Sir EPA
United States
Environmental Protection Agency
Washington DC 20460
1993
Toxic Substances
Control Act (TSCA)
Report to Congress
for Fiscal Years 1990-91
Printed on Recycled Paper
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Toxic Substances
Control Act (TSCA)
Report to Congress
for Fiscal Years 1990-91
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CONTENTS
INTRODUCTION 1
TSCA FY90-91 HIGHLIGHTS
Section Testing of Chemical Substances and
4 Mixtures 1
Section New Chemical Manufacturing and
5 Processing Notices 2
Section Regulation of Unreasonable Chemical Risks
6 3
Section Notices of Substantial Chemical Risks .... 3
8{e)
Section Coordination of TSCA Authority with Other
9 Laws and Federal Agencies 4
Section Chemical Export Notices 10
12(b)
Section Citizens' Petitions 11
21
11
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TSCA Enforcement Actions 12
Defensive Litigation 14
District Court Litigation 15
SARA/EPCRA* TITLE III COMMUNITY RIGHT-TO-
KNOW
Section 313 Toxic Releases Inventory 17
Glossary of Acronyms 18
APPENDIX A
TSCA Section 21 Citizens' Petitions A-1
APPENDIX B
TSCA Enforcement Accomplishments B-1
APPENDIX C
TSCA Judicial and Administrative Actions C-1
* SARA = Superfund Amendments and Reauthorization
Act (1986)
* EPCRA = Emergency Planning and Community Right-to-
Know Act
iii
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INTRODUCTION
Following is a Report to Congress on the implementation of the
Toxic Substances Control Act (TSCA) in fiscal years 1990 and
1991, as required under sections 9(d), 28(c), and 30 of TSCA.
TSCA FY90-91 HIGHLIGHTS
Section Testing of chemical substances and
4 mixtures
Under conditions of potential unreasonable risk or high
production volume and exposure, authority is provided for the
Agency to a) require manufacturers and processors to test
chemicals for health and environmental effects and b) set
testing standards specifying the procedures to be used in
conducting the tests.
Testing required under section 4
- Tests required in FY90: 75
- Tests required in FY91: 250*
Estimate of costs to perform required chemical tests
- Costs incurred in FY90: $7.0 million
- Costs incurred in FY91: $0.5 million
Chemical testing results
- Received in FY90: 78
- Received in FY91: 95
Includes High Production Volume Screening Information Data
Set (HPV-SIDS)
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Section New chemical manufacturing and
5 processing notices
Manufacturers or importers must notify EPA 90 days prior to
producing new chemicals for commercial purposes.
Number of premanufacture notices (PMNs)
- Total received in FY90: 2,738
- Total received in FY91: 1,867
- Subset subject to section 4 tests in FY90: 0
• Subset subject to section 4 tests in FY91: 0
Number of section 5(g) decisions not to take
action on chemicals subject to notification or
data requirements
- Decisions made in FY90: 0
- Decisions made in FY91: 0
Significant New Use Rules (SNURs)
- Issued in FY90: 180
- Issued in FY91: 120
Number of 5(e) actions pending development of
information
- Consent orders issued in FY90: 86
- Consent orders issued in FY91: 87
Consent decree-ordered test results
- Received in FY90: 57
- Received in FY91: 140
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Section
6
Regulation of unreasonable chemical risks
Authority is provided to EPA to prohibit or limit the
manufacture; processing, distribution in commerce, use
and disposal of hazardous chemicals.
- Rules issued in FY90-91:
(9/91) Proposed rule to ban acrylamide/acrylamide-based
grouting compounds
(5/91) Proposed rule to regulate land application of
sludge from pulp and paper mills using
chlorine/chlorine-derived bleaching processes
(5/91) Advanced notice of proposed rulemaking (ANPR)
on lead in the environment
(6/91) Advanced notice of proposed rulemaking (ANPR)
to amend the current rules on the disposal of PCB
and approximately 50 other topics dealing with
the manufacture, processing and distribution in
commerce of PCBs.
Section
8(e)
Notices of substantial chemical risks
This information-gathering authority requires chemical
manufacturers, processors, and distributors to notify EPA
of substantial risks of injury to health or environment.
- Notices received in FY90: 631
- Notices received in FY91: 847
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Section Coordination of TSCA authority with
9 other laws and federal agencies
Authority is provided to EPA to refer cases of chemical risk to
other federal agencies with authority to prevent or reduce risk.
Formal section 9 referrals
- Action taken in FY90: 0
- Action taken in FY91: 0
Informal referrals
- One of the most frequent outcomes of TSCA
Existing Chemicals Program decision meetings is
the decision to transmit information to other
agencies.
Activities which highlight TSCA's mufti-media role in
risk reduction and pollution prevention
AIR PROGRAMS
Interagency Committee on Indoor Air Quality (CIAQ)
EPA required under Title IV of the Superfund
Amendments and Reauthorization Act (SARA) of
1986 to establish a committee comprised of the
Federal agencies concerned with various aspects of
indoor air quality (IAQ) and to coordinated Federal
IAQ activities.
The CIAQ meets on a quarterly basis as the primary
Federal coordination mechanism for indoor air.
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CFC Substitutes
Coordinated development of SNURs on two
HCFCs.
OTS and OAR are coordinating review of new
and existing chemical substitutes for the CFCs.
Testing results on CFC substitutes under active
consideration are provided to Office of
Atmospheric and Indoor Air Programs when
Section 8(e) substantial risk reporting threshold is
met.
CFC substitutes testing communique released by
US, European Community, Japan, and PAFT on
October 9, 1991.
MMT Proposed Unleaded Gasoline Additive
Coordinated with Office of Air and Radiation to
evaluate toxicity/health concerns.
Indoor Air Source Characterization Project
Joint project with Office of Atmospheric and
Indoor Air Programs (OAIAP) to identify and
characterize products that are major contributors
to indoor air pollution. A source ranking
database is currently under development.
The first product category being evaluated is
interior architectural paints. Initial contact with
the major trade association. National Paints and
Coatings, made in September 1991.
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The OAIAP is on the work group for the Aerosol
Spray Paint case being evaluated in the Risk
Management One (RM1) process.
Air Toxics Testing Initiative
Title III of the Clean Air Act Amendments of 1 990
lists 1 89 chemicals as hazardous air pollutants (air
toxics). EPA is charged with developing maximum
achievable control technology (MACT) standards for
the air toxics chemicals.
Following implementation of the MACT standards
the statute mandates residual risk determinations
for each air toxic chemical.
In many cases, data are insufficient to support
residual risk determinations.
OTS, OAR, and ORD are cooperating in:
o developing a standard set of test data needed for
residual risk determinations for each air toxic
chemical
o prioritizing the chemicals for testing consideration
o developing a TSCA testing program for the air
toxics chemicals
HAZARDOUS WASTE
Phosphoric acid production wastes
Collaborative effort with Office of Solid Waste,
Regions 4,6,8,10, State of Florida and Bureau of
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Mines to reduce risk from phosphogypsum
stacks and process wastewater resulting from
phosphoric acid production.
Project is currently in second phase of Risk
Management process (RM2).
Cyaniding
OTS is evaluating potential risk management
options to reduce the risks associated with the
use of sodium cyanide in mineral extraction
operations; currently in RM2.
Project is being coordinated with OSW, OW, and
Regions 8, 9, and 10, as well as Fish and Wildlife
Service, the Bureau of Land Management, and
Bureau of Mines.
WATER PROGRAM
Persistent Bioaccumulators Cluster
Initial phase of screening effort identified 34
chemicals for ecotoxicity testing endpoint rule
under Section 4.
Screening and testing efforts take into account
Office of Water needs, especially with respect to
expected Clean Water Act amendments.
REGIONAL GEOGRAPHIC INITIATIVES
OTS is working with regional offices, other
program offices (OAR, OSWER, OW, OPP), and
other federal agencies (USDA, USDOI) to identify
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local or regional environmental problems for which
TSCA authorities or staff may be of assistance.
OTHER FEDERAL
ONE Committee
In 1990, OSHA, NIOSH, and EPA established a
committee to facilitate cooperation, coordination,
and exchange of information among federal
authorities having responsibility for occupational
issues.
The ONE Committee meets on a monthly basis and
has provided great assistance in coordinating
activities on several fronts (e.g., refractory ceramic
fibers, aromatic ether diamine, formaldehyde,
testing, acute hazard classification, etc.)
ATSDR Testing Program
Under Section 110 of the Superfund Amendments
and Reauthorization Act (SARA), the Agency for
Toxic Substances and Disease Registry is charged
with developing profiles and identifying data needs
on chemicals found at hazardous waste sites.
Under SARA, ATSDR is also charged to work with
EPA to develop test data (using TSCA and FIFRA
authorities) to meet data needs.
- EPA (OTS, OPP, OSWER, ORD), the National
Toxicology Program, and ATSDR are currently
sorting through the first set of chemicals (38/275),
and developing appropriate voluntary and regulatory
testing mechanisms.
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Federal Interagency Lead-Based Paint Task Force
In 1989, under a memorandum of understanding,
HUD and EPA organized the Federal Interagency Lead-
Based Paint Task Force to coordinate the activities of
the Federal agencies engaged in lead-based paint
efforts.
The Task Force meets approximately on a monthly
basis to coordinate Federal lead-based paint efforts,
to maximize the use of resources, to combine efforts
to address specific issues of importance to a variety
of agencies, and to avoid duplication of effort.
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INTERNATIONAL/OECD
The US is involved in a number of collaborative efforts
with the Organization for Economic Cooperation and
Development, including:
High Production Volume/Screening Information Data
Set (HPV/SIDS) project to cooperatively test and
assess the need for action on international high
volume chemicals. Testing is under way on 35 pilot
chemicals, with 18 to follow shortly; HPV/SIDS
rounds 2/3 will handle an additional 100 chemicals
starting in September 1991.
Risk reduction project to explore the potential for
cooperative risk reduction activities among and
between OECD member countries. Efforts have
been initiated on five chemicals/classes: lead;
mercury; cadmium; methylene chloride; brominated
flame retardants.
Section Chemical export notices
12(bJ
Domestic chemical exporters must notify EPA annually of their
intent to export chemicals to other countries.
1990 1991
- Notices Received and
Processed 9,305 11,954
- Companies Submitting
Notices 162 165
- Letters to Foreign
Governments 3,633 3,749
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Section Citizens' Petitions
21
Authority is granted to anyone to petition EPA to initiate a
proceeding for issuing, amending, or repealing a TSCA rule.
(Disposition of each of the following Citizens' Petitions
appears in Appendix A.)
(9/89) Browning-Ferris, Inc., petitioned EPA for
rulemaking to improve monitoring-well
construction materials.
(1/90) National Federation of Federal Employees Local
2050 petitioned EPA to take action to reduce
new carpet emissions. A dialogue group was
formed.
(2/90) Bridgeport Rental and Oil Service petitioned for a
change in the definition of PCBs for disposal.
(2/90) National Solid Waste Management Association
petitioned EPA to revise financial assurance
criteria for commercial PCB storage facilities.
(7/90) Omega Phase Transformations, Inc. petitioned
EPA to grant a new use exemption under the
asbestos ban and phaseout rule.
(11/90) Vitrifix petitioned EPA to grant a new use
exemption under the asbestos ban and phaseout
rule.
(11/90) Greenpeace petitioned EPA to investigate
Monsanto's epidemiology data on dioxin and to
develop a program to eliminate dioxin use by the
year 2000.
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(1/91) Valley Watch, Inc., petitioned EPA to issue
restrictions on 1,2,4,-trichlorobenzene as a retrofill
transformer fluid.
(2/91) Walker Chemists, Inc. petitioned EPA to remove
mono-, di-, and most trichlorobiphenyls from PCB
definition.
(7/91) EPA received a petition to prohibit introduction of
genetically engineered pesticide- and herbicide-
tolerant plant species into the environment.
FY90-91 TSCA enforcement actions
- Pending or completed judicial actions taken under
TSCA in FY90: 8
FY91: 9
- Pending or completed administrative actions taken
under TSCA section 16 in FY90: 531
FY91: 422
- Penalties assessed through TSCA
enforcement in FY90: $10.4 million
FY91: $11.2 million
FY90-91 TSCA enforcement cases
(Details of individual actions appear in Appendix B.)
- In the Matter of A&D International (FY91)
- Airline Maintenance Facilities (FY91)
- In the Matter of Alcolac, Inc. (FY91)
- In the Matter of American Cyanamid Company/
In the Matter of Ruetgers-Nease Chemical
Company (FY91)
- In the Matter of Bedoukian Research, Inc. (FY91)
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US v. Boliden Metech (FY90-91)
In the Matter of Burlington Industries, Inc.
