United States EPA 745-R-96-003
Environmental Protection August 1996
Agency
Prevention, Pesticides, And Toxic Substances (7408)
4>EPA Toxic Substances
Control Act (TSCA)
Report To Congress
For Fiscal Year 1994
Recycled/Recyclabto
Printed with Soy/Canda Ink on paper that
contains at toast 50% recycled fiber
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Toxic Substances
Control Act (TSCA)
Report to Congress
for Fiscal Year 1994
Repository Material
Permanent Collection
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CONTENTS
INTRODUCTION 1
TSCA FY94 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 2
Section Industry Reporting 4
8
Section Coordination of TSCA Authority with Other
9 Federal Agency Authority 5
Section Centralized Data System 7
10
Section Chemical Export Notices 7
12(b)
Section
21
Citizens' Petitions 8
Efforts to Inform the Public of TSCA Data 9
Enforcement Actions 10
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Enforcement Activities . 10
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
HI
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INTRODUCTION
Following is a Report to Congress on Toxic Substances Control
Act (TSCA) implementation in fiscal year (FY) 1994, as required
under TSCA sections 9(d) and 30.
TSCA FY94 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.
*
- tests required: approximately 400
- industry costs for testing: approximately $6 million
- results received: approximately 400
**
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 (PMNs) and preimport
notices
- notices received: 2,645
- subset subject to section 4 tests: 0
Chemicals subject to final significant new
use rules (SNURs)
- new chemicals controlled: 33
- existing chemicals controlled: 21
Section 5(e) consent orders pending development'
of information on new chemicals
- consent orders issued: 35
Section 5(e) consent order test results for new
chemicals
- results received: 50
Section 5(g) decisions not to take action on
chemicals subject to notification or data
requirements
- decisions made: 0
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.
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- rules and notices issued:
(11/93) Notice of the effect of a court ruling that continues
manufacture, importation, processing, and distribution
in commerce prohibitions for certain asbestos-
containing products (58 FR 58964)
(11/93) Final rule to amend the criteria for granting approval
to commercially store polychlorinated biphenyl (PCB)
waste (58 FR 59372)
(11/93) Proposed rule to amend the requirements for
reclassifying transformers from PCB or PCB-
Contaminated status to lower regulatory status as a
PCB-Contaminated or a non-PCB Transformer (58 FR
60970)
(11/93) Proposed rule to limit the scope of the prohibition on
the use of hexavalent chromium chemicals for water
treatment in comfort cooling towers and the
distribution of such chemicals in commerce for use in
comfort cooling towers (58 FR 63148)
(3/94) Proposed rule to prohibit manufacturing, processing,
and distribution in commerce of certain small fishing
sinkers containing lead and zinc, and mixed with other
substances, including those made of brass (59 FR
11122)
(4/94) Proposed rule to withdraw the proposal to exempt
Omega Phase Transformations, Inc., from processing
prohibitions in the Asbestos Ban and Phaseout Rule
and to not initiate rulemaking in response to a similar
petition from Vitrifix, Inc., because the Rule does not
prohibit the petitioners' processes (59 FR 17301)
(4/94) Final rule to deny two petitions and to grant three
petitions, the sixth petition was withdrawn, for
exemptions from the prohibition on manufacturing,
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processing, and distribution in commerce of RGBs; to
grant one authorization to use certain PCBs; and to
require certain petitioners to reapply for EPA approval
to continue PCB activities that EPA previously
approved (59 FR 16991)
(8/94) Final rule to limit the scope of the prohibition on the
use of hexavalent chromium chemicals for water
treatment in comfort cooling towers and the
distribution of such chemicals in commerce for
use in comfort cooling towers (59 FR 42769)
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: 221
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 the
environment, as determined by the Agency.
- records received: 2
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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.
- studies received: 1,923
Section 8(e) directs chemical manufacturers, processors, and
distributors to notify EPA of substantial risks of injury to health or
the environment.
- notices received: 373
In 1990, EPA instituted a section 8(e) Compliance Audit
Program. The Program, the result of an enforcement activity,
provided companies the opportunity to submit health and safety
studies that had not been previously submitted. The Agency
received the vast majority of these filings during FY92. EPA
acquired approximately 12,000 studies and has been screening
the submissions 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 (NIOSH), and Mine Safety and Health Administration,
has been a member of the OSHA/NIOSH/EPA (ONE)
Committee. The Committee facilitates cooperation, coordination,
and exchange of information on occupational issues and early
identification of risk reduction opportunities.
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EPA, along with the Consumer Product Safety Commission,
established a similar forum to address consumer issues.
Informal interagencv coordination efforts
Hydrazine was referred to OSHA. The chemical, which is
used as a chemical intermediate, for water treatment,
and as a rocket fuel, poses cancer and other toxic
concerns for workers.
Methyl tert-butyl ether (MTBE) was referred to OSHA.
MTBE is a fuel additive with potential for widespread
human exposure and hazard.
An interagency workgroup was established to coordinate
efforts on machining fluids, which are used to cut or drill
metals. EPA and OSHA are responding to petitions to
respectively test and regulate these mixtures, and NIOSH
is performing a hazard review. EPA will consider OSHA
and NIOSH risk reduction needs as the main criteria for
selection of testing candidates.
