United States EPA 745-R-94-003
Environmental Protection August 1994
Agency
Prevention, Pesticides, And Toxic Substances (7408)
vvEPA Toxic Substances
Control Act (TSCA)
Report To Congress
For Fiscal Years 1992-93
Recycled/Recyclable
Printed with Soy/Canola In*
contains at least 50% recycled fiber
r\ X\ Printed with Soy/Canola Ink on paper that
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Toxic Substances
Control Act (TSCA)
Report to Congress
for Fiscal Years 1992-93
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CONTENTS
INTRODUCTION 1
TSCA FY92-93 HIGHLIGHTS
Section Testing of Chemical Substances and
4 Mixtures 1
Section New Chemical Manufacturing and
5 Processing Notices 2
Section Regulation of Unreasonable
6 Chemical Risks 3
Section Industry Reporting 4
8
Section Coordination of TSCA Authority with Other
9 Federal Agency Authority 5
Section Centralized Data System 6
10
Section Chemical Export Notices 6
12(b)
Section Citizens' Petitions 7
21
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Efforts to Inform Public of TSCA Data 8
Chlorofluorocarbon (CFC) Substitutes 8
Enforcement Actions 9
Enforcement Cases 9
Defensive Litigation 11
District Court Litigation 12
APPENDIX A
Section 21 Citizens' Petitions A-1
APPENDIX B
Enforcement Accomplishments B-1
APPENDIX C
Defensive Judicial Actions C-1
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INTRODUCTION
Following is a Report to Congress on Toxic Substances Control
Act (TSCA) implementation in fiscal years (FYs) 1992 and
1993, as required under TSCA sections 9(d) and 30.
TSCA FY92-93 HIGHLIGHTS
Section Testing of chemical substances and
4 mixtures
Under a condition of potential unreasonable risk or high
production volume and exposure, the U.S. Environmental
Protection Agency (EPA) has authority to require chemical
manufacturers and processors to test their substances and
mixtures for health and environmental effects using Agency-
approved testing methodologies.
TSCA section 4 chemical testing program initiatives
- tests required in FY92: approximately 120
- tests required in FY93: approximately 1«60
Estimate of industry costs to perform chemical tests^ ^
- costs incurred in FY92: approximately $1.3 million
- costs incurred in FY93: approximately $8.8 million
Chemical testing results received
- results received in FY92: approximately 140
- results received in FY93: approximately 125
* *
includes all tests conducted voluntarily under the Organization
for Economic Cooperation and Development's High Production
Volume-Screening Information Data Set (HPV-SIDS) program,
which enables countries to cooperatively test and assess the
priority for action on international HPV chemicals
* Includes U.S. chemical industry's 25% share of the overall
testing costs for HPV-SIDS chemicals
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Section New chemical manufacturing and
5 processing notices
Manufacturers or importers must notify EPA 90 days prior to
manufacturing or importing new chemicals.
Premanufacture notices
-notices received in FY92: 1,888
-notices received in FY93: 2,148
-subset subject to section 4 tests in FY92: 0
-subset subject to section 4 tests in FY93: 0
Section 5(g) decisions not to take action on
chemicals subject to notification or data
requirements
-decisions made in FY92: 0
-decisions made in FY93: 0
Chemicals subject to final significant new use rules
(SNURS)
-new chemicals controlled in FY92: 101
-existing chemicals controlled in FY92: 6
-new chemicals controlled in FY93: 96
-existing chemicals controlled in FY93: 1
Section 5(e) consent orders pending development
of information on new chemicals
-consent orders issued in FY92: 46
-consent orders issued in FY93: 76
Section 5(e) consent order test results for new
chemicals received
-results received in FY92: 20
-results received in FY93: 32
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Section Regulation of unreasonable chemical
6 risks
EPA has authority to prohibit or restrict the manufacture,
processing, distribution in commerce, use, and disposal of
chemicals that present or will present unreasonable risk of injury
to health or the environment.
-rules and notices issued in FY92-93:
(10/91) Proposed rule to ban acrylamide and N-
methylolacrylamide grouts
(3/92) Proposed rule to grant exemptions from the
manufacture, processing, and distribution in
commerce prohibition for polychlorinated biphenyls
(PCBs) and a use authorization and to amend the
Interim Procedural Rules
(4/92) Notice of the effect of a court decision on asbestos
manufacture, importation, processing, and distribution
in commerce prohibitions
(4/92) Final rule to revise PCB test methods incorporated
by reference
(1/93) Proposed rule to amend criteria for commercial
storage of PCB waste
(3/93) Final rule to technically amend language on use of
PCB waste oil
(6/93) Final rule to correct language on use of PCB waste oil
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Section industry reporting
8
Section 8(a) directs chemical manufacturers and processors to
maintain records and/or submit to EPA reports of the following
information, as the Agency may reasonably require:
(1) Chemical identity.
(2) Categories of use.
(3) Quantity manufactured or processed.
(4) Byproduct description.
(5) Health and environmental effects.
(6) Number of individuals exposed and duration of
exposure.
(7) Disposal method.
-reports received in FY92: 198
-reports received in FY93: 3
Section 8(c) directs chemical manufacturers, processors, and
distributors to maintain, permit the inspection of, and submit to
EPA records of significant adverse reactions to health or
environment, as determined by the Agency.
-records received in FY92: 0
-records received in FY93: 0
Section 8(d) requires chemical manufacturers, processors, and
distributors to submit to EPA lists of health and safety studies
and copies of studies, as determined by the Agency.
-notices received in FY92: 1,063
-notices received in FY93: 487
Section 8(e) directs chemical manufacturers, processors, and
distributors to notify EPA of substantial risks of injury to health
or environment.
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-notices received in FY92: 484
-notices received in FY93: 423
In 1990, EPA instituted a section 8(e) Compliance Audit
Program (CAP). The Program, the result of an enforcement
activity, provided companies the opportunity to submit health
and safety studies that had not been submitted previously. The
section 8(e) CAP resulted in submission of approximately 12,000
studies. EPA is screening these studies to identify cases for
detailed review. Submitted data are shared with groups
including the public, EPA programs, other agencies, and the
States as screening progresses.
Section Coordination of TSCA authority with
9 other Federal Agency authority
EPA can refer cases of chemical risk to other Federal agencies
with authority to prevent or reduce risk. The Agency has not
taken any formal section 9 actions during this time but is
working cooperatively with other Federal agencies to address a
number of chemical issues.
EPA, along with the Occupational Safety and Health
Administration (OSHA), National Institute for Occupational Safety
and Health, and Mine Safety and Health Administration, has
been a member of the ONE Committee. The Committee
facilitates cooperation, coordination, and exchange of
information on occupational issues and early identification of risk
reduction opportunities.
EPA, along with the Consumer Product Safety Commission
(CPSC), has established a similar forum to address consumer
issues.
Informal interagency coordination efforts
-actions taken in FY92:
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Lead solder was referred to OSHA and CPSC.
-actions taken in FY93:
2-Nitropropane was referred to OSHA. The chemical,
which is in products such as paints, coatings, sealants,
and adhesives, poses cancer and liver toxicity concerns
for workers.
Chlorinated paraffins were referred to OSHA. The
chemicals, which are in metalworking fluids, pose cancer
concerns for workers.
Section Centralized data system
10
EPA makes accessible to all Federal agencies and the public a
data system for information submitted under TSCA on the health
and ecological effects of certain toxic chemicals. The Agency
indexes the nonconfidential, toxicologic, and other scientific data
received under sections 4 and 8, as well as voluntary
submissions from U.S. industry. EPA maintains the Toxic
Substances Control Act Test Submissions (TSCATS) database
to store and retrieve these data. The full-text submissions are
archived on microfiche.
-TSCATS database totals for FY1992:
76,200 studies from 19,949 submissions
on 5,684 unique chemicals
-TSCATS database totals for FY1993:
77,304 studies from 20,737 submissions
on 5,981 unique chemicals
Section Chemical export notices
12(b)
Domestic exporters must notify EPA annually of their intent to
export chemicals regulated under sections 4, 5, 6, or 7.
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1992* 1993*
notices received and processed 14,328 19,095
companies submitting notices 173 191
letters to foreign governments 4,251 5,751
calendar year
Section Citizens' Petitions
21
Authority is granted to anyone to petition EPA to initiate a
proceeding for issuing, amending, or repealing a section 4, 6, or
8 rule or section 5 or 6 order.
(Disposition of each of the following Citizens' Petitions appears
in Appendix A.)
(10/92) Environmental Defense Fund, Federation of Fly
Fishers, North American Loon Fund, and Trumpeter
Swan Society petitioned EPA to promulgate a
regulation under TSCA section 6 to require that the
sale of lead fishing sinkers be accompanied by a
label or notice warning that such products are toxic to
wildlife.
(12/92) Hazardous Waste Treatment Council; Fulcircle Ballast
Recyclers; and Salesco Systems U.S.A., Inc.
petitioned EPA to-
(1) Amend 40 CFR 761.60 (b)(2)(ii) to virtually end
the exemption for PCB small capacitors contained
in fluorescent light ballasts from the general
disposal requirements for PCBs and
(2) Include the requested amendment in the PCB
Disposal Amendments (RIN 2070-AC01) or
propose a separate amendment no later than
three months after the PCB Disposal Amendment
proposal.
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(5/93) John Emmons petitioned EPA to promulgate a regulation
under TSCA to require a deposit on the purchase of
household and commercial batteries containing lead,
cadmium, or mercury.
