CASE DEVELOPMENT
TRAINING
Sponsored by
CASE SUPPORT BRANCH (EN-342)
OFFICE OF PESTICIDES AND TOXIC -SUBSTANCES
U.S. ENVIRONMENTAL PROTECTION AGENCY
401 M Street, S.W. "
Washington, DC 20460
May 22 and 23, 1991
Printed on Recycled Paper
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DISCLAIMER
The materials in this document were developed for a series of training courses. Comments and
recommendations for revising and improving the training materials for Case Development
Officers were received during pilot training sessions. The contents of this manual do not
necessarily reflect the joint or separate views and policies of any program office or the Agency.
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CASE DEVELOPMENT
TRAINING
Sponsored by
CASE SUPPORT BRANCH (EN-342)
OFFICE OF PESTICIDES AND TOXIC SUBSTANCES
U.S. ENVIRONMENTAL PROTECTION AGENCY
401 M Street, S.W.
Washington, DC 20460
Prepared by
SRA Technologies, Inc.
4700 King Street, Suite 300
Alexandria, VA 22302
May 22 and 23, 1991
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ACKNOWLEDGEMENTS
This training course for Case Development Officers was developed for the U.S. Environmental
Protection Agency (EPA) under the guidance of the Case Support Branch, Office of Compliance
Monitoring, Office of Pesticides and Toxic Substances, with the assistance of SRA Technologies,
Inc., Alexandria, Virginia, in fulfillment of Delivery Order 31, EPA Contract Number 68-01-
7379.
Pam Saunders served as the EPA Delivery Order Project Manager. From EPA's Office of
Pesticides and Toxics Substances, Case Support Branch, Cindy Coldiron directed the work and
Mary E. McDonnell served as senior technical lead and primary contributor in the development
of the pilot course. Michael J. Walker and Marged Harris, Office of Enforcement, Toxics
Litigation Division, provided legal review and case examples.
Marcia Gardner was the SRA Technologies Task Manager for the delivery order. SRA
Technologies produced the course materials and provided logistical arrangements. Lori
Hidinger, SRA Technologies, was the primary assistant in the development of materials, and
Mark Ernstmann, SRA Technologies, contributed as researcher and editor.
The instructors who participated in the pilot training also provided their assistance in reviewing
and commenting on the course.
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FOREWARD
Role of the Case Development Officer
1. Determine that evidence has been lawfully
obtained.
2. Evaluate evidence to ascertain that the Agency's
burden of proof has been met.
3. Select, prepare, and initiate enforcement action in
accordance with applicable laws, rules, and EPA
policy.
4. Provide compliance and technical support to the
members of the litigation team during all steps of
the enforcement action process.
5. Monitor environmental compliance with the terms
of any subsequent enforcement agreements.
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CASE DEVELOPMENT OFFICER
TRAINING COURSE
Table of Contents
Page
Course Outline 1
Related References 5
Glossary of Terms 7
I. INTRODUCTION 1-1
Examples " IE-1
Delegation of Authority Under TSCA IE-3
Delegation of Authority Under FIFRA IE-9
Redelegation of Authority Under FIFRA and TSCA IE-13
II. EVIDENCE GATHERING H-l
A. CONSENSUAL/WARRANTED INSPECTION II-1
1. Entry II-l
2. Admission Procedures/Demeanor - Entry 11-11
3. Scope of Inspection 11-15
4. Exit Requirements 11-19
5. Post-Inspection Requirements 11-21
B. SUBPOENA AUTHORITY 11-22
C. VOLUNTARY DISCLOSURE/SELF CONFESSION 11-29
D. OTHER DATA SOURCES 11-33
1. Federal/State/Local Government Activities 11-33
2. Financial Data 11-35
a. SEC 10-K and 10-Q Statements 11-36
b. Dun and Bradstreet 11-38
c Financial Directories 11-39
3. TRIS 11-40
4. FTTS 11-41
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TABLE OF CONTENTS
H. EVIDENCE GATHERING (continued)
5. EDRS n-42
6. Certified Statements n-43
Examples IIE-1
Mercury Subpoenas and Strategy IIE-3
Alyeska Subpoena nE-25
Texas Eastern Subpoena HE-33
Documentation Request • IIE-51
Orkin/Rollins SEC 10-Q Statement Iffi-53
Dun and Bradstreet IIE-63
Standard & Poor's Register IIE-65
D & B Million Dollar Directory IIE-67
Moody's Industrial Manual nE-69
FITS Report IIE-71
EDRS Abstract HE-77
Certified Statements IIE-79
IH. PROOF/EVIDENCE EVALUATION AND ORGANIZATION IH-1
A. BURDEN OF PROOF AND PERSUASION/PRIMA FACIE CASE III-l
B. DEGREE OF PROOF AND PERSUASION III-6
C. VIOLATIONS AND ELEMENTS OF PROOF III-12
D. PENALTIES AND ADJUSTMENT FACTORS III-19
E. ADEQUACY, QUALITY, AND AUTHENTICITY
OF EVIDENCE 111-26
Examples IIIE-1
Blank Violation Worksheet IIIE-3
Completed Violation Worksheet IIIE-5
Excerpt from FIFRA Compliance Manual on Elements
of a Violation IIIE-7
FIFRA Civil Penalty Calculation Worksheet IIIE-9
TSCA Civil Penalty Assessment Worksheet HIE-11
Example Penalty Calculations IIIE-13
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TABLE OF CONTENTS
IV. CIVIL ADMINISTRATIVE PROCESS IV-1
A. ISSUANCE OF THE COMPLAINT IV-1
B. CONTENT OF THE COMPLAINT IV-6
C. SERVICE OF THE COMPLAINT AND TIMELY AND
APPROPRIATE FILING OF OTHER PLEADINGS IV-9
D. ANSWER TO THE COMPLAINT IV-15
E. MOTIONS IV-18
F. INFORMAL SETTLEMENT IV-26
G. HEARING PROCESS IV-30
H. APPEALS IV-38
Examples IVE-1
Complaint with Confidential Information IVE-3
Consent Agreement Schedule of Activities IVE-13
V. OTHER ACTIONS V-l
A. SEIZURES V-l
B. STOP SALE, USE, AND REMOVAL ORDERS V-4
C. RECALL V-7
D. CIVIL JUDICIAL PROCEEDINGS V-9
E. CRIMINAL PROCEEDINGS V-15
F. NOTICE OF WARNING/NOTICE OF NONCOMPLIANCE/
NOTICE OF CONTEMPLATED PROCEEDINGS V-18
111
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TABLE OF CONTENTS
VI. ENFORCEMENT DISCRETION VI-1
A. BY AGENCY POLICY VM