EPA and OSHA coordinated to ensure that asbestos
regulations were harmonized prior to OSHA's
publication of their Asbestos Remand Rule.
The ONE agencies discussed options for creating more
of a framework for improving cooperation on
occupational chemical issues. The agencies
considered more up-front integration of needs,
identification of common priority areas, increased
"customer" awareness, and examples of
cooperative projects that could be undertaken.
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
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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 and are available from the National
Technical Information Service and Chemical Information System,
Baltimore, Maryland.
- TSCATS database totals:
80,030 studies from 22,650 submissions
on 6,537 unique chemicals
Section Chemical export notices
12(b)
Domestic exporters must notify EPA annually of their export or
intended export of a chemical regulated under section 4, 5, 6, or
7. The Agency informs the importing country's government of
the export and of EPA's regulatory action or the availability of
information.
1994*
- notices received and processed 21,287
- companies submitting notices 208
- letters to foreign governments 2,220
calendar year
Section Citizens' Petitions
21
Anyone may petition EPA to initiate a proceeding for issuing,
amending, or repealing a section 4, 6, or 8 rule or section 5(c)
or 6(b)(2) order.
(Disposition of each of the following Citizens' Petitions appears
in Appendix A.)
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(12/93) Imperial County, California, petitioned EPA to issue a
test rule under TSCA section 4 to require monitoring
of the New River for chemical pollutants and
subsequent health and environmental effects testing
of the identified chemicals, in addition to other
requested actions.
(12/93) International Union, United Automobile, Aerospace
and Agricultural Implement Workers of America-UAW
petitioned EPA to issue test rules under TSCA section
4 to determine whether machining fluids pose an
unreasonable risk of injury to health or the
environment.
(2/94 Environmental Health Coalition, Comite Ciudadano
6/94) and Pro Restauracion del Canon del Padre y
Servicios Comunitarios, and Southwest Network for
Environmental and Economic Justice submitted to
EPA petitions to reiterate the Imperial County petition
regarding the New River, raise environmental justice
concerns, and bring to the Agency's attention
possible enforcement issues.
(5/94) Environmental Protection Services, Inc.
petitionedEPA to amend the definition of
generator under 40 CFR 761.3 to include
persons who ship more than five transformers
to rebuilding/decommissioning facilities for
repair, unless they certify that the
transformers are shipped for repair and are
not PCB waste.
(7/94) Valley Watch, Inc. petitioned EPA to issue an
order under TSCA section 5(e) to prohibit the
manufacture, processing, distribution in commerce,
use, and disposal of 1,2,4-trichlorobenzene as a
transformer retrofill fluid.
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Efforts to inform the 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 for
commercial inventory companies, on-line
systems, States, and other interested
parties summarizing chemical inventory
and health and safety data collected
under sections 4, 5, and 8.
- EPA has initiated a Confidential
Business Information (CBI) Reform
Program to review and challenge CBI
claims, educate industry to limit
inappropriate claims, encourage
voluntary efforts to declassify claims,
and review and amend regulations to
ensure compliance with TSCA disclosure
provisions.
Enforcement actions
- pending or completed judicial actions:
0
- pending or completed civil
administrative actions taken under
section 16: 304
- penalties assessed through civil
enforcement: $19.4 million
Enforcement activities
(Details of these TSCA Title I activities appear in Appendix B.)
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- Boston City Hospital
- New Waterbury Century Brass & Metal
- Town of Wallingford, CT
- In the Matter of Sharp Electronics
Corporation
- Columbia Gas Transmission
Corporation
- Cressona Aluminum Company
- Tennessee Gas Pipeline
- Other PCB Cases
- USS Cabot/Dedalo Museum
Foundation
- Port of New Orleans
- Imperial Holly Corporation
- Sunshine Mining Company
- U.S. Army Presidio
- Alaska Pulp Corporation
- Dexter Corporation
- Elf Atochem North America, Inc.
- Hydrolabs, Inc.
- MARMAB, Inc.
- United Chemi-Con Manufacturing, Inc.
- Inventory Update Rule
- New River TSCA Subpoenas
- Rulemaking, Interpretive Guidance,
and Voluntary Program Activities
Defensive litigation
(Details of these TSCA Title I actions appear in Appendix C.)
- Caterpillar, Inc. v. EPA
(section 6 ban on asbestos)
- Corrosion Proof Fittings v. EPA
(section 6 ban on asbestos)
- Chemical Manufacturers Association et al. v.
EPA
(Multisubstance Rule for the Testing of
Neurotoxicity)
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- American Petroleum Institute v. EPA
(Office of Water Chemicals Test Rule on
1,3,5-Trimethylbenzene)
- Dow Chemical Company and PPG Industries
v. EPA
(Office of Water Chemicals Test Rule on
Chloroethane)
- Chrome Coalition v. EPA
(section 6 prohibition and section 12(b)
export notification on hexavalent
chromium-based water treatment
chemicals)
- Chemical Manufacturers Association et al. v.