(7/93) Hazardous Waste Treatment Council, Sierra Club, and
Izaak Walton League of America petitioned EPA to
amend the definition of incinerator at 40 CFR 761.3 to
include any device that "heats waste in an oxidative
environment."
Efforts to inform public of TSCA data
EPA has been promoting public access to nonconfidential TSCA
data on chemicals to further public participation in chemical
management and public understanding of substances.
- The Agency has developed products summarizing
chemical inventory and health and safety data for
commercial inventory companies, States, and other
interested parties.
- EPA has initiated a Confidential Business
Information (CBI) Reform Program to review and
challenge CBI claims, educate industry to limit
inappropriate claims, and review and amend
regulations to ensure compliance with TSCA
disclosure provisions.
Chlorofluorocarbon (CFC) substitutes
The Office of Pollution Prevention and Toxics (OPPT) has been
coordinating with the Office of Air and Radiation on the review
of the health and environmental effects of CFC substitutes.
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- Based on studies received during 1991 and
1992, OPPT updated hazard support documents for
5 CFC substitutes [hydrochlorofluorocarbon (HCFC)-
123, hydrofluorocarbon (HFQ-125, HCFC-124,
HCFC-141b, HFC-134a].
- The Office prepared new hazard support
documents for 5 CFC substitutes (FM-100, HFC-
143a, HFC-23, R-32, HCFC-225cb).
- OPPT coordinated review of 33 new toxicity
studies, including 3 chronic/oncogenicity studies, on
3 CFC substitutes (HCFC-123, HCFC-141b, HFC
134a).
Enforcement actions
- pending or completed judicial actions taken under TSCA
in
FY92: 4
FY93: 1
- pending or completed administrative actions taken
under TSCA section 16 in
FY92: 322
FY93: 265
- penalties assessed through TSCA enforcement in
FY92: $8 million
FY93: $6.9 million
Enforcement cases
(Details of these TSCA Title I actions appear in Appendix B.)
- Allied Colloids, Inc. (FY92)
- ALM Corp. v. EPA (FY92)
- Champion Technologies (FY92)
- In the Matter of The Eastern Company (FY92)
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In the Matter of the City of Garland, Texas (FY92)
In re: Goetze Corporation of America (FY92)
U.S. v. Huisch Detergent, Incorporated (FY92)
Jetco Chemicals, Inc. (FY92)
Kaneka Texas Corporation (FY92)
In the Matter of Lafayette Utilities, Lafayette,
Louisiana (FY92)
Lindau Chemicals, Inc. (FY92)
McGhan NuSil Corporation (FY92)
Monsanto (FY92)
Sika Corporation (FY92)
Minnesota Mining and Manufacturing (3M) Company
(FY92)
Texas Eastern Gas Pipeline Company (Texas Eastern)
(FY92)
Tosoh (USA), Inc. (FY92)
University of Washington, Seattle, Washington (FY92)
Coastal Chem (FY93)
Ciba-Geigy (FY93)
CWM (FY93)
Dow Corning (FY93)
Halocarbon Products Corporation (FY93)
Lonza, Inc. (FY93)
PPG Industries, Inc., Mazer Chemicals Division (FY93)
Sanncor Industries, Inc. (FY93)
Sika, Inc. (FY93)
3M Company v. EPA (U.S. Court of Appeals for the
District of Columbia Circuit (FY93)
Texas Eastern Consent Decree (FY93)
Sandoz Chemicals, Inc.; Hoechst-Celanese Corp.; ICI
Americas, Inc. (FY92)
Hoechst Celanese (FY92)
Sandoz Chemical Corporation (FY92)
Altana, Inc. (BYK-Chemie USA) (FY93)
The Housing Authority of New Haven, Connecticut
(FY93)
University of New Hampshire, Durham, NH (FY93)
In the Matter of ALM Corp. (FY93)
In the Matter of CWM (FY93)
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- In the Matter of CWM (FY93)
- In the Matter of CasChem, Inc. (FY93)
- In the Matter of Wego Chemical and Mineral Corp.
(FY93)
- In the Matter of Mobil Oil Corp. (FY93)
- In the Matter of Puerto Rico Department of Health, et al.
(FY93)
- In the Matter of American Airlines, Inc. (FY92)
- In the Matter of British Airways, Ltd. (FY92)
- §§5 & 8 Filings, December 1992 (FY93)
- Quadrennial Reporting Filings, July 1993 (FY93)
- §§5 & 8 Filings, September 1993 (FY93)
- Cressona Aluminum Company (FY93)
- Bryn Mawr College (FY92)
- Omega Chemicals, Inc. (FY93)
- In re: General Electric Company, GE Aircraft Engines
(FY93)
- Kennecott Utah Copper (Utah) (FY93)
- United States Pollution Control, Inc., et al. (Utah) (FY93)
- Weyerhaeuser Company, Longview, Washington (FY93)
- Rosboro Lumber Co., Springfield, Oregon (FY93)
- Sunshine Precious Metals, Inc., Kellogg, Idaho (FY93)
- Cargill, Inc., Chemical Products Division (FY92)
Defensive litigation
(Details of these TSCA Title I actions appear in Appendix C.)
- Caterpillar Inc. v. EPA
(asbestos ban challenge)
- Corrosion Proof Fittings v. EPA
(asbestos ban challenge by 8 petitioners)
- Chemical Manufacturers Association (CMA) et al. v.
EPA
(multi-substance rule for neurotoxicity testing
challenge)
- CMA v. EPA
(section 4 test rule on cumene)
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- Chrome Coalition v. EPA
(section 6 prohibition of hexavalent chromium-based
water treatment chemicals and section 12(b) export
notice)
- CMA et al. v. EPA
(PCB notification and manifesting rule)
- CMA v. EPA
(petition for review of Comprehensive Assessment
Information Rule (CAIR) revisions)
- General Electric Co. (GE) v. EPA
(challenge to PCB penalty)
- Leonard Strandley v. EPA
(challenge to PCB penalty)
District court litigation
(Details of these TSCA Title I actions appear in Appendix C.)
- Environmental Defense Fund (EDF) v. Browner
(section 21 petition to regulate lead fishing sinkers)
- Service Employees International Uniuon (SEIU) v.
William K. Reilly
(asbestos in public and commercial buildings)
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APPENDIX A
SECTION 21 CITIZENS' PETITIONS
1. Date filed: 10/20/92
Who filed: Environmental Defense Fund, Federation of
Fly Fishers, North American Loon Fund,
Trumpeter Swan Society
What action requested: promulgate a regulation
under TSCA section 6 to
require that the sale of
lead fishing sinkers be
accompanied by a label or
notice warning that such
products are toxic to
wildlife
EPA's disposition: granted
Date of disposition: 1/14/93
2. Date filed: 12/16/92
Who filed: Hazardous Waste Treatment Council;
Fulcircle Ballast Recyclers; Salesco Systems
U.S.A., Inc.
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What action requested:
(1) amend 40 CFR 761.60(b)(2)(ii) to virtually end the
exemption for PCB small capacitors contained in
fluorescent light ballasts from the general disposal
requirements for PCBs
(2) include the requested amendment in the PCB Disposal
Amendments (RIN 2070-AC01)or propose a separate
amendment no later than three months after the PCB
Disposal Amendment proposal
EPA's disposition:
Date of disposition:
granted
3/17/93
3. Date filed: 5/27/93
Who filed: John Emmons
What action requested:
EPA's disposition:
Date of disposition:
promulgate a regulation
under TSCA to require a
deposit on the purchase of
household and commercial
batteries containing lead,
cadmium, or mercury
denied
9/3/93; 58 FR 46921
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4. Date filed: 7/14/93
Who filed: Hazardous Waste Treatment Council, Sierra
Club, Izaak Walton League of America
What action requested:
EPA's disposition:
Date of disposition:
amend the definition of
incinerator at 40 CFR
761.3 to include any
device that "heats waste
in an oxidative
environment"
denied
10/5/93; 58 FR 51816
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APPENDIX B
ENFORCEMENT ACCOMPLISHMENTS
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. Specifically, in FY93, EPA
launched three successful TSCA §§5 and 8 case initiatives. The
initiatives were the result of a coordinated effort between all 10
Regions and Headquarters. Approximately 75 administrative
actions were taken by the Agency with proposed penalties
totalling nearly $40 million. Through these initiatives, the
Agency stressed several themes including- 1) EPA's
commitment to vigorous enforcement in order to deter violations
of significant requirements relating to toxic chemicals; 2) the
pollution prevention aspect of TSCA §5 where the Agency
conducts premanufacture screening of chemicals to prevent
environmental and health risks by banning or severely
controlling high risk chemicals; and 3) the importance of
reporting and recordkeeping requirements under §8 that provide
EPA with information on which to base regulatory decisions and
to track patterns of adverse reactions to chemicals. Many of the
settlements in these initiatives are notable for their inclusion of
supplemental environmental projects (SEPs) incorporating
pollution prevention and environmental auditing provisions.
Headquarters
Allied Colloids. Inc.: On September 29, 1992, EPA signed a
Consent Order assessing a penalty of $900,000, against Allied
Colloids, Inc. (ACI) for violations of §§5 and 13 of TSCA.
Penalties were assessed for failure to submit proper notices and
documentation. In addition, ACI must conduct an audit of its
past compliance with TSCA, report additional violations
discovered during the audit, and pay stipulated penalties for
these violations up to a cap of $1 million.
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AIM Corp. v. EPA: Although this is a defensive case rather than
an enforcement action, a September 1992 decision by the U.S.