(FY91)
In the Matter of Celotex Corp. (FY90)
US v. Chemical Waste Management (FY90)
In re Desoto, Inc. (FY91)
In the Matter of DSM Resins, Inc (FY90-91)
In the Matter of General Electric (FY90-91)
In the Matter of P.O. George (FY90)
In the Matter of Halocarbon Products Co.
(FY90-91)
In the Matter of Jetco Chemicals, Inc. (FY91)
Kaiser Aluminum and Chemical Corporation,
Trentwood Works, Spokane Washington
(FY91)
In the Matter of Markem Corp. (FY91)
In the Matter of Monsanto (FY90-91)
In the Matter of Moore Business Forms, Inc.
(FY91)
In the Matter of Moses Lake Industries (FY91)
In the Matter of New Jersey Transit Rail Corp.
(FY91)
In the Matter of Nippon Paint (America) Corp.
and PPG Industries, Inc. (FY90)
Oregon Steel Mills, Portland, Oregon (FY91)
Port of Portland, Portland, Oregon (FY91)
In the Matter of Rollins (FY90)
In the Matter of Sherex Polymers, Inc. (FY90)
In the Matter of SIKA Corporation (FY91)
In the Matter of Standard Scrap Metal, Inc.
(FY90)
In the Matter of Leonard Strandley, Purdy,
Washington (FY90)
In the Matter of United Technologies Corp.
(FY91)
In the Matter of Wego Chemical Co. (New
Jersey) (FY91)
US v. Allied Colloids, Inc. (FY91)
US v. Mobay Corporation (FY91)
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- US v. Norristown (PA) State Hospital (FY91)
- US v. Sugarhouse Realty, Inc. and William H.
Thayer(FY91)
- US v. Virginia Department of Emergency Services
(FY91)
- In the Matter of 3-V Chemical Corporation
(FY90)
- US v. Texas Eastern Transmission Corporation
(FY90)
- US v. Transwestern Pipeline Co. (FY90)
- In the Matter of Union Camp Corporation (FY90)
- In the Matter of Union Electric Company (FY90)
- In the Matter of Upjohn (FY90)
- In the Matter of Velsicol (FY90)
- In the Matter of Worthen Industries, Inc. (FY90)
- In the Matter of US Dept. of Energy, Bonneville
Power Administration (FY90)
- In the Matter of US Navy, Naval Underwater
Warfare Engineering Station, Indian Island,
Washington (FY90)
- In the Matter of US Dept. of Transportation,
Coast Guard Support Center, Kodiak, Alaska
(FY90)
Fy90-91 defensive litigation
(Detailed descriptions of individual cases listed below appear in
Appendix C.)
- Corrosion Proof Fittings et al. v. US Environmental
Protection Agency
(asbestos ban challenge by 8 petitioners)
t
- Chemical Manufacturers Association (CMA) v. US
Environmental Protection Agency
(section 4 test rule on cumene)
14
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- Environmental Defense Fund (EOF) and National
Wildlife Federation (NWF) v. US Environmental
Protection Agency
(interpretation of section 21 citizens' petition)
- Rollins Environmental Services Inc. v. US
Environmental Protection Agency
(PCB anti-dilution rule)
- Chrome Coalition v. US Environmental
Protection Agency Hexavalent chromium-based
water treatment chemicals
(section 6 prohibition and section 12(b) export
notice)
- Chemical Manufacturers Association v. US
Environmental Protection Agency
(PCB notification and manifesting rule)
- Chemical Manufacturers Association v. US
Environmental Protection Agency
(section 4 test rule on diethylene glycol ether)
- Chemical Manufacturers Association v. US
Environmental Protection Agency
(petition for review of CAIR revisions)
District Court litigation
- Citizens for a Better Environment et al. v. Lee
Thomas (denial of southeast Chicago petition
to require testing for cumulative effects of 11
chemicals)
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Service Employees International Union v.
William K. Reilly
(asbestos in public and commercial buildings)
Dr. David G. Walker v. US Environmental
Protection Agency (section 21 petition on
lesser-chlorinated PCBs)
Hirzy and Morison v. William K. Reilly
(section 21 petition to test/regulate carpet
chemicals)
Michael D. Vanderveer and City of Evansville,
Indiana v. US Environmental Protection Agency
and Unison Transformer Services, Inc. and
Citizens for Healthy Progress, Inc. v. US
Environmental Protection Agency
(Henderson, Kentucky PCB Disposal Facility
injunction)
Colorado Department of Institutions v. US
Environmental Protection Agency
(Colorado school AHERA exemption)
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SARA/EPCRA* TITLE III COMMUNITY
RIGHT-TO-KNOW
Section Toxic Releases Inventory (TRI)
313
Facilities in Standard Industrial Classification
(SIC) codes 20 through 39 that manufacture,
process, or import in excess of 25,000 pounds
of any of 302 designated chemicals must file
reports of releases to air, water, land, and off-
site transfers each year.
In April 1991, figures for reporting year 1989
became available, while figures for reporting
years 1987 and 1988 were revised as follows:
Reporting Years
1987 1988 1989
Number of reports 67,357 72,904 80,202
Number of facilities 19,266 20,574 22,143
1 SARA = Superfund Amendments and Reauthorization Act
(1987)
"EPCRA = Emergency Planning and Community Right-to-
Know Act
17
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Glossary of Acronyms
ATSDR Agency for Toxic Substances and Disease Registry
ANPR Advanced Notice of Proposed Rulemaking
CFC Chlorinated Fluorocarbons
EPCRA Emergency Planning and Community Right to Know
Act
FIFRA Federal Insecticide, Fungicide and Rodenticide Act
HPV High Production Volume
HUD Housing and Urban Development
IAQ Indoor Air Quality
MACT Maximum Achievable Control Technology
MMT Methylcyclopentadiemyl Manganese Tricarbonyl
NIOSH National Institute of Occupational Safety & Health
OAR Office of Air and Radiation
OECD Organization for Economic Cooperation and
Development
OPP Office of Pesticide Programs
ORD Office of Research and Development
OSHA Occupational Safety and Health Administration
OSW Office of Solid Waste
OSWER Office of Solid Waste & Emergency Response
(Superfund)
OW Office of Water
OTS Office of Toxic Substances
PCB Polychlorinated Biphenyls
PMN Premanufacture Notices
RM Risk Management (process)
SARA Superfund Amendments and Reauthorization Act
SIDS Screening Information Data Set
SNURS Significant New Use Rules
TRI Toxic Releases Inventory
TSCA Toxic Substances Control Act
USDA U.S. Department of Agriculture
USDOI U.S. Department of the Interior
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APPENDIX A
TSCA SECTION 21 CITIZENS' PETITIONS - FY 1990
1,. Date filed: 9/14/89
Who filed: Browning-Ferris, Inc. (BFI)
What action requested: Rule-making to improve
monitoring well
construction materials
EPA'S disposition: Denied
Date of disposition: 12/26/89; 54 PR 52993
Note: Guidance developed by
OSWER under RCRA
2. Date filed: 1/11/90
Who filed: National Federation of Federal Employees,
Local 2050
What action requested: Requested that actions be
taken under sections 4, 6, 8
of TSCA to reduce
emissions from new carpets
EPA'S disposition: Denied
Date of disposition: 4/24/90; 55 FR 17404
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Note: Dialogue group (Industry, NFFE and EPA
representatives) was formed to reach
resolution
3. Date filed: 2/2/90
Who filed: BROS (Bridgeport Rental and Oil Service)-
Principle Parties Responsible for
Superfund Site
What action requested:
EPA'S disposition:
Date of disposition:
Requested a change in
the definition of PCBs
for disposal under
RCRA and Superfund
Partial Grant
June 8, 1990 letter to
W.J. Walsh of Pepper,
Hamilton & Sheetz, and
W.H. Hyatt of Pitney,
Hardin, Kipp & Szuch
signed by V. Kimm
4. Date filed: 2/16/90
Who filed: National Solid Waste Management
Association (NSWMA)
What action requested:
To initiate proceedings
to revise financial
assurance criteria and
mechanisms for
commercial PCB
storage facilities
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ERA'S disposition:
Date of disposition:
Denied
10/18/90; 55 FR 2463
5. Date filed: 7/20/90
Who filed: Omega Phase Transformations Inc.,
Narberth, PA
What action requested:
EPA'S disposition:
Date of disposition:
To initiate a rule-making to
amend the rule and grant a
new use exemption under
the asbestos ban and phase
out rule
Denied because petitioner
did not submit sufficient
information
Petition withdrawn by
Omega prior to
Administrator's signing
denial FR Notice and letter
A-3
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TSCA SECTION 21 PETITIONS - FY 1991
1. Date filed: October 8,1990
Who filed: Omega Phase Transformation Inc.,
Narberth, PA
What action requested:
EPA's disposition:
Date of disposition:
To initiate a rule-making
to amend the asbestos
ban and phase out
(ABPO) rule to grant a
new use exemption
under the ABPO rule
Granted
January 7, 1991
2. Date filed: November 23, 1990
Who filed: Vitrifix
What action requested:
EPA's disposition:
Date of disposition:
To initiate a rule-making
to amend the asbestos
ban and phase out
(ABPO) rule to grant a
new use exemption
under the ABPO rule
Granted
February 21, 1991
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3., Date filed: November 30, 1990
Who filed: Greenpeace Inc.
What action requested:
(1) Investigation of use of epidemiology data submitted
by Monsanto and BASF
(2) Rule to prevent states from using epidemiology data
on dioxin submitted by Monsanto
(3) Rule to prevent EPA from using epidemiology data on
dioxin submitted by Monsanto
(4) Development of a national program to eliminate
dioxin emission by the year 2000
EPA's disposition:
Denied -- EPA denied each of the specific requests made
by the petitioner under section 21 of TSCA. With regard
to section 555(e) of the APA, EPA found that no
petitioning right applied to the Greenpeace USA requests.
Although Greenpeace USA did not petition the Agency
under section 553(e) of the APA, (i.e., the section
authorizing citizens' petitions), EPA reviewed the petition
under this provision and denied each of the petitioner's
requests. The Agency did not respond under section 8 of
TSCA, section 2(c) of NEPA and its administrative
regulations. None of these provisions contain authority for
citizens' petitions.
Date of disposition: February 28, 1991
A-5
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4. Date filed: January 3, 1991
Who filed: Valley Watch, Inc.
What action requested: Issue a rule which
prohibits the
manufacture, processing,
distribution in commerce,
use and disposal of
1,2,4-trichlorobenzene as
a retrofill transformer
fluid.
EPA's disposition: Denied
Date of disposition: April 3,1991
5. Date filed: February 13, 1991
Who filed: David G. Walker
Walker Chemists, Inc.
904 Fleetwood
Baytown, TX 77520
713-427-5027
What action requested: Amend 40 CFR Section
761.3 to eliminate
mono-, di-, and most
trichlorobiphenyls from
PCB definition
EPA's disposition: Denied
Date of disposition:
Notes: Petition did not mention section 21 of TSCA"
A-6
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Petitioner submitted same petition on March
27, 1987; That petition was denied on July
2, 1987
After formal denial. Walker followed-up with
court action again
6. Date filed: July 17,1991
Who filed: Henry Gluckstern, Esq.
41 Park Road
Maplewood, New Jersey 07040
What action requested:
EPA's Disposition:
Date of disposition:
Use EPA authority under
TSCA to control increased
pesticide use which results
from the introduction into
the environment of
genetically engineered
pesticides tolerant plants
that are permitted by the
Animal and Plant Health
Inspection Service (APHIS)
of the US Department of
Agriculture (USDA)
Denied
Other Federal laws provide
adequate authority to protect
against any potential risks;
regulations under TSCA
would be duplicative and
unnecessary.
October 15, 1991
A-7
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APPENDIX B
TSCA Enforcement Accomplishments
Toxic Substances Control Act (TSCA1 Enforcement
TSCA enforcement responds to violations of regulations for
both new (pre-manufacturing notification) and existing
chemicals. In FY 1990, asbestos enforcement emphasized
compliance with the recently enacted Asbestos Hazardous and
Emergency Response Act (AHERA). PCB enforcement centered
upon violations involving permitted disposal sites or
intermediate handlers and brokers. Significant attention also
was devoted to ensuring the proper cleanup of PCB-
contaminated natural gas pipelines (e.g., the landmark Texas
Eastern case, see below).