B. REQUESTS FOR ENFORCEMENT DISCRETION TO USE
EXISTING STOCKS OF AN ILLEGALLY MANUFACTURED
CHEMICAL SUBSTANCE VI-1
Examples VIE-1
Letter Describing Prosecutorial Discretion .VIE-3
Request for an Expedited Safety Review VIE-7
Letter Incorporating the Right to Use Existing
Stocks into a Consent Agreement VIE-9
IV
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CASE DEVELOPMENT OFFICER
TRAINING COURSE OUTLINE
I. INTRODUCTION
H. EVIDENCE GATHERING
A. CONSENSUAL/WARRANTED INSPECTION
1. Entry
2. Admission Procedures/Demeanor - Entry
3. Scope of Inspection
4. Exit Requirements
5. Post-Inspection Requirements
B. SUBPOENA AUTHORITY
C. VOLUNTARY DISCLOSURE/SELF CONFESSION
D. OTHER DATA SOURCES
1. Federal/State/Local Government Activities
2. Financial Data
a. SEC 10-K and 10-Q Statements
b. Dun and Bradstreet
c Financial Directories
3. TRIS
4. FTTS
5. EDRS
6. Certified Statements
III. PROOF/EVIDENCE EVALUATION AND ORGANIZATION
A. BURDEN OF PROOF AND PERSUASION/PRIMA FACIE CASE
B. DEGREE OF PROOF AND PERSUASION
C. VIOLATIONS AND ELEMENTS OF PROOF
D. PENALTIES AND ADJUSTMENT FACTORS
E. ADEQUACY, QUALITY, AND AUTHENTICITY OF EVIDENCE
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COURSE OUTLINE
IV. CIVIL ADMINISTRATIVE PROCESS
A. ISSUANCE OF THE COMPLAINT
B. CONTENT OF THE COMPLAINT
C. SERVICE OF THE COMPLAINT AND TIMELY AND APPROPRIATE
FILING OF OTHER PLEADINGS
D. ANSWER TO THE COMPLAINT
E. MOTIONS
F. INFORMAL SETTLEMENT
G. HEARING PROCESS
H. APPEALS
/
V. OTHER ACTIONS
A. SEIZURES
B. STOP SALE, USE, AND REMOVAL ORDERS
C. RECALL
D. CIVIL JUDICIAL PROCEEDINGS
E. CRIMINAL PROCEEDINGS
F. NOTICE OF WARNING/NOTICED OF NONCOMPLIANCE/NOTICE OF
CONTEMPLATED PROCEEDINGS
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COURSE OUTLINE
VI. ENFORCEMENT DISCRETION
A. BY AGENCY POLICY
B. REQUESTS FOR ENFORCEMENT DISCRETION TO USE EXISTING
STOCKS OF AN ILLEGALLY MANUFACTURED CHEMICAL SUBSTANCE
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CASE DEVELOPMENT OFFICER TRAINING
Related References
1. Federal Insecticide, Fungicide, and Rodenticide Act, as Amended (FIFRA);
P.L. 92-516 et seq.
»
2. Toxic Substances Control Act (TSCA); P.L. 94-469; as amended by P.L. 97-129.
3. Emergency Response and Community Right-to-Know Act (EPCRA); Title in of the
Superfund Amendments and Reauthorization Act.
4. FIFRA Compliance/Enforcement Guidance Manual - Policy Compendium.
5. TSCA Compliance/Enforcement Guidance Manual.
6. Pesticides Inspection Manual.
7. TSCA Inspection Manual.
8. EPCRA Section 313 Inspection Manual.
9. 40 C.F.R. Part 22 "Consolidated Rules of Practice Governing the Administrative
Assessment of Civil Penalties and the Revocation or Suspension of Permits."
10. 39 C.F.R. Part 148 "Guidelines for the Assessment of Civil Penalties Under
Section 14(a) of the Federal Insecticide, Fungicide, and Rodenticide Act, as
Amended."
11. 45 Fed. Reg. 59770 "Guidelines for the Assessment of Civil Penalties Under
Section 16 of the Toxic Substances Control Act."
13. Administrative Procedures Act (5 U.S.C. Chapter 5)
For a more comprehensive list of references, see the
FIFRA and TSCA Compliance/Enforcement manuals.
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CASE DEVELOPMENT OFFICER TRAINING
Glossary of Terms
Many of the legal terms which are used in this text are found in the Consolidated Rules of
Practice, 40 CFR § 22 eJ. seq. Other terms are listed below.
Affidavit. A voluntary, written declaration of facts, the truthfulness of which is confirmed by
oath or affirmation of the party making it before an officer having the authority to administer
such oaths.
Burden of Persuasion. The obligation on a party to produce a sufficient amount of evidence
to persuade the trier of fact that an action did or did not take place. Once the moving party
meets its burden of persuasion, the burden shifts to the respondent to rebut the evidence.
Burden of Proof. The legal duty of proving a fact or facts in dispute. The duty to produce
evidence as the case progresses and the duty to establish the truth of the claim.
Chain of Custody. An all inclusive record of the successive conveyance, transfer and custody
of evidence from the time it is gathered to the time of trial. This record demonstrates to the
Court the reliability, authenticity and quality of the evidence.
Consent. Voluntary acquiescence or agreement to the proposition of another.
Express Consent. Consent directly given by voice or in writing.
Implied Consent. Consent manifested by actions, silence, facts or inaction which raise
a presumption that consent has been given.
Default. The omission of, or failure to perform, a legal duty. A Default Judgement is a
judgement rendered against a party which has failed to plead (answer) or defend against a
properly filed and pled complaint.
Depositions. A form of prehearing discovery whereby testimony is recorded, out of Court,
under oath, to be used later in the hearing. This practice is not encouraged in civil administrative
matters.
Equity. Concept of fairness and right dealing. Grounded in conscience rather than in law.
Evidence. Concrete facts, supplied by testimony, records or other documents, which may be
legally presented at trial in order to prove something to the trier of fact.
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GLOSSARY OF TERMS
After, or Newly, Discovered Evidence. Material evidence which was not available
prior to the rendering of a decision in a case. Depending on the significance of the
evidence, after discovered evidence may be the basis for a new hearing.
Circumstantial Evidence. Indirect evidence and inferences drawn from such evidence.
Direct Evidence. Evidence in the form of testimony from a witness who actually saw,
heard or touched the subject of the testimony.
