeals
Section provides that viola-
tions are subject to penal-
ties under $403. HI (general
penalty section). This sec-
tion pertains to solid
wastes.
Re abatement of imminent
hazards caused by improper
hazardous waste mgmL
Injunctive relief also.
welfare or the en/L
Judicial $403.727 $50,000/ -- * Haz. waste generators Violators also liable for
day transporters, or damages under S403. 141
facility owners: (general penalty section).
operating without Knowing violations result in
permits or who fail criminal penalties. Sections
to comply with 403.121, 403.131 end
permit; creating 403.726 are available to
imminent hazards; or Deo1! to abate violations.
refusing lawful inspec-
tions. Defenses listed
at $403.727 (5), (6) and (7).
Judicial $403.758(1) $10,0007 -- Dep't of See $$403. 121
day Envl'l and 403. 131.
Regulation
Trust Fund
Re usedoiL
Judicial $403.758(2) $300 -- - - Failure to register
with Uep't to transport,
collect or recycle used oil
DRINKING Judicial $403.860 $5,0007 -- Stale " Violations of
WATER day Lnvt'l Fund drinking water law,
rules, regulations
or orders.
Violator may also have to
pay stale for reasonable
costs of investigating and
prosecuting admin, action.
Injunclive relief available.
-------
FLORIDA CIVIL PENALTY STATUTES (continued)
>
T)p« Section Hut Mini
WETLANDS -- S403.924 $10.0007
day
POLLUTANT Judicial $378.31 1 $10.0007
SPILLS day
Where
$Go
n
Stale
Pollution
Recovery
Trust
Fund
Who
Enforce*
Dep't of Envt'l
Regulation
Dep't of Envt'l
Regulation
Criteria
Violations re
permitting activi-
ties in wetlands.
Discharge of pollu-
tants (i.e., oil,
gas, pesticides,
ammonia, chlorine
and derivatives).
S376.JOJ states that
$$403.121, .131, .141
and. 161 apply to
enforcement under
SS3T6.30lo376.JI7.
Coanents
Section refers to general
penally section 403.141,
and enforcement provisions
under SS403.1 21, .131, and
.161.
<
Assessed persons are ex-
empt from Ch. 403 penal-
ties for water pollution
violations. Discharges
promptly reported and
removed we not subject
to penalties. For
liabilities and defenses
of facilities see S376.308.
Judicial S376.I6 $50,0007
day
General Dep't of Natural
Revenue Fund Resources, Dep't
of Envt'l Regula-
tion
Discharge of
pollutants (Le»,
oil, gas, pesticides,
ammonia, chlorine and
derivatives) Into or
upon any coastal
waters, estuaries,
tidal flats, beaches,
and lands adjoining the
sea coast ($376.041).
Dep't of Natural Resources
regulates coastal petroleum
or other substance spills;
Dep't of Envt'l Regulation
regulates inland and ground-
Hater spills.
-------
GEORGIA CIVIL PENALTY STATUTES
Typ.
Seetloa
Uu$
Hin$
Where
$Go
Who
Bnforea
Criteria
CoraaenU
AU
Admin. f 12-9-23 »25,000/
day
Slate treasury,
general find
Director of Envt'l
Protection L)iv.,
De(/l of Natural
Resources
uj
ro
Violation of laws,
rules, orders or
permits under air
cL Factors con-
sidered (I) amount
of assessment need-
ed to insure
immediate and con-
tinued compliance
and extent to which
violator may have
profited by noncom-
pliance; (2) character
and degree of Impact
of violation on natural
resources of state, esp.
any rare or unique
natural phenomena; (3)
conduct of assessed
person in taking all
feasible steps to insure
compliance; (4) prior
violations; (5) economic
and financial conditions
(seeSI2-»-7fc and (6)
character and degree of
injury to public health,
safety or welfare and to
reasonable use of property
caused or threatened to
be caused by violation.
See also SI2-9-7:
Factors to be considered
In exercising powers and
responsibilities relating
to prevention, control,
etc., of air pollution.
This section calls for a
balancing and weighing
of factors including the
social and economic
valua of the source.
WATER Admin. $$12-5-51, $IO,000/day -- General Fund
12-5-52 plus cleanup
and abatement
costs
Intentional, neg-
ligent or acciden-
tal spill, dischar-
ge or deposit of
sewage, industrial
or other wastes,
oil, scum, floating
debris, etc.
Strict liability for
damages to state or
govt'l unit for re-
lated expenses if spill
of toxic, corrosive.
acidic, caustic or
bacterial substance is
harmful to public health.
safety or welfare or to
animals, birds or aquatic
life.
-------
GEORGIA CIVIL PENALTY STATUTES (continued)
ui
ui
T»«
GROUND Admin.
ATBR
Admin.
DRINKING Admin.
HATER
COASTAL Admin.
WATERS
COASTAL Admin.
MARSHLANDS
RIVERS Admin.
SOLID WASTE Admin.
wtlw "*$ Mint Where
$ Go
$12-5-105 $IOO/ viola- --
lion plus
IIOAhyof
continuing
violation
S 12-5-106 11,000/vlola- --
lion plus
ISOO/day
$12-5-192 fl.OOO/viola-
tion plus
tSOO/day of
continuing
violation;
»S,000/d»y
for ilful
violations
$12-5-246 IIO.OOO/ -- "
violation/ day
SI2-S-288 ll.OOO/viola-
lion and
ISOO/day
thereafter
$$12-5-452, $l,000/acre
12-5-456 or part on
which violation
$12-8-41 $ 1,000/viola- -- *
lion plus
$500/day
thereafter
Who Criteria ConoxnU
Raforee*
" Violation of
monitoring, record-
ing or reporting
requirements re
ground* at er usage
for irrigation.
" Negligent or
intentional violation
or refusal to comply.
" Violation of permit
conditions or limita-
tions, refusal or failure
to comply with order,
permit, or drinking water
regulations.
Violation of Re permits for shoreline
permit, order, re- engineering activities.
gulation or emergency
order.
Coastal Marsh- Failure, neglect Re dredge and fill
lands Protection or refusal to activities.
Committee comply with permit
or order.
Appropriate gover- Unlawful land- Cease and desist orders,
ning authority, disturbing activl- emergency orders, and '
DeoM of Natural ties. restoration are also
Resources available remedies.
Dir. of Envt'l Violations of pro- Injunctive relief and
Protection Div. visions of solid judicial review
waste law, inten- available.
lionul or negligent
failure or refusal to
comply with orders.
-------
GEORGIA CIVIL PENALTY STATUTES (continued)
Hut
Mini
Where
tCo
Mho
Bofore
Criteria
Comment*
HAZARDOUS Admin.
WASTE
S12-8-6I
*2S,000/day
and for each
day of continuing
violation
llaz. Waste
Trust Fund
($12-8-68)
Violations of laws,
rules, regulations or
permit conditions or
negligent or inten-
tional failure or
refusal to comply with
order. Factors include:
(I) amount of assessment
needed to insure immediate
and continued compliance
and eilent to which
violator may have profited
by noncompliance; (2)
character and degree of
impact of violation on
natural resources of
state, esp. any rare or
unique natural phenomena;
(3) conduct of assessed
person in taking all
feasible steps to insure
compliance; (4) prior
violations; (5) economic
and financial conditions
(seeSI2-»-7h and (6)
character and degree of
injury to public health,
safety or welfare and to
reasonable use of properly
caused or threatened to
be caused by violation.
DISCHARGES Judicial SS2-8-I $2,000
TO NAVIG.
HATERS
$500 1/2 to person Bd. of Pilotage
giving informa- Comm'rs, Court
lion, 1/2 to Bd.
of Pilotage Comm'rs
Unlawful disposal
of stone, gravel or
other ballast from
vessels into waters
of bays or harbors
of stale.
Re discharges of sub-
stances dangerous to
navigation or property.
Court may order max-
imum 3-month imprison-
ment.
-------
GUAM CIVIL PENALTY STATUTES
>
U)
TH-
AU . Judicial
Confidential- Judicial
ityof
Information
HAZARDOUS Judicial
WASTE
SactloB
S49II4
TIL 10
PL I
Ch. 49
S49II3
TIL 10
PL I
Ch. 48
SSIII3
TiL 10
PL 2
Ch. 51
Mail Mint Where Who Criteria CoonaiU
$ Co Enforce*
II.OOO/ " Any person who violates Each day of violation shall oonslitute a
day any provision of this separate offense.
Act or any rule or
regulation in force
pursuant thereto, other
thanSS4»U3 and 49116
shall be guilty of a violation.
$1,000 -- * Any person who willfully
violates S491 13 of this
Act shall be guilty of a
violation.
$IO,000/ " " Any person who violates
day any hazardous waste
management provisions
of this Chapter, or any valid
hazardous waste management
rules and regulations
promulgated under this
Chapter, or who refuses or
neglects to comply with any
lawful order Issued by the
Administrator in carrying
out the provisions of this
Chapter shall forfeit and
pay the Government of Guam
a civil penalty for each
day and for each viola-
tion for noncompllanca.
Guam statutes governing water pollution, pesticides, solid waste, and sewage disposal authorize criminal penalties only.
-------
GUAM CIVIL PENALTY STATUTES (continued)
Tjpa Haciloa Max $ Mint Where Who Criteria Comments
$ Go Enforce*
VATBR AND Judicial $52112
WASTE VATBR TiL 10
OPERATOR'S PL 2
MANDATORY Ch. SI
CERTIFICATION
DRINKING Admin. $53114
HATER Judicial TiL 10
PL 2
Ch.51
$l,000/ " " Any person who violates
day or Is about to violate any
provision of this Act, or
any rule, regulation, cri-
terion, procedure or certificate
issued hereunder may, in a
legal action commenced by the
Administrator, with the approval
of the Board of Certification:
(a) be enjoined from continuing or
commencing such violation; and
(b) be subject to a civil penalty.
»5000/ " () Administrative. Re administrative actions: The notice of
day If the Administrator violation shall specify the alleged violation.
determines that any The order may require that the alleged violator
person is violating any do any or all of the following: cease and desist
provision of this from the violation; pay a civil penally not to
Chapter, any rule or exceed Five Thousand Dollars (5,000) for each
regulation promulgated day of violation; or appear before the Administrator
thereunder or any at a time and place specified in the order and answer
variance or exemption the charges complained of. When the Administrator
Issued pursuant thereto, issues an order for immediate action to protect
the Administrator may the public health from an imminent and substantial
have that person served danger, the Agency shall provide an opportunity
with a Notice of Viola- for a hearing within twenty-four (24) hours after
Uon and an Order. service of the order. After a hearing pursuant to
this Subsection before the Board, the Board may
(b) Judicial. The affirm, modify or rescind the Administrator's order
Administrator may as appropriate. The Administrator may institute
institute a civil a civil action in any court of appropriate jurisdic-
action in the Superior lion for the enforcement of any order issued pursuant
Court of Guam for to this Subsection.
injunctive relief to
prevent violation of
any order or regulation
issued pursuant to this
Chapter in addition to
any other remedy provided
for under this Section.
-------
HAWAII CIVIL PBNALTY STATUTES
Tyf% 8«*lk» Hut Hint
OBNBBAL Admin. 1142- $10,0007
Judicial II (e) offense
Admin. $342-11 $SOO
Judicial (0
DUNKING Admin. $340 E-i $5000/day - -
WATER Judicial and
t7SOO/day
for violations
of underground
Injection control
regulations
Where Who
t Go Enforces
Dir. of Envl'l
Quality Control,
Ally. Gen.
. .
Dir. of Dep't of
Health (either
administratively
or judicially in
any court of
appropriate
jurisdiction).
Criteria
For violations of
envl'l quality chapter
provisions or rules
(excluding vehicular
noise control and
vehicular smoke
emissions, $342-11
(a), and open burn-
Ing, $342-1 Kb)).
Section J42-I I.S
Includes factors to
be considered in
assessing admin-
istrative penalties:
nature and history
of violation, prior
violations, and the
opportunity, difficulty
and history of corrective
action.
Obstructing duly
authorized inspections.
safe drinking
water violations
Comaeals
Note: $342-11 (e) stales that wilful
or negligent water pollution
violations "shall be punished
by a fine of not less than
$2,500 nor more than $25,000,
per day of violation or by
imprisonment for not more than
one year, or both" suggesting
that criminal penalties are
imposed for these violations.
Hawaii regulations SSI 1-59-S,
11-59-6, 11-40-37
(re Air Pollution), 11-55-35
(re Water Pollution), and 11-58-8
(re Solid Waste Pollution) refer
to the General Penalty section
for enforcement actions.
--
Injunctive relief
available.
-------
IDAHO CIVIL PENALTY STATUTES
OJ
00
Tjp« Swttai
GENERAL Judicial $39-108
HAZARD008 Admin. $$39-
WASTB Judicial 44 IJ,
4414
HAZ. WASTE Judicial $42-3917
INJECTION
Mu $ Mln $
tlOOO/day
commencing on
tenth day
after expiration
of time flied
for taking
preventive or
corrective
measures in
Board's order.
$IO.OOO/
violation and
for each day
of continuing
violation
thereafter
$25007
day
here Who
t Go Enforces
General Depending on type
Fund of action, Dir. of
Dep't of Health
and Welfare, Ally.
Gen. or prosecuting
atty. in district
court In country
where violation
occurred.
Hazardous Dir. of Dep't
Waste of Health and
Account Welfare
General Dir. of Water
Fund Resources has
authority to
file enforcement
action in
district court
Criteria
Violations
relating to
air, water,
drinking water
and solid waste
pollution.
Seriousness
of violation,
good faith
efforts to
comply.
Unauthorized
Injection of
hazardous or
radioactive
waste Into
ells.
Con meats
Violator also liable for state eipendltures
relating to violation. Injuncllve relief
available. Idaho Code $31-4410 re solid
waste provides for treble, civil damages
(used for restoration) Imposed upon
persons in addition to criminal
penalties. Administrative actions such
as negotiations and public hearings may
be used to develop a Board of Health and
Welfare Order, the violation of which
results in the assessment of penalties.
Re falsifying applications, labels,
manifests, reports, permits or other
documents; violations of other re-
quirements of chapter, regulations, or
permits relating to hazardous waste.
Damages may include state eipenditures
In connection with violation, natural
resource damages and other costs.
In June live relief available. Two-year
statute of limitations.