EPA
(PCB Notification and Manifesting Rule)
- Chemical Manufacturers Association v. EPA
(Comprehensive Assessment Information
Rule)
- General Electric Co. v. EPA
(PCB use and disposal regulations)
District court litigation
(Details of these TSCA Title I actions appear in Appendix C.)
- Environmental Defense Fund v. Browner
(section 21 petition on lead fishing sinkers)
- Service Employees International Union v.
Reilly
(section 21 petition on asbestos)
- USS Cabot/Dedalo Museum Foundation v.
EPA
(PCB use and disposal regulations)
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APPENDIX A
SECTION 21 CITIZENS' PETITIONS
1. Date filed: 12/16/93
Who filed: Imperial County, California
What action requested: issue a test rule under
TSCA section 4 to require
monitoring of the New
River for chemical
pollutants and subsequent
health and environmental
effects testing of the
identified chemicals, in
addition to other requested
actions
EPA's disposition: denied
Date of disposition: 3/23/94; 59 FR 13721
2. Date filed: 12/22/93
Who filed: International Union, United Automobile,
Aerospace and Agricultural Implement
Workers of America-UAW
What action requested: issue test rules under
TSCA section 4 to
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EPA's disposition:
Date of disposition:
determine whether
machining fluids pose an
unreasonable risk of injury
to health or the
environment
denied
4/19/94; 59 FR 18535
3. Date filed: 2/23/94 and 6/23/94
Who filed:
Environmental Health Coalition, Comite
Ciudadano Pro Restauracion del Canon del
Padre y Servicios Comunitarios, Southwest
Network for Environmental and Economic
Justice
What action requested:
EPA's disposition:
petitions reiterated the
Imperial County petition
regarding the New River,
raised environmental
justice concerns, and
brought to EPA's attention
possible enforcement
issues
no action taken;
petitioners withdrew
petitions; however,
because the three
petitions raised concerns,
EPA issued administrative
subpoenas under TSCA
section 11 in September
1994 to gather information
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Date of disposition:
about possible chemical
discharges to the river
withdrawn 5/24/94 and
9/21/94
4. Date filed: 5/27/94
Who filed: Environmental Protection Services, Inc.
What action requested:
EPA's disposition:
Date of disposition:
amend the definition of
generator under 40 CFR
761.3 to include persons
who ship more than five
transformers to rebuilding/
decommissioning facilities
for repair, unless they
certify that the
transformers are shipped
for repair and are not PCB
waste
denied
8/24/94; 59 FR 43582
5. Date filed: 7/4/94
Who filed: Valley Watch, Inc.
What action requested:
issue an order under TSCA
'section 5(e) to prohibit the
manufacture, processing,
distribution in
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commerce,use, and
disposal of 1,2,4-
trichlorobenzene as a
transformer retrofill fluid
EPA's disposition: denied
Date of disposition: 10/14/94; 59 FR 52156
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APPENDIX B
ENFORCEMENT ACCOMPLISHMENTS
TSCA enforcement responds to violations of regulations for both
new (premanufacture notification) and existing chemicals. TSCA
enforcement embraces the basic tenets of pollution prevention
and data quality. In FY94, EPA launched a successful Inventory
Update Rule (IUR) initiative in an effort to target violators and
highlight the importance of compliance with the IUR. The IUR
seeks information to update EPA's TSCA Chemical Substance
Inventory, EPA's "baseline" of information on toxic substances.
EPA Headquarters and regional offices filed Complaints in June
1994 seeking approximately $2.9 million in penalties against 39
U.S. chemical manufacturers and importers for failure to report
specific chemical production and site information in a timely and
accurate manner, in accordance with the IUR.
Overall, approximately 304 administrative actions were taken by
the toxics enforcement program, with proposed penalties
totalling nearly $20 million. Through these initiatives and
enforcement actions, 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 premarket screening of chemicals to
prevent environmental and health risks by banning or controlling
high risk chemicals; and (3) the importance of reporting and
recordkeeping requirements under §8, which provides EPA with
information on which to base regulatory decisions and to track
patterns of adverse reactions to chemicals.
Many of the cases settled during FY94 are notable for their
inclusion of Supplemental Environmental Projects (SEPs)
incorporating, among other types, pollution prevention and
pollution reduction SEPs.
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Region I
Boston City Hospital
Numerous, potentially health-threatening PCB violations at
Boston City Hospital, located in an inner-city minority
neighborhood, formed the basis for EPA's administrative case.
••ad counsel negotiated a settlement including a cash penalty
f $117,300 and an agreement to remove dangerous
underground storage tanks.
New Waterbury Century Brass & Metal
Continuing PCB violations prompted EPA to file a judicial action
seeking an injunction, along with two administrative enforcement
actions. Lead counsel negotiated a settlement that includes an
agreement to remove 9 tons of PCBs from an industrial site,
making possible the redevelopment of this economically-
depressed area.
Town of Wallingford. CT
Wallingford will test all town-owned transformers for PCBs and,
at a cost of over $1 million over the next three years, will
remove all that were previously improperly disposed and pay a
cash penalty of $40,050, pursuant to this TSCA settlement
negotiated by Tom Olivier.