Hearsay Evidence. A statement made out of court by someone other than the person
introducing it at hearing. It is offered to show the truth of the matters asserted to and
is often restricted by the Court.
Relevant Evidence. Evidence which has any tendency to make the existence of any fact
that is of consequence to the determination of the action more, or less, probable than it
would be without the evidence.
Exclusionary Rule. Rule of evidence in Federal Courts which prohibits the introduction of
certain evidence. Often used to keep out the "fruit" of an illegal search.
Ex Parte. A latin phrase meaning by one party only. Under the Consolidated Rules, ex parte
communications with the Judicial Officer are prohibited. A TSCA subpoena may be ex parte.
or at the request of the Agency with no notice to the Respondent.
Expert Witness. A witness having specialized knowledge, scientific or technical expertise. A
witness who by knowledge, skill, experience, training, or education will assist the trier of fact
in understanding the evidence.
Freedom of Information Act. Under this Act, 5 USC § 552, all governmental agencies are
required to make information available to the public. Some information is not obtainable under
the Act. Most important in civil administrative practice, is the privilege which protects
documents prepared in anticipation of litigation from discovery ("work product rule"). See
privilege.
Injunction. A legal writ issued by the Court forbidding or requiring certain action. Injunctions
are issued through the District Court.
Judicial Notice. Recognition by the Court of certain facts as true without the necessity of proof.
The facts are generally known and capable of verification from other recognized, sources. Ex:
the acknowledgement of laws, geography, certain scientific facts and historical events.
Judgement. Order or decree in a legal matter.
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GLOSSARY OF TERMS
Knowing and Wilful. Conscious and intentional violation of a statute. This is an element of
proof required for a criminal conviction under TSCA and F1FRA.
Motion. A written application to the Court asking for a ruling. May be filed by either party.
Some of the most used Motions are:
Motion to Amend. Asks the Court for leave to add additional information to a pleading
already filed.
Motion for an Accelerated Decision. Asks the Court to render a decision on the
pleadings with no further evidence or argument.
Motion for a Default. Asks the Court to render a decision in favor of the Agency when
the respondent has failed to file pleadings.
Motion to Dismiss. Asks the Court to dismiss the Agency's case for failure to state a
claim or dismiss a Respondent's Answer for failure to state a defense.
Motion to Set Case for Hearing. Asks the Hearing Officer to place the case on the
docket.
Motion to Strike. Asks the Court to remove issues from litigation.
Motion to Strike Defenses. Asks the Court to rule that certain defenses need no
litigation because they are not supportable under the law or have been decided in prior
cases. Ex: Statute of Limitations.
Neutral Inspection Scheme. The Agency is required to formulate compliance inspection
strategies which are either for cause (based on tips and complaints) or are directed to a certain
segment of the regulated community. Inspections targets within the strategy are then selected
at random.
Parallel Proceedings. Simultaneous criminal and civil litigation proceedings pursued by the
Agency.
Preponderance of the Evidence. Evidence which is more convincing to the trier of fact than
the evidence offered in opposition to it. That degree of proof which, when the evidence
presented is taken as a whole, is more creditable or convincing. This is the burden of proof in
civil administrative cases.
Prima Facie Case. Latin phrase meaning at first sight. A case which presents sufficient proof
to support a violation unless and until rebutted by other evidence to the contrary.
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GLOSSARY OF TERMS
Proof. The establishment of a fact by evidence.
Pro Se. Latin phrase meaning in person. Generally used to identify a respondent who represents
himself before the Court rather than retaining an attorney.
Privilege. A right created by law. Privilege against self incrimination is a right created by the
5th Amendment to the Constitution which the defendant may invoke to protect himself from
proving the government's case through his testimony. Privileged communications are statements
made between certain persons, such as husband and wife, attorney and client, patient and doctor.
The law protects the right of the individual to make such statements with candor by barring them,
from discovery in a legal case. In a civil administrative action, the Agency encourages all
attempts to settle cases and therefore protects settlement negotiations from being introduced as
evidence.
Service. Delivery of legal papers. May be direct-ot implied.— — — — —
Standard of Proof. The degree to which the evidence must convince the trier of fact. In
criminal actions, the standard is to convince the judge or jury beyond a reasonable doubt. In
civil administrative actions, the standard of proof is by a preponderance of the evidence.
Statute. A law enacted by the legislature, national or state.
Statute of Limitations. Required time limit for filing a case. Cases brought after the time limit
has passed are "barred" and will be dismissed by the court.
Stipulations. Prehearing agreement between the parties that certain facts are not at issue and
need not be proved in litigation. Examples are stipulation of professional credentials, chemical
structures of certain substances, and facts specific to the case.
Strict Liability Statute. A statute which imposes sanctions without requiring the showing of
any intent to violate the statute. TSCA and FIFRA are strict liability statutes.
Sua Sponte. Latin phrase meaning of one's own will. If a Judicial Officer renders a ruling sua
sponte. he does so voluntarily and not at the request of either party.
Subpoena. A legal writ which orders the recipient to preform certain tasks. A TSCA subpoena
may be issued by the Agency but, because the Agency lacks the power to directly enforce a
subpoena, it must be transferred to an appropriate District Court for enforcement if the
Respondent fails or refuses to comply.
Subpoena ad Testificandum. A subpoena which orders someone to be present and give
testimony at a specific time and place.
10
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GLOSSARY OF TERMS
Subpoena Deuces Tecum. A subpoena which orders someone to produce records,
documents, books or other tangible things.
Warrant. A legal writ issued by a Court or a Magistrate which authorizes an officer of the
Court to make an arrest, enter a dwelling or place of business to carry out a search or
inspection, and to seize certain evidence.
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I
INTRODUCTION
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I. INTRODUCTION
1. Constitutional/Statutory Authority
Article I, Section 8.
The Congress shall have Power to lay and collect Taxes, Duties, Imposts and
Excises, to pay the Debts and provide for the common Defence and general
Welfare of the United States;
To regulate Commerce with foreign Nations, and among the several States, and
with the Indian Tribes;
To make all Laws which shall be necessary and proper for carrying into
Execution the foregoing Powers, and all other Powers vested by this Constitution
in the Government of the United States, or in any Department or Officer thereof.
Article H, Section 2.
[The President] shall have Power, by and with the Advice and Consent of the
Senate, to make Treaties, provided two thirds of the Senators present concur; and
he shall nominate, and by and with the Advice and Consent of the Senate, shall
appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme
Court, and all other Officers of the United States, whose Appointments are not
herein otherwise provided for, and which shall be established by Law: but the
Congress may by Law vest the Appointment of such inferior Officers, as they
think proper, in the President alone, in the Courts of Law, or in the Heads of
Departments.