Court of Appeals for the Third Circuit has important enforcement
implications. The decision affirms EPA's assessment of fines
against ALM Corp. of New Jersey for violations of TSCA §13
import certification requirements. The decision is the first court
test of these requirements. It affirms EPA's requirements of
self-policing by importers, upholds EPA's authority to enforce the
Customs Service regulations that require certification, and
subjects importers which violate certification requirements to civil
penalties. ALM filed petition for certiorari with the U.S. Supreme
Court, which was denied.
Champion Technologies: On April 22, 1992, Environmental
Appeals Board Judge Edward E. Reich signed a Consent Order
which required an administrative civil penalty of $50,644 for
violations of TSCA. The Agency's original civil administrative
Complaint charged Champion with violations of the TSCA §5
Premanufacture Notification (PMN) Rule and also with violations
of the TSCA Inventory Update Rule (IUR), which requires
covered persons to report to EPA chemicals manufactured in
excess of 10,000 pounds during the company's latest complete
corporate FY prior to August 25, 1986. Subsequent to issuance
of the Complaint, Champion voluntarily disclosed to EPA a
TSCA §5 Notice of Commencement violation, and the Agency
also learned of an additional IUR violation. EPA chose to
amend the Complaint after Champion submitted affidavits
showing that it had inaccurately described to the EPA inspector
the chemical structure of the substance for which the PMN
violation was alleged and that the substance was in fact on the
TSCA Inventory. The amended Complaint removed the PMN
count and added a new IUR count.
In the Matter of The Eastern Company: On March 25, 1992,
EPA reached a Settlement with The Eastern Company, which
operates a facility in Naugatuck, Connecticut, where it
manufactures malleable and stainless steel castings. EPA's
administrative Complaint alleged that the company- 1) failed to
mark with an appropriate label a PCB transformer; 2) failed to
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mark with appropriate labels the means of access to two PCB
transformers; 3) failed to register its PCB transformers with the
local fire response personnel in accordance with the Federal
regulations; and 4) failed to conduct quarterly leak inspections
and maintain records of such inspections, for two PCB
transformers. All the violations of EPA's PCB regulations
occurred at the company's Naugatuck facility.
The Settlement Agreement required the company to pay a
$39,100 penalty and to undertake a SEP involving the removal
and disposal of PCB capacitors and PCB transformers from its
facility, at an approximate cost to the company of $134,000.
This project was beneficial to the environment and was not
required by local, State, or Federal law. The Agreement
contained provisions requiring the company to pay a proportional
amount to the U.S. Treasury in the event that the cost
of the environmental project did not reach at least $134,000.
The company has corrected the violations alleged in the
Complaint.
In the Matter of the City of Garland. Texas: A TSCA PCB
administrative Complaint was issued against the City of Garland
in I989. Settlement included a SEP requiring the city to
implement a PCB identification program which identifies through
sampling and laboratory testing and label inspection all
transformers that contain PCBs at 2 ppm or greater. This
information is required to be kept in a computer database.
The Compliance Order required expenditures of $500,000 and a
10 percent case penalty of $14,200. Quarterly status reports
are also required to be submitted to EPA, to include actions
taken during the previous quarter toward achieving compliance
with the PCB identification program and expenditures associated
with this identification program. The City of Garland submitted
its first quarterly status report in September 1992. The city has
currently expended $42,700. The city has until 1997 to
complete the project.
In re: Goetze Corporation of America: A February 6, 1992,
Consent Agreement requires Goetze Corporation of America to
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dispose of three PCB transformers at its Sparta, Michigan,
facility and to replace the transformers with nonPCB
transformers. Goetze Corporation also agreed to pay a penalty
of $11,234. This supplemental enforcement project/PCB
disposal plan was completed at a cost of $122,297.
Goetze Corporation is a Delaware Corporation with a place of
business at 252 Gardner Street, Sparta, Michigan. The
Complaint, initiated pursuant to §16(a) of TSCA, was filed on
October 6, 1990, and alleged in six counts that Goetze
Corporation had stored combustible materials within a PCB
transformer enclosure; had failed to mark the means of access
to its three PCB transformers; and had failed to properly dispose
of PCBs.
U.S. v. Huisch Detergent. Incorporated: A coordinated
multimedia inspection under TSCA §§5 and 8 and EPCRA §313
was conducted at Huisch Detergent located in Salt Lake City,
Utah. Violations of both statues were discovered. Huisch
Detergent agreed to a combined TSCA/Emergency Planning and
Community Right-To-Know Act (EPCRA) cash Settlement of
$30,940 and a SEP of $400,000. The SEP will consist of the
construction of an enclosed chlorine delivery system and
ancillary systems such as a scrubber, control, and ventilation
system. The SEP will minimize the possibility of a chlorine
release into the surrounding environment.
Jetco Chemicals. Inc.: In this TSCA administrative action,
failure by Jetco's Corsicana, Texas, facility to submit a
Preliminary Assessment Information Rule (PAIR) Report was
alleged. PAIR reporting is required by §8(a) of TSCA and
involves basic production/importation volume, use, and exposure
information. The Consent Agreement and Consent Order
(CACO) settling this case required payment of a $19,500
penalty, establishment of a revised TSCA Compliance Manual,
additional training for Jetco employees, and changed company
operating procedures to ensure TSCA compliance, especially
with regard to PAIR and other TSCA §8 reporting requirements.
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Kaneka Texas Corporation: This TSCA administrative action is
one of the few cases involving alleged violations of the
requirements for the research and development (R&D)
exemption to TSCA PMN regulations. The Settlement included
a penalty payment of $17,000 and development and
implementation of a comprehensive training program and a
standard operating procedure for proper adherence to TSCA for
all chemicals handled by Kaneka, with specific emphasis on
TSCA import certifications and compliance with the requirements
for R&D exemption from PMN requirements. The company also
agreed to relocate and operate its drum crushing system away
from a nearby stream to provide enhanced containment of
hazardous material residues and to construct and operate a new
storage facility for drummed treatment chemicals to greatly
reduce or eliminate the possibility of an environmental release.
These SEPs cost approximately $20,500 and were completed in
October 1992.
In the Matter of Lafayette Utilities. Lafayette. Louisiana: A TSCA
PCB administrative Complaint was issued against Lafayette
Utilities in 1991. Settlement included a SEP requiring the testing
of 8 percent of the utility's transformers within one year of the
date of the Compliance Order. The Compliance Order required
expenditures of $94,200 and a 10 percent cash penalty of
$3,140. Monthly status reports are also required to be
submitted to EPA, which include sampling and analytical results
showing PCB concentrations of oil in transformers; total number
of transformers tested during the calendar month; and actual
cost documentation, contracts, invoices, and related
correspondence. Lafayette Utilities had expended approximately
$162,838 and tested approximately 2348 transformers by June
1992.
Lindau Chemicals. Inc.: On June 30, 1992, Environmental
Appeals Board signed a Consent Order settling an
administrative civil penalty action against this chemical
manufacturer. The Agency had charged Lindau Chemicals,
Inc. with two violations of the IUR. Lindau had failed to report
two chemical substances manufactured in excess of 10,000
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pounds during its latest complete corporate FY before August
25, 1986, as required by the IUR. Subsequent to issuance of
the Complaint, Lindau voluntarily disclosed that it had also failed
to report three chemical substances manufactured during the
company's last complete FY before August 25, 1990, in violation
of the IUR recurring reporting provisions. Lindau agreed to pay
a $51,000 penalty to settle all five of the violations.
McGhan NuSil Corporation: EPA charged McGhan Nusil Corp.,
a subsidiary of Union Carbide, with illegal manufacture of
chemicals under TSCA §5. EPA filed an administrative
Complaint seeking an adjusted civil penalty of $384,000.
Pursuant to a recent Consent Agreement, McGhan NuSil agreed
to pay $180,393 as the gravity-based penalty. This penalty is
due within 30 days of a signed Consent Order.
Monsanto: This administrative enforcement action was brought
for violation of TSCA §8(e). Monsanto failed to report the
results of a carcinogenicity study of Santogard PVI within 15
days as required by §8(e). Pursuant to a Consent Agreement,
Monsanto agreed to pay a fine of $198,000 and to conduct an
Environmental Audit on its studies of developmental toxicity
effects, reproductive effects, and carcinogenicity. Post audit, the
company paid $648,000 for the violations found in the audit.
Sika Corporation: Late last year the Agency issued an
administrative Complaint against Sika Corporation for the illegal
manufacture (import) of chemicals into the U.S. The Complaint
sought an adjusted proposed penalty of over $6.5 million. This
is the highest penalty ever sought under TSCA §5(a) which
requires chemical manufacturers to notify the Administrator at
least 90 days prior to manufacturing a new chemical. Pursuant
to an executed Settlement Agreement Sika has agreed to pay a
cash penalty of $1,120,700.
3M Company: In the last opinion from EPA's Chief Judicial
Officer (CJO), the CJO ruled that the general five-year Federal
statute of limitations does not apply to the assessment of civil
penalties under TSCA. (The Environmental Appeals Board now
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handles appeals that were formerly heard by the CJO.) The
ruling resulted from EPA's appeal of a TSCA administrative case
involving 3M Company, based in Minneapolis, Minnesota.
In 1988, EPA assessed a $1.3 million fine against 3M for
importing two new chemical substances between 1980 and 1986
without submitting a PMN as required by §5 of TSCA. After a
hearing, the Administrative Law Judge (ALJ) reduced the penalty
to $104,700. EPA appealed the penalty reduction on the ground
that the ALJ had not properly applied EPA's TSCA §5
enforcement response policy. During the appeal, 3M argued
that the ALJ erred in narrowly construing the general statute of
limitations as not applicable to an administrative action for the
assessment of a civil penalty under TSCA.
