Negotiating a Penalty

In almost all circumstances, a company will have notice of a violation before the EPA files a complaint seeking an administrative penalty. If the EPA discovered the violation during an inspection, then the inspector may give his or her findings to the company before a complaint is filed, and if the violation is self-reported the company will clearly know in advance of a formal complaint. 

In either case, the company should take the opportunity to negotiate a penalty before the EPA files a complaint. The EPA usually issues a press release when it files significant complaints, but if there is a simultaneous settlement the EPA will include the amount of the settlement in its press release. Because EPA s complaints usually seek large penalties for TSCA violations, its press releases often imply that companies are major environmental scoffiaws. A company can avoid this inference by negotiating a more realistic penalty that is publicized in the EPA s initial press release.  

The Consolidated Rules of Procedme confirms that a penalty proceeding can be commenced and settled simultaneously. Many people take advantage of this option, as demonstrated by the consent agreements posted on the Environmental Appeals Board Web site that say that they were simultaneously commenced and concluded.  

press release EPA Finds PCB-Containing Equipment for Sale Without Proper Identification on eBay (Oct. 2,2009), which announces the monetary settlement value and not the penalties that could have been sought in an administrative complaint, available at http //yosemite.epa.gOv/opa/admpress.nsf/ab2d81eb088f4a7e852573590036339/b29b37a0 ec602b9e852576430065c303 OpenDocument. 

In the Matter of Fujifilm Manufacturing U.S.A., Inc. Docket No. TSCA-HQ-2008-5029 (Oct. 20. 2008), available through http //yosemite.epa.gov/oa/EAB Web Docket.nsf/ Unpublished Final Orders OpenView. 

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