Section 3.
[The President] shall take care that the Laws be faithfully executed.
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I. INTRODUCTION
2. Case Law
a. McCulloch v. Maryland. 4 Wheat 316 (1819)
This case interpreted the "necessary and proper" clause of the Constitution
to give Congress the latitude or implied power to create the means of fully
exercising the other powers delegated to it.
3. Special Considerations
a. Delegation of Authority
Because all authority is delegated authority, the Case Development Officer
is responsible for assuring that the powers to inspect and issue civil
complaints, among others, are appropriately delegated to the persons
exercising the authority on behalf of the Agency.
b. Exercise of Power
The Case Development Officer is responsible for assuring that:
• the requirements alleged to have been violated are actual
requirements imposed by statute or substantive rule; and
• the power to be exercised by the Agency to enforce these
requirements is authorized by law.
4. Delegation of Authority to Exercise Power
a. Statutes (Acts) transfer the authority to exercise power to Department
Heads (EPA Administrator).
b. Delegations of Authority in the Agency Delegations Manual transfer
authority to exercise power to the Assistant and Regional Administrators.
c. Redelegations of Authority transfer authority to exercise power within an
office.
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L INTRODUCTION
The inspector's credential is a representation of the delegation of
authority: 1) from the administrator/Regional Administrator to exercise
the power to inspect under all laws administered by EPA, and 2) from the
Assistant Administrator/Office Director/Division Director to exercise the
power to inspect under certain laws administered by EPA.
5. Exercise of Power
a. Constitution - The legal right to make and administer all laws comes from
the Constitution. How Congress will exercise its authority to provide for
the common good and to regulate commerce is defined within the laws it
passes.
b. Statutes - All statutes passed by Congress must conform to the rights and
authorities established by the Constitution (Interpretive Documents -
Federalist Papers). When a bill becomes a law, it is codified in the U.S.
Code.
Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA)
- 7 U.S.C. Agriculture
Toxic Substances Control Act (TSCA) - 15 U.S.C. Commerce and Trade
Emergency Planning and Community Right-to-Know Act (EPCRA)
- 42 U.S.C. Public Health and Welfare
Administrative Procedure Act
- 5 U.S.C. Government Organizations and Employees
Equal Access to Justice Act (EAJA) - 5 U.S.C.
Freedom of Information Act (FOIA) - 5 U.S.C.
(Interpretive Documents - Legislative History)
c. Rules - Rules are promulgated by the Agency under the Statutes.
There are three types of rules:
Procedural: Describe routine Agency operations and are binding
on the Agency. Agency actions which fail to conform to these
rules may be reversed.
Example: Rules of Practice for the Assessment of Civil
Administrative Penalties - 40 C.F.R. Part 22
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L INTRODUCTION
Interpretive: Provide guidance to the public concerning the
Agency's view of its legislative mandate. Are Agency "opinion"
and not binding on a court.
Example: FIFRA Worker Protection Standards - 40 C.F.R.
Part 170
Substantive: Define rights and duties of parties to be regulated
and are binding on the parties. The Administrative Procedure Act
requires publication of proposed substantive, rules in the Federal
Register and provision of the opportunity for comment by
interested parties. Publication of the final rule must occur 30 days
before its effective date.
Example: Polychlorinated Biphenyls (PCBs), Manufacturing,
Processing, Distribution and Commerce, and Use Prohibitions
(Interpretive guidance not binding on the courts:
- Preambles and Penalty Policies)
6. Historical Background
Federal Insecticide, Fungicide, and Rodenticide Act (FLFRA)
1902 — Pesticides for agricultural use are first manufactured.
1910 — Insecticide Act is passed regulating misbranded and adulterated insecticides and
fungicides.
1945 — Chlorinated Hydrocarbon pesticides including DDT are commercially
manufactured.
1947 — FIFRA enacted requiring registration of pesticides in interstate commerce
(consumer protection statute).
1962 — "Silent Spring" by Rachael Carson published. The book discusses the damage to
nontarget organisms caused by pesticide applications.
1969 — Report of the House Committee on Government Operations, Deficiencies in the
Administration of FIFRA issued.
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1970
1972
1988
L INTRODUCTION
Department of Health, Education, and Welfare, Report of the Secretary's
Commission on Pesticides and Their Relationship to Environmental Health
(MRAK Commission Report) recommends changes in the regulation of pesticides.
EPA is formed and the regulation of pesticides is transferred from the USDA to
EPA.
FIFRA is amended to:
• include a registration standard to prohibit the acceptance of
pesticides that .caused "unreasonable adverse effects" on human
health or the environment;
• regulate "intrastate" as well as "interstate" pesticides;
• prohibit pesticide misuse; and
• require registration of pesticide producers.
Most recent amendments of FIFRA. Established an extensive system of re-
registration of pesticides and expanded the scope of scientific data required for
registration.
Toxic Substances Control Act (TSCA)
1960s
1970s --
1970
Concern raised by widespread contamination of food, water, and soil by organic
mercury.
Hazards posed by asbestos publicized.
Contamination of animal feed by Polybrominated biphenyls (PBBs) found in
Michigan.
Concern raised by widespread contamination of Great Lakes and Hudson River
with Polychlorinated biphenyls (PCBs) and its link to cancer.
CEQ report notes increase in numbers, production volume, and uses of synthetic
chemicals but knowledge of long-term effects unknown.
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I. INTRODUCTION
1971 — President Nixon submits the bill "The Toxic Substances Control Act." The Act
would provide for:
1) information gathering regarding chemical toxicity and
exposure;
2) regulation of existing chemical hazards; and
3) identification and prevention of future risks.
1975 — Vinyl Chloride is linked to rare form of liver cancer.
1976 — Passage of the Toxic Substances Control Act establishes "cradle to grave"
regulation of chemical substances.
Emergency Planning and Community Right-to-Know Act (EPCRA)
1984 — Several thousand people killed by a release of methyl isocyanate from a Union
Carbide facility in Bhopal, India.
1985 — Aldicarboxine is released at Union Carbide's Institute, West Virginia facility.
1986 — Passage of Superfund Amendments includes at Tide III a free-standing statute:
Emergency Planning and Community Right-to-Know Act.
Other Statutes
Administrative Procedure Act (APA)
Sets forth the basic requirements for administrative adjudications.
40 CFR Part 22 establishes EPA rules for the assessment of civil
penalties in accordance with APA requirements.
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I. INTRODUCTION
Equal Access to Justice Act (EAJA)
Sets forth criteria for reimbursing persons who prevail in civil
administrative adjudications.