Region II
In the Matter of Sharp Electronics Corporation
Under the terms of a December 1993 TSCA settlement with
Region II, Sharp Electronics Corporation will pay a $685,000
penalty, will implement a TSCA training program for its company
and the electronics trade, and will upgrade its internal
compliance program. The company will produce a compliance
manual and a video presentation on TSCA and Sharp's
compliance programs and undertake an internal TSCA audit of
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its last five years of operation. EPA's Complaint had cited the
corporation for importing chemicals not on the TSCA Inventory
without prior notification to EPA of its intent to import and for
inaccurately certifying to U.S. Customs officials that it was
importing the chemicals in compliance with TSCA.
Region III
Columbia Gas Transmission Corporation
Unlawful use and disposal of PCBs along 19,000 miles of
natural gas pipeline in 10 States formed the basis of 2
administrative actions filed on September 23, 1994. EPA sought
penalties and cleanup of PCBs and other environmental
contamination along the Columbia Gas system. Region III
negotiated an Administrative Order on Consent under §106 of
the Comprehensive Environmental Response, Compensation,
and Liability Act (CERCLA) and a TSCA Consent Order
assessing civil penalties of $4,916,472 for PCB violations.
Cressona Aluminum Company
The U.S. settled a judicial case against the Cressona Aluminum
Company addressing the improper use, storage, and disposal of
PCBs at the company's facility in Cressona, Pennsylvania.
Cressona manufactures various extruded aluminum parts at its
115-acre facility on the bank of the west branch of the Schuylkill
River and high concentrations of PCBs were previously used in
the company's hydraulic equipment.
EPA's investigation revealed PCB contamination in the hydraulic
systems, wastewater treatment systems (equipment and sludge),
plant flooring and equipment, and soils. Low-level PCBs were
also discovered in the plant effluent to the Schuylkill River.
EPA's Complaint sought injunctive relief under TSCA §§6 and 7
to address PCBs that presented an imminent hazard. The
settlement requires Cressona to clean up the PCB contamination
at the facility. The company will decontaminate all plant
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equipment, including the hydraulic and wastewater treatment
systems, and, where necessary, remove concrete floors up to
1.5 inches in depth. Plant outfalls will undergo a Toxics
Reduction Evaluation to eliminate PCB discharge into the
Schuylkill River. All PCB-contaminated debris will be disposed
of in a proper manner.
During FY94, clean-up actions included- (1) cleanup of
contaminated lagoons and removal of all PCB-contaminated soil
and debris from the facility; (2) removal of PCB waste located in
Mill building; (3) cleanup of pits and drain systems; and (4)
removal of PCB-contaminated waste that included 12,200 tons
of contaminated soil, sludge, and debris, which have been
shipped to a landfill approved to accept PCB wastes.
«
Region IV
Tennessee Gas Pipeline
Region IV settled the Tennessee Gas Pipeline case, a national
multimedia PCB contamination case. The settlement included a
mitigated TSCA civil penalty of $6.4 million and included
CERCLA cleanup at 42 compressor stations in 4 EPA Regions.
Other PCB Cases
The TSCA program issued 20 civil penalty Complaints for PCB
violations. Six of the settlements include SEPs involving
disposal of PCB equipment or PCBs, and one featured, a two-
hour educational outreach broadcast by Kentucky Educational
Television.
Region VI
USS Cabot/Dedalo Museum Foundation
Region VI learned on June 8, 1994, that the owners of the USS
Cabot/Dedalo, a retired Navy warship, proposed to export the
ship, which contains high levels of PCBs in its wiring. The
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presence of RGBs at levels over 50 parts per billion makes the
ship subject to TSCA §6(e), which bans the manufacture,
processing, use, and distribution in commerce of PCBs except
where authorized, excluded, or exempted by regulation. Region
VI contacted the ship's owners, USS Cabot/Dedalo Museum
Foundation, and explained the TSCA and PCB regulations.
On June 27, 1994, EPA learned that the Foundation had a
contract to sell the vessel for scrap and salvage to a company in
the Republic of India and had requested export clearance from
the U.S. Customs Service. EPA Region VI requested that
Customs deny clearance until the Foundation could comply with
TSCA §6(e). In response, on July 11, 1994, the Foundation
sought a Temporary Restraining Order (TRO) in the New
Orleans U.S. District Court, alleging that EPA is without statutory
or other authority to instruct Customs to restrict the export of this
vessel. Region VI requested and the U.S. Department of Justice
(DOJ) has filed an action seeking a TRO to halt the export.
DOJ has submitted a legal brief in opposition to the
Foundation's motion as well as a Complaint on behalf of EPA.
Port of New Orleans
The Port of New Orleans will remove and dispose of PCB
transformers, capacitors, and contaminated pads as part of a
SEP under the terms of a September 12, 1994, Consent
Agreement and Consent Order, which EPA Region VI negotiated
with the Board of Commissioners of the Port of New Orleans for
violations of the TSCA PCB requirements. The Port also will
pay a civil penalty of $8,520.