TSCA enforcement embraces the basic tenets of pollution
prevention and data quality. TSCA's regulation of existing and
new chemical substances encourages the manufacture and use
of substances that pose only reasonable effects on human
health and the environment. In FY 1991, TSCA enforcement
actions emphasized compliance with the premanufacture
notification requirements for new chemical review, the reporting
and retention of information under Section 8, compliance with
the AHERA rule, and the proper use, storage, and disposal of
PCBs. Many settlements resolving TSCA administrative
enforcement actions are notable for their inclusion of
supplemental environmental projects incorporating pollution
prevention and environmental auditing provisions.
In the Matter of A&D International
On May 28, 1991, the Chief Judicial Officer signed a Consent
Order settling this administrative civil penalty action. The
Agency had charged A&D International, Inc., (A&D) with
violations of the Halogenated Dibenzo-p-dioxin/Dibenzofuran
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Test Rule (Test Rule) and violations of the TSCA Good
Laboratory Practices Standards (GLPs). A&D imported the
chemical substance chloranil, for which dioxin testing is
required under the Test Rule and Section 4 of TSCA. The
complaint charged A&D with late submission of a notice of
intent to test, late submission of test protocol, late
submission of test data, failure to test in accordance with the
EPA approved protocol, failure to submit statements
certifying that the tests adhered to the TSCA GLPs, and
failure to perform the test in accordance with the TSCA
GLPs. The Agency proposed to assess a penalty of
$26,500. However, in light of A&D International's
demonstrated inability to pay the proposed penalty, the
Agency accepted the payment of a penalty of $12,000 and
an agreement not to import chloranil in the future to settle
this case. (OE-TLD)
Airline Maintenance Facilities
During FY 91, Region 2 issued administrative complaints
against a number of airlines for PCB violations at aircraft
maintenance facilities. PCBs are contained in transformers
and other electrical equipment used and serviced at the
facilities. Complaints were issued against American Airlines
(seeking $354,000 in penalties), British Airways ($131,000)
and TWA ($296,000) as part of this industry-specific
enforcement initiative. (Region 2)
In the Matter of Aicolac Inc.
In September 1989 EPA charged Aicolac with violating
Sections 5 and 8 of TSCA and proposed a penalty of over
$500,000. The significance of the violations is that they
impaired the Agency's ability to evaluate the chemical
substances' effect on human health and the environment.
Earlier in 1989 Aicolac pleaded guilty in federal court to
illegally exporting a solvent used in making chemical
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weapons, which was ultimately to be re-exported to Iran. EPA
pursued an administrative enforcement action against Alcolac
Inc., a convicted exporter of illegal chemicals to Iran. During
the course of settlement negotiations information was received
from Alcolac which led to amendment of the complaint and the
adjustment downward of the proposed civil penalty. In October
1990 Alcolac agreed to pay a civil penalty of $280,000,
conduct a TSCA compliance audit covering four U.S.
manufacturing facilities, and conduct tow industry outreach
programs. In accordance with the settlement agreement, EPA
anticipates issuing shortly a demand letter for stipulated
penalties based upon the final audit report. (OE-TLD)
U.S. v. Allied Colloids. Inc.
On June 28, 1991, Region 3 issued a complaint alleging
violations of Sections 5 and 13 of the Toxic Substances Control
Act to Allied Colloids, Inc., a manufacturer and importer of
specialty chemicals located in Suffolk, VA. Allied Colloids
imported and manufactured a variety of chemicals subject to
TSCA between 1983 and 1991 and failed to submit proper
notices and documentation, including premanufacture
notifications, notices of commencement and import
certifications. For 273 separate violations of TSCA, a penalty
totaling $2,078,625 is being sought. (Region 3)
In the Matter of American Cyanamid Company/In the
Matter of Ruetqers-Nease Chemical Company
These companion cases were EPA's first administrative actions
involving violations of the terms of TSCA Section 5(e) Consent
Orders. Under Section 5(e), EPA may issue a Consent Order
which prohibits or limits manufacture, processing, distribution in
commerce, use, and disposal of a premanufacture notification
substance pending the development and review of information
addressing potential risks. The settlements included penalty
payments of $28,345 by Cyanamid, $3,600 by
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Ruetgers-Nease, and the implementation by both companies
of a Company Standard Policy and Practice Directive
specifying that no activity in any way inconsistent with any
term of any Consent Order will be engaged in by company
personnel until written permission is given by the appropriate
governmental agency. (OE-TLD)
In the Matter of Bedoukian Research. Inc.
The Chief Judicial Officer signed in September 1991 a
consent order settling this TSCA Sections 5 and 8
administrative civil penalty matter. The settlement consists
of the payment of $37,200 civil penalty, implementation of
an environmentally beneficial project, and additional
certifications for TSCA compliance. Bedoukian was charged
with improperly submitting to the Agency untimely and
false notices of commencement of the manufacture of new
chemical substances. (OE-TLD)
U.S. v. Boliden Metech
A final decision of the Administrator affirmed convincingly
the Initial Decision of the Administrative Law Judge that
Boliden had a duty to assure that material and oil containing
PCBs did not enter the environment. Significant defenses
raised by Boliden were also rejected, including the contention
that government inspectors illegally searched the perimeter of
the Boliden property in violation of the 29th Amendment to
the Constitution "right to privacy" and that EPA needed to
collect "statistically representative" samples in order to prove
violations of the PCB storage and disposal violations. The
final decision holds that EPA evidence of contamination in a
number of scrap metal piles was sufficient evidence to prove
that illegal PCB disposal had taken place. A $32,000 fine
was imposed.
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To obtain full site decontamination, a complaint was filed in
Federal District Court. The Region aggressively pursued
settlement of the judicial action against Boliden Metech during
FY 1990, and by the end of the fiscal year reached a settlement
in principle. In a consent decree entered on January 10, 1991
in settlement of a civil enforcement action, Boliden Metech Inc.
agreed to undertake a complicated sampling and analytical
program to determine the extent of PCB contamination of
several piles of shredded materials containing precious metals.
Once the extent of PCB contamination is determined, Boliden is
required to dispose of the contaminated piles and materials in
accordance with the PCB regulations.
This case is significant because of its technical complexities
concerning shredder fluff and analytical methodologies. Until
1990, Boliden shredded computer parts and other products at a
shredder facility in Providence, Rl in order to recover valuable
metals. In the late 1980s, the piles of shredded material were
found to contain PCBs. The terms of the settlement raise a
complicated international export issue which required
coordination with foreign contacts and the Agency's
International Affairs Office. Boliden has now shut down the
shredding operation. (Region 1)
In the Matter of Burlington industries. Inc.
In February 1991, EPA filed a $3,061,000 TSCA administrative
complaint alleging violations of the Section 5 premanufacture
notification requirements by Burlington Industries. Settlement
negotiations are pending at this time. (OE-TLD)
In the Matter of Cavedon Chemical Company
In January 1991, the Chief Judicial Officer executed a Consent
Order settling the TSCA Section 5 administrative civil penalty
action against Cavedon. Cavedon agreed to pay a civil penalty
of $21,000, which equalled 4 percent of their average gross
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sales for the past four years as provided in the TSCA Civil
Penalty Policy. Cavedon successfully demonstrated to the
Agency a documented inability to pay all of the proposed civil
penalty. (OE-TLD)
In the Matter of Celotex Corp.
In a strong precedent for increasing penalties for prior
knowledge of regulatory requirements and bad attitude,
Administrative Law Judge Yost, on April 12, fined Celotex
Corp. $31,900 for PCB violations at their Peoria, Illinois
facility. Region 5 successfully presented a prima facie case
concerning the failure of Celotex to maintain annual inventory
records, visual inspections of transformers for leaks and
improper marking and storage of PCBs. A total penalty of
$45,550 was proposed.
While Judge Yost rejected EPA's attempt to use a prior PCB
settlement as evidence of a "history of prior violations" to
increase the penalty by 50 percent, he did agree with Region
5 to raise the fine by 10 percent because Celotex had
knowledge of the PCB regulations, failed to provide certain
documents the inspector requested and failed to correct
certain violations identified by the inspector.
U.S. v. Chemical Waste Management
Region 5 and Chemical Waste Management (CWM) Chemical
Services, Inc. signed a consent agreement and consent order
calling for payment of a $3.75 million civil penalty for
violating the PCB disposal requirements of TSCA. The $3.75
million penalty is one of the largest administrative penalties
ever imposed on a single facility in EPA's history. The
complaint was based on a review of CWM's operating
records, the company's own internal investigation, and
inspections by NEIC and Region 5. This case is significant
because it involves violations of the PCB disposal and permit
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requirements of the regulations. Violations of these
requirements by commercial storage or disposal operators are
the highest priority of the PCB enforcement program and
maximum penalties will be sought.
In re DeSoto. Inc.
On April 24, 1991, the Region concurrently filed a two count
complaint and Consent Agreement and Final Order resolving the
administrative action against DeSoto, Inc. in DesPlaines, IL for
violations for the Toxic Substances Control Act (TSCA)
manufacturing notice and Notice of Commencement regulations.
In mitigating the $2,299,000 proposed penalty, the Region cited
the Respondent's voluntary disclosure of the violations and its
compliance status. The settlement included a $600,000 civil
penalty and the Region's exercise of enforcement discretion in
allowing materials manufactured with the chemicals at issue to
be introduced into commerce. (Region 5)
In the Matter of DSM Resins. Inc.
Region 2 has continued its active enforcement of TSCA Import
and PMN requirements. In September the Region issued an
administrative complaint to DSM Resins, Inc., (DSM) citing
violations of §5 and §13, and proposing a penalty of $2.3
million. DSM is a subsidiary of a large Dutch-based chemical
conglomerate. After Region 2 inspected the firm's import
operations, the company "self-confessed" to many violations
including failure to file pre-manufacturing notifications prior to
importation and failure to submit notices of commencement of
import immediately after import. The complaint also cites
instances of failure to certify or improper certifications to the
Customs Service at the times of importation. This case was
settled in August 1991 with an agreement by the Respondent
to pay a penalty of $750,000 and implement various steps to
prevent recurring violations. Under TSCA, anyone
manufacturing or importing a new chemical substance not
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included on EPA's Chemical Substances Inventory must
submit a premanufacture notice at least 90 days prior to
manufacture or import. Compliance with TSCA must also be
certified by importers. In addition to agreeing to the penalty,
one of the highest collected by Region 2 under the TSCA
program, the company has now implemented a computerized
tracking system to ensure that all of its imports comply with
TSCA rules. (Region 2)
In the Matter of General Electric
Regions 1, 3, 5, 6, and 10 issued five administrative
complaints against General Electric for violating the disposal
requirements for PCBs under TSCA at its Pittsfield, MA
facility: failing to properly mark PCB transformer locations,
storing combustible materials near PCB transformers,
improper PCB storage, inadequate recordkeeping and failing
to follow required PCB spill response procedures. GE also
violated its approval for PCB incineration through improper
operating and recordkeeping procedures. EPA proposed to
assess a total civil penalty of $4,057,275 for operating a
solvent distillation system without a permit in the above
regions.
In March 1991, General Electric Co. agreed to pay a
$150,000 penalty to settle Region 1 's complaint. As part of
the settlement, GE committed to the removal of all of its PCB
electrical equipment from the Pittsfield facility over a period
of three years. The equipment to be removed from service
and properly disposed of includes over 130 PCB transformers
and over 1300 PCB capacitors. These actions are expected
to reduce the risks of PCB spills and fires at the facility. EPA
estimates the cost of the removal and disposal project at
over $1 million. (Region 1)
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In the Matter of General Electric Chemicals. Inc.
In June 1991, the Chief Judicial Officer approved a settlement
agreement with General Electric Chemicals which included
penalty, audit, and pollution prevention provisions. A TSCA
administrative complaint was issued alleging violation of Section
8(e), the substantial risk information reporting provision.
General Electric Chemicals agreed to pay a $75,000 penalty,
and General Electric Company, GEC's corporate parent, agreed
to conduct a TSCA Section 8(e) compliance audit of all its
domestic subsidiaries. In addition, both GEC and GE agreed to
implement $890,000 worth of pollution prevention projects
involving reductions in emissions or use of acrylonitrile,
1,3-butadiene, various phenols, 1,1,1-trichloroethane, and
methylene chloride, which are some of the Agency's top 25
chemical candidates for pollution prevention targeting.