40 CFR Part 17 establishes EPA rules for reimbursement of prevailing
parties in accordance with the Equal Access to Justice Act.
Freedom of Information Act (FOIA)
Sets forth the criteria for the disclosure of information in governmental
records.
40 C.F.R. Part 2 establishes EPA rules for the release of information
to the public and the safeguarding of confidential information.
Examples:
Delegation of Authority under TSCA
Delegation of Authority under FIFRA
Redelegation of Authority under FIFRA & TSCA
1-7
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I
INTRODUCTION
EXAMPLES
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EXAMPLES
I. Delegation of Authority under TSCA
Delegation of Authority under FIFRA
Redelegation of Authority under FIFRA & TSCA
IE-1
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I.B. DELEGATION OF AUTHORITY UNDER TSCA
DELEGATIONS
TOXIC SUBSTANCES CONTROL ACT
1. AUTHORITY.
a. To inspect any establishment, facility, or other premises in which
chemical substances, mixtures, or articles containing chemical substances or
mixtures, are manufactured, processed, stored, or held before or after their
distribution in commerce, and any conveyance being used to transport chemical
substances, mixtures, or such articles in connection with distribution in
Any such inspection shall be conducted in accordance with the applic-
able provisions of the Toxic Substances Control Act (TSCA).
b. To obtain and execute warrants for the purpose of performing inspec-
tions and conducting information gathering under TSCA.
c. To carry out or require the carrying cut of any other inspection and
information gathering activities authorized by TSCA.
d. To designate representatives of the Administrator to perform the func-
tions in paragraphs l.a - I.e.
e. To require by subpoena the attendance and testimony of witnesses and
the production of reports, papers, documents, answers to questions, and other
information in accordance with TSCA.
*
2. TO WHOM DELEGATED. The Assistant Administrator for Enforcement and Compliance
Monitoring, Assistant Administrator for Pesticides and Toxic Substances, and
Regional Administrators. ' •
3. LIMITATIONS.
a. The Assistant Administrator for Pesticides and Toxic Substances must
consult with the Assistant Administrator for Enforcement and Compliance Monitoring
or designee before obtaining warrants or issuing subpoenas; and must consult
with the General Counsel or designee before issuing subpoenas to collect information
for regulatory actions.
b. The Assistant Administrator for Enforcement and Compliance Monitoring
and the Assistant Administrator for Pesticides and Toxic Substances must notify
the appropriate Regional Administrator prior to exercising inspection authority
under this delegation.
AUTHORITY. This authority may be redelegated.
5. ADDITIONAL KEFERfcNCES. Sections ll(a)-(c) of TSCA.
IE-3
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1200 TN
DELEGATIONS
JU.
TOXIC SUBSTANCES CONTROL ACT
-ofirCcoplalnt
1. AUTHORITY. To file administrative complaints against alleged violators of
the Toxic Substances Control Act (TSCA) for the purpose of proposing civil
penalties as provided in the TSCA; and to negotiate and sign consent agreements
memorializing settlements between the Agency and respondents.
2. TO WHOM D*T-prayiED. Regional Administrators and the Assistant Administrator
for Pesticides and Toxic Substances.
3. LIMITATIONS.
a. Regional Administrators must consult with the Assistant Administrator
for Pesticides and Toxic Substances or his designee before exercising any of
the above authorities. In addition, once the alleged violator files an answer
or fails to file an answer in the specified time period, the Regional Counsels
or their designers will conduct all negotiations.
b. The Assistant Administrator for Pesticides and Toxic Substances may
exercise these authorities in multi-Regional cases or cases of national signif-
icance* In addition/ the Assistant Administrator for Pesticides and Toxic
Substances must consult in advance with the Assistant Administrator for
Enforcement and Compliance Monitoring or his designee and must notify any
affected Regional Administrators or their designees when exercising any of the
above authorities. In addition, once the alleged violator files an answer
or fails to file an answer in the specified time period, the Assistant Admini-
strator for -Enforcement and Compliance Monitoring or his designee will
conduct all negotiations.
c. The Assistant Administrator for Enforcement and Compliance Monitoring
and the Assistant Administrator for Pesticides and Toxic Substances may waive
their respective consultation requirements by memorandum.
4. REDET.FXiATION AUTHORITY. This authority may be redelegated.
5. ADDITIONAL
a. Sections 15 and 16 of TSCA.
b. The Agency official who signed the complaint should sign the settlement
agreement.
IE-4
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TN !
1200
DELEGATIONS
JUL 25
TOXIC' SOBSTaNCES CONTROL ACT
12-2-B. Administrative Enforcement: agency Repreaentatico in
Hearings and Signing of Consent Agreements
1, AUTHORITY. Tto represent EPA in civil penalty adjudications conducted
under the Toxic Substances Control Act (TSCA) and 5 U.S.C. Section 554; to
negotiate consent agreements between the Agency and respondents resul-
ting from such enforcement actions} and to initiate an appeal from an
administrative determination, and to represent the Agency in such appeals.
2. TO WHOM raTM^yjED. Assistant Administrator for Enforcement and Compliance
Monitoring and Regional Administrators.
3. LIMITATIONS.
a. This authority may only be exercised after the alleged violator either
files an answer or fails to file an answer within the specified time period.
b. Only the Assistant Administrator for Enforcement and Compliance Moni-
toring may exercise the authority to initiate appeals.
c. The Assistant Administrator for Enforcement and Compliance Monitoring
must consult with the Regional Administrator or designee and the Assistant
Administrator for Pesticides and Tbxic Substances or designee prior to
initiating an appeal.
4. RFTffTiFranON • AUTHORITY . This authority may be redelegated.
5. ADDITIONAL REFERENCES.
a. Section 16 of TSCA.
b. The Agency official who signed the complaint should sign the settlement
agreement.
IE-5
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1200JM
DELEGATIONS
TOXIC SUBSTANCES CONTROL ACT
12-2-C. Administrative Enforcement > Issuance of Consent Orders
and Final Orders
a. To issue consent orders memorializing settlements between the Agency
and respondents resulting from administrative enforcement actions under the
Toxic Substances Control Act (TSCA). . -
b. To issue final orders assessing penalties under TSCA.
2. TO WHOM PET-ELATED. Regional Administrators and Headquarters Judicial
Officer! «
3. LIMITATTONS. The Regional or Headquarters Judicial Officers may not be
employed by the Office of Enforcement and Compliance Monitoring or by any
program office directly associated with the type of violation at issue in the
involved proceeding.