Imperial Holly Corporation
Imperial Holly Corporation will pay a $7,490 penalty and perform
a $224,700 SEP involving removal and replacement of PCB
equipment pursuant to a settlement with EPA Region VI of a
TSCA case involving four PCB registration, recordkeeping,
inspection, and disposal violations.
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Region VIII
Sunshine Mining Company
EPA cited Sunshine Mining Company for improper disposal of
PCBs both on the surface and underground at the Eureka Mine
in Utah. Alleging 16 TSCA PCB counts, the proposed penalty is
$109,500.
Region IX
U.S. Army Presidio
PCB inspectors participated in the multimedia inspection of the
U.S. Army Presidio. A notice of noncompliance (NON) was
issued to the Presidio for four violations of the PCB rule. The
Presidio is contracting to remove all PCB transformers by-
January 1995 in addition to responding to the PCB rule
violations cited in the NON. A final determination on the
Presidio's compliance with the PCB rule will be made in January
1995 when the cleanup should be completed.
Region X
Alaska Pulp Corporation
In Region X's first multimedia settlement, reached on February
17, 1994, Alaska Pulp Corporation (APC) will pay cash penalties
of $64,600 for TSCA violations, $45,650 for Toxic Release
Inventory violations, and $27,068 for Resource Conservation
and Recovery Act violations. The settlement also requires APC
to spend at least $129,200 to dispose of PCB transformers at its
Sitka facility; to spend a minimum of $83,000 to implement a
Nutrient Pollution Prevention Project and a Caustic Wash Reuse
Project at its Sitka facility; and to pay up to an additional
$10,062 in cash if it does not expend at least $40,250 more on
the Nutrient Pollution Prevention and Caustic Wash Reuse
Projects (over and above the initial $83,000).
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Toxics and Pesticides Enforcement Division
During FY94, the Toxics and Pesticides Enforcement Division's
(TPED's) first year of existence, the Division filed a recordsetting
40 administrative cases under TSCA; the Federal Insecticide,
Fungicide, and, Rodenticide Act; and the Emergency planning
and Community Right-To-Know Act (EPCRA) with combined
proposed penalties of $4.6 million. With TPED assistance, the
Regions reached settlements against two natural gas pipeline
companies resulting in combined penalties exceeding $11
million.
Dexter Corporation
EPA settled the following two Complaints against the Dexter
Corporation for TSCA violations: (1) a Headquarters Complaint
for manufacturing new chemical-substances without submission
of PMNs and (2) a Region V Complaint for submission of false
or untimely notices of commencement of manufacture and
failure to file timely export notices. Dexter will pay $137,505 in
penalties, conduct a nationwide TSCA compliance audit, and
spend $1.5 million on a SEP involving the addition of equipment
to reduce solvent emissions to levels below applicable legal
requirements.
Dexter will also conduct a nationwide TSCA Compliance Audit
covering 20 of its facilities in 7 EPA Regions and pay stipulated
penalties for violations discovered during the Audit up to a
maximum cap of $800,000, which excludes §5(e) and §5(f)
violations. Fifty percent of stipulated penalties up to $500,000
are eligible to be offset by SEP credits; for stipulated penalties
above $500,000, 100 percent are eligible to be offset by SEP
credits.
The settlement also includes a SEP to reduce Dexter's
emissions of volatile organic compounds at its Waukegan,
Illinois, facility by closed-processing equipment that will capture
an estimated 38.5 tons per year of volatile organsc chemicals
beyond minimum compliance with the Clean Air Act
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requirements. EPA will credit one quarter of Dexter's
expenditures on the SEP, if it is effective, up to a maximum of
$500,000 to offset stipulated penalties Dexter would owe EPA as
a result of violations discovered during the TSCA Compliance
Audit. Dexter must report to EPA annually for three years on
the amounts of the target solvents input and the amounts of
coatings output.
Elf Atochem North America. Inc.
On June 21, 1994, EPA filed a civil administrative Complaint
against Elf Atochem of Philadelphia, Pennsylvania, alleging
violations of TSCA §§5, 8, and 13. Specifically, the violations
involve the failure to submit timely reports on chemical
production in accordance with the TSCA §8 IUR, the import into
the U.S. of a chemical substance that does not appear on the
TSCA Inventory, and improper import certification. The initial
proposed penalty for these alleged violations was $1,073,000.
Because Elf Atochem voluntarily disclosed these potential
violations to EPA in a timely manner, the full reductions allowed
under the Enforcement Response Policy were applied resulting
in an adjusted proposed penalty of $489,000.
Hvdrolabs. Inc.
EPA issued a civil administrative Complaint on March 3, 1994,
against Hydrolabs, Inc., of Albemarle, North Carolina (a
subsidiary of Allied Colloids North America Holdings, Inc.),
assessing a $145,000 penalty. Hydrolabs failed to notify the
EPA of its intention to manufacture a new chemical substance at
least 90 days before manufacturing, as required by TSCA §5(a).
Voluntarily-disclosed records revealed that on 29 separate days,
Hydrolabs manufactured the new chemical substance for TSCA
commercial purposes. The chemical substance was used in the
manufacture of elastomeric fabrics.