-------
ILLINOIS CIVIL PENALTY STATUTES
>
u>
AIR
HAZ. WA8TB
(RCRA)
DUN UNO
HjO
NPOBS
RESOURCE
DAMAGES
Type
Judicial
Admin.
Judicial
Admin.
Judicial
Admin.
SIJ (g)
Judicial
Admin.
Judicial
Admin.
Sectioa
Ch.111 1/2
11041
Ch, III I/I
11041 and
SSll(fXg)
(h)and(i)
Ch.111 1/2
SI042
$12(0
Ch. IIII/2
SI042(c)
Mam $ Mia $
$10.000 for
violation
$ 1,000/day
after that
$2S,000/day
Class II
wells
$10.000 per
violation.
$ 1,000/day
afterwards;
all other
ells
$2SOO/day
$IO,000/day
$IO,000/day
Where Who
t Go Enforce*
General Revenue State's Ally.
Fund, or Ally. Gen.
Environmental
Protection Trust
Fund, or Wildlife
and Fish Fund in
Stale Treasury
" "
Pish & Wildlife
Fund
Criteria
Violation of
any condition
or filing
requirement
UIC permit
violations,
or fUlng
requirements,
etc.
Violation
of permit.
terms, con-
ditions or
filing re-
quirements.
--
Cm menu
Each day is not considered
a separate ofTense.
Funds may also be
deposited in Has. Waste
Fund.
Each day not considered
a separate offense.
This section referred to
inSI042(bX2)k
This section referred to
InS 1042 (bXI).
Any action which causes
death of fish or other
aquatic life is charged with
the reasonable value of the
life destroyed, and Is in
addition to other
penalties. This Is payable
Into the Fish & Wildlife
Fund of the state treasury.
-------
IN DIANA CIVIL PENALTY STATUTES
Typ* Section Mail Min $
GENERAL Judicial $13-7- »2S,000/day
13-1
ISOO/hour
Where
$Go
Environmental
Management
Special Find
Who
Enforce*
Criteria
Environmental Envt'l
Management violations.
Board or agency
may commence
civil action in court.
N
Violations of
emergency orders.
Comments
INDIANA civil penalties fall
under one general statute,
S 13-7-13- 1.
NPDBS Judicial SIS, refers to
Regulations S below
>
o
Judicial SI 3-7-13-1 $2S,000/day
Atty. Gen.
Discharge without
permit, violation
of terms of permit,
failure to comply
with permit applica-
tion requirements,
failure to montior
and refusing lawful
inspection.
Regulation refers to statute
for amounts.
Ally.Gen.
STREAM Judicial SI3-I-3-IS HDD/day
POLLUTION
Common
School Fund
Ally. Gen.
Statute is a lime eitension
for compliance. Penalty is for
non-good-faith effort to
comply with abatement or
corrective order.
HAZ. WASTE Judicial 320/IAC f2S,000/day
Admin. 4-11-2
(cites
SI3-7-I3-I)
Envt'l Mgml Envt'l MgmL Any violation Rule denies exempt status for
Special Fund Bd. or Ally. of statute or Small Quantity Generators for
Gen. rule violations of status twice in
any 12 month period. See also
SI3-7-I3-I, above.
-------
IOWA CIVIL PENALTY STATUTES
MINOR
VIOLATIONS
(GENERAL)
AIR
WATER
QUALITY
SOLID
WASTE
Tjrj» Section Hut Mini
Admin. $4SSB. $1.000
109
Judicial S4SSB. $5.000/day
146 and for each
day of con-
tinuing viola-
tion thereafter
Judicial S45SB. $S,000/day
187(1) and for each
day thereafter
Judicial S45SB. $5UO/duy
307
Where Who
t Go Hoforeea
General Eiecutive
fund Director,
Comm'n, Ally.
Gen.
Ally. Gen.
(at request
of comm'n
or exec.
director)
Ally. Gen.
(at request
of executive
director with
approval of
comm'n)
Ally. Gen.
Criteria
Economic benefit of
noncompliance, gravity
of violation, degree of
culpability of violator.
and maximum penally
authorized for that
violation under chapter,
among other relevant
factors. In addition
to the actual or
reasonably estimated
economic benefit, an
administratively
determined penalty may
include up to $300 each
for the gravity and
culpability factors.
See Iowa Admin. Code
ch, 10(800-10.1 to
10.3).
Violations of
orders, rules or
permits.
For violations of any
provision of part 1 of
division III of Chapter
or for violations of
permits, rules or
orders issued there-
under
Solid waste
disposal violations.
Coaneots
Interest on unpaid
penalties accrues at the
rale of 1 1/2% of unpaid
balance of assessed
penally for each month
(or part thereof) that
the penally remains un-
paid. Ally. Gen. may
institute summary
proceedings to recover
penalty and interest
Injunctive relief
available. Local control
agency may also seal
equipment not in com-
pliance. Regulation
27.3 (4) (b).
This subject covers both the
water pollution control
program and the drinking
water program. Civil penalty
is an alternative to criminal
penalty under this part.
Section 455 B. 182
authorizes a $5007 day fine
for failure to obey order
which constitutes contempt.
See also Minor Violations.
-------
IOWA CIVIL PENALTY STATUTES (continued)
Section Max $
Mint
Where
$Co
Who
Enforce*
Criteria
Comments
HAZARDOUS
CONDITIONS
Judicial S4SSB. $1,000
386
Ally. Gen.
Re reporting of hazardous
substance spills or condi-
tions. Strict liability for
cleanup and other costs is
imposed under Section
45SB.392. Cleanup cost
recovery goes to haz. waste
remedial fund
HAZ. WASTE Judicial S4S5B. $10,0007
417(3) violation
and for each
day thereafter
Haz. waste Ally. Gen.
remedial fund
Haz. waste
violations
>
ro
Judicial
S455B.
454
$IO.OOO/
violation
and for each
day of con-
tinuing violation
General
fund
Atty. Gen.
Constructing a
haz. waste disposal
facility without a
site license.
Note: Iowa's RCRA
authority has been
suspended for two years.
-------
KANSAS CIVIL PENALTY STATUTES
*-
ui
Type SeetioM lUi $ Mia $ Where
$Co
AIB Judicial S6S-10I8 $l,000/day -- Stale treasury
and (or each (general fund)
day of continuing
violation thereafter
SBWAGB Judicial Stt-167 125.000/day I2.SOO/
OBCUAJiCB and for each day
day Uwreafter
Judicial S6S-I7I f $IO.OOO/day $25
and for each
day thereafter
ATEB Judicial 565-ITOc IIO.OOO/ $257
day day
Admin. S6S-I70 d $10,000 day -- "
and for each
day thereafter
Who Criteria
BaTorcM
Ally. Gen. Violations of
(at request of orders, rules
Sec'y of Health or regulations.
and Env't)
Willful or
negligent
sewage dis-
charge without
a permit or in
violation of a
permit.
Willful or
negligent
failure to
comply.
* Making false
statements,
representa-
tions or
certifications
In any document,
or for falsifica-
tion, tampering
or knowingly
rendering in-
accurate any
monitoring device
or method.
Uir. of Div. Penalty shall
of Env*! constitute an
actual and sub-
Corn men ta
Injunctive relief
available.
Additional $l,000/day
penally for failure
to file a report on the
discharge of sewage.
Statutory language is in
terms of "convictions* and
thus may be a criminal
penalty.
Statutory language is in terms
of 'convictions" possibly
indicating this is a criminal
penally.
--
stantial econo-
mic deterrent
to violation for
which it is assessed.
For violations of
sewage discharge
permits, effluent
or water quality
standards, filing,
reporting, inspec-
tion or monitoring
requirements or for
violations of orders
or requirements of
scc*y of health and
cnv't.
-------
KANSAS CIVIL PENALTY STATUTES (continued)
T»f
DUNKING Admin.
MATCH
8OUO A Judicial
HAZARDOUS
WASTES
teetloi
lei-
mi
$65-
3444
Mait Hin$ Where
I Go
IS.OOO/ day
and (or each
day thereafter
$25.0007 day - - General
and for each fund
day thereafter
bo
Enforce*
Ally. Gen.,
sec'y, county
or disl.
tty.
Criteria
AU relevant circumstances
Including extent of harm,
nature and persistence,
length of time over which
violation occurs and any
corrective actions taken.
Extent to which violation
presents a substantial
hazard to health of individ-
uals; adverse effects on
CoBBcnU
Re public water supplies.
Note that $65-171 u
provides that any person who
Injures natural resources by
discharging pollutants is
liable to slate for natural
resource damages.
"
env*t as determined by
court according to toilcity,
degradability and dispersal
characteristics of haz.
waste disposed of or
potential for damage If
no haz. waste has been
disposed, the sensitivity
of receiving envM and
degree of envt'l degrada-
tion; amount of reason-
able costs Incurred by
state for detection,
investigation and attempt-
ed correction of violation;
economic savings realized
by violator in noncompliance;
quantity of haz. waste
disposed of, if any,
In a manner which constitutes
a violation; and the amount
which would constitute actual
and substantial economic
deterrent to violation for
which it is assessed.
Admin.
$65-
3446
110,000/day
and for each
day thereafter
Sec'y of
Health and
Knv-l, Dir.
of Div. of
Env-t
Actual and substantial
economic deterrent to
violation for which
it is assessed.
-------
KENTUCKY CIVIL PENALTY STATUTES
GENERAL
=r
**
U)
Type Section Mu $ Kin $
Judicial S224.994 IIO.OOO/
(1) day
Judicial S224.994 $l,000/day
(2)
Judicial $224.994 tl.OOO/
(8) day
Where Who
$ Go Valorem
General Ally. General,
expenditure Natural Kesources
fund and Envf l-Proleclion
Cabinet, departmental
counsel (Franklin
Circuit Court has
concurrent jurisdic-
tion)
H
n
Criteria
Violations of laws,
rules, orders,
permits or regula-
tions.
Violations of laws,
rules, orders,
permits or regula-
tions.
Violations for which
no express penalty
provision applies,
failure to perform
duties, violations
of any order or
determination of
cabinet
Comment*
He general prohibition against
pollution ($224.060); POTWs
($224.140); and, air pollution
violations ($224.330). Injunclive
relief available. Cabinet may
order necessary remedial
measures pursuant to $224.033
(18).
Re drinking water, water
treatment, certification of
water and sewage plant
operators, noise, and non-
hazardous solid waste viola-
lions. Cabinet may order
necessary remedial measures
pursuant to $224.033 (18).
Injunclive relief available.
Injinclive relief available.
Cabinet may order necessary
remedial measures pursuant to
$224.033 (18).
Judicial $224.997 $1000
Applicant or
certificate holder
who fails to provide
Info re $224.852.
Falsified information also
subject to civil penalties.
WATER Judicial $224.110 See $224.994
Ally. Gen.,
departmental
counsel (special
ally, gen.)
In addition to penalties under
$224.994 (general penally
provision) court may order
assessed person to restock or
replenish destroyed fish or
wildlife.
HAZARDOUS Judicial $224.994 J25.000/
WASTE (5) day
Unlawful generation,
treatment, storage,
transportation or
disposal of haz.
waste.
Injunclive relief available
Cabinet may order necessary
remedial measires pursuant
to $224.033 (18).
-------
KENTUCKY CIVIL PENALTY STATUTES (continued)
>
^
TIP.
Judicial
BacUoa Mai t Mia f
IM4.8T6 Additional
(8), (9), 10% of
(10) amount
originally
assessed,
plus 5% for
each 30 days
elapsing
between due
date of return
nd date of
filing. Interest
on unpaid amount
is assessed at 8%
per annum from
date proscribed for
its payment until
payment la actually
made.
Where Who
t Go Enforce*
Hazardous Atty. Gen.,
Waste Revenue
Management Cabinet
Fund
Criteria
llaz. waste generator
or facility opera-
tor who rails or
refuses to rile a
return or furnisn
Information reques-
ted In writing by
cabinet.
CoaneaU
Revenue Cabinet. may
assess this additional
penally. Total penalty
assessed under $224.876
(10) shall not exceed
35% or the assessment.
-------
LOUISIANA CIVIL PENALTY STATUTES
*»
vj
GENERAL
UNDEB-
GROUNO
INJECTION
CONTROL
Tjfpa SwUoji Mail Mint Where Who
t Go Enforce*
Admin. SI07KEXD $2S,000/ -- Bond Security A Secretary,*
Judicial day Redemption Fund, Ally. Gen.**
then to Environ- SI073(A),(B)
mental Emergency (G)
Response Fund
Admin.
Judicial SI073CEX2) tSO.OOO/ "
day
Judicial $1074(1) tlO.OOO/ -- ° Private
-------
MAINE CIVIL PENALTY STATUTES
>
OO
Type Section Max* Mint Where
$Go
GENERAL Judicial 8149(2), $ 10,0007 day; $1007 State
TlUe St $25.000 if day treasury
violation (general
relates to fund)
hazardous
waste or when
it can be
shown that
the seme party
has violated
the same law
within the 5
preceding
years.
A1B Judicial $589, $10,0007 -- State
Title 38 day treasury
NATO* Judicial $420, $10,000 -- State
Title J8 (pursuant treasury
to $349(2))
Judicial $417, $500 $100
Title 38
Who
Enforce*
Attorney
General
Attorney
General
Ally. Gen.
(pursuant
to S348h
see $451-
Enfor cement.
Criteria
Violations of any
provision of laws,
orders, regula lions,
licenses,permits or
other decisions of
Bd, of Envl'l Protec-
tion. In setting
penalties the court
is to consider! prior
violations by same
parly; degree of envt'l
damage thai cannot be
abated or corrected;
extent to which violation
continued after order to
correct; the importance
of setting a civil penalty
substantial enough to deter
others from similar viola-
tions $349(5).
Section refers to
discharges of certain
toxic substances into
inland or tidal waters,
or on Ice or banks of
such waters.
Discharges of refuse,
forest products or
CooMenU
$349(4) lists violations
that result in Class E
crimes. In addition, the
court may order restoration
of any affected area.
See $J48(2).
Comm'r of Dep*l of Envl'l
Protection may initiate
enforcement proceedings.
($342).
Section refers to $$348-349
re violations of Board of
Envt'l Protection orders.
" **
Section does not apply
to municioal or auusi-
potatoes into inland
or tidal waters of
state, or on ice or
banks of such waters.
municipal solid waste
disposal facilities in
operation on July I, 1977
(approved under Ch. 13).