4. REDELBGATICN AUTHORITY. The Regional Administrators may redelegate this
authority to their respective Regional Judicial Officers. The Headquarters
Judicial Officer may not redelegate this authority.
5. ADDITIONAL REFERENCES . 40 CPR 22.
IE-6
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uooTN I OS
^LEGATIONS
JUL 25 1984
TOXIC SUBSTANCES CONNTRDL ACT
1. AUTHORITY. To sign agreements to remit all or part of a civil administrative
penalty, as authorized by Section 16(a) (2) (C) of the Toxic Substances Control
Act (TSCA), if conditions cited in the remittance agreement are met by the
Respondent; to sign an order remitting the penalty when the Agency is satisfied
that the conditions have been mat; and to sign an order not remitting the
penalty and declaring that payment of the penalty is due, and collecting the
required payment, when the Agency determines the conditions have not been net.
The authority to remit penalties with conditions is contained in Section 16(a)
(2)(C) of TSCA."
2. TO WHOM DELEGATED. Assistant Administrator for Pesticides and Toxic Substances
and Regional Administrators.
3. LIMITATIONS.
a. Regional Administrators must consult the Assistant Administrator for
pesticides and Toxic Substances, or designee, before exercising any of the above
Piuthorities. This is to ensure that similar settlements are applied to similar
violative situations.
b. The Assistant Administrator for Pesticides and Toxic Substances may
exercise these authorities in multi-Regional cases or cases of national
significance. In addition, the Assistant Administrator for Pesticides and
Toxic Substances must notify any affected Regional Administrators, or designers,
when exercising any of the above authorities.
c. The Assistant Administrator for Pesticides and Toxic Substances may waive
the consultation requirement by memorandum.
4. REDELEGATION AUTHORITY. This authority may be redelegated to the Division
Director level.
5. ADDITIONAL REFERENCES. Section 16(a)(2)(C) of TSCA, which permits the
Administrator to remit penalties with conditions, and "Toxic Substances Control
Act Settlement with Conditions" (November 16, 1983),. which gives criteria for the
use of remittance agreements, a description of the format and contents of such
agreements, and a summary of the procedures for using these agreements.
IE-7
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I.B. DELEGATION OF AUTHORITY UNDER FIFRA
UNITED-STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. O.C. 20460
DEC27
erne* or
PCSTICIOKS AND TOXIC SUMTAMCKS
MEMORANDUM
SUBJECT: Delegation of Authority under the Federal
Insecticide, Fungicide and Rodenticide
Act (FIFRA)
FROM: John A. Moore
Assistant Administrator
for Pesticides
and Toxic Substances
TO: A. E. Conroy II, Director
Office of Compliance Monitoring
*
The Director, Office of Compliance Monitoring, is
redelegated the following authorities under the Federal
Insecticide, Fungicide and Rodenticide Act (FIFRA), subject
to the limitations and concurrent exercises as provided in
Chapter 5-4, -8, -9, -12, -13, -14, -18, -19, -21, -25,
-26, -27, -29 and -31 of the EPA Delegations Manual
(July 25, 1984):
1. 5-4 Use of Pesticides Under Experimental Use Permits
To perform the EPA functions and responsibilities
relative to supervision of the use of pesticides under
Experimental Use Permits, and to determine the status
of compliance with terms and conditions of Experimental
Use Permits, as set forth in the FIFRA, Section 5(c).
The affected Regional Administrators or their designees
nust be notified prior to exercising these authorities.
2. 5-8 Registration of Establishments
To perform the Environmental Protection Agency functions
and responsibilities relative to the registration of
establishments and the receipt of information, as set
forth in the FIFRA, Section.?. Authority to promulgate
rules and regulations and to issue notices of proposed
rulemaking implementing Section 7(c) is reserved to the
Administrator.
IE-9
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-2-
3. 5-9 Inspection and Information Gathering
To perform the Environmental Protection Agency func-
tions and responsibilities relative to the inspection
of books and records, inspection of establishments and
the obtaining and executing of warrants as set forth in
the FIFRA, Sections 8 and 9. To carry out or require
the carrying out of any other inspection and information
gathering activities authorized by FIFRA and to desig-
nate representatives of the Administrator to perform
the above functions. The Assistant Administrator for
Enforcement and Compliance Monitoring or his/her desig-
nee must be consulted prior to obtaining warrants and
the appropriate Regional Administrator must be notified
prior to exercising any of these authorities.
4. 5-12 Issuance of Stop Sale, Use or Removal Orders
To issue stop sale, use, or removal orders as provided
in the FIFRA, Section 13(a) and (b), wherever there is
reason to believe on the basis of inspection or tests
that a pesticide or device is in violation of any
provision of the Act, or that such pesticide or device
has been or is intended to be distributed or sold in
violation of any such provisions, or when the regis-
tration of the pesticide has been cancelled by a final
order or has been suspended. This authority may be
exercised in multi-Regional cases or cases of national
significance. The Assistant Administrator for Enforce-
ment and Compliance Monitoring or his/her designee must
be consulted and the affected Regional Administrator or
his/her designee must be notified before exercising any
of the above authorities.
5. 5-13 Disposition of Pesticides
To cooperate with a Federal District Court in the dis-
position of a condemned pesticide or device, as pro-
vided in the FIFRA, Section 13(c). The Assistant
Administrator for Enforcement and Compliance Monitoring
or his/her designee must be consulted prior to exer-
cising this authority.
6. 5-14 Administrative Enforcement; Issuance of Complaints
and Signing of Consent Agreements
Pursuant to the FIFRA, Sections 9(c) and 14, to issue
written notices of warning; to issue complaints; to
evaluate the appropriateness of civil penalties; to
• negotiate and sign consent agreements memorializing
IE-10
-------
-3-
settlements between the Agency and respondents;
to grant advance concurrence to the Regional Admini-
strator or his/her delegate prior to the Regional
Administrator or his/her delegate exercising author-
ities under Chapter 5-14 of the EPA Delegations Manual
unless waived by memorandum. The Director, Office of
Compliance Monitoring, may exercise these authorities
in multi-Regional cases or cases of national signifi-
cance. In addition, the Assistant Administrator for
Enforcement and Compliance Monitoring or designee must
be consulted and the affected Regional Administrator or
designee must be notified when exercising any of the
above authorities except for the issuance of warning
letters. Once the alleged violator files an answer or
fails to file an answer in the specified time period,
the Assistant Administrator for Enforcement and Compli-
ance Monitoring or designee will conduct all negoti-
ations.
7. 5-18 Publication of Judgments
To publish notices of all judgments entered in actions
instituted under the authority of the FIFRA,
Section 16(d).