In a Consent Agreement signed on September 9, 1994, TPED
agreed to reduce the penalty by 15 percent (to $101,500) to
reflect Hydrolabs' mitigation of the violation, and a 5 percent
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downward adjustment (to $87,000) to reflect Hydrolabs1
cooperation and good attitude in negotiating a settlement. An
additional $42,175 reduction (to $44,825) was granted for the
timely implementation of a SEP that consists of a TSCA
Compliance Audit of Hydrolabs.
The Audit is designed to seek and correct management
practices that contribute to violations of the chemical regulatory
requirements of TSCA. Hydrolabs stipulated that the TSCA
Compliance Audit will cost approximately $128,175. For each
violation reported under the TSCA Compliance Audit that is
remedied, Hydrolabs agrees to pay stipulated penalties of
$25,000 for each chemical substance Hydrolabs failed to report
under §5, $15,000 for each additional chemical substance
eligible for filing a polymer exemption notice, $50,000 for each
violation of a TSCA §5(e) or 5(f) order, and $10,000 for each
notice of commencement not submitted or submitted in an
untimely manner. This agreement has been forwarded to the
Environmental Appeals Board for review.
MARMAB. Inc.
EPA issued a civil administrative Complaint on September 9,
1994, against MARMAB, Inc., of Paterson, New Jersey (owners
of the Hydrolabs, Inc., product line prior to January 31, 1992),
assessing a $425,000 penalty. MARMAB failed to notify EPA of
its intention to manufacture a new chemical substance at least
90 days before manufacturing, as required by TSCA §5(a).
Voluntarily-disclosed records revealed that on 85 separate days,
MARMAB manufactured the new chemical substance for TSCA
commercial purposes. The chemical substance was used in the
manufacture of elastomeric fabrics.
TPED and MARMAB signed a Consent Agreement concurrent
with the issuing of the Complaint. TPED agreed to a 5 percent
downward adjustment to the penalty (to $382,500) to reflect
MARMAB's mitigation of the violation and a 15 percent
downward adjustment (to $255;DQO) to reflect MARMAB's
cooperation and good attitude ?M n^^ting a settlement.
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Under this agreement, MARMAB will pay $255,000 in penalties
and will conduct a TSCA Compliance Audit, in concert with
Hydrolabs, Inc., to review and report on MARMAB's compliance
with TSCA §5. For each violation reported under the TSCA
Compliance Audit that is remedied, MARMAB agrees to pay
stipulated penalties of $25,000 for each chemical substance
MARMAB failed to report under §5, $15,000 for each additional
chemical substance eligible for filing a polymer exemption
notice, $50,000 for each violation of a TSCA §5(e) or 5(f) order,
and $10,000 for each notice of commencement not submitted or
submitted in an untimely manner. This agreement has been
forwarded to the Environmental Appeals Board for review.
United Chemi-Con Manufacturing. Inc.
*
On September 26, 1994, TPED issued an administrative
Complaint against United Chemi-Con for violations of TSCA §§5,
13, and 15. The total proposed adjusted civil penalty of $83,750
included a 50 percent reduction for voluntary disclosure. On the
same date, TPED and United Chemi-Con signed a Consent
Agreement in which United Chemi-Con agreed to the payment of
a civil penalty in the sum of $57,750. The final penalty amount
reflects a 15 percent decrease in the penalty for taking all steps
reasonably expected upon discovery of the violation and a 5
percent reduction to reflect United Chemi-Con's cooperation and
good attitude in negotiating a settlement. The Consent
Agreement has been forwarded to Office of Regulatory
Enforcement (ORE) management for approval before submittal
to the Environmental Appeals Board.
United Chemi-Con first informed TPED that it had potential
TSCA violations on August 9, 1994. The company had imported
two chemicals not on the public portion of the TSCA Inventory
five times during the period between December 1993 to July
1994. On August 17, 1994, the company submitted a
consolidated PMN for the two chemicals and three salts that
were subsequently produced at the company's North Carolina
facility. The three salts were also not on the TSCA Inventory.
The Office of Pollution Prevention and Toxics (OPPT) completed
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the health and safety review on September 8, 1994, and all five
chemicals passed the review without restrictions.
National Case Initiative with Toxics and Pesticides
Enforcement Division in Lead Role
Inventory Update Rule
EPA's TSCA IUR seeks information to update EPA's TSCA
Chemical Substance Inventory, EPA's "baseline" of information
on toxic substances. In an effort to target violators and highlight
the importance of compliance with the IUR, EPA Headquarters
and regional offices filed Complaints in June 1994 seeking
approximately $2.9 million in penalties against 39 U.S. chemical
manufacturers and importers for failure to report specific
chemical production and site information in a timely and
accurate manner.
Manufacturers and importers are required to submit this data
pursuant to the IUR promulgated under TSCA §8(a). The
reported information is essential to EPA's regulatory decision-
making process to assure responsive and effective regulation of
chemical substances. For instance, accurate data is necessary
to monitor and estimate risks to health and the environment and
to target pollution prevention efforts.