-------
MAINE CIVIL PENALTY STATUTES (continued)
DUNKING
WATER
SOLID
WASTE
Type Seetioa
Judicial SteiT,
Title 21
Judicial S2642
Judicial SIJOS(T),
TlUe J8
Mail
$500/
day
$500
Min f Where
*Go
Stale
treasury
_ _ »
Slate
treasury
Who
Enforce*
District or
Superior
Court
Municipality
Municipality
Criteria
Violations of
$2616.
Wilful violations of
municipal regulations.
ComnenU
--
Provides that municipalities
shall enforce provisions of
section 1306, subsec. 2 re on-
site disposal of domestic
seplage.
Judicial $1306(2) IIOOO/
day
Municipality
Disposal of seplage
less that 300 feel from
property boundaries,
waters or other struc-
tures as listed.
Re on-site disposal of
domestic septage.
Note that S349HXE)
states that violations of
$1306 re solid waste result in
criminal penalties (i.e..a
Class E crime).
Judicial SI3IO-B ISOOO
Slate
treasury
Atty. Gen.
Knowing disclosure of
information designated
confidential
HAZ. WASTE Judicial $1308 $25,000/
-------
HA1NB CIVIL PENALTY STATUTES (continued)
Type BeeUa> Hut Mini
HAZ. WASTE Judicial SI3I7-A $IO,000/day $100
(continued) plus cleanup
costs
Judicial $13 19-1 Three (1)
(6) times appropriate fee
charged under Me. llaz.
Waste Fund statute.
Judicial SI3I9-J All cleanup
costs.
Judicial SIJ67 Abatement,
cleanup, and
mitigation
costs and
damages.
MBTLAND8 Judicial $475 See $349(2)
for general
penally
provisions.
Where Who
$ Go Bo force*
State Atty. Gen.
treasury
Me. llaz. Atty. Gen.
Waste Fund
State account Ally. Gen.
from which
funds were
expended.
State Ally. Gen.
treasury
State Atty. Gen.
treasury
Criteria
Discharge of haz.
mailer prohibited.
Negligence need nol be
proven. Discharge or
threatened discharge of
haz. waste while in
control of person causing
discharge or involving
property under custody or
control of that person.
Comment!
Section 1118 provides that
(1) immediate reporting of
discharges or threatened dis-
charges by responsible party
will be considered in mitiga-
tion of criminal and civil
penalties, and (2) immediate
reporting and removal of dis-
charge by responsible party
relieves that party of
criminal or civil liability.
This is a penally for late
paymenl of fee if fee has
nol been paid to Fund within
6 months after due date.
Re uncontrolled haz. waste
sites. Reel estate and
monies of persons involved in
violations should be forfeited
to Slate. Joint and several
liability of each responsible
party for cleanup costs.
Any filling, dredging, Owner of wellands or dunes
draining, depositing, is prim a facie held to be
altering, erecting or responsible for violation.
removal of materials in Wilfullness irrelevant.
coastal wetlands or sand
dunes without a permit or in
violation of permit provisions.
-------
MABYLAND CIVIL PENALTY STATUTES*
>
tn»
AIH Judicial
Admin.
UAZ. HASTE Judicial
Admin.
DUNKING Judicial
WATBH
NPOBS Judicial
Admin.
H-O, ICE, Judicial
SaaiUry
Paeilitia
8MUOB
Mu t Min $
$2-610, $IO,000/day
Hcaltn-Envt'l
Article
S2-4I0.1, tlOOO/day
Healtrt- $20,000 total
EnvH Article
$7-266(a)
S7-266(b)
S9-4I3U)
S9-342(a)
S»-342(b)
$9-225
$IO,000/day
$IOOO/day
$50,000 total
$5,000/day
IIO.OOO/ day
$l.000/viola-
lion
$50,000 total
$10,000 or $500
$IO,000/day of
violation beyond
liinil of compliance
order; no more than
$50,000 total
Where Who
$ Go Enforce*
State Ally. Gen.
treasury
Slate Ally. Gen.
treasury
_ .
Penalties go "
to monitoring
and surveillance
fund.
_ .
Penalties go to
monitoring and
surveillance fund.
_ .
Criteria CoMwU
If violation corrected in 36
months, can return up to
75% of penalty.
Consider: wiUfullness;
actual harm to human health or
to environment, cost of control,
nature/degree of injury to general
welfare, health, and property;
location of violation; available
technology and economic reasonableness
of control; recurrence of violation.
--
Consider: actual or
potential harm; cost of clean-
up; nature/degree of injury
to welfare, health, or
property; available technology;
degree of hazard of pollutants,
part of recurrent pattern; wiU-
fullness; extent to which
violation known but uncorrected;
reasonable care.
- -
-.
Consider: same
factors as above.
TOXICS
Judicial S6-422 (a) $5000/0ay
There is u one year statute of limitations in Muryluiii) to ooiiimuncc judioiul notions for monetary penalties (cuurts ami judicial proceedings; $5-107). This
applies to any program (air, hazardous waste, drinking walur, NI'Dlii, mid ll^u, Ice, and Sanitary Facilities).
-------
MASSACHUSETTS CIVIL PENALTY STATUTES
Ln
K>
Typa SacUoa
GENERAL Judicial I6P,
Ch. Jl
Judicial S6G,
Ch. 21
Judicial
Judicial "
Judicial "
GENERAL Judicial $14,
(Re: Dredge Ch, 21 A
and Fill/
Wetlands)
$«,
Ch. Ill
H«i $ Kin $
$100 $50
$10
$50
$100
$10
$ 1,000/day
$ 1,000/day
Where Who
f Go Enforce*
Environmental Attorney
Fund General
($10. Ch. 21 A)
Envt'l Attorney
Fund General
It H
M II
" Attorney
General
Criteria CoaoenU
For refusing to state
name and address or
giving false informa-
tion when Div. of Law
Enforcement officer
(from Deo1! of Envfl
Mgmt) has probable cause
to believe violation is
occurring.
For violation of S4A
of Ch. 21, and for
other statutory viola-
tions as luted.
For violation of
statutory provisions.
-
"
- - - _
Penalty of up to $ 1,000/day
and/or sin months in IAI! i«
criminal in construction. Each
day of violation is continuing
offense.
AIR
Judicial S2B,
Ch. Ill
$IO,000/ $20/day
day
Ally. Gen.,
Department
of Envt'l
Quality
Engineering
Knowing failure
within a reasonable
time to comply with
emergency orders.
Violator may give due con-
sideration to the prac-
ticability and to the
physical and economic
feasibility of compliance.
SI42B
Judicial $I42B
ISO/offense $IO/offense *
$ 100/first ISO/first
offense, $500 offense
subsequent $200 sub-
offense sequent offense
Knowing violation
of orders, rules
or regulations.
Violation of any
department order.
Statute deals with
Metropolitan air pollution
control district.
Each day is considered a
separate offense.
-------
MASSACHUSETTS CIVIL PENALTY STATUTES (continued)
Cn
TIP* tattoo
II42P
Judiciml SISOA,
Ch, III
WASTE Judicial SIO,
Ch. 2IC
Judicial SI I,
Ch. 2IE
S2.07
Judicial SISOA
$18:26
$19:11
Judicial S3,
Ch. II IF
Mail Mint Where Mto
t Co Baf area*
$750 $250 Environmental "
Fund
*S007dey $100
$25,0007 -- " "
day
$25.000/
day
$25,0007
day
$5007 $IOO/ " "
day day
$500/ $IOO/
day day
$500/ $1007
day day
$2507
day
Criteria
Allowing excess fuel
to be discharged into
atmosphere from aircraft.
Maintenance and opera-
tion of waste facility
not in accordance with
this section.
Violation of chapter,
regulation, order
or rule of Dep'L
Release of oil or
hazardous materials.
Failure to maintain
and operate a waste
facility in accordance
with this section.
Same as above, plus
failure to follow
these rules and
regulations.
Failure to maintain
and operate a sanitary
landfill in accordance
with SI50A above, plus
these regulations.
"
Commmia
Statute deals mainly with
solid waste, but includes
dust, smoke, odors and
fly ash. See also Waste.
Statute is for hazardous
waste.
Statute is for releases of oil
and hazardous materials. The
violator is also liable for costs
of assessment, containment,
removal and investigation of a
release or threatened release.
Regulation quotes SIO, Chapter
21 C of the General Laws.
See also AIR.
This regulation is in
addition to the penalties
of SISOA above.
Also in addition to $150 A
above.
Re: Hazardous substances
disclosure by employers.
Subsequent violations carry
criminal penalties.
-------
MASSACHUSETTS CIVIL PENALTY STATUTES (continued)
Typ* SwtiM
WATER Judicial SITS,
Ch. Ill
Judicial SIT,
Ch.ll
Judicial $34 C,
Ch.21
Judicial $42,
Ch. 21
MUSC. Judicial $24.
(PoUution of Ch. 130,
Coastal Waters) Title XIX
Mai $ Min $
$1,000 $25
- -
$25007
day
$10,0007
day
Treble
damages for
fishery or shell-
fish resource
damages.
Where
tGo
M
Credited to
account used
to clean up
spill and for
restoration.
Envl'l
Fund
Envt'l
Fund
State or
private person
(if private
fishery)
Who
Enforces
Department
of Envl'l
Quality
Engineering,
Ally. Gen.
Division of
Water
Pollution
Control;
Ally. Gen.
H
Ally. Gen.
Criteria
--
Costs of cleanup and
restoration; natural
resource damages
included.
Managing, operating
or maintaining waslewater
treatment facility without
a valid certificate.
Discharge of pollu-
tants into waters in
violation of permit, or
for other violations of
Chapter, regulations or
permits.
Cota meats
Re: Protection of Charles
River from pollution.
Re: Spills of oil and
hazardous materials. Also:
$5,000 fine for failure to
report spilL Section
provides for fine of $IO,000/-
day of spillage "or imprison-
ment for not more than two
yean or both.*
--
--
-------
MICHIGAN CIVIL PENALTY STATUTES
Typa 8ectlo» Mai) Mia) Where
)Go
AIM
UAZ. WASTE Judicial S298.S48 )2»,000/day - State
treasury
Who Criteria CoauaenU
Enforces
Criminal
itatutes only.
Atty. Gen. - - Can also recover full value
of damages & surveillance/
enforcement, plus all court
costs and attorneys fees.
iOUD Judicial SJ98.JIO )2SOO/day - --
HASTE
DRINKING Judicial S12S.I022 t5,000/day -
H,0
Ally. Gen.
NPDE8, Judicial S32J.IO (10.000/day
H20
Atty. Gen. False info, on
application;
discharges that
result in damages to
public health, domestic
agricultural, recre-
ational & commercial
uses of water, or
livestock & wildlife.
-------
MINNESOTA CIVIL PENALTY STATUTES
T|p« teUqn Max $
Mint
Where
$Go
Mho
Bar.
Criteria
ComaxnU
A1B/
GBNBBAL
Judicial SI 15.071 $IO,000/day
Subd.3
State
treasury
Ally.
General
This is the general civil
penalty provision. SI 16.07
(subds. 2 and 4) gives state
pollution control authority
the power to adopt air
standards for the abatement
or control of air pollution.
Court has discretion to
determine penalty and is
required to consider
defendant's economic
circumstances (S115.072).
Ally. Gen. may seek
litigation eipenses if
violation was wilful
Ul
HAZ. WASTE Judicial SII5.07I $2S,000/day
Sutxt J
Violations of haz.
waste rules, permits,
stipulation agree-
ments, compliance
schedules or orders.
Cleanup costs, natural re-
source damages, injunclive
relief, actions to compel
performance, and litigation
expenses are available. See
also S116.07 subds. 2 and 4
for relevant stale authorities.
STATE
BUPBRFUND
SII5B.I8 *20,000/day
EnvIL
Response,
Compensation
and Com-
pliance
Fund
For releases of
pollutants or con-
taminants presenting
imminent and sub-
stantial danger to
public or en/1, or
for releases of haz.
substances from
facilities.
Threatened releases also
included. Civil penalty is
assessed for failure to take
reasonable and necessary
response actions or to make
reasonable progress in com-
pleting response actions.
Other civil remedies
available. If state proceeds
with cleanup activities,
responsible person may be re-
quired to pay any reasonable
and necessary stale expenses,
including response costs and
admin, and legal expenses.
SIISB.I7 sutxl 6. Respons-
ible persons are strictly liable
for haz. substance releases or
threatened releases.
SIISU.04.
-------
MINNESOTA CIVIL PENALTY STATUTES (continued)
Mai t
Min $
Where
tGo
Who
Enforces
Criteria
Comments
DRINKING Judicial 1115.071 $IO,000/day
US0 subd. J
Slate
treasury
NPDBS;
WATER
QUALITY
Judicial JIIS.OTI 110,000/day
subd. J
NPDES, effluent
limitations, water
quality and permit
violations and other
violations including
failure to follow filing
requirements.
See SI 16.07 for relevant
slate authorities.
SOUD Judicial $115.071 $IO,000/day
HASTE AND subd. 3
8HWACB
SLUDGE
Violations of law,
rules, permits, stipula-
tion agreements, variances,
compliance schedules or
orders.
-------
MBSBSIPPI CIVIL PENALTY STATUTES
Typ« Section Max $
GENERAL Judicial 149-17-43 $25,000/
Admin. day
(re NPDES) Judicial $49-17-43 $ 10,0007
Admin. (e) day
Uin $ Where
$Go
Water Pollution
Abatement Grant
Fund ($49-17-43
(0).
$2,500/
day
Who Criteria
Enforce*
Comm'n on Natural Violations of slate
Resources. Comm'n air and water poll.
may institute control law, or
court proceedings permit (except re
In lieu of, or in waste disposal see
addition to, the S 17-17-29). Owners
civil penally of facilities creat-
assessmenL Ing hazards liable
for cleanup cost*
imposed by circuit
court ($49-17-43
(d)).
* Violation of NPDES
permits.
CoameoU
Fund used to clean up
or abate pollution oft
land, air or water* of
the state ($49-17-43(0).
Person may be liable for
natural resource damag-
es; penally includes
civil fines plus cost of
restocking or replenish-
ing wildlife ($49-17-
43 (O).