In ruling on EPA's appeal, the CJO upheld reduction of the
penalty and also ruled that EPA was not barred from filing
charges for TSCA violations more than five years after an event
had occurred because "Federal courts have held that the U.S. is
not bound by statutes of limitation unless Congress clearly
manifests such an intention." 3M has appealed this decision
with respect to the statute of limitations to the U.S. Court of
Appeals for the District of Columbia Circuit.
Texas Eastern: EPA is supervising the cleanup of PCBs at 89
sites subject to a Consent Decree entered in October 1989 with
Texas Eastern. The Consent Decree remains the most
extensive Settlement ever obtained by the Agency against a
single company, requiring PCB cleanup estimated to exceed
$750,000,000. The Consent Decree requires investigations at
89 compressor station sites, which include remediation of 49
Class A-1 sites (heavily contaminated sites that require
remediation) and characterization of 27 A-2 sites (sites that are
contaminated with PCBs at less than the PCB cleanup levels of
25/10 ppm) and 13 Class A-3 sites (sites where no PCBs are
thought to be present).
To date, 12 A-1 sites have been remediated (6 sites were
remediated in 1991, 6 sites have been remediated in 1992). In
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addition to the 6 sites remediated in 1992, Texas Eastern
conducted limited remediation activities at one other site.
Further, site characterization or sampling activities have been
completed at the 30 Class A-1 sites, with 6 additional Class A-1
site characterizations being undertaken. Sampling has been
completed at 4 of the 27 Class A-2 sites.
Under the Decree, Texas Eastern is required to perform
groundwater monitoring at the 76 Class A-1 and A-2 sites.
To date, groundwater contamination, primarily PCBs and BTEX,
has been detected at 29 sites. Texas Eastern has, to date,
installed 500 groundwater monitoring wells.
Tosoh (USA). Inc.: CJO Ronald L. Mcdallum, on January 30,
1992, signed a Consent Order requiring Tosoh (USA), Inc. to
pay a $60,510 administrative civil penalty for several violations
of TSCA. Specifically, Tosoh failed to submit to EPA a notice of
commencement after beginning manufacture or import of two
new chemical substances, in violation of TSCA §5; imported for
commercial purposes a covered chemical substance without
submitting a PAIR manufacturer's report, in violation of TSCA
§8; and failed to provide written notification to customers to
whom it distributed an R&D substance that it was to be used
only for R&D purposes, in violation of TSCA §5. In addition to
paying the civil penalty, Tosoh agreed to notify each of its
customers that the substances they received were for R&D
purposes only.
University of Washington. Seattle. Washington: On January 6,
1992, the University of Washington was fined $52,488 for
storage, marking, disposal, and use violations of the PCB
regulations. (The penalty amount was affected by the fact that
the University had voluntarily disclosed several of the violations
prior to the inspection; accordingly, a portion of the penalty had
been reduced consistent with EPA's TSCA Enforcement
Response Policy.) In settling the Complaint by the signing of a
CACO, the University agreed to a cash penalty of $26,244 and
received mitigation of the remaining balance of $26,244 by
agreeing to spend at least $52,488 on the disposal of PCB
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equipment not required by regulation.
Coastal Chem: On October 4, 1993, the Environmental Appeals
Board approved the CACO settling the TSCA §8 case against
Coastal Chem. The CACO required a penalty of $5,100 for
failure to submit the necessary Form U report by the regulatory
deadline under the IUR regulations. The civil administrative
Complaint was filed on July 21, 1993, with a proposed civil
penalty of $6,000.
Ciba-Geigy: The Environmental Appeals Board approved a
Consent Agreement between Ciba-Geigy and EPA. Pursuant to
this Agreement Ciba-Geigy conceded to EPA's conclusions of
law and fact as alleged in the Complaint and agreed to pay a
cash penalty of $62,000 and perform a TSCA §5 audit to ensure
compliance with EPA regulations. The stipulated penalties
resulting from this voluntary audit are capped at $1 million. This
case was part of the TSCA §5 initiative filed between December
17-18, 1992.
CWM: On June 23, 1993, the Agency argued before the
Environmental Appeals Board the issue whether or not the
concentration of PCBs must be measured on a dry weight or wet
weight basis. The argument has arisen in the administrative civil
penalty action In the Matter of CWM, a $7,000,000 TSCA PCB
case. ALJ Lotis had ruled against EPA, holding that the
requirement to use a dry weight measurement had been deleted
from the rule nine years ago, therefore, EPA was precluded from
enforcing it. EPA is arguing that it was inadvertently deleted,
that it remains as an implicit requirement, and that a dry weight
measurement is the only reasonable interpretation of the rule.
Dow Corning: Dow Corning, of Midland, Michigan, has agreed to
pay a penalty of $46,000 and perform a SEP in Settlement of a
TSCA §5 PMN and TSCA §13 case. The Agency filed a
Complaint against the company in 1992 for $172,000. The
Agency provided a 50 percent reduction in the proposed penalty
for timely and voluntary disclosure of the violation, 15 percent for
good attitude (primarily for firing their previous attorney), and a
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15 percent reduction for the SEP. The SEP involves the
installation of a spill control measure, which involves a skimmer
attached to the pipe that leads to one of the outfalls in the
Carrolton plant's Kansas pollutant discharge elimination system
permit, which in turn leads from this plant to the Ohio River.
Dow Corning certified that the project would cost a minimum of
$500,000 and the project would capture spills of chlorosilanes or
silicones. Dow Corning will begin the construction of the project
within one month of the effective date of the Consent
Agreement.
Halocarbon Products Corporation: This TSCA administrative civil
penalty action is one of the few cases involving alleged
violations of the substantial risk reporting requirements of
§8(e) of TSCA. The case arose from a chemical release
incident exposing two Halocarbon employees at the company's
Hackensack, New Jersey, facility, which resulted in one fatality.
The Settlement includes a payment of $60,000 and the conduct
of a TSCA §§8(d) and 8(e) compliance audit of Halocarbon's
facilities. ALJ Vanderheyden earlier in the litigation denied a
Motion by Respondent to Compel Discovery on the grounds that
Halocarbon's request had not met the prerequisites of the
Consolidated Rules of Practice governing discovery (40 CFR
22.19(f)) and because of the attorney work product privilege
asserted by the Agency.
Lonza. Inc.: A CACO was approved by the Environmental
Appeals Board on August 5, 1993, in which Lonza agreed to pay
a civil administrative penalty of $240,640 for violations of §5 and
§8 of TSCA. In 1988, Lonza self-disclosed that it had
manufactured on two occasions for commercial purposes a
potentially new chemical substance without submitting a PMN to
EPA. In 1990, Lonza self-disclosed 80 errors, 13 nonreporting
violations, 6 underreporting violations, 61 overreporting
violations, in the original Forms U submitted to
EPA pursuant to the TSCA IUR.
PPG Industries. Inc.. Mazer Chemicals Division: On January 14,
1993, EPA's Environmental Appeals Board issued a Consent
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Order settling the Agency's civil administrative
enforcement action against PPG Industries, Mazer Chemicals
Division, of Gurnee, Illinois. PPG-Mazer was charged with
failure to file PMNs 90 days before commercial manufacture of
5 new chemical substances and late submission of TSCA
inventory update reports for 14 chemical substances, in violation
of TSCA §§5 and 8. The CACO requires PPG-Mazer to pay a
civil penalty of $359,550.
Sanncor Industries. Inc.: In this TSCA administrative action,
failure by Sanncor's Leominster, Massachusetts, facility to
submit TSCA §5 PMNs and a TSCA §8(b) notice of
commencement was alleged. The CACO setting this case
requires payment of a $211,050 penalty, conduct by Sanncor of
a TSCA compliance audit with stipulated penalty provisions, and
development and implementation of SEPs consisting of
isocyanate and hydrazine closed-loop storage and delivery
systems. The isocyanate and hydrazine closed-loop storage
and delivery systems will substantially reduce atmospheric
emissions, employee exposure and handling, and potential
spillage of isocyanate and hydrazine used by Sanncor, and
eliminate the isocyanate/hydrazine-contaminated rinse water
generated from cleaning the transport/storage drums, which
otherwise must be disposed of as hazardous waste. These
SEPs will cost approximately $240,000 and are due to be
completed in December 1994.
Sika. Inc.: Sika Inc. of Lyndhurst, New Jersey, settled this TSCA
§5 administrative civil penalty action for $1,120,700. Sika
imported chemicals from Europe that were not registered with
the TSCA Inventory of Chemical Substances in violation of
TSCA. In the CACO executed by the Environmental Appeals
Board, Sika agreed that it violated TSCA and is liable for the full
penalty proposed in the Complaint of $6,500,000. Due to Sika's
demonstrated inability to pay the full proposed penalty and
remain in business, following an exhaustive analysis of
financial records, EPA agreed to a reduced payment of
$1,120,700. This Settlement amount will still make the penalty
one of the largest ever collected under TSCA §5, which requires
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chemical manufacturers to notify EPA prior to manufacturing a
new chemical.
