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Gravity Calculations Services
In negotiating settlements of civil penalty cases, plaintiffs` attorneys frequently rely on EPA`s (and, in some cases, a state`s) statute-specific settlement policies to place a monetary value on the gravity component of the penalty. In doing so, they avoid the much more difficult task of quantifying damages to human health and the environment. While these policies provide the appearance of objectivity since they allegedly treat similar cases in similar fashion, the policies vest enormous amounts of discretion in the `litigation team` prosecuting the case. Given the team`s role, its members are not likely to be totally detached in their assessments of the defendant`s situation. In some cases, the policies enable plaintiffs to demand multi-million dollar penalties even in the absence of verifiable damages to human health and the environment, or evidence of willful behavior.
EPA has developed civil penalty settlement policies for problems arising under various environmental statutes, including the Clean Air Act (CAA), the Federal Water Pollution Control Act (FWPCA), the Resource Conservation and Recovery Act (RCRA), the Toxics Substances Control Act, the Emergency Planning and Community Right-to-Know Act, and the Comprehensive Environmental Response, Compensation, and Liability Act. Each of these statute-specific policies has unique features.
For example, the FWPCA civil penalty policy establishes five criteria for calculation of gravity: a monthly component (the number of months of violation), a significance of violation component (based on the percentage exceedance of the daily maximum, 7-day average, or monthly average requirement), a score based on health and environmental harm, a score for number of violations, and a score for the duration of the period of noncompliance. All of the numerical scores are added together and multiplied by $1000 to determine the gravity component of the penalty.
The CAA stationary source civil penalty policy uses a very different framework that places scores on the percentage of the exceedance above the applicable standard, the toxicity of the pollutant, the sensitivity of the environment, and the length of the violation, as well as "importance to the regulatory scheme" and "size of the violator" (which is based on a firm`s net worth).
The RCRA civil penalty policy is based on two matrices: a gravity-based component and a multi-day component. Each of these matrices attempts to classify the violations as fitting into one of nine boxes organized by "extent of deviation from the requirement" on one axis and "potential for harm" on the other. These boxes are arranged so a violation can be classified as major, moderate, or minor based on each of these criteria. The RCRA penalty policy provides examples to aid in the classification of specific violations.