"
WASTES
Admin. S 17-17-29 $25,000/day
Judicial
I
-------
MISSOURI CIVIL PENALTY STATUTES
TH»
A1B Judicial
WATBB Judicial
POLLUTION
SOLID Judicial
WASTE
Judicial
HAZARDOUS Judicial
NASTB
Judicial
UKJNK1NG Judicial
MATCH
Sectloa
$203.151
$104.076
5260.240
(1)
S260.240
(2)
$260.425
S260.465
$260.478(2)
S640.I30
Max $ Min $
$S,000/day
and for each
day of con-
tinuing
violation
110.000/day
and for each
day of con-
tinuing
violation.
tlOOO/day
and for each
day thereafter
$IOO/dayand
for each day
thereafter
flO,000/day
and for each
day thereafter
tl.OOO/day
15% of lax
imposed plus
10% per annum
interest for
overdue taxes.
ISO/first
violation,
(100/violatiun
thereafter
Where Who
I Go Enforce*
Air Conservation
Comm'n, Ally.
Gen. or other
counsel as re-
quested by Air
Conservation
Comm'n.
County School Water Pollution
Fund Control Comm'n,
Exec. Sec'y,
Ally. Gen. or
prosecuting ally.
Dir.. Ally. Gen.,
Prosecuting Atty.
Prosecuting atty.
or other atty.
(as requested by
county court)
Haz. Waste Fund Haz. Waste Mgmt
($$260.425(2), Comm'n or Dep't of
260.301) Natural Resources,
Atty. Gen. or
prosecuting atty.
Haz. Waste *
Remedial Fund
($$260.47&(4fc
260.480)
Dep't of
Natural
Resources
Atty. Cm.,
Dcp't of Natural
Resources
Criteria
Emissions violations of
listed statute sections;
emissions outside state
which enter state in
violation of emissions
limitations; violations of
regulations.
Violations of water
pollution law, re-
gulations, permits,
standards, orders or
filing requirements.
Violations re solid
waste disposal
Violations of rules,
regulations, standards
or orders of country
court.
Hazardous waste
violations.
Re change of use or
transfer of uncon-
trolled or abandoned
haz. waste sites without
approval of Oir.
Failure to pay haz.
waste generator tax
($260.478 (1)).
Safe drinking water
violations.
Coalmen la
Injunctive relief
available
State or political sub-
division may recover
damages for Investiga-
ting and prosecuting
cases and for restoration
of affected waters. See
$204.096. Injunctive
relief also available.
Injunctive relief
available. $260.530
Imposes strict liability
for cleanup costs and
punitive damages (three
limes cleanup costs) for
wilful failure of respon-
sible parly to clean up
haz. substance.
H
"
-------
MONTANA CIVIL PENALTY STATUTES
<*
O
Tjp« SoeliOM Mail Hin$ Where
tGo
A1B Admit*. ST5-1-4I3 $IO,000/day -- General fund
Judicial
Admin. S7S-J-4J2
HAZ. WASTE Admin. $75-10-417 $IO,000/day --
Judicial
SOLID WASTE Judicial $75-10-542 ISO/day
DRINKING Admin. S76-4-I09 $1,000 --
H,O
NPDES Admin. S7S-S-63I $IO,000/day --
Who Critaria
Enforces
Dep'l of Health
& Environmental
Sciences, Atty.
General or county
ally.
Dep't of Health
& Environmental
Sciences
Dep't of Health
tc Environmental
Sciences,
Atty. Gen. or
county ally.
Water Quality
Bureau (Sub-
division Bureau)
Dep't of Health
& Environmental
Sciences, Water
Quality Bureau
Coalman ta
Civil penalty is in lieu of
criminal penalty..
Noncompliance penalty
and late charge are figured
according to expenditures,
etc., see statute.
Civil penalty Is in lieu of
criminal penally.
Statute deals with motor
vehicle wrecking facilities
and disposal.
Statute regulates sewage
lines in subdivisions.
"
-------
NEBRASKA CIVIL PENALTY STATUTES
Type Section Mail Mint Where Who Criteria
$ Go Enforce*
NPDES ' Judicial $81-1508(1) $S.OOO/ -- -- Dep't of Envt'l Size of operation
(c) day Control, Ally. and degree and
Gen., County eitent of pollution.
Ally, (injunctive
relief available)
MBC. Judicial $81-1508(1) $500/
(e) day $81-1508(0(0
states that viola-
lations of air laws
or regulations are
subject to criminal
penalties. Failure
to report emission
data or to obtain
permit, violation
of air poll permit,
etc. $81-1508(1)
(e).
HAZARDOUS Judicial $81-1508(1) $IO.OOO/day -- -- " Size of operation,
WASTE (g) and for each degree and extent
day thereafter of pollution, any
injuries to humans,
animals or the
environment
Comment*
He refusing right of
entry and inspection,
violation of effluent
standards and limita-
tions, filing and
monitoring requirements
water quality standards,
permit conditions or any
rules, regulations or
orders under NPDES.
Solid Waste Regulations,
Ch. 12, stale thai viola-
tions are subject to
enforcement actions
either administratively
under $81-1507 or
judicially under $81-
1508 Air and Water
pollution violations
are also generally
enforceable under
admin. $81-1507 and
judicial $8 1-1508.
Re hazardous waste
violations.
-------
NEVADA CIVIL PENALTY STATUTES
>
N)
Type Section MM $ Hin $ where Who
$Oo Enforce*
HAZABDOUS Admin. $444.7*0 IIO.OOO/ $25007 -- Health Dep't.
HASTE shipment violation public service
commission,
highway petrol
and motor
carrier
division.
Admin. $444.744 $3,000/day -- -- Commission
Admin. $444.744 |25,0007day - - - - «
Admin. $444.774 $IO,000/day -- -- Health
Department
Criteria
Transportation
or waste into
or through
Nevada.
Failure to
comply with
license or
agreement.
Continuous
failures to
comply.
Any violation
of chapter or
failure to
Uke action to
correct a
violation.
Comment*
Statute deals with safety of
hazardous waste, including
packaging, handling & transpor-
tation. The penalty is civil
for those with Dep't licenses.
criminal for those without.
First penalty is for each
separate failure to comply.
Second is for any 10-day
period for all failures to
comply.
Penally is in addition to the
above statutes. State may also
recover actual damages for
clean-up and replacement of
resources, plus administrative
costs.
WATER Admin. S44S.33I $IO,000/day
Excludes diffuse sources.
Penalty is in addition to other
penalties. Actual damages may
be recovered for loss of
wildlife, fish or aquatic life.
DUNKING
ATBR
Admin. S44S.397 $S,000/day
Violation of
any standard,
order, con-
dition, variance
or exemption.
A1B
Admin. S44S.60I
$5.0007
occurrence
County school
district fund of
county where
violation occured.
Stale Environ-
mental Commis-
sion and
Director,
approved local
control agency.
Violation of Major violations. Minor viola-
provision or lions become major upon
regulations. occurrence of 4th violation in
period of 12 consecutive
months.
Admin. $445.601
$200;see
NAC 445.699
for schedule
Director of Violation of
Dep't of Conser- statute or
vation and regulation.
Natural Resources
This penalty is for minor
violations and is established
through regulations; see Nev.
Admin. Code, $$ 445.699 and
445.700 for schedule of fines
for minor violations.
-------
NEW HAMPSHIRE CIVIL PENALTY STATUTES
Type SecliM Mail Min $
AIB Judicial $I25-C:I5 $25.0007
day
Where
tGo
State
Treasury
Who Criteria
Enforces
Director of Air
Resources Comm'n,
Air Resources
Agency, Ally. Gen.
(of Envl'l Protection
Division)
CommeaU
Violations of rules or
orders also subject to
court injunction
final
superior
DO. SPILLS Judicial SI46-AtU, flO.OOO/
« PUBLIC D violation
WATBB8
Atty. Gen.
Violations include spillage into
public surface and ground waters
or spills on land area where oil
will ultimately seep into public
waters.
Judicial SI46-A:I4, fl,000/day
10
Operating under-
ground storage
facility without
permit; failure
to comply with
permit; violation
of underground
storage facility
regulations.
RUBBBH Judicial $147:9,
AND II, 13-16,
WASTE and 22
These sections slate that persons
who discharge offensive matter
or otherwise violate the rubbish
disposal rules will be guilty of
violations. No penalty amount is
stated.
HAZ. WASTE Judicial SI2S:9S -- -- state Ally. Gen.
Treasury
Judicial SI4T:S8 Treble -- Successful "
damages plaintiff
Re imminent hazard sites: Div. of
Public Health Services may after
court authorization or order apply
to governor for clean-up funds.
In civil actions arising from
hazardous waste violations, a
convicted defendant shall be
liable to a successful plaintiff in
an amount equal to 3 times actual
damages sustained by plaintiff.
Judicial SI47-A:9
Reimburse Ally. Gen.,
stale and/or Office of Waste
office of Management
waste manage-
ment for cleanup
costs.
Operators, gener-
ators and/or
transporters
strictly liable for costs
resulting from violations
relating to containment,
cleanup and restoration,
and hazardous waste removal.
Prejudgmenl attachment and
injunclive relief also available.
-------
NEW HAMPSHIBE CIVIL PENALTY STATUTES (continued)
Type Section Mai $ Mini
Judicial $M7-A:IO
Judicial SMT-A:17 $SO,000/day
for each day
of continuing
violation
Judicial SU7-6:IO
DRINKING Judicial S 148-6:10 $500/day
WATER
WATER; Judicial SI 49: 19, $IO,000/day
NPDBS U
Where Who
$ Go Eaforce*
Hazardous Ally. Gen. holds
Waste Clean- . hearing conducted
up Fund as civil in rem
action In
superior court
" Atty. General
Office of Atty. General
Waste
Management
State Atty. General,
treasury Water Supply
and Pollution
Control Comm'n
Slate Ally. General,
treasury Water Supply
and Pollution
Control Comm'n
Criteria Coanaeata
Preponderance of Property of generator, trans-
evidence that porter or operator may be
owner knew or seized and sold in forfeiture
should know that proceeding. Proceeds go to
property was used cleanup fund. Failure to give
in illegal treat- notice of any storage, treatment
ment, transports- or disposal violations results in
lion, storage or misdemeanor "if a natural person"
disposal of and 'felony If any other person."
hazardous waste. See SI47-A:II.
Strict liability This is the civil forfeiture
for costs of provision.
restoration, con-
tainment, removal and
cleanup in addition
to forfeiture.
Costs of cleanup, Office of Waste Management is
containment or entitled to lien on business
removal paid from revenues and all real and
hazardous waste personal property of one who
cleanup fund. caused expenditures from fund.
Comm'n may issue Misstatements of material
orders for facts or other wilful viola-
repairing lions constitute misdemeanors
equipment, pro- for "natural persons" and
hibiling sale or felonies for "any other
distribution of person".
public water
supply, testing/and
or notification
of potential users of
health effects, (in
cases where the viola-
tion of a primary
standard may result
in serious risk to
public health).
Comm'n may issue cease
and desist orders.
-------
NEW HAMPSHIRE CIVIL PENALTY STATUTES (continued)
Ul
Tjpai tattoo Huf Mini
SEWAGE Judicial I M9-Ei7 $5,000
DBPOBAL
Judicial $M8-Ei7, fl,000/day
IV
SOLID Judicial SU9-M:I2 $S,000/viola-
WASTB lion and tor
each day of con-
tinuing violation
WETLANDS Judicial S483-A:6 $5,000
Admin. S483-Ai $2,000/
5-« violation
Judicial S483-A:
S-b
Where
(Co
To enforce
sewage
disposal
system chapter
Stale
treasury
Who
Enforces
Superior court
(Ally. General)
Superior court
(Ally. General)
To restore Ally. General
wetland or $
placed in non-
lapsing stale
fund for wetlands
research and
investigation.
N
Wetlands Board
Slate and local
law enforcement
officials
Criteria
Any violation under
chapter, or for
failure, neglect,
refusal or
misstatemenL
Neglecting or
refusing to comply
with SU9-E:3-b
(maintenance and
operation of sub-
surface septic
systems).
Failure, neglect
or refusal lo
obey order of
wetlands board or
misrepresentation
of material fact.
Violation of any
provision of
chapter.
CoaneaU
Civil forfeiture.
Re: Regulating dredge and
fill in wetlands.
After notice and hearing pursuant
lo SS4I-A, Wetlands Board is
empowered lo impose adminis-
trative fine.
" State and local law enforcement
officials may prosecute any
violation of chapter as violation;
does not limit stale's enforce-
ment authority under chapter.
-------
NEW JEBSBY CIVIL PENALTY STATUTES
T»I*
QENBBAL Judicial
AJB Judicial
UAZ. WASTE Judicial
Admin.
Admin.
Judicial
Judicial
Judicial
SOLID Judicial
WASTE
SeeUoo Muf
!2Ai58 See
individual
statutes for
amounts.
S26i2C-19 $2500
SI3>IE-9(c) $25,000/day
SI3:IE-67
SI3:IK-I3 $2S,000/offense
$7:26-5.5 $10.000
$7:1-3.16 $25,0007
offense
SIJ:II-S $3.000/
offense
Hin t Where
$Go
See Slate treasury,
individual unless otherwise
statutes provided.
for amounts.
State treasury
State treasury
Person who
provides in-
formation
leading to
arrest it
conviction for
violation.
State treasury
State treasury
State treasury
State
treasury
Who
Enforces
Ally. General
Department of
Environmental
Protection
Dept., county,
or local board
of health
Ally. Gen.
Ally. Gen.
Ally. Gen.
Ally. Gen.
Ally. Gen.
Criteria
Transporting
to, or storing
hazardous waste
at unauthorized
facility.
Information on
illegal treat-
ment, storage
or disposal of
hazardous wastes.
Giving false
information.
Violation of
guidelines in
S7:26-2-see chart
Giving of false
information
upon transfer
of industrial
establishment.
Com meats
This is a general penally
statute covering the entire
N.J. Code.
Violator can receive up to
90% rebate for compliance.
Compromise and settlement
available.
Can also assess investiga-
tion & monitoring costs,
litigation, costs cleanup of
the violation, actual &
compensatory damages for
loss of wildlife, fish or
aquatic life. Compromise and
settlement available.
Provider of information
receives one-half of any
penalty imposed.
Hazardous wastes
See chart for penalties
and rebates.
Can also consider failure
to comply with other
provisions relating
to transfer of
industrial establishment.