8. 5-19 Importation Activities
To inspect books and records maintained pursuant to
the FIFRA, Section 17(a); to request the Secretary of
the Treasury to deliver samples of pesticides or devices
being imported or offered for importation into the
United States; to give notice to and receive testimony
from the owner or consignee of such samples that are in
conformity with the provisions of the Act; and to
request that the Secretary of the Treasury refuse
admission of violative pesticides and devices into the
United States, as provided in the FIFRA, Section 17(c).
9. 5-21 Consultation with Secretary of Treasury
To consult with the Secretary of the Treasury (Customs)
on the prescription of enforcement regulations, as set
forth in the FIFRA, Section 17 (e).
10. 5-25 Administering Oaths
To designate officers or employees of the Agency to
administer oaths and affirmations or to take affidavits
pursuant to authority vested in the Administrator by 43
St^tutes-at-Large 803 (7 U.S.C. 2217), Reorganization
IE-11
-------
-4-
Plan No. 3 of 1970 (5 U.S.C. at Reorganization Plan
of 1970 No. 3), and the FIFRA Section 22(a) as read
together.
11. 5-26 Cooperation with Other Agencies
To cooperate with Federal and State agencies in carrying
out the provisions of the FIFRA, Section 22(b).
12. 5-27 State Cooperative Agreements
(Personnel and Facilities)
To approve cooperative agreements with States to uti-
lize State personnel or facilities to assist in the
enforcement or implementation of the FIFRA, pursuant to
Section 23(a)(1).
13. 5-29 Contracting for Applicator Training
wxth Federal Agencies
To ^fej^fprm the Environmental Protection Agency functions
and responsibilities relative to contracting with '
Federal Ag&nqies for the purpose—of'^encouraging the
training of ce^t^fied appliaart'ors, as set forth in the
FIFRA, Section 2Tt^L^^Sithe case of new contracts,
when a Regional^JUbfilnrs^rator begins negotiations with
a field o£ejrtf£ion, he is^to^notify the Assistant Adxnini- v;
strator for Pesticides and To>ic Substances that such /^^^
14. 5-31 Cooperative State Extension Services
To perfonn_J2nvironinental
and responsibi
of Agriculture
Cooperative
the FI
IE-12
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I.B. REDELEGATION OF AUTHORITY UNDER FIFRA & TSCA
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. O.C. 20460
APR -
orrtcB or
FCSTICIOC* ANO TOXIC SUMTAMCI
MEMORANDUM
SUBJECT: Rede\egat1on of Authority under FIFRA & TSCA
FROM:
TO:
A. E. Conroy II, Director
Office of Compliance Monitoring
Connie Musgrove
Chief Executive Officer
Office of Compliance Monitoring
I hereby redelegate to the Chief Executive Officer,
kflce of Compliance Monitoring, Office of Pesticides and
Fx1c Substances, the authorities under FIFRA and TSCA
delegated to me by the Assistant Administrator for Pesti-
cides and Toxic Substances on December 27, 1984 (Attached).
The authorities are subject to the limitations and concurrent
exercises as set forth 1n the delegations.
Attachments
IE-13
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
DEC 27 1384
OFric« or
PUTICIDU ANO TOXIC SUMTAMCKS
MEMORANDUM
SUBJECT: Delegation of Authority Under the
Toxic Substances Control Act
FROM: John A. Moore
Assistant Administrator
for Pesticides
and Toxic Substances
TO: A. E. Conroy II, Director
Office of Compliance Monitoring
o
The Director, Office of Compliance Monitoring is re-
delegated the following authorities under the Toxic Sub-
stances Control Act (TSCA), subject to the limitations and
concurrent exercises as provided in Chapter 12-1, -2-Ar -2-D
and -9 of the EPA Delegations Manual (July 25, 1984):
1. 12-1 Inspections and Subpoenas
a. To inspect any establishment, facility, or
other premises in which chemical substances,
mixtures or articles containing chemical sub-
stances or mixtures, are manufactured, processed,
stored or held before or after their distribution
in commerce, and any conveyance being used to
transport chemical substances, mixtures, or such
articles in connection with distribution in com-
merce. Any such inspection shall be conducted in
accordance with the provisions of the TSCA,
Section 11 (a) and Section 1Kb). The affected
Regional Administrator or designee must be notified
prior to exercising inspection authority under
this delegation.
b. To obtain and execute warrants for the purpose
of performing inspections and conducting information
gathering under TSCA. However, the Assistant Ad-
ministrator for Enforcement and Compliance Monito-
ring or designee must be consulted before obtain-
ing warrants.
IE-15
-------
-2-
c. To carry out or require the carrying out of
any other inspection and information gathering
activities authorized by TSCA.
• d. To desigante representatives of the Admini-
strator to perform the functions in paragraphs
l.a — I.e.
e. To require by subpoena the attendance and
testimony of witnesses and the production of
reports, papers, documents, answers to questions,
and other information in accordance with TSCA
Section 11(c). However, the Assistant Adminis-
trator for Enforcement and Compliance Monitoring
must be consulted before issuing subpoenas and the
General Counsel or designee must be consulted
before issuing subpoenas to collect information
for regulatory actions.
2. 12-2-A Administrative Enforcement; Issuance
of Complaints and Signing of Consent
Agreements
To file administrative complaints against vio-
lators of the TSCA, Section 15, for the purpose of
proposing civil penalties as provided in the TSCA,
Section 16, in multi-Regional cases or cases of
national significance; to negotiate and sign
consent agreements memorializing settlements
between the Agency and respondents; to grant ad-
vance concurrence to the Regional Administrator or
his/her delegate exercising authorities under
Chapter 12-2-A of the EPA Delegations Manual; but
not to issue consent orders finalizing arguments
between parties to civil penalty proceedings. The
Assistant Administrator for Enforcement and
Compliance Monitoring or designee and the affected
Regional Administrator or designee must be noti-
fied when exercising any of the above authorities.
3. 12-2-D Administrative Enforcement; Signing
Penalty Remittance Agreements and
Remittance Orders
To sign agreements to remit all or part of a civil
administrative penalty, as authorized by Section
16(a)(2)(C) of TSCA, if conditions cited in
IE-16
-------
-3-
the remittance agreement are met by the Respond-
ent; to sign an order remitting the penalty when
the Agency is satisfied that the conditions have
been met; and to sign an order not remitting the
penalty and declaring that payment of the penalty
is due, and collecting the required payment* when
the Agency determines the conditions have not been
met. The above authorities may be exercised in
multi-Regional cases or cases of national signi-
ficance. The affected Regional Administrator or
designee must be notified when exercising any of
the above authorities. To grant advance concur-
rence to the Regional Administrator or delegate
prior to the Regional Administrator or delegate
exercising authorities under Chapter 12-2-D of the
EPA Delegations Manual unless waived by memorandum.