(OE-TLD)
In the Matter of General Motors. In the Matter of
CECOS. International, and in the Matter of CWM
Chemical Services (New York)
In March 1991, Region 2 issued administrative complaints to
these three companies for violations of the TSCA regulations
and approvals relating to the handling and disposal of PCB-
contaminated wastes. The proposed penalties in the three
related cases total about $35 million. EPA inspections of the
records at GM's Massena, New York facility showed that
hydraulic fluid in some machines contained PCBs in excess of
500 parts per million. These fluids were processed through the
waste water treatment system where reclaimed fluid and sludge
from the process also had over 500 ppm of PCBs. This sludge
was solidified with sand and limestone and shipped to the
landfills operated by CECOS and CWM (a subsidiary of Chemical
Waste Management, Inc.). These landfills hold TSCA approvals
issued by EPA for disposal of PCB wastes. Under the
conditions of their approvals, PCB-contaminated wastes of the
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sort sent by GM required testing prior to being accepted for
interment in the landfills. The companies failed to test the
wastes, and did bury them. They should have rejected such
wastes for burial, requiring instead that they be incinerated
due to the elevated PCB concentrations. The complaints
seek about $14 million each against GM and CECOS, and
about $7 million from CWM. (Region 2)
In the Matter of P.P. George
This administrative enforcement action was brought pursuant
to the Toxic Substances Control Act (TSCA), 15 U.S.C.
2601 et sea. In March of 1989, EPA filed an administrative
complaint against the P.O. George Company. The Complaint
stated that EPA had reason to believe that PDG violated
TSCA by: manufacturing nine chemical substances prior to
submitting a premanufacture notification (PMN) to EPA, and
by failing to properly report a Notice of Commencement
(NOC) for a chemical substance in accordance with the
applicable regulations.
TSCA $5 and regulations promulgated thereunder require a
person intending to manufacture a new chemical substance
for commercial purposes to submit to EPA a premanufacture
notice (PMN) at least 90 days prior to the first such
manufacture. The failure to comply with these requirements
is a violation of TSCA § 15(1 )(B).
The Respondent has filed the appropriate TSCA §5 notices
(premanufacture notices (PMNs), polymer exemption
applications, etc.) for all 9 substances. All chemicals
completed the TSCA review without imposition of a §5(e) or
5(f) order. Further, the Respondent has corrected all of the
notices of commencement for these 9 substances. The
March 16, 1989, administrative complaint proposed a
gravity-based penalty of $1,909,000 for these violations.
During the course of negotiations PDG was able to
demonstrate to EPA's satisfaction that 8 of the 9 chemicals
were eligible for application of the polymer exemption rule.
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Therefore, the proposed gravity-based penalty was revised to
equal $1,261,000.
On October 2, 1990 the Chief Judicial Officer ratified a Consent
Agreement that requires P.O. George to: pay a $527,850
penalty; recover and incinerate buried drums of paint wastes
and resins; and conduct a TSCA §5 and §8 Audit to identify
and correct reporting violations under these statutory
provisions. P.O. George intends to spend more than $200,000
to recover and incinerate the buried drums of paint wastes and
resins, and an additional $210,000 to conduct the TSCA §5
and §8 Audit. Stipulated penalties will accrue for those
violations identified, reported, and corrected under the Audit.
In the Matter of Great Lakes Chemical Company
In March 1991 EPA filed an administrative complaint against
Great Lakes alleging violations of a TSCA Section 5{e) Consent
Order and proposing $1,227,000 in penalties. The complaint
arose out of an NEIC inspection of an Arkansas facility where
Great Lakes failed to notify customers in writing of the potential
health risks of the chemical prior to shipment as required by the
consent order. This matter is still pending. (OE-TLD)
In the Matter of Great Northern Nekoosa Com.
In the first joint effort in Region 1 under the Toxic Substances
Control Act and the Superfund Removal Program to address
violations of TSCA and subsequent remedial work relating to the
clean-up of PCB spills. Region 1 entered into an administrative
settlement on September 30, 1991 with Great Northern
Nekoosa Corp. under which Great Northern agreed to pay a
penalty and reimburse EPA for its investigative and oversight
costs of remedial work conducted at the company's facility in
East Millinocket, Maine. In addition to spending in excess of $7
million for the remediation of PCB spills, the company agreed to
pay an administrative penalty of $20,800 and to reimburse EPA
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for its costs in the amount of $210,000. In 1987, EPA filed
an administrative complaint against Great Northern Nekoosa
Corp. for violation of the federal regulations controlling the
recordkeeping, storage for disposal, and marking of PCBs at
the company's facilities in Millinocket and East Millinocket,
Maine. In addition, spills of PCBs were discovered on the
ground outside the East Millinocket facility. The cleanup
performed by Great Northern Nekoosa Corp. was completed
in January 19.91. (Region 1)
In the Matter of Halocarbon Products Co.
The first TSCA administrative complaint has been filed
involving a known fatality from a chemical release subject to
the substantial risk reporting provision of the statute. An
administrative complaint was filed seeking a penalty of
$175,000 against Halocarbon Products Corporation of
Hackensack, NJ.
The complaint charges Halocarbon with violating the
substantial risk reporting provision of §8(e) of TSCA.
Halocarbon failed to submit information to EPA regarding the
human health effects of a chemical mixture that killed one
employee and seriously injured another as the result of an
accidental release of the substance in February 1989.
EPA read about the death and inspected the company in
March 1989 and discovered that Halocarbon had never
submitted the required §8(e) substantial risk information on
the chemical mixture to the Agency. EPA is seeking the
statutory maximum of $25,000 per day for each business
day that Halocarbon failed to file the §8(e) report.
The Administrative Law Judge ruled that notice to OSHA of
the death and injury to its employees does not relieve
Halocarbon of the duty to report under Section 8(e), the
substantial risk information reporting provision of TSCA. The
ruling came through an Order granting EPA's Motion to Strike
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Affirmative Defense. The case is still pending and a Hearing
date has not yet been set. (OE-TLD)
In the Matter of Jetco Chemicals Inc.
In this TSCA administrative civil penalty action for violation of
the Section 8(a) Preliminary Assessment Information Rule, Jetco
agreed to pay a penalty of $19,500, review and certify
compliance with all Section 8(a) reporting requirements, and
prepare and submit a TSCA compliance manual. (OE-TLD)
Kaiser Aluminum and Chemical Corporation.
Trentwood Works. Spokane. Washington
A Consent Agreement between the facility and EPA was signed
in February 1991, assessing a penalty of $30,600. The
company paid $15,300 in cash; the remainder of the assessed
penalty will be permanently suspended, provided the company
spends $30,600 to dispose of PCBs remaining in use at their
facility. The facility had been issued an administrative
complaint in November 1990, alleging that the facility violated
in the Toxic Substances Control Act PCB Regulations regarding
disposal, recordkeeping, and inspections and proposing a
penalty of $62,000. (Region 10)
In the Matter of Markem Corp.
On June 6, 1991, Markem Corp. of Keene, NH agreed to pay a
penalty of $33,000 and undertake three supplemental
environmental projects in a multi-media settlement of an
administrative complaint filed by EPA for the company's
violations of the federal PCB regulations. This settlement is
unusual in the sense that the three SEPs each involve reduction
or elimination of a different pollutant. The projects are the
following: 1) removal and proper disposal of a PCB transformer;
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2) installation of a cleaning-solvents recovery system; and 3)
a project designed to eliminate the use of heavy-metal
pigments in the company's ink products. These three
projects all result in the elimination or reduction of a pollutant
and are therefore beneficial for the environment. The total
combined estimated cost of these three projects is
$210,500. These projects were not required by law, but
were agreed to be undertaken by Markem Corp. as conditions
of settlement of the case. This settlement is the culmination
of an action begun by EPA in June 1990 when the agency
filed an administrative complaint against Markem Corp. for
violations of the federal regulations promulgated under the
Toxic Substances Control Act controlling the use and
recordkeeping of polychlorinated biphenyls. Markem Corp.
produces industrial printing and marking machines and related
supplies. (Region 1)
U.S. v. Mobay Corporation
On June 28, 1991, an administrative complaint was filed
against Mobay Corporation for multiple violations of Toxic
Substances Control Act Sections 5, 8, and 13. The
violations include importation of chemical substances not on
the TSCA Inventory, false certification that these shipments
were in compliance with TSCA, improper reporting of
chemical substances to the TSCA Inventory, submission of
premanufacture notices (PMNs) with incomplete listings of
trade names and intended uses, submission of false notices
of commencement (NOCs) for importation for chemical
substances which had already been imported long before the
date stated on the NOCs, and submission of inaccurate or
unsupported TSCA Inventory update information. A penalty
of $4,755,000 is being sought. (Region 3)
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In the Matter of Monsanto
This administrative enforcement action was brought pursuant to
the Toxic Substances Control Act (TSCA), 15 U.S.C. 2601 §1
seq. On or about October 15, 1981, Monsanto obtained a copy
of a draft report of a two-year chronic toxicity and
carcinogenicity study of Santogard PVI in the rat (hereinafter
referred to as the "study"). The information contained in the
draft study indicated a dose-related increase in the number of
female rats with benign liver tumors. On July 1, 1986,
Mgnsanto submitted the final report of the study to EPA as a
"For Your Information" submission.
On August 4, 1989, the Office of Compliance Monitoring filed a
$253,200 complaint against the Monsanto Company alleging
that Monsanto had failed to report the study in a timely manner.
EPA alleged that the study was TSCA 8(e) toxicological data
and the Respondent was required to have submitted the study
within 15 working days of its receipt. On January 3, 1990, the
Chief Judicial Officer approved a Consent Agreement in which
Monsanto was required to pay $198,000 and conduct an
extensive TSCA §8(e) audit. Studies submitted under the audit
were subject to stipulated penalties. In August of 1990,
Monsanto completed its TSCA 8(e) audit and paid an additional
$648,000 in stipulated penalties. (OE-TLD)
In the Matter of Moore Business Forms. Inc.
On June 27, 1991, EPA and Moore Business Forms, Inc. signed
a consent agreement settling a Toxic Substances Control Act
(TSCA) case for $2.2 million-the largest §5 penalty on record.
The consent agreement also required completion of an
independent TSCA audit, with the highest stipulated penalties
ever-$50,000--for violations of TSCA Sections 5 and 8. This
also was the first consent agreement to require an Emergency
Planning and Community Right-To-Know Act (EPCRA) audit and
training program. EPA's Chief Judicial Officer signed the
Consent Order on July 1, 1991.
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Moore self-disclosed violations of TSCA Sections 5 and 8 to
EPA in April. After an expedited safety review by EPA's
Office of Toxic Substances, the Agency granted enforcement
discretion to the company for release of customer-owned
stocks of paper products containing the chemical substances
involved in the violations. In exchange, EPA secured Moore's
agreement to accept EPA's jurisdiction over the matter, to
provide batch records, to waive its right to an administrative
hearing, and to cooperate fully in negotiating the case. The
company's request for further enforcement discretion was
denied pending the signing of the consent agreement.
EPA cited the company with failing to notify the Agency prior
to manufacturing and using six chemical substances that did
not appear on the TSCA Inventory. Section 5 of TSCA
mandates that no person may manufacture or import a
chemical substance which does not appear on the TSCA
inventory without submitting to EPA a premanufacturing
notice (PMN). The Complaint, which was issued
simultaneously with the signing of the consent agreement,
also cited Moore for failure to provide a certification
statement to the district director at the port of entry
adequately representing the true compliance status of a
chemical substance. (OE-TLD)
In the Matter of Moses Lake Industries
In this administrative civil penalty action, Moses Lake
disclosed to the Agency that it had violated TSCA Section 5
by importing new chemical substances which did not appear
on the TSCA Inventory of existing chemical substances, and
that it had failed to provide a certification statement to the
district director at the port of entry as the true compliance
status of these chemicals pursuant to TSCA Section 13. This
matter was settled for $130,000 following issuance of an
administrative complaint. (OE-TLD)
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In the Matter of New Jersey Transit Rail Corp. (New
Jersey)
On September 27, 1991, a settlement was executed in this
case providing for payment of a $120,000 penalty and including
significant pollution prevention provisions. The Respondent
failed to remove from service by July 1, 1986 transformers
containing dielectric fluids with more than 1000 ppm of PCBs
as required by the TSCA rules. As part of the settlement, New
Jersey Transit agreed to spend nearly $110,000 to conduct an
extensive PCB sampling survey at seven of its rail facilities; a
total of 1050 samples will be taken. The company also
selected retrofitting or rebuilding of transformers as its means of
coming into compliance; this is environmentally more sound
than having the transformers drained and refilled. (Region 2)
In the Matter of Nippon Paint (America! Corp. and
PPG Industries. Inc.