Non-hazardous waste
Admin. $ 1000/sccond 100/second State treasury
offense offense
$IOOO/third 4 500/lliird "
subsequent and sub-
offenses sequent offenses
Atty. Gen. Engaging in solid
waste collection or
disposal without permit.
-------
NEW JERSEY CIVIL PENALTY STATUTES (cont'd)
Type Beetle*
DRINKING Judicial SSIillA-
H,0 Admin, IO(B)
SSSillA-
I0(d)
NPDBS Judicial SS8:IOa-
Admin. 10(d)
SS8:IOa-
I0(e)
S58:IOa-
10(0
Mai t Mia $ Where
f Co
$SOOO/first -- Stale Treasury
offense
tlO.OOO/second IS.OOO/
offense second
offense
$2S,000/lhird
tlO,000/day -- Slate Treasury
$iOOO/violalion - - Stale treasury
plus ISOO/day
thereafter
HO.OOO/day -- Slate treasury
$25,000/day $2,SOO/day State treasury
Who
Enforce!
Commissioner,
Ally. Gen.
Commissioner,
Ally. Gen.
Commissioner,
Atty.Cen.
.H
Commissioner,
Ally. Gen,
Criteria
Violation of
Act, rule,
regulation or
order issued
pursuant to the Ai
Violation of
Act or an adm.
order, court
order, or failure
to pay an admin.
assessment in full
Issued pursuant to
the Act
Violation of
Act, water
quality
standard.
effluent
limitation or
permit
Violation of
Act, admin.
order, court
order, or failure
to pay admin.
assessment In
full Issued
pursuant to AcL
Willful! or
negligent
violation of
AcL
CoanenU
" -
ct.
..
Violator can be
charged compensatory
damages for loss of
wildlife, fish or
aquatic life, or
any other actual damages.
.
SS8:IOa- $IO,000/day
10(0
State treasury Commissioner,
Ally. Gen.
Knowingly
falsifying
records or docu-
ments required
by Act; tampering
with or falsifying
monitoring equip-
ment required lo be
maintained by AcL
-------
NEW JEBSEY CIVIL PENALTY STATUTES (cont'd)
(T>
00
Type Section Hut Hint Where
tGo
Admin. Regulation $5,000
TiM-«.IO (basic
penally)
H.O Admin. $58:10- »SO,000,000/ -- N.J. Spill
POLLUTION Judicial 2J.llg major facility or Compensation
t ISO/gross ton Fund
per vessel
Judicial 558:10- tZS.OOO/offense -- State treasury
2).llu
Who
Enforce*
Comm'r
Oept. of Public
Advocate, State
Criteria
Type (whether
wilful and
highly fore-
seeable, unin-
tentional but
foreseeable, or
unintentional
and unforesee-
able); serious-
ness and
duration of
violation.
Treasurer, commis-
sioner or director
of Dep't of Envt'l
Protection.
Ally. Gen.
Knowingly
giving false
information in
cleanup efforts.
Comments
Re basic penally for discharge
violations. Compromise of
assessed penally is dis-
cretionary with Administrator.
Dep't will not seek additional
civil penalties for a violation
for which assessment has been
paid unless the violation is
repeated or is of a continuing
nature and is not abated.
Penalties are computed after
assigning values to the Serious-
ness and Type Factors from the
ranges set forth in the regula-
tions at 7:H-8.IO(aX5).
If violation is proved
willful or grossly
negligent, maximum
amounts do not apply.
WETLANDS Judicial SI3:9A-4 tlOOO/violation -
State treasury
Ally. Gen.
Can also be charged for
the costs of restoration
of the affected wetlands.
-------
NEW MEXICO CIVIL PENALTY STATUTES
\o
Type Section Mai $ Mint Where Who
t Co Enforces
AJB Judicial S74-J-I2 II.OOO/ -- General Envt'l
*y Fund Improvement
Uiv., local
Air Quality
Control Bd.
HAZ. WASTE Judicial $74-4-11 IIO.OOO/-- " Director of
day Envt'l
Improvement
Div.
Judicial S74-4-I) $5.000/ --
day
HjO, Judicial S74-6-S $5,000/ - - Water Quality
I"DBS *y Control
Commission
Judicial S74-4-IO II.OOO/ «
day
Criteria Comments
Emissions of air AUows Class A counties and
pollutants with- municipalities In such counties
out permit. authority to adopt own programs
at least as stringent as slate's.
Violation of Act,
rules or com-
pliance orders.
Willful viola- May also seek injunctions.
tion or refusal
to comply with com-
pliance order regard-
Ing handling, storage,
treatment, transporta-
tation or disposal of
hazardous waste.
Failure to obtain Statute deals mainly with procedures
permit, violation for obtaining a permit.
of conditions of
permit, failure to
disclose relevant
facts or obtaining
permit by misrepresentations.
Any violation of May also assess reasonable cleanup costs
Water Quality and seek injunctions.
Act, or regulation.
-------
NEW YOKK CIVIL PENALTY STATUTES
Type Section
Mio$
Where
ICo
Who
Enforce*
Criteria
COM IB eats
GENERAL Judicial ITI-filil
Admin. STI-OJOI
Judicial
Slate comptrolle
$2500/violation, - -
$SOO/day thereafter
Ally. Gen.
Statute gives disposition of
fees & penalties collected.
Statute provides for
summary abatement
Admin. S7I-040I
Atly.General,
DepL of Environ-
mental Conserva-
tion Commissioner
Statute allows Ally. Gen.
to delegate enforcement
power to Dep't attorneys.
Admin. S7I-OS07
State comptroller,
conservation find or
Dep't of Environmental
Conservation, or Dep't
of Taxation and Finance
State comptroller pays all
legal fees involved, then
remainder of money goes
to conservation fund, Dep't
of Envt'l Conservation or
Dep't of Taiation &
Finance,
vj
o
Judicial 571-0519
Judicial ST 1-1707
Admin. $71-1711
Admin. $71-1725
maximum given $10 "
under statute
In use
$iooo/
violation
ISO/first
violation
$10007
violation
Conservation,
game officer*
or state police
Ally. Gen.
or Commissioner
Local board
of health
Commissioner
Agreement by
violator,
officers
Involved and
court
- -
Statute allows the
penalties imposed to be
compromised if judgment
entered is paid within
thirty days.
Penalties may be
compromised
Applies to tenants or owner
occupied dwellings for first
violation. For subsequent
violations and other
persons, penalty is
criminal
Admin. S71-4003 $&00/day
Commissioner
General penalty statute to
be used if no specific
statute is available.
-------
NEW YOBK CIVIL PENALTY STATUTES (eont'd)
>
AU
MASTB
DUNKING
H,0
Type Section Ma** Min $
Judicial ST 1-2 103 IIO.OOO/ $250
violation;
$500/day
thereafter
Judicial ST 1-21 II $2500/
violation;
$500/day
thereafter
Admin. Till* 6 25% of
$181.5 deficiency of
fee not paid,
total; no more
than 5% of
deficiency of
fee not paid
per month up to
25% plus interest
Admin. $7 1-2703 $2500/viola-
lion; $ IOOO/
day thereafter
Admin. $71-2705 $2S,000/day
Judical first violation;
$50,000/day for
subsequent violation
Admin. S7I-III5 $1500
Admin. $71-1127 $500/viola-
Judicial lion;
$IOO/day thereafter
Where Who
$ Go Enforce*
State comptroller, Ally. Gen.
conservation fund
or Taxation &
Finance
*
State comptroller Commissioner
State comptroller, Commissioner,
conservation fund
or Taialion & Finance
Hazardous waste *
remedial fund
State comptroller *
" Ally. Gen.
Criteria CoaaunU
- - May be settled or
compromised by parties.
- - No compromise or
settlement allowed.
Non-payment of If fee not paid
fees due within 45 days
of given date,
penally of 5%
per month imposed
up to 25% of total
deficiency plus
interest.
Ally. Gen.
Also has criminal penally
of $1000.
Also applicable to other
water statutes.
Admin. SI I-110] $200/day
Judicial
Dep*t of Health
-------
NEW YORK CIVIL PENALTY STATUTES (eonl'd)
Type Section
Mai f
Hin $
Where
$ Go
Who
Enforces
Criteria
Comments
NPDES,
H,O
vj
NJ
TOXICS
Judicial 171-1829 $IO,000/day -- Stale comptroller, Ally. Gen. or Any violations Penally amount goes to
conservation fund health com- which result conservation fund. May
or Taxation & mUsioner of in the death be settled or compromised.
Finance local government fish or shell-
fish.
Admin. $71-1941 $2SOO/violalion; - - " Commissioner, Type & extent Statute is for liquid
Judicial $SOO/day Ally. Gen. of damage, spills if more than 1100
thereafter degree of care gallons are stored in bulk.
to prevent spill
& efforts to
mitigate damage.
Admin. $71-1105 $500 -- State comptroller Ally. Gen.
Admin. $71-1107 $5000 -- " " -- Statute applies to state
employees as well as public
and private contractors
who disregard
specifications of
construction contracts.
Judicial $71-1109 ISOO/offense -- " -- Applies to any person or
local public corporation.
Judicial $71-1111 " -- .
Admin. $71-1121 $1500 -- " '
Judicial $71-3103 $2500/ -- Stale comptroller Ally. Gen. -- Statute deals with
violation; detergents and other
$SOO/day thereafter cleansers.
Admin. $71-3703 $2500/ -- State comptroller Ally. Gen. -- Statute applies to
violation; industrial and
$500/day thereafter commercial users of
hazardous substances.
Judicial $71-3803 " -- " " -- Statute deals with
chlorofluorocarbon
compounds.
Admin. $71-3903 $3000/ -- " " -- May be compromised or
Judicial violation settled. May recall any
sewage system cleaners or
additives as well
-------
NEW YOBK CIVIL PENALTY STATUTES (cont'd)
>
U)
Type Section Mu $ Mio $
Judicial STI-J80S I1000/
violation
WETLANDS Admin. ST 1-2301 $30007
Judicial violation
MBC. Admin. S7 1-4 101 f 1000 plus
any fine
Imposed by
other statutes
Admin. S7 1-0201 2S% of
deficiency
of fee not paid,
total; no more
than 5% of
deficiency of
fee not paid
per month up to
25%, plus interest
Where Who Criteria
$ Go Enforces
" " Ally. Gen.,
District Ally.
State comptroller Atty. Gen.,
commissioner,
local government or
District Atty.
State comptroller Ally. Gen. Violation of
chapter 72
State comptroller Commissioner Non-payment of
fees due.
Comment*
May recall any sewage
system cleaners or
additives as well.
Violator may be ordered
to restore fresh water
and tidal wetlands.
Re regulatory program
fees.
If fee not paid within 45
days of given date, penally
of 5% per month imposed,
up to 25% of total
deficiency, plus interest.
-------
NORTH CAROLINA CIVIL PENALTY STATUTES
Typo 8ectk» Hut Mint Where
tGo
AIR Admin. 1143-215. t&.OOO/
IM violation
nd for each
day of con-
tinuing violation
HATER Admin. SM3-2IS.6; $10,0007 $IOO/day
$143-715.69 violation (see reg.
(b) and for each S.OS09:
day of con- Penalties)
Uniting violation
HASTE Admin. SI30A-22 $5007 day -- Haz. Waste Site
(a),(d),(g) if non- Remedial Fund
hazardous (up to 1 200,000
waste; cap)
t)0,000/day
If hazardous
waste
Who
Enforces
Envl'l Mgml
Comm'n, Dep't
of Natural Re-
sources and
Community
Development
Envt'l Mgml
Comm'n, Superior
court can enforce
Oep'l of Human
Resources, Sec'y
may enforce in
superior court to
collect unpaid
penalty.
Delegated to
Head, Solid A
Has. Waste Mgmt
Branch.
Criteria Comments
Degree and extent Judicial enforcement
of harm, cost of available to recover
rectifying damage, assessed penalty. Ally.
amount of money the Gen. may seek injunc-
violator saved by live relief.
not having made
necessary expenditures
for compliance. Re permit
and reporting violations.
Degree and extent Judicial enforcement
of harm, cost of available to collect
rectifying damage. penalty. Ally. Gen. may
Violations of seek injunctive and
effluent limit*- other necessary relief.
lions, failure to See $143-215.69 (b) re
obtain permit, violations of water
permit violation, quality reporting.
refusing lawful
Inspection, viola-
lion of special
order.
Nature of violation, Civil action in
violator's previous superior court is
compliance record; available lo recover
degrees and extent administrative penally
of harm, cost of if assessed person fails
rectifying damage, to pay (see SI30A-22(g)>.
failure to comply Injunctive relief avail-
with waste mgmt able. Penally stayed if
rules, refusal of admin, hearing for other
right of entry. than remission or reduc-
Criteria for viola- lion (Reg. .0705).
lions of Act: type Depending on violation,
of violation, type Dep'l may issue notice
of waste, duration, of assessment or give
cause (whether violator time lo comply
negligent, inten- (Reg. .0703).
tional or reckless
act), potential effect
on public health and
env'l, effectiveness of
violator's response
(continued)
-------
NORTH CAROLINA CIVIL PENALTY STATUTES (continued)
Section
Mint
Where
tGo
Who
Enforce*
Criteria
ComneoU
measures, private
property damage.
Criteria for violations
of orders: subject matter
of order, duration, cause,
type of violation, effect
on health and env'l, effect-
iveness of response. Criteria
for refusing to allow authorized
right of entry: type of viola-
lion, duration of refusal,
effect on health and env't,
type of waste handled by
violator at solid waste
facility. (See esp. K .0700
et seq. Admin. Penalty
Procedures of N.C. Admin Code.)
in
DRINKING Admin.
WATBR
OIL OR HAZ. Admin.
SUBSTANCE
DBCHARQBS
WATER. OIL. Admin.
AIR
SI 30- 166.
54
$143-
215.91
NC Admin.
Code-
EnvIL Mgml
Subch. 2J -
Civil
Penalties
$5,0007
violation and
for each day
of continuing
violation
$5.000/
violation
$5,000/day
Sec'y of Oep'l of
Human Resources,
Sec'y may enforce
in superior court
to collect unpaid
penalty.
Env'll Mgmt.
Comm'n
Violation of drink-
Ing water standards
or other monitoring
or reporting re-
quirements.