3M Company v. EPA (U.S. Court of Appeals for the District of
Columbia Circuit): On September 7, 1993, oral argument was
heard regarding the applicability of the general five-year Federal
statute of limitations to the assessment of civil penalties under
TSCA. The case was filed by the 3M Company, based in
Minneapolis, Minnesota. 3M had not prevailed on the statute of
limitations issue in any of the TSCA administrative proceedings
below. A decision by the Court of Appeals is expected
sometime in FY 1994. In 1988, EPA assessed a $1.3 million
fine against 3M for importing two new chemical substances
between 1980 and 1986 without submitting a PMN as required
by §5 of TSCA. After a Hearing, the ALJ reduced the penalty to
$104,700. EPA appealed the penalty reduction on the ground
that the ALJ had not properly applied EPA's TSCA §5
enforcement response policy. During the appeal, 3M argued
that the ALJ erred in narrowly construing the general statute of
limitations as not applicable to an administrative action for the
assessment of a civil penalty under TSCA. In the last opinion
from EPA's CJO, the CJO ruled that the general five-year
Federal statute of limitations does not apply to the assessment
of civil penalties under TSCA. (The Environmental Appeals
Board now handles appeals that were formerly heard by the
CJO.) 3M appealed the CJO's decision to the U.S. Court of
Appeals for the District of Columbia Circuit.
Texas Eastern Consent Decree: The first modification of the
Texas Eastern Consent Decree was finalized and submitted by
the Department of Justice to the U.S. District Court in Houston in
June 1993. Negotiations on the second modification to the
Texas Eastern Decree regarding the integration of the
Pennsylvania Agreement with the Federal Decree are nearing
completion. The intent of the modification is to harmonize the
existing State and Federal agreements into one comprehensive
agreement. To date 17 of the 49 Texas Eastern sites have
been characterized and remediated under the Consent Decree
for PCBs and other hazardous substances. The period of
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performance of the Consent Decree, estimated to cost more
than $750,000,000, is from 1989 to 1999.
Chloranil Importers Cases
Sandoz Chemicals. Inc.; Hoechst-Celanese Corp.: IC1 Americas.
Inc.: The unique coordination between enforcement and
regulatory forces continued in FY 1992 in the chloranil
cases. Preliminary risk assessments on chloranil by OPPT
indicated significant health risks resulting from dioxin
contamination of chloranil. The fortunate coincidence of Office
of Enforcement's (OE's) ongoing enforcement actions against all
chloranil importers created the opportunity to quickly achieve
important risk reduction through settlement of these enforcement
actions, rather than a protracted TSCA §6 rulemaking.
The Agency arranged Settlements with each of the chloranil
importers that would reduce the amount of dioxin imported into
the U.S. Under these Settlements, the companies commit to
stop importing chloranil or to import only chloranil containing
less than 20 ppb dioxin. During FY 1992, OE satisfactorily
settled cases with Sandoz Chemicals, Inc.; Hoechst-Celanese
Corp.; and ICI Americas, Inc. Together with A&D International,
Inc. (settled in FY 1991) and Chugai Boyeki (America) Corp.
(who has committed to the dioxin reduction but not yet resolved
all issues related to settling the enforcement case), all chloranil
importers and manufacturers have significantly reduced dioxin
contamination. OPPT is now in the process of ensuring that
other companies do not import or manufacture chloranil with
higher dioxin concentrations by issuing a SNUR under TSCA §5.
Hoechst Celanese: On June 1, 1990, the Agency filed a civil
administrative Complaint against Hoechst Celanese for violating
several provisions of TSCA in regard to the importation of the
chemical substance chloranil. Based on preliminary data from
testing in progress pursuant to the Dioxin/Furan Test Rule (40
CFR 766), the Agency has found that chloranil manufactured
by certain processes can be contaminated with polychlorinated
dibenzo-p-dioxins and polychlorinated dibenzofurans. Among
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the violations alleged were that Hoechst Celanese failed to
submit the test protocol in a timely manner and failed to ensure
that the study submitted to the Agency pursuant to TSCA §4
complied with TSCA Good Laboratory Practices (GLPs). The
Complaint proposed a penalty of $26,500. In addition to
agreeing to pay a proposed penalty of $15,300, Hoechst
Celanese agreed to import only low dioxin chloranil.
Sandoz Chemical Corporation: On June 10, 1992, EPA entered
into a CACO with Sandoz Chemicals Corporation of Charlotte,
North Carolina, resolving alleged violations of TSCA §4.
Specifically, EPA filed a civil administrative Complaint in the
amount of $39,750 against Sandoz in June of 1990, alleging
violations of the Halogenated Dibenzo-p-Dioxin/Dibenzofuran
Test Rule (Test Rule) and violations of the TSCA GLPs.
Sandoz imported the chemical substance chloranil, a chemical
used in the manufacture of dyes and rubber, for which testing is
required under the Test Rule and §4 of TSCA. The Complaint
charged Sandoz with late submission of a notice of intent to
test, late submission of test protocols, 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, failure to perform the test in
accordance with the TSCA GLPs, and failure to submit
additional required information upon detection of halogenated
dibenzo-p-dioxins or dibenzofurans above the limit of
quantification. The original Complaint was amended in October
of 1991 to add an additional day of violation, increasing the
proposed penalties up to $87,000. The Settlement called for a
cash penalty of $32,521 and a commitment from Sandoz to
import a lesser-contaminated form of chloranil in the future.
EPA has negotiated similar agreements on a voluntary basis
with other manufacturers and importers of chloranil not subject
to enforcement actions, until such time as a SNUR can be
promulgated. This will allow EPA to gather detailed information
on specific uses and exposures resulting from the import or
manufacture of more contaminated chloranil and enable the
Agency to control risk on a case-by-case basis.
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Region 1
Altana. inc. (BYK-Chemie USA): On September 30, 1993,
Region 1 issued its first TSCA §4 civil administrative Complaint
to Altana, Inc. of Wallingford, CT, assessing a penalty of
$75,000. BYK-Chemie USA, an independent operating division
of Altana, Inc., self-disclosed the violations of TSCA §4 testing
rules resulting from the importation of four subject chemicals
without notice to the Agency or participation in required toxicity
testing on the chemicals.
The Housing Authority of New Haven. Connecticut: On August
10, 1990, EPA Region 1 approved the Settlement of claims
alleged in a civil administrative Complaint issued in December
1990 against the Housing Authority of the City of New Haven, a
federally funded low-income housing provider.
The Complaint alleged violations of regulations governing PCBs
uncovered during an inspection, in June 1990, of an unoccupied,
seven-building, low-income housing complex known as the Elm
Haven Extension Housing project in New Haven. Specifically,
the Housing Authority was cited by EPA for failing to properly
dispose of PCBs, failing to maintain records concerning PCBs,
and failing to properly mark and store PCB transformers. The
Elm Haven complex was built in the 1950s and demolished in
1990.
The Settlement requires the Housing Authority, in lieu of paying
a penalty, to spend at least $112,000 on an environmental
compliance program designed to protect public housing
residents from future environmental risks through better
identification and reporting of potentially hazardous conditions
involving pollutants such as PCBs, asbestos, pesticides, and
rodenticides. Specifically, the Settlement requires the Housing
Authority to hire an environmental consultant to train Housing
Authority personnel at all levels in recognizing and reporting
environmental problems, as well as to perform an Environmental
Audit of all 32 Housing Authority properties. This sort of
Settlement, known as a SEP, permits those targeted for EPA
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enforcement to offset penalty payments with environmentally
beneficial expenditures not required by law.
This Settlement evidences EPA's commitment to principles of
environmental justice and provides a direct benefit to the
low-income tenants whom Respondent serves. Because of the
age and condition of available housing stock, such tenants
arguably face potential hazards from pollutants commonly
associated with such housing such as asbestos,; lead paint,
pesticides, and rodenticides. The SEP is designed to reduce the
environmental risks borne by the low-income population whom
Respondent serves.
University of New Hampshire. Durham. NH: On March 10, 1993,
the Agency settled a TSCA civil administrative action for
violation of PCB regulations. The case was settled for a penalty
of $62,500 and a SEP with an estimated value of $271,000.
The project included the removal and disposal of 3 PCB
transformers and 28 PCB-contaminated transformers and
sponsoring, organizing, presenting, and financing a one-day
seminar on the management of PCBs for area schools, colleges,
and universities.
The removal of all PCB items from the University eliminates the
possibility of future violations and potential releases into the
environment at this facility. The seminar for area schools,
colleges, and universities will help to ensure the future
compliance of this portion of the regulated community that has
exhibited a poor compliance history.
Region 2
In the Matter of ALM Corp.: On March 8, 1993, the U.S.
Supreme Court denied ALM Corporation's petition for writ of
certiorari requesting that the Court review a decision rendered
by the Third Circuit Court of Appeals in September 1992. The
petition filed by ALM followed a decision by the Third Circuit
upholding the final decision of the Administrator of EPA, who
had in turn upheld the initial decision of EPA ALJ J.F. Greene.
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In the Complaint initiating this case, Region 2 alleged, and the
ALJ and reviewing courts have found, that ALM failed to provide
the U.S. Customs Service with a certification that seven of
ALM's shipments of certain materials into the U.S. were subject
to, and complied with, TSCA.
The issue presented to the Supreme Court, as framed by ALM,
was whether a court reviewing an agency decision in an
enforcement proceeding should defer to the agency's broad
interpretation of a penal, not regulatory, statute or whether the
court should apply the rule of lenity and construe the statute
strictly against the government. The Supreme Court refused to
hear the appeal and has thereby let stand Judge Greene's
decision imposing a penalty of $19,500 on ALM.
In the Matter of CWM: On December 7, 1992, Region 2
executed a Settlement of an administrative enforcement action
initiated in 1989 against CWM for violations of the TSCA
regulations governing disposal of PCBs. The Complaint alleged
that CWM operated a mobile PCB disposal unit that had an
incorporated heating unit that had not been approved by EPA.