EPA issued a civil administrative Complaint charging Nippon
Paint (America) Corporation and PPG Industries with import
and/or domestic manufacture of seventeen chemicals not on the
TSCA inventory of existing chemical substances. On July 24,
1990, the Chief Judicial Officer approved a Consent Agreement
and Consent Order settling the TSCA §5 and §13 administrative
enforcement action against Nippon Paint (America) Corporation
and PPG Industries. Under terms of the settlement, Nippon and
PPG are jointly and severally liable for a civil penalty of
$360,000 for import and domestic manufacture of 17 chemical
substances before completion of the PMN review period or
without timely submission of a notice of commencement.
U.S. v. Norristown (PA) State Hospital
On September 27, 1991, Region 3 issued a complaint alleging
violations of Section 2614 of the Toxic Substances Control Act
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to Norristown State Hospital. This is the first Region 3
Worker Protection Rule civil complaint issued. The complaint
alleges that the hospital failed to conduct monitoring at the
initiation of each asbestos job, failed to institute a required
respirator program, failed to provide separate storage
facilities for protective and street clothing, and failed to
provide annual medical examinations. The complaint seeks
penalties totaling $9,500. (Region 3)
Oregon Steel Mills. Portland. Oregon
As a result of an administrative complaint issued in May
1991 proposing a penalty of $370,000, a consent agreement
was signed on August 1, 1991, assessing a penalty of
$286,000, in the largest TSCA PCB penalty ever assessed in
EPA Region 10. Of this total penalty, the company paid
$143,000 in cash. The remainder of the assessed penalty
will be permanently suspended, provided Oregon Steel Mills
spends at least $286,000 by 1993 to dispose of PCBs
remaining in use at their facility. The complaint alleged
violations of the federal Toxic Substances Control Act
(TSCA) PCB Regulations, including improper disposal,
storage, marking, recordkeeping, and failure to register PCB
Transformers. (Region 10)
Port of Portland. Portland. Oregon
As part of a Consent Agreement between the Port and EPA,
the Port documented that it had spent $43,506 to dispose of
PCBs in use at the facility, the disposal of which would not
otherwise have been required. The Port had been issued an
administrative complaint in March 1991. The complaint
alleged that the Port of Portland violated the Toxic
Substances Control Act (TSCA) PCB regulations, including
disposal, recordkeeping, and registration violations. A
Consent Agreement was signed in August 1991, assessing a
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penalty of $55,208, a reduction based on the Port's
expenditures for disposal. (Region 10)
In the Matter of Rollins
In I988, Region 2 issued an administrative complaint to RoHins
Environmental Services, Inc., for violation of the regulations
governing PCB disposal. The complaint sought a penalty of
$25,000 for Rollins' failure to properly incinerate
PCB-contaminated rinsate. Rollins declined to settle, and in
I989 the Region filed a motion for accelerated decision on the
issue of liability, which was granted by the Administrative Law
Judge (ALJ).
The parties were ordered to confer to attempt a penalty
settlement, but when this proved unsuccessful, the ALJ took
briefs and heard oral argument on the penalty issue. In July'the
ALJ issued a decision awarding no penalty, finding the
regulations and the penalty policy ambiguous. The Region
appealed this decision, and the Agency's Judicial Officer ruled
in September essentially reversing the earlier ALJ decision, and
awarded a $20,000 penalty, which he increased to $25,000 in
light of Rollins' history of past violations.
In the Matter of Sherex Polymers. Inc.
On January 5, 1990, EPA filed a civil administrative Complaint
against Sherex Polymers, Inc. (Sherex). The Complaint charged
Sherex with failing to submit a premanufacture notice (PMN) to
EPA at least 90 days prior to manufacturing, on 84 separate
occasions, a new chemical substance, as required by TSCA
§5(a)(1)(A) and 40 CFR Part 720. EPA proposed, in the '
Complaint, a Gravity-Based Penalty (GBP) of $840,000. On
January 30, 1990, the Chief Judicial Officer signed the Consent
Order assessing a civil penalty of $252,000.
The GBP was adjusted downward by 50 percent to reflect
Sherex's prompt self-confession of the violations to EPA. This
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resulted in an adjusted proposed penalty of $420,000. For
purposes of settlement, consistent with other similar TSCA
§5 settlements, EPA further reduced the adjusted proposed
penalty by 15 percent for taking all steps reasonably
expected by EPA to mitigate the violations. EPA reduced the
civil penalty in this case by an additional 5 percent
($42,000), to $252,000, in consideration of Respondent
implementing a pollution prevention project at its Lakeland,
Florida facility. Respondent agreed to complete all design
and construction work within 12 months of receipt of the
executed Consent Agreement, and that it would replace the
existing filtration and recycling system by the end of this
period. The pollution prevention project generally consists of
replacing an existing filter system on a dimer fatty acid
production unit at the Sherex Polymers Lakeland, Florida
facility. The project shall result in waste reduction of at least
500,000 pounds of filter cake annually and increase the
recovery of reusable fatty acid material by over 250,000
pounds annually (based on current production volumes and
laboratory studies of the equipment). Respondent stipulated
that the total cost of the pollution prevention project would
exceed $525,000. Respondent submitted to EPA a written
interim status report within 6 months of its receipt of the
executed Consent Order. The latest cost estimate is that the
project would cost approximately $700,000. Respondent
shall submit a final status report within one month of the
commencement of active operations of the new filtration
system, that is, no more than 13 months after receipt of the
executed Consent Order.
In the Matter of SIKA Corporation
In September 1991, the Agency issued an administrative
complaint against SIKA for violations of TSCA's Section 5
premanufacture notification and import requirements. The
Agency proposed to assess a civil penalty of $13,118,500,
but reduced this amount by 50 percent, to $6.6 million, to
reflect SIKA's timely and voluntary disclosure of the
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violations to the Agency in accordance with the TSCA Section
5 Enforcement Response Policy. This case was issued as part
of the Agency's border cluster filing initiative in which it took
action against 23 facilities for violating law concerning the
illegal import or export of hazardous waste and certain chemical
substances and pesticides. (OE-TLD)
In the Matter of Standard Scrap Metal. Inc.
A recent decision involving Region 5's case against Standard
Scrap Metal, Inc. strengthens EPA's enforcement capability
concerning PCS spills. Prior to February 17, 1978, PCB spills
were considered "in service," and not regulated unless they
were removed from the site. Based on this interpretation.
Region 5 lost its case against Standard Scrap Metal, who
claimed that PCBs found in soil on its property were spilled prior
to 1978. Region 5 appealed the case. On August 2, 1990, the
Chief Judicial Officer ruled that the prior interpretation of the
regulations was applicable solely to landfills or disposal sites,
and that a facility does not become a disposal site or landfill
merely because PCBs have been spilled on it. Thus, the
disposal site exemption for PCB spills which occurred prior to
1978 was not available to Standard Scrap Metal. Under this
ruling, respondents can no longer rely on the occurrence date of
PCB spills to avoid PCB cleanup responsibility.
In the Matter of Leonard Strandley. Purdy.
Washington
Administrative Law Judge Greene issued an Order on October
31, 1989, which assessed a penalty of $103,500 against the
respondent, Leonard Strandley. The Order resulted from a
Complaint dated November 15, 1984-and amended January
19, 1988-which had been before the ALJ for several years.
This case alleged PCB disposal, storage, marking, and
recordkeeping violations associated with Mr. Strandley's (now
defunct) scrapping and oil recycling operations at the Purdy,
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Washington site. The Order acknowledged EPA's desire to
structure the penalty assessment to support the cleanup of
the Purdy, Washington site, which is currently being cleaned
up under CERCLA, and permanently remitted all but $5,000
of the assessed penalty on the condition that the Respondent
document that an amount equalling at least the remitted
amount had been expended towards cleanup of the site.
U.S. v. Suqarhouse Realty. Inc. and William H.
Thaver (E.D. PA)
In what is believed to be the first use of a receivership to
accomplish a PCB cleanup under the Toxic Substances
Control Act, a District Court granted a motion by the United
States and ordered the appointment of a receiver to manage
the cleanup of PCB contamination of the Jack Frost
Sugarhouse in Philadelphia, PA. The Court also entered
judgment against the defendants for $500,000 to be used by
the receiver to accomplish the cleanup. The United States
requested this relief after defendants' repeated failure to
comply with terms of consent decrees requiring cleanup of
the site. (Region 3)
U.S. v. Texas Eastern Transmission Corporation
In October 1989, the District Court for the Eastern District of
Texas entered a Consent Decree in settlement of a civil
action by the United States charging Texas Eastern with the
illegal disposal of PCBs and other hazardous wastes at 89
natural gas pipeline compressor sites in 14 states. The
violations involve TSCA, CERCLA, and RCRA. In the
settlement, Texas Eastern agreed to pay a civil penalty of
$15 million. This is the largest fine ever collected by the
United States for any environmental violation. In addition,
Texas Eastern agreed to decontaminate the spilled PCBs and
chemicals at a cost estimated to exceed $500 million. Texas
Eastern will also pay EPA more than $18 million for oversight
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costs including the services of a contractor who will work for
EPA to supervise site operations and sampling data. The
cleanup program is expected to take more than 7 years.
Following entry of the Consent Decree, the Commonwealth of
Pennsylvania appealed the settlement to the Fifth Circuit Court
of Appeals, charging that state interests in ensuring cleanup
were not adequately considered, and that they were entitled to
intervene in the suit, as a matter of right. This contention was
rejected by the Court on February 13, 1991.
U.S. v. Transwestem Pipeline Co.
This company operates a number of compressor stations on an
interstate pipeline. Region 6 has successfully negotiated with
the company for the first regional consent decree under TSCA
to address polychlorinated biphenyl (PCB) contamination of a
natural gas pipeline and associated compressor stations. The
consent decree was filed June 13,1990, in the U.S. District
Court in New Mexico. The consent decree provides for
assessment of the extent of the PCB contamination and cleanup
standards for soil and equipment contamination. The cleanup
costs are estimated at $60 million. The consent decree requires
that the company provide an oversight contractor for use by
EPA to determine compliance with the consent decree.
Additionally, a penalty of $375,000 was collected.
The consent decree was negotiated so that the interests of the
State of New Mexico were protected. The New Mexico
Environmental Improvement Division, the U.S. Bureau of Land
Management, and the New Mexico State Land Office were
involved in the negotiations as much as possible, and they were
kept informed of all progress toward the completion of the
negotiations. The Navajo and Laguna Indians were informed of
the results of the negotiations. The consent decree reserves the
rights of all other environmental statutes so that if violations of
other laws are found during the cleanup, that program may take
any action necessary. This has been important for the RCRA
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program, in that RCRA constituents have been found in the
ground water at one of the sites. The TSCA program has
been keeping the RCRA program informed of all information
concerning the contamination.
In the Matter of Union Camp Corporation
On December 5, 1989, EPA filed a civil administrative
Complaint against Union Camp Corporation alleging violations
of the TSCA §5 premanufacture notification (PMN)
regulations and proposing a penalty of $285,000. The case
was settled on May 29, 1990, by Consent Agreement and
Consent Order the terms of which provided for payment of a
$106,000 penalty, submission of revised company policy and
procedures for PMN compliance, and development and
implementation of a 5-year program of annual day-long TSCA
New Chemical Compliance Meetings for employees having
responsibility for compliance with the PMN requirements of
TSCA.
In the Matter of Union Electric Company
This case is an example of how Region 7 used administrative
enforcement under TSCA to obtain environmentally beneficial
expenditures to dispose of PCBs. In 1983, EPA Region 7
issued an approval to the Union Electric Company (UE), St.
Louis, Missouri, to dispose of its own PCB oils in a high
efficiency boiler. In 1988 and 1989, Region 7 inspected the
boiler facility and discovered violations of the UE approval.
Two administrative complaints were issued. The upfront civil
penalty obtained was $79,500. In the settlement, UE agrees
to disposal of its 173 remaining askerol transformers
containing 22,000 gallons of askerol oil by March 1992. UE
provided financial assurance for the closure of its Labadie
PCB burn facility in accordance with a closure plan
submitted.
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In addition, the approval granted UE in 1983, which contained
no expiration date was modified to include, among other things,
an expiration date of March 1995. By the time the approval
expires, UE will have incinerated 750,000 gallons of PCS oil in
addition to the amounts already destroyed. This would include
oil from 25,000 PCB and PCB-contaminated transformers at an
estimated cost of $4.5 million. The deferred portion of the
penalty was $150,000.