Gravity of
violation, previous
compliance record
of violator,
amount spent to
achieve compliance,
estimated damages
and other
considerations.
Gravity of violation
and degree and
extent of harm; cost
of rectifying damage;
compliance history;
ability to pay.
Judicial enforcement
available. See $130-
I66.5«c).
Intentional or negligent
discharges of oil or
hazardous substances;
knowingly causing or
permitting such
discharge; failure to
report discharge.
Ally. Gen. may bring
action to recover
unpaid penally.
These are the civil
penally regulations.
-------
NORTH DAKOTA CIVIL PENALTY STATUTES
Type SwtioB Mai $
Hiof
When
tOe
Who
Enforce*
Criteria
Judicial SM-U-IO tlO.OOO/day
Ally. Gen.
Uep't or Health
ConaieaU
UAZ. WASTE Judicial S23-20.3-09 $25.000/day
H,O Judicial $23-28-08 $lu.000/day
POLLUTION,
NPOBS
Statute allows for interest-
ed persons affected by
violations to intervene if
department brings suit. $
allows for penally of up to
$SO,000/day if facts show
extreme indifference to
human life.
SOLID HASTE Judicial
DUNKING Judicial
H,O
S21-20.3-07
S23-29-I2
$61-28.1-06
$S,0007day
f 300/day
$5,000/day - - - -
Statute deals with
monitoring & testing.
--
Fine of up to $25,000/day
can be levied for a willful
violation.
-------
OHIO CIVIL PENALTY STATUTES
Type Section Mai $ ttiot
Where
$Go
Who
Bafa>
Criteria
Coma
AIR
Judicial 13704.99(8) $25,000
Ally. lien. Knowing falsity in
plans, dal«, records,
etc. to be siijmitled
to Director; emissions
or permit violations.
»j
vl
SOLID Judicial 13714.99
WASTB
HAZ. WASTB Judicial $1734.13
DUNKING Judicial S6I09.33
«I°
NPOfB Judicial $61 11.09
H.O POLU, day
SANITATION
Judicial $61 II. 99
$2SO/day
$10,0007
day
$IO,000/
day
tio.ooo/ -
$6111.45
or ,.46:
$500.00;
$6111. «:
$100 first
offense,
$150 there-
afteri
S6III.07(C):
Atty. (jen., Solid waste disposal
Director violations.
Hazardous " Hazardous waste
Waste Clean- violations.
up Special
Account
State Ally. Gen. Knowing falsities
treasury in documents.
State
treasury
- - * _ _
--
Re solid waste disposal
($6111.45, .46); re water
planning ($6 II 1.42); re
knowing falsities in
reports or permit violations.
(S6III.07(C)).
$25,000
-------
OKLAHOMA CIVIL PENALTY STATUTES
vj
oo
T»e
GENERAL Judicial
A1B
HAZ. WASTE Admin.
Judicial
H,0. Judicial
NPDE8
Judicial
Section Hut Mint Where
tCo
$1-1701 $10,000/day »200/day
(TiUe 61) (criminal)
$1-1801
(TiUe 81)
$1-2012.1 tlO.OOO/day -- Controlled
(TiUe 61) Industrial
Waste Fund
S$ 1-20 II, tlO,000/day $200/day
1-2012 (criminal)
(Title 61)
$926.10 tlO,000/day
(TiUe 82)
$917
(TiUe 82)
Who
Enforce*
District Ally.
Depl. of
Health
District
Attorney
Ally. Gen.,
district ally.
Ally. Gen.
Criteria
Violation of
code relating
to water pollu-
tion, sewage and
discharge of
pollutants.
Notice of
present viola-
tion of rules,
and failure to
comply with order.
Any violation
of act or rules.
Violation of
provisions or
failure to
perform duty
under code.
Death of fish
or wildlife.
CommeBU
This is a general statute
which covers any sec-
tion not containing
penally provisions of
its own (e,g., drinking water
violations). Includes civil
and criminal penalties.
Criminal penalties only.
Appeal of assessed fines
to District Court.
May also seek injunctions
and temporarily suspend
operating permit of a waste
facility. Includes civil and
criminal penalties.
Most of statute is criminal
May also seek Injunctions.
See also SI- 1701, above.
Criminal penalties and
damages.
-------
OBEGOH CIVIL PENALTY STATUTES
-vl
TVP*
OBNEBAL Admin.
POLLUTION Judicial
CONTROL
WATER Admin.
SYSTEMS
(Drinking
Water)
SttUoa Ma* $ Hu $
S468.I30; $500/day
Div. 12, except that
Admin. oil discharges
Rules into water have
$340-12- max. penalty of
OSS $20,000/violation
and unpermltled
waste discharges
into air or water
have$IO,000/day
maximum penalty.
SeeSS 468.130(1)
and 468. 140 (3).
SS448.280, $SOO/ day
448.28$
Where Who
I Go Eaforee*
General Fund of Envt'l Quality
Stale Treasury Comm'n may
or to county of institute legal
violation if re- and equitable
covered by re- enforcement
gional air quality proceedings
control authority (court may
collect unpaid
penalty as ex-
ecution of
Judgment on
record)
General Fund Asst. Dir. of
of State State Health
Treasury Div. (court may
collect unpaid
penalty as ex-
ecution of
Judgment on
record)
Criteria Commtml*
Consider: Prior 1. He: Violations of
violations, history statutory provisions listed
of violator in tak- In $468. 140. Kor inlen-
Ing feasible steps tional or negligent unlawful
to correct viola- open field burning
lion; economic and penalty is minimum $20,
financial condi- maximum $40 per acre
lions of violator; burned ($468.140 (5)).
gravity and magni- 2. Compromise or
tude of violation; settlement of unpaid
whether violation penalty available if
was repeated or con- approved by Comm'n
tinuous; whether (S340-I2-07S). Penalty
cause of violation assessed if violation
was unavoidable continues S days after
accident, or receipt of notice of
negligence or in ten- violation (S340- 12-040).
tional act; oppor- Some types of violations
lunity and degree can result in penalties
of difficulty to without prior notice of
correct;violator's violation.
cooperativeness and
efforts to correct;
cost to Dep't to invest-
igate and correct; other
relevant factors. See
S340-I2-04S: Mitigating and
Aggravating Factors.
Factors: past Re: Polluting, destroying or
history of person endangering water systems
incurring penalty resulting from maintaining
in taking all slaughter pens or stock-
feasible steps to feeding yards or depositing
correct any viola- unclear or unwholesome
lions; prior viola- substances (violations con-
lions of statutes, stilule public nuisances).
rules, orders or Violating rules re con-
permits re water strucling, operating or
system; economic maintaining water systems.
and financial con- Penalty imposed may be
ditions of violator. remitted or mitigated
consistent with public
health and safety.
-------
OREGON CIVIL PENALTY STATUTES (continued)
r
00
o
T»«
SOUD Admin.
NA8TB Judicial
HAZABOOUS Admin.
WASTE Judicial
AIR Admin.
SMtte . Mu$
$459.995 fSOO/day
(Dl
Dlv. It,
Admin.
Rules
$340-12-065
$459.995 $IO,000/day
(2);
Div. 12,
Admin.
Rules
$340-12-088
Div. 12, $IO,000/day
Admin. Rules
$340-12-050
Min $ Where Who
$ Go Enforce*
$25 to State Dep't of Envt'l
$IOO/day treasury Quality (Envt'l
Quality Comm'n
may institute
legal and equi-
table enforcement
proceedings).
$100 to Stale "
$2500/day treasury
$25 to General Fund Oir. of Dep'l
$ 100/day or County of Envt'l
Quality, Dir.
of Regional
Air Quality
Control Auth.
Criteria Comment*
Violations re See General Comment
disposal, collec- above.
lion, storage,
reuse or recycling
of solid waste.
See General
Criteria above.
Violations re See General Comment
generation, treat- above.
ment, storage, disposal
or transportation by air
or water of hazardous
waste. See General
Criteria above.
Violations re See General Comment
noncompliance with above.
permit or variance,
operating source
without permit,
emission of ei-
cessive air con-
taminants, un-
authorized open
burning. See General
Criteria above.
2
2
2
-------
PENNSYLVANIA CIVIL PENALTY STATUTES
I
oo
Tn»
AJH Judieltl
Admin.
HAZ. HA8TB Judicial
Admin.
NPUES. Judicial
SBHAGB a, Admin.
INDUSTRIAL
WASTES
DUNKDia Judicial
H|O Admin.
Section Haif
$4008. 1, 1 10.000 plus
S4009.I up to
$4010 tt.SOO/day
of continuing
violation
S60K.US tJS.OOO/
offense
S68 1.603 tlO.OOO/day
$721.11 tSOOO/day
Mint Where Who
t Go Enforces
Clean Air Dep't of
Fund of Slate Envt'l Resources
Treasury
Solid Waste "
Abatement
Fund of State
Treasury
Clean Water "
Fund of State
Treasury
Safe Drinking
Water Account
of Stale Treasury
Criteria
Wil fullness of
violation, damage
to outdoor atmosphere
or its uses. Wilfull-
ness is not a pre-
requisite.
Wilfullness, damage
to air, land or
other natural re-
sources or their
uses, cost of restora-
tion and abatement,
savings resulting to
person in consequence
of violation. Wllfull-
ness or negligence
Irrelevant.
Wilfullness of
violation, damage
to waters or their
uses, cost of
restoration.
Wilfullness is not
a prerequisite.
Seriousness,
culpability,
violator's history,
population affected.
CooaeoU
Lien imposed upon real and
personal properly for non-
payment of penally,
Judgment on property
for nonpayment of
penalty.
tn»(«..y.
Judgment on properly
for nonpayment of
penalty. Five-year
statute of limitations
for Dep'l to act.
S69 1.602 provides
for criminal penalties.
$69l.605(b) relates to
mining activities.
--
-------
PUERTO RICO CIVIL PENALTY STATUTES
Type Beetle* Max $ Hin$
AIR/ Admin. SIU6(c) $25,000/day
GENERAL
SIIM(d) $50,000
Where
$Go
Special Account
of Board on
Environmental
Quality
Who
Enforces
Board on Envt'l
Quality
Criteria
Violation of
chapter.
Coa menu
This is a general penalty
statute covering the
environmental field.
" * Contempt of
previous order
for fines already
Imposed; recurrent
acts.
HAZ. WASTE
Falls under above penalty
statute with one additional
criminal penalty
regulation.
oo
N)
DRINKING Admin. SISS9
H,O
$5,000/day
Special Account
of Board
Secretary of
Board
H.O, Admin. SIS 18
POLLUTION
$50,000
Special Account Secretary of Violation of Statute is in addition to
of Board Board chapter or general penalty statute of
regulation. Title 12, above.
-------
BIIODB ISLAND CIVIL PENALTY STATUTES
oo
U)
CKNEBAL
HAZARDOUS
WASTE
AW
REFUSE
DBPO6AL
T»e
Admin.
Judicial
Admin.
Judicial
Admin.
Judicial
Admin.
Judicial
Admin.
Section
141-17.1-
t(v)
Sll-lt.l-
17
$23-19.1-
14
$23-21-
14
$23-18.9-
8
Mai $ Hin f
$500
$10.0007 vioU-
tioo and (or
each day of
continuing
violation
$IO.OOO/year
plus 7%
Interest per
annum (or payments
past due. (See S 23-
I9.I-U(B).)
$500/day
tSOO
Where
$Go
Stale
Treasury
State
Treasury,
Envt'l
Response
Fund
State
Treasury
Win
Enforce*
Oir. of Dep'l of
Envt'l Ugrot
Dir. of Dep*t of
Envl'l Mgmt,
Envl'l Advocate
(Ally. Gen. Office))
outside counsel in
cases of conflicting
interest.
Dir. of Envl'l
Mgmt. Envt'l
Advocate
Criteria
Violation of any law,
rule, regulation or
order of director,
unless another penally
is provided elsewhere.
Violations of
order*.
--
CoeamenU
Statute provides for fine or
imprisonment or both and b
interpreted by state to
authorize both civil and
criminal penalties.
$23-19.1-17.1 allows DepU to
seize certain properly and to
use property or sale proceeds
from property to further Itaz.
waste enforcement.
Re: Applications, renewals,
suspensions or revocations of
permits: Applicants or haz.
waste facility owners must pay
for eipenses Incurred by Ucp't
in connection with facility.
Statute provides for fine or
Imprisonment or both and is
Interpreted by stale to
authorize both civil and
criminal penalties.
Re: Depositing of out-of-state
refuse orohibited. Note that
$23-18.9-10 re construction of
solid waste management facili-
ties or installation of
equipment without proper
approval results In a penally
($SOO fine or imprisonment for
a maximum of 10 days, or
both).
SBWAQE
SYSTEM
CLEANERS
Judicial
Admin.
$23-24.3-6
$1,000
Superior Court for
Providence County
-------
RHODE ISLAND CIVIL PENALTY STATUTES (continued)
00
8BPTAGB,
INDUSTRIAL
WASTES
AND WASTE
OIL
WATER
DRINKING
WATER
DEPOSIT OP
DIRT IN
PUBLIC WATB
WETLANDS
TJP*
Judicial
Admin.
Judicial
Admin.
Judicial
Admin.
Judicial
Admin.
Judicial
Admin.
R8
Judicial
Admin.
Judicial
Admin.
Judicial
Admin.
Judicial
Admin.
Sec boa
$21-19.4-
4
S 40-12-11
S 48- 14-1
S46-IJ-I&
S46-6-I
$46-6-4
$$46-6-
5.6.7
$46-6-9
S2-I-23
$2-1-26
Hut Mint Whtre
tUo
$100
tS.OOO/ - - Stale
day treasury
tZO/day - -
t&OO/ - - Stale
day Treasury
tlOO/ -- l/2to
offense Sute. 1/2
$20/ - - Stale
offense treasury
tlOO/
offense
tioo/
day
tl.OOO/ --
viola-
tion
$100
plus
liability
to purchaser
for considerii-
lion und duihuycs.
Who
Eaforce*
Dir. of Dep't
of Envl'l Mgml,
Envl'l Advocate
Uir. of
Health,
Envl'l
Advocate
Superior
Court
Dir. of Envt'l
Mgml, Envt'l
Advocate
M
District court for
the sixth division,
Envt'l Advocate
Dir. of Envt'l Mgml,
Envl'l Advocate
Dir. of Itep'l of
Knvl'l Mgml,
Lnvl'l Advocate
I'urcliuser of land
at ibiue.