EPA launched the IUR case initiative to increase industry
awareness of IUR reporting requirements and of the IUR
reporting cycle, which spans from August 25, 1994, through
December 23, 1994. The initiative will also demonstrate the
Agency's determination to improve data quality and convey its
commitment to obtaining accurate and timely information
reporting under TSCA.
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International Activity
New River TSCA Subpoenas
The Office of Prevention, Pesticides, and Toxic Substances
issued 95 TSCA administrative subpoenas in September 1994 to
U.S. parent companies with subsidiaries located in Mexicali,
Mexico. The subpoenas requested information on the toxic and
hazardous chemicals and wastes that could be released to the
New River, located along the U.S./Mexico border in Imperial
County, California. The initial deadline date was November 21,
1994. However, several companies requested and were granted
extensions as late as January 30, 1995. This information
collection effort conducted via subpoenas was for regulatory
purposes, possibly leading to a determination of the need to
conduct a test rule or consent order under TSCA §4, 5, or 6 or a
determination of imminent hazard under TSCA §7 in regard to
the New River. Under Mexico's Maquiladora Program, foreign
• parent companies can establish facilities in Mexicali, Mexico, to
accept the raw chemical or article for the assembly of a final
product, on the condition that any waste and/or surplus be
returned to the country of origin for proper disposal/removal. As
a result of the extremely and adversely impacted environmental
conditions of the New River, EPA has determined that U.S.
parent companies should be able to provide the Agency with
records and files on the amounts of chemicals exported to
Mexico and the amount of waste generated at the facilities,
released into the New River, and returned to the parent
company.
Coordination in ensuring enforceability of the EPA subpoenas
was undertaken by EPA's OPPT, Office of General Counsel, and
ORE along with DOJ. EPA was careful to prevent infringement
of Mexican sovereignty by focusing the information collection to
facilities owned/operated by U.S. parent companies. In addition,
EPA informed its Mexican counterpart participating on a bilateral
enforcement subcommittee of its enforcement activity. '
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Toxics and Pesticides Enforcement Division
Rulemaking. Interpretive Guidance, and Voluntary Program
Activities
TPED and the Regions actively participated in the following
rulemaking, interpretive guidance, and voluntary program efforts
during FY94 to help ensure enforceability: (1) the acrylamide
and n-methylolacrylamide grout rule, (2) the TSCA §8(e)
environmental effects reporting guidance, (3) the TSCA §6
hexavalent chromium rule, (4) the TSCA §5 premanufacture
notice amendments, and (5) the pulp and paper mill sludge
application voluntary stewardship program.
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APPENDIX C
DEFENSIVE JUDICIAL ACTIONS
On May 12, 1995, the Court of Appeals for the D.C. Circuit
vacated a finding of liability against General Electric Co. for
distilling PCB liquids at its Chamblee, GA, facility without a
permit. The Court held that EPA's interpretation of its
regulations preventing such distillation was permissible.
However, the Court vacated the finding of liability and set aside
the fine on the grounds that the regulations did not provide
General Electric with fair warning of the Agency's interpretation.
In a District Court case, the Agency was sued by the owner of a
PCB-contaminated ship for preventing the export of the ship for
scrapping. EPA argued that export of the ship would violate the
TSCA regulatory ban on exporting PCBs greater than 49 parts
per million for disposal. On March 29, 1995, the Court granted
EPA's motion to prevent the ship's export.
Petitioners also filed challenges in the D.C. Circuit to EPA's
November 10, 1993, Water Chemicals Test Rule as it pertained
to 1,3,5-trimethylbenzene (TMB) and chloroethane. Following
EPA's issuance of a clarification notice, petitioners dismissed
their TMB action. EPA and the chloroethane petitioners are in
the process of attempting to settle that litigation.
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.
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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
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.
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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 decision.
Chemical Manufacturers Association et al. v. EPA. No. 93-5381
(5th Cir. Octobers, 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 Chemical Manufacturers Association (CMA) entered into a
Settlement Agreement providing for a modified testing program,
and on May 13, 1994, the court dismissed CMA's appeal.
Pursuant to the Settlement Agreement, EPA issued a proposed
rule revoking the neurotoxicity final test rule, 59 FR 33187 (June
27, 1994). At the same time, EPA also issued a Federal
Register notice soliciting parties interested in negotiating
consent agreements aimed at the neurotoxicity testing of most of
the chemical substances included in the multisubstance test
rule, 59 FR 33191 (June 27, 1994). By the end of December,
1994, EPA and the interested parties reached consensus on the
substances to be tested and the tests to be conducted for each
substance. EPA and the interested parties signed the Consent
Agreements on January 10, 1995. At that same time, EPA also
signed the Federal Register notices announcing the Consent
Agreements and revoking the neurotoxicity final test rule.
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American Petroleum Institute v. EPA. No. 94-1050 (D.C. Cir.)