Use of the unit with the heater resulted in disposal of PCBs at
temperatures greater than those specified in the EPA approval.
CWM has agreed to pay a cash penalty of $300,000 and to
expend $730,000 on two SEPs. CWM will purchase an
emergency response vehicle and other related equipment for
Niagara County, New York, and will train local volunteers in their
use. The vehicle and equipment were to be donated to Niagara
County, a county with heavy chemical transportation and major
hazardous waste facilities. CWM has also developed and
implemented a household hazardous waste collection and
disposal project in Niagara County, which includes outreach
programs to apprise the community as to the nature of
household hazardous wastes.
In the Matter of CWM: In December 1992 the U.S. Court of
Appeals for the D.C. Circuit dismissed an interlocutory appeal by
CWM from a March 1992 ruling of EPA's Environmental Appeals
Board. This proceeding commenced with Region 2's issuance in
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March 1991 of an administrative Complaint against CWM and its
parent corporations alleging improper disposal of PCB wastes at
the Model City, New York, disposal facility; these disposals
occurred between February 1984 and October 1987. The
Complaint sought over $7 million in civil damages.
CWM moved to dismiss that part of the Complaint alleging
violations that occurred prior to March 1986 (five years prior
to the issuance of the Complaint). The motion was based upon
the general five-year limitations period contained1 in 28 U.S.C.
2462. If successful, the motion would have barred EPA from
prosecuting about half of its case. The EAB ruling held that
statute of limitations is not applicable to an administrative
proceeding conducted under authority of §16 of TSCA. The
Board's decision reversed the November 1991 decision of EPA
ALJ Yost and reinstated that part of the Complaint that Judge
Yost had dismissed.
Before the Board, Region 2 maintained that the absence of an
explicit statutory requirement for appellate court jurisdiction
denied the court jurisdiction to hear the petition and that the
case was therefore presently not ripe for judicial review. The
D.C. Circuit upheld the Agency's position, holding that, because
there has been no penalty assessed against CWM, the company
was not "aggrieved," as required by §16(a)(3) of TSCA.
In the Matter of CasChem. Inc.: On October 30, 1992, EPA ALJ
Greene ruled in the EPA's favor on the question of what
constitutes a reporting violation of the inventory update provision
of TSCA. The Complaint, issued by Region 2 in September
1989, alleged, inter alia, that Respondent failed to report, for the
partial updating of the TSCA inventory data base, 29 chemicals
it manufactured at its facility in Bayonne, New Jersey. The
Complaint seeks over $500,000 in civil penalties. Both parties
moved for partial accelerated decision with regard to liability.
Respondent sought an Order declaring that the failure to report
more than one chemical (CasChem conceded its failure to report
two chemicals) constitutes, for purposes of assessing a penalty
under TSCA, one violation. EPA claimed that each failure to
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report a chemical for the inventory update constitutes a separate
and distinct violation.
In sustaining the Agency's position, Judge Greene held that
"respondent is liable for failure to report each of the 29
chemical substances for the partial updating of the TSCA
inventory data base, which constitutes 29 separate violations of
[the regulations] and 29 acts prohibited under... TSCA...." The
parties are now pursuing Settlement options.
In the Matter of Wego Chemical and Mineral Corp.: On February
24, 1993, EPA's Environmental Appeals Board upheld ALJ
Vanderheyden's penalty of $42,000 on Wego Chemical and
Mineral Corporation. This case stems from a June 1988
administrative Complaint issued by Region 2, alleging that Wego
had failed to report to EPA regarding its importation of chemical
substances into the U.S. The Board's decision upheld EPA's
application of its TSCA penalty policy and EPA's interpretation of
"naturally-occurring substances" under §8 of TSCA. The
decisions followed a two-day trial held in New York in June
1990.
In the Matter of Mobil Oil Corp.: On September 23, 1993,
Region 2 issued an administrative Complaint under TSCA for
violations of PCB regulations at Mobil Oil's Edison, N.J., facility.
The Complaint assessed a penalty of $116,000 for violations at
the facility, including failure to develop and maintain annual
documents and failure to make quarterly visual inspections of a
PCB-containing transformer for significant time periods; failure to
store PCBs for disposal in a proper storage facility; and failure to
dispose of PCBs within one year of storage for disposal. In
addition, the Complaint alleges that Respondent failed to file a
notification of PCB waste handling activities.
In the Matter of Puerto Rico Department of Health, et al.: On
August 27, 1993, Region 2 issued an administrative Consent
Order requiring the Puerto Rico Department of Health to pay a
penalty of $49,920. The Order also includes a SEP, which
requires Respondent to certify that it has retrofilled and
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reclassified to nonPCB status its four PCB transformers; this
work is estimated to cost approximately $142,868. The Order
settles a September 1991 Complaint that alleged that the Health
Department and the Arecibo Community Health Care Center had
not timely registered its PCB transformers with appropriate fire
response personnel; did not have records of inspection and
maintenance history for four of its PCB transformers; had not
begun cleanup of a leaking PCB transformer within 48 hours of
discovery; and did not have annual documents for the
disposition of its PCBs and PCB items for a specified period.
The Arecibo Community Health Care Center filed a motion to
dismiss the Complaint against it and, later, for reconsideration of
the ALJ's adverse ruling. Both of these motions were denied.
The Puerto Rico Department of Health filed a motion to dismiss
the Complaint against it on May 28, 1993. This motion also was
denied.
Airline Maintenance Facility Initiative
In the Matter of American Airlines. Inc.: An administrative
Complaint had been issued by Region 2 against this carrier that
cited PCB infractions at its facility in JFK Airport in New York
City. A CACO was issued imposing a penalty of $112,700. The
Complaint cited 57 violations concerning 13 PCB transformers in
6 separate locations at American's facility. The violations
included failure to maintain records of annual inspections and
maintenance history, to prepare annual documents, and to
provide required protection against electrical faults.
In the Matter of British Airways. Ltd.: In March 1992, Region 2
settled an administrative Complaint against British Airways that
concerned PCB violations at the carrier's cargo facility at JFK
Airport in New York. The CACO provides for a penalty of
$65,000. The Complaint, issued in June 1991, cited failures to
mark PCB transformers properly, to perform required quarterly
inspections, and to prepare and maintain annual documents.
The Complaint was based on an EPA inspection done
November 1990.
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Region 2 Participation in National TSCA Enforcement
Initiatives
Region 2 was an active participant in three TSCA national
enforcement initiatives that were conducted as part of the
Agency's special emphasis on data quality issues during FY93.
Fourteen administrative Complaints were filed by Region 2 as
part of these three separate national efforts. Highlights
included-
§55 & 8 Filings, December 1992: Region 2 issued three
Complaints as part of this initiative, which addressed failure to
submit required information prior to manufacture of new
chemicals (§5) and failure to submit accurate and timely
information on chemicals in commerce (§8). Region 2 cases
included a Complaint issued to Sakai Trading New York, Inc.
of New York City, charging the company with failing to submit
required inventory update information by the required date and
failing to submit a CAIR form to EPA. A penalty of $221,189
was proposed. Another Complaint was issued to a second New
York City company, Crowley Tar Products, charging it with ft "ling
to submit required inventory update information for four
chemicals in both 1986 and 1991. EPA proposed a penalty of
$136,000 for these violations.
Quadrennial Reporting Filings. July 1993: Region 2 issued 5 of
the 28 administrative Complaints filed nationally in this initiative
to enforce requirements that manufacturers and importers of
certain chemical substances report the quantity and site of their
manufacture or importation of these substances every 4 years
and within a specified degree of accuracy. This information is
used to update the Agency's chemical substances inventory data
base. In its largest case, Region 2 alleged that Hatco
Corporation, operating out of Fords, New Jersey, had failed to
submit required inventory update information for 39 chemical
susbstances by the required date. A penalty of $234,000 was
proposed.
§§5 & 8 Filings. September 1993: In late September the Agency
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filed another 23 administrative cases enforcing the requirements
of §§5 and 8 of TSCA. Region 2 issued six of these
Complaints, including one to Haarmann & Reimer Corporation of
Branchburg, New Jersey, and OCG Microelectronics Materials of
West Patterson, New Jersey. Haarman & Reimer was cited for
importing two chemicals that were not on the TSCA chemical
substance inventory, without filing the advance notification
required by law, and failing to certify to U.S. Customs officials in
the manner required by TSCA. A penalty of $241,500 was
proposed. The Complaint against OCG cited its failure to notify
EPA prior to the importation of a new chemical into the U.S. and
its failure to certify as to the TSCA compliance status of the
chemicals at the port of entry. A penalty of $550,875 was
proposed. (The amount of the penalty was lower than it would
otherwise have been since the company had itself brought these
violations to EPA's attention.)
Region 3
Cressona Aluminum Company: In FY93, a judicial Consent
Decree was entered into under TSCA. This Consent Decree
was an innovative solution that addressed the improper use,
storage, and disposal of PCBs at the Cressona Aluminum
Company. As part of the Consent Decree, Cressona is required
to remediate the PCB contamination at the 115-acre facility. All
plant equipment, including the hydraulic and wastewater
treatment systems, will be decontaminated, the concrete floors
will be removed where necessary, and the plant outfalls will
undergo a toxics reduction evaluation to eliminate the discharge
of PCBs into the Schuylkill River. EPA submits that these efforts
will reduce the risk to human health and the environment from
the past use of PCBs at the facility.