Criteria Comments
For wilful Statute provides for fine or
violations. imprisonment or both and is interpreted
by stale to authorize both civil and
criminal penalties. $23-19.4-5 stales
that all compliance orders and their
enforcement are in accordance with
$42-17.1-2, general puwecs of director.
..
For refusing or
neglecting to comply
with order to remove
sewage, drainage or
pollution matter that
may impair the quality
or purity of drinking water.
Re public water Statute provides for fine or
supplies. imprisonment or both and is interpreted
by stale to authorize both civil and
criminal penalties.
For depositing mud, dirt - -
or other substances in
public tidewaters without
proper authority.
For depositing substances - -
in the Dlacfcstane or
Seekonk Kivers.
For throwing various - -
substances into Narragansell
Day, Providence Harbor or
other waters as listed.
For failure to comply - -
with notice to remove
obstruction.
For violation Note tluit $2-1-24 provide* for penally
of a freshwater MiOO or 30-day imprisonment, or both)
wetlands reslora- for violations of orders of Uir. of
lion order. Natural Kcsourcus.
for sale or transfer - -
of land dcsignulcd as
wellajid without written
disclosure in pui-chuM:
und sale u^recmeiil.
-------
SOUTH CAROLINA CIVIL PENALTY STATUTES
00
Type Section Mail yin $
GENERAL Judicial I4I-I-JJO $10,0007
Admin, day
NPDES Judicial RSI -9
Admin.
DRINKING Judicial $44-55- $5.0007
WATER Admin. 90 day
HAZARDOUS Judicial $44-56-140 $25,0007
WASTE Admin. day and for
each day of
continuing
noncompliance
Where Who
$ Go Enforce*
State treasury Dep't of Health
(172 inures to and Environmental
benefit of county Control (see
($48-1-350)) $48-1-220),
ally. gen. and
solicitors (see
$48-1-210)
Stale Dep't of Health
and Environmental
Control, Ally.
Gen.
Criteria Comments
Violating any Penalties assessed
provisions of under Poll. Control
chapter, or any Act are held as debt
rule or regulation, payable lo state by
permit or order of person charged and
Dep'l. Unlawful constitute a lien
discharge of organic against that person's
or inorganic matter, properly.
or industrial or (See S48-I-350.)
other wastes into
the environment of the
state. SeeS 48-1-90.
NPDES permit Regulation refers to
violations $48-1-330 (general civil
penally provision) and
$48- 1-3 20 (criminal
penalty).
Violations of $44- Statute includes
55-80: Unlawful acts protection of ground-
(incL failure to water (UIC and LUST).
comply with laws.
regulations, permits.
or orders and rendering
a public water supply
Inoperable or unuseable).
Failure lo comply Violation of court
wilh laws, regula- order is deemed con-
lions, permits or tempi of issuing
orders; unlawful court.
generation, treat-
ment, storage, trans-
porlalion or disposal
of hazardous wasles
(see $44-56-130).
-------
SOUTH DAKOTA CIVIL PENALTY STATUTES
A1B
HAZ. WASTE
SOLID WASTE
DUNKING
H,O
NPDES,
11,0
T»e
Judicial
Judicial
Judicial
Judicial
Judicial
Section
IJ4A-I-J9
J4A-II-20
J4A-6-46
34A-JA-IJ
34A-2-76
Mu $ Min t Where
f Go
$20,000
-------
TENNESSEE CIVIL PENALTY STATUTES
oo
Type Section Mai t Mint Where Who
f Go Enforce*
A1B Admin. S68-2&-II6 t2S,000/ day $10.00 General Technical Sec'y
Judicial and for each Fund of Air Poll Con-
day of con- irol Bd, duly
linuing violation exempted local
poll control
program. Comin'r
of Uep*t of Health
and Env*l may
institute chan-
cery court suit
for collection or
assessment of
penalty. Hd
affirms, modifies,
or sets aside
penalty assess-
ment, if appealed
HATER Admin. $69-3-1 IS |IO,000/ -- Kaler Quality District allys.
Judicial day Control Div. general, ally.
gen., Deffi
(through ally.
gen. and reporter)
may institute
chancery court
assessment
proceedings.
Criteria ConmenU
Character and degree of Damages may include
injury to, or inter- stale investigation
fereiice with the prolec- and enforcement ex-
lion of the health, penses, remedial costs
general welfare and fare and natural resource
and physical property of damages. Financial
the people; social and inability of assessed
economic value of the air person considered in
contaminant source; suit- mitigation. Non-jury
ability or unsuilabilily trial for execution of
of the air pollution judgment
source to the area in
which it is located; technical
practicability and economic
reasonableness of reducing
or eliminating the emission
of such air contaminants;
emission of such air con-
taminants; economic benefit
gained by the air contaminant
source through any failure to
comply, the amount or degree
of effort put forth by the
air contaminant source to
attain compliance. See $68-15-106.
Whether the civil Re effluent limitations
penally imposed will or water quality viola-
be a substantial lions, permit or order
economic deterrent to violations, failure of
the illegal activity; industrial PUTW user to
damages to the state, pay user or cost
including compensation recovery charges, and
for loss or destruc- for violations of pre-
Uon of wildlife, fish treatment standards or
and other aquatic life toxic limits.
resulting from the Note that $69-3-107(16)
violation, as well as lists as one of the
expenses involved in duties of the Comin'r
enforcing this section the authority to assess
and the costs involved civil penalties in
in enforcing this accordance wilh $69-3-
section and the costs Hi.
involved in rectifying
any damage; cause of the
discharge of violation;
the severity of the dis-
charge and its effect
upon the quality and
quanlily of the receiving
waters; effectiveness of
action lukcn by Hie violator
to ccusc Hie vlolulion;
the technical uiid economic
rcusoimbli.-iicss of rcilucnn;
or cliiniiiuliiit; Hie di^cliurgc;
uihl Ilic social UNO* economic
viiliie ol Hie
-------
TENNESSEE CIVIL PENALTY STATUTES (continued)
00
CD
TH»
DRINKING Admin.
MATCH Judicial
SOLID Admin.
WASTE Judicial
HAZARDOUS Admin.
WASTE Judicial
Judicial
Section Mail Mint Where
$Uo
SM-11-TI3 $5,000/day $50.00 Water Supply
(a) and for each Div.
day of con-
tinuing violation
$68-31-117 tS.OOO/day (100
and (or each
day of continuing
violation
$68-46-114 tlO.OOO/day -- llaz. waste
(b), (c) and for each remedial
day of con- action fund
linuing ($68-46-204)
violation; $SOO/
violation admin, penalty
for non-discretionary
violation.
$68-46-213 (10,000/day
and for each day
of continuing
violation.
Who
Enforces
Comm'r of Health
and Env'l
Comm'r, solid
waste disposal
control board.
Comm'r may Insti-
tute chancery
court assessment
proceedings.
Comm'r may insti-
titute chancery
court assessment
proceedings.
Ally. Gen.
(chancery court),
comm'r.
Criteria
Harm to public health
or env't; whether
penalty will be a
substantial economic
deterrent; economic
benefit gained by
violator; violator*!
efforts to remedy
violation; extra-
ordinary enforcement
costs incurred by
comm'r; amount of
penally set for
specific categories
of violations.
Harm to public health
or env1!, economic
benefit gained by
violator, efforts of
violator to comply,
extraordinary enforcement
costs Incurred by comm'r.
Harm to public health
or env't, economic
benefit gained by
violator, efforts of
violator, to comply,
extraordinary enforce-
ment costs incurred
by Comm'r.
Failing, neglecting or
refusing to comply
with order of comm'r
or solid waste control
board.
Comments
Violator also liable to
state for damages (e.g.,
for investigation and
enforcement) whether or
not a civil penally is
assessed. When assess-
ment has become final
because of person's
failure to appeal.
comm'r may apply to
court for execution of
judgment. Criminal
penalties and injunclive
relief available as
judicial remedies.
Violator also liable to
state for damages
whether or not civil
penalty assessed.
Damages assessed may
Include reasonable
investigation and
divorcement costs and
natural resource
restoration.
Assessment includes
original fee plus interest
if appropriate.
-------
TEXAS CIVIL PENALTY STATUTES
CD
SO
T»«
MINI HUH
STANDARDS: Judicial
SANITATION
AND HEALTH
PROTECTION
A1B Judicial
Admin.
SEWAGE Judicial
DQCHABGB
IN TO PON DB
SEWAGE Judicial
DB CHARGE
INTO PON OB
SOLID * Judicial
HAZARDOUS
WASTES
Beetle*
Art. 4477-1.
SS4
Art.4477-5.
SS4.0I.4.02
SB 7IS
(ISIS)
SB 725
(1985)
Art.4477-
la.SJ
Art. 4477-
lb,S4
Art.4477-
7.S8
Halt
$200/day
$25.000/day
and for each
act of
violation
IIO.OOO/
violation
per day
$ 1000/day
of continuing
nuisance
$IO,000/day
$2000/day and
for each act
of violation;
If hazardous
waste
$25,000/day
and for each
act of viola-
tion
Hint
$ ID/day
ISO/day
and for
each act
of viola-
tion
--
IIOOO/
day
$IOO/day
and for
each act
of viola-
tion; if
hazardous
waste:
HOO/day
and for
each act
of viola-
tion
Where
IGo
General Revenue
Fund of Stale
(S4.04(e». If
brought by local
goVt, penalties
divided 50% to
general state fund
and 50% to local
goVt ($4.04(0).
--
General Revenue
Fund; if brought
by local goVt,
penalties divided
50% to state, 50%
to local gov'L
Who
Bnforees
Dej/t of Health
Resources, city,
county and
district attorneys
Air Control Board,
Executive Secretary
(when authorized
Board), Atty. Gen.,
local government
ally. (If authoriz-
ed; Board is indis-
pensable parly)
Air Control Board
Ally. General
Ally. General
Atty. General
at request of
Commissioner
or Executive
Director, local
govM (Municipal
and Industrial
haz. wastes are
managed by the
Texas Water
Comm'n.)
Criteria ConmeaU
Pertains to drinking water
violations, protection of
public water supplies.
sewage, etc.
Threatened violations
Included; injunclive
relief may also be obtained
These lawsuits are given
precedence over other cases
of a different nature on
docket of appellate court
(see !4.04(c)X
Seriousness of Air Control Bd. Is authorized
violation, to issue compliance order
prior history, where violation continues
amount needed for more than 30 days.
for deterrence.
violator's efforts
to eorreel,and any
other matters as
Justice may require.
Pertains to municipalities
of 600,000 to 900,000 (in
population) that fail to
abate nuisances.
Pertains to San Antonio's
discharges of municipal
sewage and waste sludges.
Threatened violations
included; injunctive relief
may also be obtained.
S325.222 - Enforcement
Policy: Three-step process
of seeking compliance
includes (A) Advisory mid
Enforcement Letters, (t)(
Compliance Schedules and
(C) Legal Action (See Tex.
Admin. Code, TiUe 25,
PLI, Ch. 325 Solid Waste
Management, Subch. II -
Surveillance and
KnfofcemenL) Levels can
be omitted if wilful
violation.
-------
TEXAS CIVIL PENALTY STATUTES (continued)
\o
o
OIL ft GAS
MINING
WATER
Type Section Mu $
Admin. S8I.OS31 $IO,000/day
Judicial ofTiUel
(Nat Res. Code)
Judicial $91.458 $IO,000/act
(saltwater of violation
disposal or failure
pits) to comply
Admin. Sill. 2661 $IO,000/day
Judicial of Title 4
(Nat. Res.
/~*»u4M\
Code)
Judicial Ch. II- Water $IOOO/day
Rights,
Subch. C-
Unlawful Use,
Diversion, Waste,
Etc., SI 1.082
Judicial Ch.12- $IOOO/day
General and for each
Water day of con-
Rights Pro- tinuing
visions, violation.
SI2.MI
Judicial Ch.26 - 110,000/day
Water and for each
Quality act of viola-
Control tiondlOOO/
(NPDES), day if prior
SS26.I22, to delegiilion
26.123 of Nl- DICS
authority)
Mini
$IOO/act
of viola-
tion or
failure to
comply
-
--
ISO/day
and for
each act
of viola-
tion
Where
$Go
If violator seeks
judicial review
penalty amount
goes to comm'n
for placement in
escrow, or in a
posted supersedeas
bond
Slate Treasury:
Saltwater Pit
Disposal Fund
Escrow Account if
penalty is con-
tested.
--
General lie venue
Fund; if local
action, 50% to
stale and iO'Jb to
local gov*!.
Who
Enforce*
Railroad
Commission,
Ally. General
Ally. General
Railroad
Commission,
Ally. General
State Ally.
General
Executive
Uirector, Ally.
Gen., local go /I
(if authorized),
Parks and Wildlife
DepM if activity
affects aquatic
life or wildlife.
Criteria
History of
previous viola-
tions, serious-
ness of viola-
tion, hazard to
health or safety
of public, good fail
of person charged.
..
History of
previous
violations,
seriousness
of violation.
hazard to
public health
or safety, good
faith of peraon
charged.
..
CoamenU
Penalty assessed only
after public hearing
opportunity. Penalty
may be refunded after
judicial review.
h
Penalty assessed only
after public hearing
opportunity. Injunctive
relief also. Penalty may
be refunded after admin-
istrative or judicial
review.
Suit must be brought
within 2 years of
alleged violation.
n
Injunctive relief also;
suit given precedence
over other suits on
appellate docket.
-------
TEXAS CIVIL PENALTY STATUTES (continued)
V£>
Type SeeUoo
$26.268
INJECTION Judicial $27.101
WBLLS
Admin. $27.1011
Judicial
WATER Judicial $28.061
WBLLS
$28.066
SALT WATER Admin. $29.047
HAULERS Judicial
Ma»t
t2000/day
and for each
act of
violation
$SOOO/day
and for each
act of non-
compliance
110,000/day
IIO.OOOAtey
and for each
act of non-
compliance
IIOOO/
violation
$IO,000/day
for each
violation
Min $ Where
tGo
$IOO/day
and for each
acl of
violation
Escrow account
if penalty is
contested, or
supersedeas bond
Stale
treasury
$IOO/ local gov-t
violation
Escrow account
if penally is
contested, or
supersedeas bond
Who
Enforce*
Executive
Director, or
Railroad
Comm'n
Rail road Comm'n,
Executive
Director, Alty.