In the Matter of United Technologies Corp.
United Technologies Corp. paid $730,000 in August 1991 to
settle an EPA action for widespread PCB violations. EPA
brought this action under the Toxic Substances Control Act in
December 1989 to address violations at five UTC manufacturing
and research facilities. The severity of the violations and UTC's
history of prior PCB violations in New England prompted the
assessment of the largest TSCA penalty ever by Region 1.
UTC facilities cited include the Pratt and Whitney Aircraft
Division, the Wilgoos Test Laboratory, and the United
Technologies Research Center in East Hartford, CT, and the
Hamilton Standard Division in Windsor Locks, CT. The
agreement also settled PCB violations at The Essex Group Inc.,
in Newmarket, NH, a facility no longer owned by UTC.
The settlement incorporates a unique commitment by UTC to
submit to a PCB testing program and compliance audit by an
independent consulting firm. The audit component requires an
intensive PCB testing and removal program for a variety of
manufacturing and research equipment (hydraulic systems, heat
transfer systems, air compressors) at four separate facilities.
The audit is expected to be completed in 1992. The audit firm
will monitor compliance with all PCB regulatory requirements,
including proper marking, storage, and recordkeeping. The audit
and the removal of PCBs from equipment are expected to
reduce the risks of spills, improper disposal, PCB fires, and other
human and environmental exposure at the facilities. The audit
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firm will also analyze UTC's management systems as they
relate to PCB compliance. UTC will pay stipulated penalties
to EPA for any violations disclosed by the audit.
The settlement includes an additional supplemental
environmental project in which UTC will remove and properly
dispose of PCBs from PCB electrical equipment at three
facilities at a cost to the company of $150,000. (Region 1)
In the Matter of Upjohn
A complaint was issued against the Upjohn Company of
Kalamazoo, Michigan on July 10, 1989, alleging one count of
submitting a chemical to the original TSCA inventory, even
though the company never manufactured the chemical, and
four counts of manufacturing new chemical substances
without going through the PMN process. The proposed
penalty was $771,000. Upjohn voluntarily disclosed the
alleged violations in a meeting held at Upjohn's request. EPA
and Upjohn agreed to settle the case with Upjohn paying a
$400,000 penalty.
In the Matter of Velsicol
EPA initiated an administrative enforcement action against
Velsicol on July 17, 1990. EPA alleged that Velsicol failed to
maintain all of the records required under 40 CFR Part
720.78 to, support the PMN that was submitted for one
chemical, manufactured another chemical on two separate
occasions prior to the end of the PMN review period, and
used and distributed the last chemical on one occasion prior
to the end of the PMN review period. The complaint
proposed $51,000 and collected the full amount. Although
this company is headquartered in Region 5, Velsicol's
corporate officials contacted EPA's Headquarters directly in
order to process their concerns about the manufacture of the
chemicals. EPA's Headquarters conferred with the Regional
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staff and jointly processed the case which resulted in a
collection of the full penalty.
U.S. v. Virginia Department of Emergency Services
On September 4, 1991, Region 3 issued a Toxic Substances
Control Act complaint to the Virginia Department of Emergency
Services, the Virginia Department of Emergency Fuel Storage
Facility near Williamsburg, VA. The complaint alleges violations
of the storage, recordkeeping, disposal, and fire registration
provisions of the PCB Rule and proposes a penalty of
$162,500.
in the matter of 3-V Chemical Corporation
This administrative enforcement action was brought pursuant to
the Toxic Substances Control Act (TSCA), 15 U.S.C. 2601 el
sea. Beginning in August of 1987, 3-V Chemical voluntarily
self-disclosed the violations which were the subject of the
complaint. The Respondent had discovered that they had: on
multiple occasions, imported a chemical substance in violation
of TSCA §§5 and 13; failed to submit a letter of intent to test a
substance as required by two separate §4 regulations; and
failed to supply a notice of export under TSCA § 12(b) for an
export of a substance that was the subject of a TSCA §4 rule.
TSCA §5 and regulations promulgated thereunder require a
person intending to manufacture (includes import) a new
chemical substance for commercial purposes to submit to EPA a
premanufacture notice (PMN) at least 90 days prior to the first
such manufacture. EPA alleged in its complaint that 3-V had
failed to submit a PMN in compliance with TSCA §5. The
failure to comply with these requirements is a violation of TSCA
§15(1 MB). Regulations implementing TSCA §13 requires that
importers certify whether the imported substances are subject
to, and are in compliance with, TSCA or that the imported
substance is not subject to TSCA. EPA alleged in its complaint
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that 3-V had failed to properly certify the TSCA status of its
importations. The failure to comply with the import
certification requirements is a violation of TSCA §15(3)(B).
After self-disclosing these violations to EPA, the Respondent
took all steps reasonably expected to mitigate and correct
the violations. On July 21, 1989, EPA issued an
administrative complaint which calculated a gravity-based
penalty of $150,000.
On August 7th the Chief Judicial Officer approved a Consent
Agreement in the Matter of 3-V Chemical Company. The
Consent Agreement requires the Respondent to pay a
$30,000 penalty and implement an environmentally beneficial
program. Although the enforcement action against 3-V was
for violations of TSCA §§4, 5, and 13, 3-V has agreed to
purchase and install a solvent recycling system that is
intended to reduce by more than 50 percent its emissions of
an unregulated ozone depleting substance (1,1,1-
trichloroethane) and a probable human carcinogen
(dichloromethane). Emissions of these substances are not
prohibited or restricted by current Federal law. Further, 3-V
has agreed to implement a leak and detection program for
fugitive emissions of these two solvents, and will report
annually on their pollution prevention efforts.
In the Matter of Wego Chemical Co. (New Jersey)
EPA Administrative Law Judge Frank Venderheyden issued a
ruling in June 1991 holding Wego liable for violations of
TSCA §8(a) reporting rules. The ruling followed a 2-day trial
in June 1990 during which Wego argued that during
negotiations to settle a previous enforcement action the
Agency lawyer had promised EPA would not sue the
company again. EPA denied such representations had been
made, sought to prevent Wego from calling the EPA lawyer
as a witness, and argued that testimony on the subject by
Wego witnesses should be stricken from the record. Judge
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Vahderheyden granted these motions and held Respondent liable
for the violations. The Judge reserved his ruling on the question
of penalties. (Region 2)
In the Matter of Worthen Industries. Inc.
On December 10, 1986, an EPA/NEIC inspector lawfully
inspected Respondent's Nashua, New Hampshire facility to
review Respondent's compliance with TSCA §5 and §8. On
March 16, 1989, EPA filed a civil administrative complaint
against Worthen Industries, Inc. seeking a civil penalty in the
amount of $3,429,500 for failing to properly submit PMNs and
NOCs for the chemical substances. Based upon records and
information submitted by Worthen subsequent to the issuance
of the Complaint, EPA concluded that certain chemical
substances were manufactured, processed, and distributed in
commerce as indirect food additives for the time period alleged
in the Complaint. Thus, these chemical substances were not
subject to the PMN requirements of TSCA §5. The Agency
amended the complaint and reduced the total proposed penalty
to $175,000. During settlement negotiations, EPA agreed to
reduce the proposed civil penalty by 15 percent to $148,750.
The 15 percent reduction reflected the cooperation and good
faith demonstrated by Worthen in addressing the alleged
violations and in negotiating this Consent Agreement, and
Worthen's good faith willingness to conduct an annual
educational program on the TSCA §5 and §8 requirements. On
May 14, 1990, the Chief Judicial Officer signed the Consent
Order assessing the $148,750 civil penalty and providing for
the TSCA educational program.
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Federal Facilities - TSCA
In the Matter of U.S. Department of Energy.
Bonneville Power Administration
A Memorandum of Agreement was signed on March 22,
1990, between EPA Region 10 and the U.S. Department of
Energy, Bonneville Power Administration, Portland, Oregon,
to address extensive PCB contamination at four major
substations along the Pacific Northwest/Pacific Southwest
Electric Intertie in Oregon. All PCB equipment at the
substations will be disposed of and PCB contamination at the
substations will be characterized and cleaned up. The
Agreement will result in the disposal of approximately
one-fourth of all PCB Capacitors in the BPA system.
In the Matter of U.S. Navy. Naval Underwater
Warfare Engineering Station. Indian Island.
Washington
A Memorandum of Agreement (MOA) was signed on
December 1, 1989, between EPA Region 10 and the U.S.
Department of the Navy, Naval Sea Systems Command, to
bring the Navy into compliance at the Naval Undersea
Warfare Engineering Station, Indian Island, Washington. The
MOA arose from an enforcement action against the Navy
concerning the illegal use of PCB-contaminated mine cable.
(This cable is used to tether undersea mines; however, such
use is not currently authorized under the PCB Regulations
and provides direct introduction of PCBs into the
environment.) The Agreement provided for the elimination of
all PCB-contaminated mine cable at the Indian Island facility
and documentation of the disposal of the mine cable. In
addition, the Department of the Navy agreed to enter into
discussions with EPA Headquarters to develop a program to
identify all PCB-contaminated mine cable presently in use by
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the Navy throughout the world and to bring the use of such
cable into compliance with the PCB Regulations.
sr of U.
Guard Support Center. Kodiak. Alaska
A Memorandum of Agreement (MOA) was signed on November
27, 1989, between EPA Region 10 and the U.S. Department of
Transportation, United States Coast Guard. The MOA resolved
two enforcement actions which alleged that the Coast Guard
illegally distributed PCBs in commerce and improperly disposed
of PCBs by allowing PCBs to leak from in-service equipment.
The Agreement provides for total remediation of extensive PCB
contamination throughout the U.S. Coast Guard Support Center
Kodiak in Kodiak, Alaska. The contamination occurred primarily
as a result of equipment leakage in the electrical distribution
system at the Support Center. The distribution system has
been sold to the local electrical utility, Kodiak Electric
Association. The Agreement provides for the proper disposal of
all electrical equipment regulated under TSCA.
Emergency Planning and Community Right-to-Know
Act (EPCRA) Enforcement
Under EPCRA §313 (Toxic Release Inventory), subject
manufacturing facilities must provide EPA with annual data on
total emissions of toxic chemicals bv environmental media. FY
1990 Enforcement efforts were taken against nonreporters, as
well as late and incorrect reporters. Other provisions of EPCRA
require the reporting of accidental releases of toxic chemicals to
State and local emergency response offices.
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In the Matter of All Regions Chemical Labs. Inc.
The Administrative Law Judge's decision in this case
supports EPA's prompt enforcement for violations of CERCLA
§103 and EPCRA §304 reporting requirements. The case is
significant because it is the first time a penalty has been
assessed for failure to report a release of a chemical under
both CERCLA and EPCRA.
On December 1, 1989, Administrative Law Judge Henry B.
Frazier assessed the first CERCLA §103 and EPCRA §304
penalty for failure to report the accidental release of
hazardous substances into the environment. An Interlocutory
Order granting Complainant's Motion for Partial Accelerated
Decision was issued in this case on May 3, 1989. The ALJ
stated that the notification requirements of CERCLA § 103
and EPCRA §304, while similar in their purpose to protect
the public and the environment in the event of hazardous
chemical releases, are separate and independent
requirements. Therefore, each notification requirement must
be met by the responsible party.
The ALJ noted that the defendant had failed to notify the
National Response Center immediately upon the release or
the Local Emergency Planning Committee and the State
Emergency Response Commission as soon as practicable
after the release and provide written follow-up emergency
notice. The fact that the local fire department was on the
scene soon after the release in no way diminished the
requirement that the person in charge at the site notify the
NRC. The ALJ assessed the defendant $20,000 under
CERCLA §103 and $69,840 under EPCRA §304. On July 2,
1990, Chief Judicial Officer Ronald McCallum affirmed the
decision of the presiding officer assessing civil penalties of
$89,840 against All Regions Chemical Labs.
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In the Matter of The Boeing Company. Seattle.
Washington
The Boeing Company Plant 2 facility in Seattle, Washington,
was selected for an EPCRA inspection based upon discrepancies
in Toxic Release Inventory reporting. The company had
reported to the local air pollution control agency for releases of
trichloroethylene but did not apparently report that chemical to
EPA. The inspection revealed that the company had filed a
corrected Form R reporting for trichloroethylene, but that the
company had not reported for five other chemicals. The records
which the company utilized in preparing the reporting were not
sufficient or comprehensive enough to firmly establish that
other chemicals should have been reported. A Civil Complaint
proposing a penalty of $85,000 was issued to the company on
August 6, 1990. The company did not generally contest the
facts of the complaint and proposed as part of the settlement
three projects as Environmentally Beneficial Expenditures (EBEs):
solvent recovery, deionization and decontamination of chromium
wastewater, and reduction of paint booth sludge and waste
disposal. The final assessed penalty was $72,250 with
$29,750 of that amount to be suspended conditional on
successful completion of the EBEs.