Bryn Mawr College: Region 3 signed a CACO memorializing a
Settlement with Bryn Mawr College for violations of TSCA and
the PCB Rule. The CACO provided for a civil penalty of
$126,240 and takes into account a completed SEP in which the
college removed or retrofilled all of its PCB transformers before
the end of their useful life. The college documented
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expenditures for the project totaling nearly $600,000.
Region 4
Omega Chemicals. Inc.: On September 30, 1993, an
adminstrative Complaint was filed against Omega Chemicals,
Inc., located in Spartanburg, South Carolina, for violations
of §5 of TSCA. Section 5(a)(1) of TSCA provides that no person
may manufacture a chemical substance that does not appear on
the TSCA Chemical Substance Inventory without first
submitting a PMN at least 90 days before manufacturing such
substance. Omega Chemicals violated that § of TSCA by failing
to submit a notice to the Administrator of its intention
to manufacture a new chemical substance before commencing
the manufacture of that chemical. This enforcement action was
part of a national toxics enforcement initiative and includes a
proposed assessment of a penalty in the amount of $90,000.
Region 5
In re: General Electric Company. GE Aircraft Engines: On
November 9, 1992, Region 5 filed a CAFO in settlement of
EPA's administrative action against General Electric Company,
GE Aircraft Engines. Pursuant to the CAFO, GE must pay, after
offset in consideration of its having spent over $272,750 on a
SEP, a $1,000 civil penalty and maintain compliance with the
requirements of TSCA.
Region 5 filed a Complaint on August 18, 1989, alleging in two
counts that GE had violated TSCA's PCB requirements, 40 CFR
761.20(a) and 761.40(a)(7), by failing to reduce the PCB
concentration in its Building 703, Cell 5, hydraulic test stand to
less that 50 parts per million by July 1, 1984; by failing to mark
the test stand; and by improperly using a PCB contaminated
oil/water separator and drainage collection system. After EPA
filed its Complaint, GE investigated other areas of the facility
and found extensive PCB contamination of, among other things,
compressor systems and piping. As a result of this discovery,
GE is completing a comprehensive cleanup of PCB
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contamination at its Evendale, Ohio, facility at a cost exceeding
$5,000,000.
In addition to the above mentioned corrective action, GE has
undertaken an extensive pollution prevention SEP. Specifically,
GE has removed several score of PCB transformers not required
by law. While GE could legally continue to use these
transformers, removal significantly reduces the risk of accidental
discharge of PCBs to the environment.
Region 8
Kennecott Utah Copper (Utah): On November 3, 1992,
Kennecott Utah Copper and the EPA agreed to settle a
Complaint issued by the Agency on December 30, 1991, for
violations of TSCA, Comprehensive Environmental Response,
Compensation, and Liability Act (CERCLA), and EPCRA in the
amounts of $1,129,000, $22,500, and $269,850, respectively, for
a total penalty of $1,421,350. The Respondent agreed to a
cash payment of $480,000 and to purchase an upgraded
emergency computer system with a value of $70,000 for the Salt
Lake County Local Emergency Planning Committee. As a part
of the Settlement, the Respondent agreed to remove and
properly dispose of all transformers containing fluids with PCB
concentrations of 50 ppm or more. A significant cash payment
was insisted upon by the Agency to emphasize the seriousness
of the violations. This Complaint corresponds to an instance of
the ubiquity of PCB use by the mining industry. The nationwide
use of PCBs in the mining industry and the need for regulation
has been a Regional concern for some time.
United States Pollution Control. Inc.. et al. (Utah); Three TSCA
cases from a cluster of 12 have settled during FY93. The
largest penalty, $163,375, was paid by United States Pollution
Control, Inc., which also admitted all factual allegations including
its obligation to meet specific closure deadlines. This precedent
may be valuable in future similar circumstances in this and other
Regions. The two other Settlements involved small penalties
but established the enforceability of the new requirement under
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the Notification and Manifesting Rule to submit written
information regarding a company's PCB activities. Several
cases still pending are expected to establish a precedent for
proper containerization of bulk loads of PCB.
Region 10
Weyerhaeuser Company. Longview. Washington: A CACO was
signed on May 13, 1993, ordering Weyerhaeuser Company to
pay a penalty of $118,950. This CACO settled an August 11,
1992, TSCA Complaint for violations of the recordkeeping and
storage provisions of the PCB regulations. $59,075 of the
penalty was suspended and deferred on the condition that
Weyerhaeuser Company spent at least $118,950 in actual
disposal costs for the removal of TSCA-regulated PCB
equipment from use at its Longview facility. Weyerhaeuser has
18 months from the date of the CACO to document these
expenditures.
Rosboro Lumber Co.. Springfield. Oregon: A CACO was signed
on March 30, 1993, ordering Rosboro Lumber Co. to pay a
penalty of $37,230. This CACO settled an October 9, 1992,
TSCA Complaint for violations of the recordkeeping, use
(registration), labeling, and use (inspections) provisions of the
PCB regulations. $18,615 of the penalty was suspended and
deferred on the condition that Rosboro Lumber Co. spent at
least $37,230 in actual disposal costs for the removal of
TSCA-regulated PCB equipment from use at its Springfield
facility. Rosboro Lumber Co. has two years from the date of the
CACO to complete these expenditures.
Sunshine Precious Metals. Inc.. Kellogg. Idaho: CACO was
signed on October 27, 1992, ordering Sunshine Precious Metals,
Inc., a mining company, to pay a penalty of $6,588. This CACO
settled a February 5, 1992, TSCA Complaint for violations of the
use and disposal provisions of the PCB regulations. $3,294 of
the penalty was suspended and deferred on the condition that
Sunshine Precious Metals spent at least $6,588 in actual
disposal costs for the removal of TSCA-regulated PCB
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equipment from use at its Kellogg facility. EPA is especially
concerned about PCB equipment in use in mines because this
equipment is frequently in substations below the surface;
releases of PCBs from such equipment would pose serious
logistical problems in remediation Sunshine Precious Metals
had one year to provide documentation of these expenditures.
More Than One Region
Cargill. Inc.. Chemical Products Division: On March 18, 1992,
the Regional Administrator for EPA Region 4 executed a
Consent Order in In the Matter of Cargill Inc.. Chemical Products
Division. The Regional Administrator for EPA Region 5 had
executed a companion Consent Order in In the Matter of Cargill
Inc.. Chemical Products Division, on February 19, 1992. This
concluded the first and only multiregional Settlement of a TSCA
administrative enforcement action.
Region 5 issued an administrative Complaint against Cargill on
March 27, 1990. After a Region 4 TSCA inspector arrived at
Cargill's Georgia facility, Cargill approached EPA about the
possibility of a single, national Settlement. EPA negotiated a
national Settlement covering five EPA Regions. The Consent
Agreement for these two cases provides that Cargill will pay a
civil penalty of $121,050, or 90 percent of the proposed
penalties in both cases, and will conduct a TSCA §§4, 5, 8, 12,
and 13 Compliance Audit covering seven Cargill research and
manufacturing facilities in Minnesota, Georgia, Illinois,
California, and Texas. Cargill will pay stipulated penalties for
violations identified during the audit, up to a limit of $1,200,000.
Cargill may perform some or all of 11 SEPs described in the
CACO at Cargill Resin Products Division facilities across the
country in exchange for credit against stipulated penalties in
excess of $250,000.
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manufacturing facilities in Minnesota, Georgia, Illinpis,
California, and Texas. Cargill will pay stipulated penalties for
violations identified during the audit, up to a limit of $1,200,000.
Cargill may perform some or all of eleven SEPs described in the
CACO at Cargill Resin Products Division facilities across the
country in exchange for credit against stipulated penalties in
excess of $250,000.
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APPENDIX C
DEFENSIVE JUDICIAL ACTIONS
On October 18, 1991, the Court of Appeals for the Fifth Circuit
vacated and remanded most of the Agency's rule banning the
future production of asbestos products. In response, on
November 5, 1993, EPA issued a Federal Register notice that
clarified which asbestos-containing products were no longer
regulated by the rule.
In response to an April 1990 remand by the Fifth Circuit of
EPA's cumene test rule, the Agency on May 14, 1993, published
in the Federal Register its Final Statement of Policy articulating
the criteria for evaluating substantial production, substantial
release, and substantial or significant human exposure for
purposes of TSCA §4(a)(1)(B).
Since the last report, the Agency has also settled cases with
petitioners who challenged rules relating to hexavalent
chromium-based water treatment chemicals and PCBs in the
D.C. Circuit.
In an action in the D.C. Circuit, petitioner has challenged EPA
imposition of a $25,000 penalty against a Georgia facility for
PCB disposal violations. The case is scheduled for argument in
February 1995. Another PCB penalty appeal was dismissed by
the Tenth Circuit in September 1993 due to petitioner's failure to
comply with a court filing deadline.
In a district court case, the Agency was sued for failure to
publish a notice of proposed rulemaking under §6 of TSCA to
address risks to wildlife posed by lead fishing sinkers. The
Court dismissed the suit after EPA published a proposed §6 rule
regulating lead sinkers.
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DEFENSIVE LITIGATION
Headquarters
Caterpillar. Inc. v. EPA. No. 89-4829 (5th Cir. December 27,
1993)
Petitioner challenged EPA's 1989 rule that banned the future
manufacture, importation, processing, and distribution in
commerce of most asbestos-containing products and that
required labeling for certain products.
The Court granted a stay to allow Caterpillar and EPA to
negotiate a Settlement agreement to resolve the matter without
further litigation. During these negotiations, Caterpillar proposed
to formally request an exemption from the rule that would allow
it to continue to use certain asbestos-containing parts and
assemblies that were already in Caterpillar's possession.