General
Ally. Gen.
local gov*t
Railroad Comm'n,
Ally. Gen.
Criteria
History of
previous
violations.
seriousness of
violation,
public health
or safety
hazard, good
faith of
permittee or
charged
--
History of
previous viola-
tions, serious-
ness of viola-
tion, public
health or
safety hazard,
good faith of
permittee or
person charged
C on menu
This section is cumula-
tive of all penalties
provided elsewhere. No
liability if promptly
reported and removed
unless negligence was
cause of spill
..
Penalty assessed only
after public hearing
opportunity. Judicial
review available.
Injimctive relief also.
Penally may be refunded
after judicial review.
Injunctive relief also.
Re Denying access to
property or records.
Penalty assessed only
after public hearing
opportwity. Judicial
review available
Injinclive relief also.
Penalty may be refwided
after judicial review.
-------
UTAH CIVIL PENALTY STATUTES
VO
NJ
A1B
80UD/HAZ.
HASTE
DBIMK1NG
HjO
WATER
POLLUTION
Type Section
Judicial S26-I3-I8
Judicial S26-U-I)
Judicial $26-12-10
(1)
Judicial $26-12-10
(2)
Judicial $26-11-16
(1)
Judicial $26-11-16
(2)
Mai $ Min $ Where
tUo
flO.OOO/duy;
$25.000/
-------
VERMONT CIVIL PENALTY STATUTES
\o
U)
Type Section Mai $ Hio $ Where Who Criteria
t Go Enforce*
GBNBBAL Judicial S2822 $10.0007 $IOO/ Stale Sec'y of Agency
(Till* 3- violation violation Treasury of tnvl'l Con-
Executive) servation,
Ally. General
AM Judicial $568 $1.000 -- - Sec'y of Agency
£'« '°- of Envt'l Con-
ConMrvation) servalion, Atty.
General
CoaatenU
Where violation of order
is of continuing nature,
each day during which
such violation continues
after date Hied by court
for correction or
termination of violation
shall constitute a
separate offense except
during the lime appeal
may be taken or is
pending.
Where violation of agency
order continues after rea-
sonable lime for com-
pliance specified in order,
each 30-day period of
noncompliance is
separate violation. If
violation of emergency
order, each S-day period
of noncompliance is
separate violation.
Judicial review available.
Judicial SS63
$100
Knowing violations
of confidential records
provision.
STREAM Judicial
PLOW
BEVERAGE Judicial
CONTAIN BBS
SI02S
(Title 10)
SIS27
(Title 10)
$l,000/ -- »
violation and for
each day of con-
tinuing violation
$1,0007 -- -
violation
Prohibited alteration
of a water course.
Container deposit law.
-------
VERMONT CIVIL PENALTY STATUTES (continued)
Type Section
HAZ. WASTES Judicial S66I2
(Title 10)
Max $ Mia $ Where
$Go
$IO,000/ -- »
violation and
for each day
of continuing
violation.
Who Criteria
Enforce*
Sec'y of Agency
of Envt'l Con-
servation,
Ally. General
Comment*
Judicial S6608a
Comm'r of Agric.
This section provides that
procedures governing
waste economic poisons
are to be issued con-
currently by comm'r of
agric. and Sec'y of agency
of envt'l conservation.
Comm'r of agric. has
enforcement authority.
vO
WATER; Judicial
SUBMVBIONS
Judicial
UNUEB- Judicial
GROUND
LIQUID
STORAGE
TANKS
$1215
(Title
$1219
$1935
(Title
$200 $20
IB-Health)
$1,000 -- *
secured by lien
against property.
$10.000
10)
Sec'y of Agency
of Envl'l Conser-
vation, Ally.
General
Sec'y of Agency
of Envt'l Conser-
vation, Att'y
General
Unlawful "sewage or
other polluted
matter* discharges
into pond or lake
of 1000 acres or more.
Unlawful sifriividing
of lands.
- -
-------
VIRGIN ELANDS OVIL PENALTY STATUTES
NPDBS/
SANITARY
Type Section
Judicial S190
Mail
$50,000
Mini
$2,500
Where
$0o
Gen. Fund
Who
Enforce*
Com m'r of
Conservation
CriUrla
Violation of
rules and
CoameaU
--
and Cultural regulations.
Affairs/Com m'r
of Public Works
DBOHONO Judicial SI 309 $S,000 -- Gen. Fund Com m'r of Violation of
HjO Cons, and rules and
Cult Affairs. regulations.
-------
VIRGINIA CIVIL PENALTY STATUTES
A1B
Type
Judicial
Admin.
Section Max!
$10-17.23 $25,0007
(B) day
$IO-l7.l8i
3
Kin $ Where
$ Go
As directed by
court to stale or
local treasury.
State treasury
Who
Enforce*
Ally. Gen., State
Air Poll Control
Board.
Air Poll. Control
Board
Criteria
Size of business;
severity of
economic impact
of penally on
business;
seriousness of
violation.
--
Com meats
Civil charges in specific
sums* (not to exceed
$25,000) may be ordered
by Bd. (administratively)
In lieu of civil penally
(assessed judicially),
upon consent of violator.
SeeS 10-17. 23(C).
The state has authority
to carry out the uon-
a*
I
.o
compliance penally
provisions in con-
formance with SI20 of
the federal Clean Air
Act. After the Board
determines the penalty
amount the Board peti-
tions the appropriate
circuit court for an order
requiring payment of the
noncompliance penalty in
such sum as the court
deems appropriate. This
order is enforceable as a
judgment.
SOLID AND Judicial
HAZARDOUS
WASTES
GENERAL Judicial
DUN KIN 0 Judicial
WATER
NPDES Judicial
$32.1-
186
$32.1-27
$32. 1-176
$62.1-44.
32 (a)
$10,0007
day
$IO,000/day/ --
violation
$S,000/day
$IO.OOO/day
Stale
treasury
(general fund)
Treasury of county,
city or town as
directed by court
Stale
treasury
A I judge's dis-
cretion to treasury
of city, county or
town or stale
treasury.
Stale Bd. of
Health represented
by Ally. Gen.
Ally. Can. of
city, town
Stale Bd. of
Health represented
by Ally. Gen.
Ally. Gen.
For violations
of solid and haz.
waste provisions.
For violation of court
ordered remedy.
- - _ .
Violation of
chapter or any
final order.
-------
VIRGINIA CIVIL PENALTY STATUTES (cont'd)
Type 8«cUo» Max f Hint
OIL .Judicial S6M-44. a. up to
POLLUTION ]4i4 2500
gallons $250
b. up to 10,000
gallons $500
e. over 10,000
$10,000
here Who
t Go Enforce*
General fund, then Ally. Gen.
into Oil Spill
Contingency Fund
at Governor's
discretion.
CriUria CoaiinflnU
Consider: Provisions for failure
appropriateness to report oil spills.
of penalty to
size of business;
effect of penalty
on ability to con-
tinue business;
gravity of viola-
lion; circumstances
which made reporting
difficult or impossible;
other mitigating factors.
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WASHINGTON CIVIL PENALTY STATUTES
oo
AIR
WATER
(ML
CHARGES
WATER
RIGHTS
Type Section Mai $
Admin. S70.94.41I $IOOO/day
and for each
day of con-
tinuing viola-
tion (S70.94.
43 Ml));
$5000 if Dir.
requested by
Bd of local
authority or
If penalty
needed for
Jtf f a>r*li wt4
fallffCU VU
enforcement.
($70.94.01(2))
Admin. S90.48.I44 $IO,000/day
and for each
day of con-
tinuing viola-
tion there-
after (due and
payable in 10
days unless
appeal is taken)
Admin. S90.48.1SO $20,000/
violation
per day
Admin. RCW $IOO/day
41.83B.33S
Min $ Where
$Go
General fund of
state treasury
or if recovered
by local authori-
ty: 50% to author-
ity treasury,
50% to cities
within authority
on pro rala basis
as each contribut-
es to support of
authority.
General fund
of slate
treasury
General fund of
state treasury
(to credit of
coastal protec-
tion fund (see
S90.48.390).
General fund
of state treasury
Who
Enforce*
Air. Poll. Control
Authorities, Dir.
of Dep'l of Ecology;
Ally. Gen. or ally.
for local Bd may
Institute collection
proceedings for un-
paid penalties.
Dep'l of Ecology;
Ally. Gen. may re-
cover natural re-
source damages and
may institute
penally collection
proceedings in
superior court if
requested by dir.
of Dep'l of Ecology.
Dir. of Dep'l of
Ecology; Ally. Gen.
may enforce collec-
tion in superior
court
Ally. Gen. enforces
collection of
Criteria
Violations of slate
clean air act or any
rules or regulations
thereunder.
"
Waste discharge
permit violation;
conducting commercial
or industrial opera-
tion or point source
discharge operation
without permit, or
any other violation
of S90.48 or rules
or orders thereunder.
Intentional or
negligent oil dis-
charge. Criteria:
gravity of violation,
previous record of
violation in com-
plying or failing lo
comply, and other
appropriate con-
siderations.
Violations of surface
and groundwater re-
CommenU
If prior penalty for same
violation has been paid
to local authority,
penalty under S70.94.43I
(2) shall be reduced by
amount of payment.
Maximum penalty for
opacity standard viola-
lion is $400/day. Liens
on vessels available lo
secure penalties. For
remission and mitigation
provisions see S70.94.43I
(41
»*/
Natural resource
damages recoverable
under $90. 48. 142
(money paid lo stale
game fund; dep*l of
fisheries or other
agency with jurisdic-
tion over damaged re-
source). Remission or
mitigation of penalty is
available under S90.48.I44
Violator also liable
for cleanup costs. See
e.g., SS90.48.33S,
90.48.316 and 90.48.138.
Remission, mitigation
and discontinuance of
prosecution available.
Remission and mitigation
available.
penally assessed by
Dep'l of Ecology.
source codes, e.g.,
unauthorized
withdrawal
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WASHINGTON CIVIL PENALTY STATUTES (continued)
Type Section Hut Mint Where
|Go
HAZARDOUS Admin. I70.IOS. 110,000/day -- Haz. Waste
WASTE 080 (1) and for each Control and
day of con- Elimination
linuing Account of
violation. general fund
Admin. S70.IOS. $IO.OOO/day --
085 (2) of continued
nonoom-
pliance.
Admin. STO.IOiA. liOO/day -- "
080 fees and
Interest due
nd owing are
unpaid
Who Criteria
enforce*
DepH of Ecology; Failure to comply
Ally. Gen. may with chapter pro-
collect unpaid visions or rules.
penalties. Wash. Admin. Code
S 173-303-950 lists
violations: offering
or transporting
dangerous waste to
unpermitted facility;
unpermilted handling
(transferring, treating,
storing or disposing)
of dangerous wastes;
and falsely representing
Information in any com-
pliance documents.
" Failure to take
corrective action
specified in com-
pliance order.
Re: Fees for opera-
tion of facilities
for treating, stor-
ing or disposing of
hazardous wastes.
CommeoU
Remission and mitigation
of penalties available.
Note: Wash. Admin.
Code SI 73-30 1-625
slates that the jurisdic-
tional health dep*t shall
enforce solid waste
mgml requirements on
local level
In addition, Oep'l may
suspend or revoke any
permits and/or certifica-
tes issued under cliapter
provisions.
Fees bear interest at 9%
per annum for each
month (or portion there-
of), that fee is not paid.
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WEST VIRGINIA CIVIL PENALTY STATUTE
o
o
Tjipe
AIR Judicial
HAZ. WASTE Judicial
Judicial
SOLID WASTE Judicial
DUNK. WATER --
NPDBS Judicial
Section
i 13-20-8
SJ9-SE-I6
S20-5E-I7
iM-iP-6
--
S20-5A-I7
Hu $ Min $
ill.*
MJOO/day - -
»29.000/
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mSGONSM CIVIL PENALTY STATUTES
Typ.
GENERAL Judicial
Judicial
AIR Judicial
Judicial
HAZ. HA8T8 Judicial
DRlNtUNG Judicial
uso
NPDES Judicial
SEWAGE Judicial
DtSCHARGB;
DRAINAGE
tectioc
S 144.99
SI 44.96
S 144.426
S 144.385
SI 44.74
(2)
S 144.027
(19)
SI47.21
SI47.J:
S 144.05
Mait
$5000/
violation/
day
$10,000 or
double fee
(greater of
two)
$25,000/
violation/
day
$50,000/
violation/ day
$25,000/day
$1,003
$ 10.000/day
cost of clean-
up of discharge
$SOO/' W~-
Violaiicn-
per day
Mia $ Where
lOo
$IO/ School fund
violation/ (Via. Const.)
day
$200/
offense
$IO/viola- "
lion/day
I25.000/
violation/day
-
$100 Owner of well
or water source
School Fund
$ IOO/
violation
per day
H- .
Who
Bo/or coa
Ally. Gen.
(DepM of
Justice)
.
"
Private
citizens;
DepL of
Justice
A tty. Can.
(DepM of
Justice)
Owner of land
or city or
village Involved.
Criteria Coaoneola
This Is a General
Penalties provision.
Re reporting requirements
for assessing fees.
500,000 tons/ Applies to major
annually for utilities.
sulfur dioiide.
Intentional violations result
in criminal penalties.
Causes or Applies 10 private water
furthers well supply grants. General
contamination penalties statute applies to
or submits regulation of public and
fraudulent private water supplies.
claim.
Can recover investigation
& costs; relates to
water quality.
Re sewage dicharge into
certain lakes. Forfeitures
enforced by Ally. Gen.
For damages or injunction
only.
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._ -_,_ JIVIL PENALTf tfTATUTES
Type .SeetlM Uai ft #t»,$ Where ;@tt> Criteria CovacnU
tGo
GENERAL Admin. S3M1-9011, .tlO.QOfl/djiy -- General Fund Oep'l of -- Violations which result
I«-U-9J» Eifiri"! in death of fish or wildlife
S«l*l"y result in additional
penalties (or reasonable
value of fish or wildlife
destroyed.
AIR ' " "» "« " "'''. ' .
DB1NKJMQ
H,O
HPDKS. " Adm'r of Water
HjO Quality Div.
delegates en-
forcement
authority to
municipalities,
water and tamer
diitricls or
counties.
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