In the Matter of BP Oil Company
In April I990, Region 2 completed a consent order with the BP
Oil Company for release notification violations at its Paulsboro,
New Jersey facility. The agreement provided for payment of
$102,000 in penalties, a record at that time.
In the Matter of Champion International Corporation
Through a coordinated effort of the Maine Department of
Environmental Protection, the Maine State Emergency Response
Commission, and Region 1, an EPCRA administrative complaint
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was issued against Champion International Corporation of
Bucksport, Maine for failing to make timely notifications
following a chlorine release. Information provided by the
Maine agencies was used to establish the violations alleged
in the complaint. In settlement of the action, Champion
agreed to pay a $12,000 penalty and provide $5,000 worth
of computer hardware and software enhancements to the
Hancock County Emergency Management Agency's
computerized response and contingency planning capabilities.
In the Matter of Citrus Hill Mfg. Co.. Frost Proof.
EL
Region 4 issued an administrative complaint in response to a
spill which was not properly reported and exceeded the
reportable quantity (RQ) for ammonia. The case was part of
a headquarters initiative to emphasize the importance of
timely and accurate reporting under §103 of CERCLA and
§§304(a), (b), and (c) of the Emergency Planning and
Community Right-to-Know Act (EPCRA). The RQ for
ammonia is 100 Ibs. and the quantity reportedly spilled by
Citrus Hill was 300 Ibs. There was no known negative
impact to the offsite population or environment.
i
The parties have discussed a settlement which considers
numerous mitigating factors, e.g.. Citrus Hill's demonstration
of responsible corporate involvement with its surrounding
community through educational seminars and outreach
programs. A penalty of $15,000 was paid along with
several environmentally beneficial expenditures, (e.g.,
donation of a chlorine repair kit to the local emergency
response team).
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in the Matter of Columbia Corrugated Box. Portland.
Oregon
Columbia Corrugated Box is the corporate parent of Packaging
Resources, a manufacturer of foam insulation and packaging
material. An analysis of information provided by the company
revealed that the facility failed to file required Toxic Release
Inventory reports for Dichloromethane for reporting years 1987
and 1988 and for an isocyanate resin for 1987. A Civil
Complaint proposing a penalty of $51,000 was issued to
Columbia Corrugated on May 5, 1990. Following receipt of the
complaint, Columbia Corrugated produced additional
documentation which was not available during the inspection.
This new information indicated that, contrary to the information
produced at the inspection, the company did not meet the
reporting thresholds for two of the three counts listed in the
complaint. In mitigation of the penalty for the remaining
violation, the company proposed Environmentally Beneficial
Expenditures (EBEs) in the form of equipment and process
chemical changes to avoid use of CFC materials. Further, the
company made another equipment change which greatly
reduced the amount of solvent used in the manufacture of the
foam packaging. A settlement agreement was signed on
August 22, 1990, providing an assessed penalty of $14,450
but with a further reduction to $10,200 on completion of the
EBEs.
In the Matter of Eutectics Metals Co.
A fire at a gold recovery facility located in Roanoke, Texas
necessitated the evacuation of nearby residents, and triggered
an investigation. It was found that the facility had not given
proper inventory reports under EPCRA. The facility settled the
case for payments of a $30,000 penalty to EPA, and payments
of $4,000 each to the Denton County and Tarrant County Local
Emergency Planning Committees and a payment of $2,000 to a
local fire department for use in local EPCRA programs.
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In the Matter of Hercules. Inc. Brunswick. GA
The complaint assesses a $15,000 penalty for failure of the
facility to properly report a spill event in accordance with the
requirements of §103 of CERCLA. This case is part of a
headquarters initiative to bolster the importance of timely and
accurate reporting of spills. The facility failed to timely and
accurately report a spill involving 1220 Ibs. of sodium
hydroxide, a "hazardous substance" as defined under Section
101 (14) of CERCLA.
In the Matter of Kemira. Inc. Savannah. GA..
(EPCRA/CWA/CAA)
A complaint was filed seeking to enforce against this
facility's long history of failure to submit material safety data
sheets (MSDSs) on propane and No. 2 fuel or to include
propane and No. 2 fuel on the list of chemicals stored at the
facility. In accordance with EPCRA regulations, the facility
should have begun reporting in October 1987 and continue
submissions each March 1 for every year thereafter. The
facility's first MSDS report was submitted in March 1990.
An investigation also revealed other violations under EPCRA
§304 and were combined with previous CERCLA §103
violations, resulting in one of the highest penalties
($355,000) assessed by Region 4 to any single facility. The
complaint will cite Clean Water and Air violations and
represents another example of the Region's multi-media
enforcement initiative.
in tho Matter of Seekonk Lace
Seekonk Lace was the Region 1 's first EPCRA settlement
providing for environmentally beneficial expenditures by a
company. As part of the $15,000 settlement of this
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$25,000 §313 case, the respondent agreed to spend
approximately $95,000 to convert an acetone-based solvent
system used in lace production at its Rhode Island facility to a
mechanical system which used no solvents. The use of the
toxic chemical acetone was completely eliminated.
In the Matter of Wyman-Gordon Company. Inc.
On September 28, 1990, Region 1 initiated one of the largest
enforcement actions brought to date under EPCRA. This action,
which combined for the first time in the Region both the §§313
and 302-312 components of the program, proposed total
penalties of $478,000 against the Wyman-Gordon Company of
North Grafton, Massachusetts. The Region coordinated
inspections between the two EPCRA programs, resulting in the
development of a joint complaint which comprehensively
addressed all violations of EPCRA at this facility, including
failure to file Toxic Release Inventory forms and failure to
submit chemical inventory information to local and state
authorities.
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APPENDIX C
TSCA Judicial and Administrative Actions
DEFENSIVE JUDICIAL ACTIONS UNDER TSCA
EPA defended its rule banning the future production of asbestos
products before the Court of Appeals for the 5th Circuit. On
October 18, 1991, the Fifth Circuit vacated and remanded most
of the rule to the Agency.
The Court of Appeals has also issued two opinions interpreting
important provisions of TSCA § §4 and 21. In other cases in the
Court of Appeals, the D.C. Circuit decided an appeal from a
polychlorinated biphenyl (PCB) enforcement case; and cases are
being held in abeyance pending settlement discussions on EPA's
PCB manifesting rule, an information gathering rule, and a rule
banning use of hexavalent chromium-based water treatment
chemicals in air conditioning cooling towers. Other §4 testing
rule cases in the Court of Appeals reported in previous Annual
Reports are no longer active.
Federal district court litigation has mainly involved suits under
the TSCA §21 citizens' petition provision. Two district court
suits issued first time interpretations of §21 provisions. In other
§21 suits, a suit to compel EPA to initiate rulemaking on
asbestos in public and commercial buildings is ongoing and a
suit to compel rulemaking to test and regulate chemicals in
carpet and associated products was dismissed.
In other district court litigation, a district court in Kentucky
upheld EPA's approval of a PCB disposal facility, and a suit in
the district court in Denver between EPA and Colorado
regarding asbestos in schools was settled.
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DISCUSSION OF DEFENSIVE LITIGATION CASES
U.S. COURT OF APPEALS
Corrosion Proof Fittings et al. v. EPA. No. 89-4596
(5th Cir. Oct. 18,1991)
Petitioners challenged EPA's rule that banned the future
manufacture, importation, processing, and distribution in
commerce of most asbestos-containing products, and that
required labeling for certain products.
On October 18, 1991, the court vacated and remanded most
of the rule to EPA. Subsequently, the court clarified its
decision and held that the rule continued to govern asbestos-
containing products that were not being manufactured,
imported, or processed on July 12, 1989, when the rule was
issued.
The court agreed with EPA's determination that asbestos is a
toxic material, and that certain exposure to asbestos can
cause cancer. The court, however, interpreted TSCA to
require EPA to conduct a more extensive evaluation of
regulatory alternatives to a ban, and of the risks of likely
asbestos substitutes, than EPA had previously conducted.
The court also found that EPA had failed to comply with a
procedural requirement that gave the public an opportunity to
comment on one of the methods used to calculate some of
the benefits of the rule.
Chemical Manufacturers Association (CMA) v.
EPA. 899 F.2d 344 (5th Cir. 1990)
On September 26, 1988, CMA and five manufacturers and
processors filed a petition for review of a §4 rule
requiring testing of the chemical, cumene. EPA issued this
rule under TSCA §4(a)(1)(B), which authorizes the Agency to
require testing if it finds that a chemical is released into the
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environment in substantial quantities or that there is, or may be,
substantial exposure to the chemical.
On April 12, 1990, the court remanded the rule to EPA for
further consideration. The court did sustain, as a proper basis
for supporting regulation, EPA's extrapolations to determine the
amount of cumene released to the environment (3 million
pounds per year) and the numbers of people exposed (13.5
million). However, the rule was remanded because the Agency
had not articulated at the time of rule promulgation criteria for
determining the meaning of the statutory term, "substantial," as
it applies to these quantities of chemical production and
numbers of humans exposed. Criteria articulated in Agency
legal briefs were inapplicable in view of the failure to articulate
criteria at promulgation.
The court did allow the rule to remain in effect, however,
because much testing had already been completed and because
the court could not say there were no conceivably appropriate
criteria under which EPA could properly require cumene testing.
The court also provided guidance for the Agency to develop the
criteria for determining the meaning of "substantial." The court
recognized that substantial is an inherently imprecise word and
that room must be left for judgment on different sets of facts.
The court also indicated that, contrary to plaintiff's suggestions,
it is not necessary to adopt a construction of substantial that
requires affirmative evidence and findings of toxicity of a
chemical or persistence of that chemical in the environment.
In response to the remand, EPA proposed in the Federal Register
of July 15, 1991 (56 FR 32294) criteria to be used for testing
of cumene and for subsequent test rules promulgated under
TSCA §4(a)(1)(B).
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Environmental Defense Fund (EDF) and National
Wildlife Federation (NWF) v. EPA. No. 88-5325
(D.C. Cir. 1990)
On July 27, 1990, the Court of Appeals for the D.C. Circuit
decided that, when EPA denies a citizen's petition for
rulemaking under TSCA §21, the petitioner may not sue the
Agency simultaneously under §21 and the citizens' petition
provision of the Administrative Procedure Act (APA).
Section 21 authorizes any person to petition EPA for certain
rulemaking under TSCA. EPA must respond within 90 days.
If EPA denies the petition, the petitioner may sue the Agency
in Federal district court within 60 days and is entitled to a (Jg
novo proceeding. A de novo proceeding may mean that all
evidence must be presented before the court as though
nothing had happened before the Agency. This could involve
lengthy discovery and a trial.
The APA has a general authorization for citizens to petition
Federal agencies for rules. The APA only requires a response
within a reasonable time, which could be considerably longer
than 90 days. Judicial review, however, is generally
conducted on the administrative record created by the
Agency (no trial).
The district court case from which the appeal was taken,
EDF & NWF v. Reillv. which has been the subject of previous
Reports to Congress, resulted from the Agency's denial of
the plaintiffs' §21 petition on dioxin. EDF and NWF, wishing
to avoid the de novo proceeding, argued early in the case
that EPA's denial violated the APA. The court, at EPA's
urging, held that plaintiffs were only entitled to de novo
review. The parties, then, began the de novo proceeding,
which was eventually settled by a Consent Decree in July
1988, just before trial was to begin. Under the Consent
Decree each of the Agency's major offices is considering
whether to regulate particular dioxin risks. The denial of APA
review was set aside for appeal.
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The Court of Appeals affirmed the district court's judgment
holding that, since plaintiffs had already litigated the case under
§21, the APA could not apply because its procedures and
standards for review were inconsistent with, and contradictory
to, §21 procedures and standards. The court did not, however,
decide whether persons could petition under §21 and claim
judicial review exclusively under the APA.
Rollins Environmental Services Inc. (NJ1 v. U.S.
Environmental Protection Agency. No. 90-1508 (D.C.
Cir. 1991)
This appeal of an enforcement case involved the applicability of
the EPA polychlorinated biphenyl (PCB) "anti-dilution rule" to the
disposal of container rinsate.
