Guidance: Evaluating Ability to Pay a Civil Penalty in Administrative Enforcement Actions

Memorandum, jointly issued by Office of Civil Enforcement and Office of Site Remediation Enforcement, providing guidance on the process case teams should follow in evaluating ability to pay (ATP) claims and an overview of the Agency's tools to assist in ATP evaluations. The guidance applies to the Agency's administrative penalty enforcement actions involving ATP claims raised by individuals, for-profit entities (including sole proprietorships, corporations, partnerships, limited liability companies, and for-profit utilities), governmental entities, federally recognized Indian tribal entities, and not-for-profit entities, but does not apply to federal agencies. Issued 6/29/2015.

This guidance supplements existing guidance issued by the Office of Enforcement and Compliance Assurance (OECA) on how to assess a violator’s claim that it lacks the ability to pay all or part of a civil penalty to be assessed as part of an enforcement action. Specifically, this guidance builds upon and does not supersede the Agency's 12/16/1986 guidance on "Determining a Violator’s Ability to Pay a Civil Penalty" or the 9/30/1997 "General Policy on Superfund Ability to Pay Determinations."

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