Caterpillar also indicated that parts and assemblies acquired in
the future would not contain asbestos. If an exemption were
granted, the company said it would withdraw its challenge to the
rule.
EPA and Caterpillar were in the process of discussing the details
of the proposal when the Fifth Circuit vacated and remanded the
asbestos rule in a related case. See Corrosion Proof Fittings v.
EPA. 947 F.2d 1201 (5th Cir. 1991). On November 5, 1993,
EPA issued a Federal Register notice that clarified which
asbestos-containing products were no longer regulated by the
rule as a result of the Fifth Circuit's decision. After Caterpillar
reviewed the notice, it determined that the rule no longer applied
to any of the asbestos-containing products in its possession.
Accordingly, Caterpillar asked the Fifth Circuit to dismiss the
petition for review. EPA did not oppose the request, and the
Court dismissed the case.
Corrosion Proof Fittings v. EPA. 947 F.2d 1201 (5th Cir. 1991)
These petitioners also challenged EPA's rule that banned the
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future manufacture, importation, processing, and distribution in
commerce of most asbestos-containing products and that
required labeling for certain products.
By February 5, 1991, all briefs were filed and oral argument was
completed. 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. On November 5,
1993, EPA issued a Federal Register notice that clarified which
asbestos containing products were no longer regulated by the
rule as a result of the Fifth Circuit's decision.
CMA et al. v. EPA. No. 93-5381 (5th Cir. October 8, 1993)
Petitioners challenged EPA's Multisubstance Rule for the
Testing of Neurotoxicity, 58 FR 40262 (July 27, 1993) (codified
in part at 40 CFR 799.5050) (final test rule). The final test rule
required several neurotoxicity tests be conducted on 10 high
production volume organic solvents. On April 28, 1994, EPA
and CMA entered into a Settlement Agreement providing for a
modified testing program, and on May 13, 1994, the Court
dismissed CMA's appeal.
CMA v. EPA. 899 F.2d 344 (5th Cir. 1990)
On September 26, 1988, CMA and five manufacturers and
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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 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. 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
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). EPA published its TSCA §4(a)(1)(B)
Final Statement of Policy articulating the criteria for evaluating
substantial production, substantial release, and substantial or
significant human exposure in the Federal Register of May 14,
1993(58 FR 27836).
All testing of cumene required under the test rule has been
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completed.
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 challenged this interpretation. The Court stayed the
briefing of this case pending settlement discussions.
The Chrome Coalition and EPA signed a written Settlement
Agreement on December 15, 1992. The Agreement provides,
among other things, that- 1) EPA will conduct ndtice-and-
comment rulemaking on the issue of whether 40 CFR 749.68
(the hexavalent chromium §6 rule) should be amended in the
manner specified in the attachment to the Settlement
Agreement; 2) EPA will use its best efforts to publish a proposed
rule by August 15, 1993; 3) the preamble to the proposed rule
will specifically mention examples of types of mixtures that are
not subject to the rule, such as paints, dyes, and pigments; and
4) EPA will use its best efforts to publish a final rule by August
15, 1994. The proposed rule was published on November 30,
1993, and the final rule was published on August 19, 1994.
EPA believes that the final rule is in substantial conformance
with the terms of the Settlement Agreement.
CMA et al. v. EPA. Nos. 90-1127, 90-1469, 90-1121 (D.C. Cir.)
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
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seeking approval for the commercial storage of PCBs.
Petitioners challenged a number of the rule's provisions as being
arbitrary and capricious. In 1990, EPA settled the suit brought
by General Motors and one of CMA's suits. Following
promulgation by EPA of final amendments to the PCB rules, on
December 13, 1993, CMA and NSWMA filed a joint motion,
which EPA did not oppose, to dismiss the remaining lawsuit. On
March 21, 1994, the motion was granted by the Court.
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.
In response to comment and concerns raised by CMA and other
industry groups, on July 19, 1989, EPA issued a request for
additional comments on possible revisions to the CAIR.
The litigation has been stayed since November 1989 pending
the outcome of EPA's rulemaking to revise the CAIR. EPA
issued a proposed amendment to the CAIR on November 30,
1993(58 FR63134).
Region 4
GE v. EPA. No. 93-1807 (D.C. Cir.)
On May 12, 1989, Region 4 issued a Complaint charging GE
with violations of the PCB use and disposal regulations at GE's
Chamblee, Georgia, facility. The Complaint alleged that GE had
improperly processed and disposed of 10,126 gallons of PCB
liquid through an unpermitted distillation method and sought
$225,000 in penalties. In his initial decision, the Presiding
Officer found that GE had violated both the PCB use and
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disposal regulations but reduced the proposed penalty to
$40,000.
Following GE's appeal, the Environmental Appeals Board, on
November 1, 1993, issued a Final Decision, that upheld the
disposal violations, dismissed the use violations, and ordered
GE to pay a $25,000 penalty. On November 30, 1993, GE filed
a petition for review with the D.C. Circuit Court of Appeals. The
Court has scheduled argument in the case for February 1995.
Region 10
Leonard Strandlev v. EPA. No. 91-70753 (10th Cir.)
This case alleged PCB disposal, storage, marking, and
recordkeeping violations associated with Mr. Strandley's, now
defunct, scrapping and oil recycling operations. ALJ Greene
issued an Order on October 21, 1989, which assessed a penalty
of $103,500 against Strandley.
The Order acknowledged EPA's desire to structure the penalty
assessment to support the cleanup of the Purdy, Washington,
site, which is being cleaned up under CERCLA, and
permanently remitted all but $5,000 of the assessed penalty on
the condition that Strandley document that an amount equalling
at least the remitted amount had been expended towards
cleanup of the site. Strandley's Agency appeal was denied on
November 15, 1991, by the CJO.
On December 20, 1991, Strandley petitioned the Tenth Circuit
for review. On September 15, 1993, the Court issued a
voluntary dismissal of Strandley's appeal, following his failure to
file a status report in compliance with the Court's July 15, 1993,
Order.
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DISTRICT COURT LITIGATION
Headquarters
EDF v. Browner. No. 93-0352 (D.D.C.)
On October 20, 1992, EOF, the Federation of Fly Fishers, the
North American Loon Fund, and the Trumpeter Swan Society
filed a petition under TSCA §21 requesting EPA to issue a rule
under TSCA §6 to require that the sale of lead fishing sinkers be
accompanied by a label or notice warning that such products are
toxic to wildlife. The petition and subsequent correspondence
claimed that lead fishing sinkers are causing mortality, due to
lead poisoning from ingestion of sinkers, in trumpeter swans,
common loons, and a Mississippi sandhill crane, an endangered
species.
EPA granted the petition on January 14, 1993. After reviewing
the petition, its accompanying studies, and other information
gathered by EPA, the Agency preliminarily determined that
certain lead fishing sinkers present an unreasonable risk of
injury to waterfowl and that rulemaking under §6(a) of TSCA to
ban the manufacture, processing, and distribution in commerce
of certain lead sinkers is necessary to protect against that risk.
EPA informed EDF by letter on March 11, 1993, that it was
planning to publish a proposed rule to address these concerns.
EPA also informed EDF that it was also analyzing the need for a
prohibition against the manufacture, processing, and distribution
in commerce of certain sinkers made of zinc, copper, and brass,
materials likely to be used as substitutes for lead in sinkers,
which may also present unreasonable risks to waterfowl. After
concluding this analysis, EPA would determine the
appropriateness and feasibility of regulatory action regarding
these substitutes.
Despite EPA's expressed intent to publish a proposed rule to
address the risks posed by lead fishing sinkers, including
regulatory options more stringent than the labeling requested in
the petition, EDF sued EPA on March 15, 1993, in the U.S.
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District Court for the District of Columbia, alleging EPA's failure
to promptly publish a notice of proposed rulemaking under §6 of
TSCA.
On March 9, 1994, EPA published its notice of proposed
rulemaking. On April 26, 1994, after considering motions by the
parties, the Court dismissed EDF's suit.
SEiU v. Reillv. 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. At a status conference in December 1990 the
Court, upon agreement between EPA and SEIU, issued an order
holding the case in abeyance while the parties negotiated.
OSHA and EPA agreed to engage in rulemaking. First, OSHA
would promulgate rules on asbestos, and then EPA would
initiate rulemaking to regulate those States that could not be
covered by the OSHA rule. OSHA issued a notice of proposed
rulemaking in 1992 but has not yet published a final rule. As a
result, EPA has not yet initiated rulemaking.
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EPA CONTRIBUTORS
Office of Compliance Monitoring
Burgess, Rosemary
Office of Enforcement
Jacobs, Jon D.
Office of General Counsel
Curtin, James H.
Office of Pollution Prevention and Toxics
Auer, Charles M.
Blunck, Christopher R.
Bushong, Regina L.
Cheatham, Anthony L.
Cook, Brion T.
Coutlakis, Anna C.
Flattery, Priscilla S.
Gillen, Matthew E.
Gimlin, Peter
Greenwood, Mark A.
Hannemann, David K.
Hewlett, Mary Louise
Jones, Rebecca A.
Kinard, Michele R.
Laurson, Nancy V.
Matthai, Paul D.
McNally, Robert C.
Scalera, John V.
Sullivan, John J.
Tepper, Esther M.
Tillman, Thomas D.
Travers, Linda A.
Vogel, Nancy L.
Waugh, William T.
Williams, David R.
Willis, James B.
Woodburn, Wanda
Project Manager: Faeth, Lisa E.
a U.S. Government Printing Office: 1995 - 615-003 (21001)
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