Petitioners challenged EPA's Office of Water Chemicals Test
Rule as it pertained to 1MB, 58 FR 59667 (November 10, 1993)
(final test rule). The final test rule required manufacturers and
processors of TMB to conduct oral 14-day repeat-dose and oral
90-day subchronic-toxicity studies on TMB. Petitioners
challenged EPA's final test rule arguing that the proposed rule
had not provided them with adequate notice that manufacturers,
processors, or importers of TMB as part of complex mixtures or
substances might be subject to the final test rule. After
reviewing the record, EPA agreed that there is some question
whether such persons had received adequate notice that they
would be subject to the final test rule. As a result, EPA issued a
notice clarifying that only manufacturers, importers, and
processors of TMB as an isolated product, and not persons who
manufacture, import, or process the substance as part of
complex mixtures or substances, are subject to the final test rule
requiring certain health effects testing, 59 FR 45629 (September
2, 1994). Shortly thereafter, Petitioners moved to dismiss the
case. On October 5, 1994, the D.C. Circuit Court granted
petitioners' motion for a dismissal.
Dow Chemical Company and PPG Industries v. EPA. No. 94-
1045 (D.C. Cir.)
Petitioners challenged EPA's Office of Water Chemicals Test
Rule as it pertained to chloroethane, 58 FR 59667 (November
10, 1993)(fmal test rule). The final test rule required
manufacturers and processors of chloroethane to conduct oral
14-day repeat-dose and oral 90-day subchronic-toxicity studies
on TMB. Petitioners challenged whether EPA's findings were
consistent with the language and intent of §4(a)(1)(B) of TSCA.
At EPA's and the petitioners' request, on October 5, 1994, the
court granted a stay of the litigation pending negotiation of a
settlement. On January 3, 1995, EPA and the petitioners filed a
joint status report informing the court that Dow Chemical
Company is conducting a 14-day single-dose study that Dow
believes may provide EPA with the information requested in the
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final test rule, and, therefore, the 14-day single-dose study may
eliminate the need for further testing. To accommodate the
submission of the 14-day single dose study and EPA review of
that study, on November 4, 1994, EPA, by letter to Dow
Chemical Company, extended the reporting deadlines for
submission of the data required under the final test rule by 3
months. Dow Chemical Company expects to submit the data to
EPA by the end of January 1995.
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 notice-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 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
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Chemical Manufacturers Association 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
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.
» •
Chemical Manufacturers Association v. EPA. No. 89-1153 (D.C.
Cir.)
CMA filed a petition for review of the Comprehensive
Assessment Information Rule (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 FR 63134).
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Region IV
General Electric Co. v. EPA. No. 93-1807 (D.C. Cir.)
On May 12, 1989, Region IV issued a Complaint charging
General Electric Co. (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 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, which 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. On May 12, 1995, the Court
issued its decision upholding EPA's interpretation of the PCB
disposal regulations as "permissible" but vacating the finding of
liability and setting aside the fine on the grounds that the
regulations did not provide GE with fair warning of the Agency's
interpretation.
DISTRICT COURT LITIGATION
Headquarters
Environmental Defense Fund v. Browner. No. 93-0352 (D.D.C.)
On October 20, 1992, the Environmental Defense Fund (EDF),
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
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petition and subsequent correspondence claimed that lead
fishing sinkers are causing mortality, due to lead poisoning and
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 EOF by letter on March 11, 1993, that it was
planning to publish a proposed rule to address these concerns.
EPA also informed EOF 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 risk 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, EOF sued EPA on March 15, 1993, in the U.S.
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.
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Service Employees International Union v. Reillv. No. 89-0851
(D.D.C.)
In November 1988, Service Employees International Union
(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's final rule, with corrections,
went into effect on October 1, 1995. The rule revises existing
standards for asbestos at construction sites, shipyards, and
general industry. EPA is in the process of initiating its own
rulemaking based on the OSHA regulation.
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USS Cabot/Dedalo Museum Foundation v. EPA. Nos. 94-2277,
94-3631 (ED LA)
Plaintiff, the owner of the USS Cabot/Dedalo, filed a Complaint
in the Eastern District of Louisiana seeking an injunction against
EPA and other agency efforts to prevent the export of the ship
for overseas scrapping. The Government opposed plaintiff's
motion and, on January 17, 1995, sought its own injunction
against export on the grounds that the ship contained PCB
contamination in excess of 49 parts per million and that the
export of such PCBs for disposal was a violation of TSCA and
the PCB rules. On March 29, 1995, the court granted the
Government's motion for a permanent injunction, finding that
plaintiff's intended export of the vessel would violate TSCA and
the PCB regulations. In issuing its order, the court concluded
that the scrapping process was more akin to "disposal" and the
termination of the useful life of the PCBs than to continued use
of the PCBs.
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EPA CONTRIBUTORS
Office of General Counsel
Curtin, James F.
Golberg, Aron A.
Office of Pollution Prevention and Toxics
Alwood, Raymond J.
Blunck, Christopher R.
Campanella, Paul J.
Darr, James F.
Giamporcaro, David E.
Gillen, Matthew E.
Gimlin, Peter
Price, Michelle M.
Seidenstein, Roy S.
Sherlock, Scott M.
Tillman, Thomas D.
Williams, David R.
Willis, James B.
Woodbum, Wanda
Wunderlich, Linda
Office of Regulatory Enforcement
Crowley, Elizabeth A.
Ellis, Tony R.
Project Manager: Faeth, Lisa E.
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