Rollins had used a solvent to clean a container that originally
had concentrations of PCBs greater than 500 parts per million
(ppm). The actual concentration of the rinsate after several
washings was less than 50 ppm, however, when Rollins
disposed of it in a facility not permitted for PCB disposal under
TSCA. Disposal of materials under 50 ppm PCB concentration
is not subject to TSCA regulations.
EPA determined in an administrative enforcement proceeding
that the anti-dilution rule applied and that the rinsate was
required to be disposed of according to the original
concentration of PCBs in the container. Materials with PCB
concentrations greater than 500 ppm must be incinerated in a
TSCA-permitted incinerator. A penalty of $25,000 was
assessed.
On appeal, the court sustained EPA's interpretation of its
regulation but set aside the penalty assessment, finding that the
application of the anti-dilution rule was not clear with respect to
disposal of container rinsate.
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Chrome Coalition v. EPA. No. 90-1138 (D.C. Cir.)
On January 3, 1990, EPA promulgated a final rule under
TSCA §6 prohibiting the use of hexavalent chromium-based
water treatment chemicals in air-conditioning cooling towers.
This rule automatically triggered TSCA §12(b), under which
persons who export or intend to export a chemical substance
regulated under §6 are required to notify EPA of such export.
The preamble to the rule states that notification is required
under §12(b) whenever a shipment contains hexavalent
chromium, not just hexavalent chromium-based water
treatment chemicals. The petitioner challenges this
interpretation. The Court has stayed the briefing of this case
pending settlement discussions.
Chemical Manufacturers Association (CMA1 et al.
v. EPA (Nos. 90-1127, 90-1469, 90-1121)
CMA, the National Solid Wastes Management Association
(NSWMA), and General Motors filed petitions for review
challenging the PCB Notification and Manifesting Rule (54 FR
52736, December 21, 1989). The rule establishes
requirements for notifying EPA of PCB activities, manifesting
PCB waste, and seeking approval for the commercial storage
of PCBs. Petitioners challenged a number of the rule's
provisions as being arbitrary and capricious. EPA has settled
the suit brought by General Motors and one of CMA's suits.
EPA, CMA and NSWMA are currently discussing settlement
of the remaining lawsuit.
Chemical Manufacturers Association v. EPA. No.
88-1352 (D.C. Cir.)
On February 26, 1988, EPA issued a testing rule for
diethylene glycol ether and its acetate (DGBE/DGBA). The
rule requires three tests to be conducted initially ("first tier"),
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and would require a "second tier" developmental neurotoxicity
study if the results of the first tier tests are positive. CMA
challenged the requirement for the second tier study. Since the
first tier tests were not due until July 1989 and would not
necessarily trigger the second tier test, the parties requested
and received a stay of the litigation until September 1, 1989.
Upon receipt of the first tier studies, EPA decided not to require
the second tier tests. In January 1990, CMA withdrew its
petition for review.
Chemical Manufacturers Association (CMA) v. EPA.
No. 89-1153 (D.C. Cir.)
CMA filed a petition for review of the CAIR, which EPA issued
pursuant to TSCA §8(a). CAIR establishes a general framework
for detailed reporting on chemicals by their manufacturers,
importers, and processors. As initially promulgated, CAIR
requires the submission of information for 19 chemicals. EPA
intends to conduct future rulemakings to require reporting on
other chemicals as the need arises.
On July 19, 1989, EPA issued a request for additional
comments on certain revisions to the CAIR in response to
comment and concerns raised by CMA and other industry
groups. The litigation has been stayed since November 1989
pending the outcome of EPA's rulemaking to revise the CAIR.
DISTRICT COURT LITIGATION
Citizens for a Better Environment, et al. v. Lee M.
Thomas. No.85 C 08000 (N. III. 1991)
In September 1985, two public interest groups challenged EPA's
decision denying their petition filed pursuant to §21 of TSCA in
April 1985. The petition had requested EPA to identify business
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entities in the southeast area of Chicago which were
releasing 11 named chemical substances into the
environment and to initiate rulemaking under TSCA §4(a) to
require testing on the chemical substances individually, as
well as in combination with the other identified substances.
EPA denied the petition, in part, because there are no
available test standards for studying cumulative effects of
chemical substances. To the extent the petition requested
testing on the individual substances, EPA determined that
their toxicological properties were already documented and
regulatory decisions concerning them could be made without
requiring further testing. Finally, the notice stated that EPA
had already identified 44 businesses in southeast Chicago
which emit pollutants into the air, and that EPA was
conducting a variety of environmental investigations in
southeast Chicago.
In May 1991 the court dismissed the lawsuit. The court
decided that it is implicit in §21 that plaintiffs must convince
the court that testing will actually develop the data needed to
evaluate the chemicals of concern before it will order EPA to
initiate test rules. The court derived this interpretation from
the fact that §4(a) of TSCA requires such a showing before
EPA may issue a test rule. Thus, the court was reluctant to
order EPA to initiate a test rule that could never be issued in
final.
EPA argued that testing for cumulative effects of the
chemicals in question was not scientifically feasible.
Plaintiffs tried to rely upon statements by EPA experts to
show that such testing is feasible. The court, however,
found that plaintiffs did not accurately characterize these
statements, which, according to the court, showed the
testing requested by plaintiffs was not scientifically feasible.
In addition, EPA experts indicated that the individual
substances have been evaluated and toxicity data are
available to permit risk assessment. Plaintiffs did not provide
their own evidence to contradict the EPA witnesses.
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Accordingly, the court determined that plaintiffs did not prove
their case under §21.
Service Employees International Union (SEIU1 v.
Reilly. No. 89-0851 (D.D.C.)
In November 1988, SEIU filed a citizens' petition under TSCA
§21 requesting EPA to issue rules controlling asbestos in public
and commercial buildings (other than schools). This petition
flowed from a long history of asbestos litigation between SEIU
and EPA on asbestos in schools and other buildings. This
litigation has been extensively discussed in previous Annual
Reports.
On March 28, 1989, EPA denied the petition because important
information was lacking, but did not permanently rule out a
regulatory response. Consequently, EPA announced a June
1989 public meeting to gather data and hear arguments to
assist in assessing the need for further Agency action on
asbestos in public and commercial buildings.
On March 31, 1989, SEIU sued under TSCA §21 to compel
initiation of a rulemaking. However, the June public meeting
convinced EPA to hold further meetings. As a result, SEIU
asked that its suit be held in abeyance, expressing its belief that
the meetings might result in EPA's voluntarily initiating
rulemaking. The meetings resulted in consensus among the
parties on some issues, but not on major rulemaking matters.
At the conclusion of the meetings SEIU again pressed the
Agency for a decision on rulemaking. EPA indicated to SEIU
that it would decide definitively whether to commence
rulemaking on inspection of asbestos in public and commercial
buildings after evaluating three important sets of information
expected to be available within the first few months of 1991.
This information was (1) public comments on an asbestos rule
proposed by the Occupational Safety and Health Administration,
(2) an EPA evaluation of its program on asbestos in schools
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under the Asbestos Hazard Emergency Response Act, and (3)
a literature review of scientific studies on the risks of
asbestos being conducted by the Health Effects Institute
(HEI). HEI is a private organization for which Congress has
specifically appropriated funds to study certain issues
affecting asbestos in buildings. The Agency indicated it
expected to make its rulemaking decision by July 1991,
assuming the information arrived as planned.
At a status conference in December 1990, the court, upon
agreement between EPA and SEIU, issued an order holding
the case in abeyance until the July 1991 decision. There
have been, however, unforeseen delays in completion of the
HEI report. In June 1991, EPA informed SEIU that the
Agency expects to make the rulemaking decision within 45
days of receiving the report. The report was received by EPA
on September 25, 1991. SEIU has not instituted further
proceedings in this case pending a decision by the U.S.
Occupational Safety and Health Administration on its
asbestos regulations.
Dr. David G. Walker v. EPA. No. H-87-3552
(S.D.Tex., Houston) and Dr. David G. Walker v.
EPA. No. H-91-1798 (S.D.Tex., Houston)
In March 1987, Dr. Walker filed a petition under TSCA §21
asking EPA to exclude from its current regulations on
polychlorinated biphenyls (PCBs) containing three chlorine
atoms or less ("lesser chlorinated PCBs"). EPA denied the
petition on two grounds. First, in previous proceedings
involving PCBs the Agency had already considered, and
rejected, the arguments raised by Dr. Walker. Second, Dr.
Walker had previously submitted a §21 petition and had
failed to file suit within the 60-day statutory time frame.
Thus, EPA did not have to consider a subsequent, identical
petition and Dr. Walker was precluded from filing suit on the
subsequent petition.
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The court granted EPA's motion to dismiss the petition, finding
that EPA had articulated an adequate rationale for its decision
not to treat the subsequent petition as a separate/new petition,
and that allowing Dr. Walker's second petition would
circumvent the statutory limitations under §21. The court did
not reach the merits of Dr. Walker's argument on lesser
chlorinated PCBs.
Dr. Walker, thereupon, filed another §21 petition on February 6,
1991, asking for the same relief but excluded one isomer from
his list of lesser chlorinated PCBs. EPA denied the petition on
May 13, 1991, again, based on the fact that the Agency had
already considered, and rejected, the arguments raised by Dr.
Walker. Dr. Walker filed another suit on July 8, 1991. The
Court ruled in EPA's favor in 1992.
Hirzy and Morison v. Reilly. No. 90-1435 (D. District
of Columbia)
This case was brought after EPA denied a §21 petition to test
and regulate certain chemicals found in carpet and associated
products. The petition was filed by EPA's professional
employees union, Local 2050 of the National Federation of
Federal Employees (NFFE). Although EPA denied the petition,
the Agency instituted a series of public meetings to consider
remedies other than rulemaking for a number of the issues
raised by Local 2050.
Shortly after the Complaint was filed, EPA submitted a motion
to dismiss arguing that only the petitioner, NFFE Local 2050,
could file this complaint and that it was improper for Hirzy and
Morison, two union officers filing on their own behalf, to bring
this action. EPA also argued that the Complaint was not filed
within the deadline required by statute and made other
procedural arguments. Hirzy and Morison were not able to
obtain counsel to represent NFFE in this case and did not file a
reply. Instead, they requested a voluntary dismissal to which
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EPA did not object. The judge, instead, granted EPA's
motion to dismiss on October 31, 1990, without giving any
reasons.
Michael D. Vanderveer and City of Evansville.
Indiana v. EPA and Unison Transformer Services.
Inc., No. EV86-183C (D.C.Ind.) and
Citizens for Healthy Progress. Inc. v. EPA. No.
86-0155 (D.C.Kentucky)
These two consolidated suits were filed against EPA's
approval in January 1987 of a PCB disposal facility in
Henderson, Kentucky. At this facility, operated by Unison
Transformer Services, Inc. (Unison), PCBs are chemically
separated from transformer fluid and are then shipped to
other facilities where permanent disposal takes place.
Plaintiffs requested a permanent injunction against operation
of the facility, arguing that EPA needs to consider criteria
applicable under the Resource Conservation and Recovery
Act (RCRA) in addition to criteria under TSCA when
approving the Unison facility. Plaintiffs also argued that EPA
lacks authority to issue a permit for the Unison process as an
"alternative disposal facility" under TSCA regulations.
Plaintiffs also argued that the Agency's determination that
separation processes like Unison's requires a disposal permit
under TSCA was effectively a rule that was promulgated in
violation of the notice and comment requirements of the
Administrative Procedure Act (APA) and that this
determination, moreover, was arbitrary and capricious.
On December 27, 1989, the court upheld EPA's decision
under TSCA, but withheld decision on the RCRA issues
pending action by the State of Kentucky, which has been
delegated authority to administer the RCRA program. The
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Contributors to TSCA FY90-91 Report to Congress:
US-EPA Office of Pollution Prevention and Toxics
Auer, Charlie
Beal, Diane
Baney, Tony
Bonlna, George
Bryan, Liz
Calvan, Rita
Campanella, Paul
Greenwood, Mark
Hazen, Susan
. Hoffman, Angela
Kover, Frank
Lee, Bob
Ostrow, Barbara
McNally, Bob
Matthal, Paul
Merenda, Joe
Moos, Lin
Tepper, Esther
Tlmm, Gary
Travers, Unda
Wheeler, Andrew
Williams, Dave
Woodburn, Wanda
US-EPA Office of Compliance Management
Burgess, Rose
US-EPA Office of General Counsel
Breece, Charles
Carplen, Alan
Gleaves, Mary Beth
US-EPA Office of Enforcement
Walker, Mike
Project Director Chris Tlrpak
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