4. 12-9 State Cooperative Agreements (Toxic Substances
Control Project
To^approye cooperative agreements for establishment
and operation of State-toxic substances control
projects leading^to""the prevention or elimination
of unreasonable' rifcfes^to health or the environment
pursuant-4To the TSCA, s&st^pn 28. The. General
Counsel or designee must beNronsulted prior to
exercising this authority.
IE-17
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. O.C. 20460
DEC I 2 1988
ornc* or
MMTICIDKS AND TOXIC SUMTANCI
MEMORANDUM
SUBJECT:
FROM:
TO:
RedeTegatlon of Authority under FIFRA and TSCA
Connie Musgrove. Chief Executive Officer
Office of Compliance Monitoring
Michael Wood. Director
Compliance Division
Office of Compliance Monitoring
I hereby redelegate to the Director, Compliance Division,
Office of Compliance Monitoring. Office of Pesticides and .
Toxic Substances, the authorities under FIFRA and TSCA listed
below. These authorities were delegated to me on April 1,
1988. by the Director. Office of Compliance Monitoring, copy
|ttached. The authorities are subject to the limitations and
Concurrent exercises as set forth 1n the delegation.
FIFRA
1.
2.
3.
4.
5.
6.
7.
8.
5-4
5-8
5-9
5-12
5-13
5-14
5-18
5-19
TSCA
1. 12-1
2. 12-2-A
3. 12-2-D
Use of Pesticides under Experimental Use Permits
Registration of Establishments
Inspection and Information Gathering
Issuance of Stop Sale, Use or Removal Orders
Disposition of Pesticides
Administrative Enforcement: Issuance of Complaints
and Signing of Consent Agreements
Publication of Judgments
Importation Activities
Inspection and
and (e) only
Administrative
and Signing of
Administrative
Subpoenas paragraphs (a), (b), (c)
Remittance Orders
Enforcement: Issuance of Complaints
Consent Agreements
Enforcement: Signing Penalty
Attachment
IE-19
-------
II
EVIDENCE GATHERING
-------
H. EVIDENCE GATHERING
A. CONSENSUAL/WARRANTED INSPECTION
1. Entry
2. Admission/Demeanor
3. Scope
4. Exit Requirements
5. Post-Inspection Requirements
B. SUBPOENA^AUTHORTTY
C. VOLUNTARY DISCLOSURE/SELF CONFESSION
D. OTHER DATA SOURCES
1. Federal/State/Local Government Activities
2. Financial Data
a. SEC 10-K and 10-Q Statements
b. Dun and Bradstreet
c Financial Directories
3. TRIS
4. FTTS
5. EDRS
6. Certified Statements
-------
H. EVIDENCE GATHERING
A. CONSENSUAL/WARRANTED INSPECTION
Inspection Authority and Background Requirements
1. ENTRY
Site Selection - Consensual/Warranted Entry
a. Constitution/Statutory Requirements
4th Amendment:
The right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated;
and no warrants shall issue but upon probable cause, supported by oath or
affirmation, and particularly describing the place to be searched, and the
persons or things to be seized.
FIFRA Section 8(b):
Inspection—For purposes of enforcing the provisions of this Act, any
producer, distributor, carrier, dealer, or any other person who sells or
offers for sale, delivers or offers for delivery any pesticide or device
subject to this Act, shall upon request of any officer or employee of the
Environmental Protection Agency or of any State or political subdivision,
duly designated by the Administrator, furnish or permit such person at all
reasonable times to have access to, and to copy.....
FIFRA Section 9(a):
In General-(l) For the purposes of enforcing the provisions of this Act,
officers or employees of the Environmental Protection Agency or of any
State duly designated by the Administrator are authorized to enter at
reasonable times (A) any establishment or other place where pesticides or
devices are held for distribution or sale... , or (B) any place where there
is being held any pesticide the registration of which has been suspended
or canceled for the purpose of determining compliance with section 19.
FIFRA Section 26(c):
... The Administrator shall have primary enforcement responsibility for
those States that do not have primary enforcement responsibility under this
Act. Notwithstanding the provisions of section 2(e)(l) of this Act, during
any period when the Administrator has such enforcement responsibility,
section 8(b) of this Act shall apply to the books and records of
commercial applicators and to any applicator who holds or applies
pesticides, or use dilutions of pesticides, only to provide a service of
II-1
-------
H. EVIDENCE GATHERING (II.A.I)
controlling pests without delivering any unapplied pesticide to any person
so served, and section 9(a) of this Act shall apply to the establishment or
other place where pesticides or devices are held for application by such
persons with respect to pesticides or devices held for such application.
FIFRA Section 9(b):
Warrants-For purposes of enforcing the provisions of this Act and upon
a showing to an officer or court of competent jurisdiction that there is
reason to believe that the provisions of this Act have been violated,
officers or employees duly designated by the Administrator are
empowered to obtain and execute warrants authorizing -
(1) entry, inspection, and copying of records for purposes of this section
or section 8;
(2) inspection and reproduction of all records showing the quantity, date
of shipment, and the name of the consignor and consignee of any pesticide
or device found in the establishment which is adulterated, misbranded, not
registered (in the case of a pesticide) or otherwise in violation of this Act
and in the event of the inability of any person to produce records
containing such information, all other records and information relating to
such delivery, movement, or holding of the pesticide or device; and
(3) the seizure of any pesticide or device which is in violation of this
Act.
TSCA Section ll(a):
In Ceneral-FoT purposes of administering this Act, the Administrator, and
any duly designated representative of the Administrator, may inspect any
establishment, facility, or other premises in which chemical substances or
mixtures are manufactured, processed, stored or held before or after their
distribution in commerce and any conveyance being used to transport
chemical substances, mixtures, or such articles in connection with
distribution in commerce.
EPCRA:
There is no explicit inspection authority under EPCRA; however, it is
implied.
II-2
-------
(H.A.1) H. EVIDENCE GATHERING
b. Case Law
Consensual Entry
(1) U.S. v. Biswell. 406 U.S. 311 (1972)
Background:
Respondent's pawn shop was searched under the Gun Control Act.
The Court held that such a search was authorized under the Act
and therefore no warrant was needed.
Ruling:
A warrantless search authorized by statute does not violate the 4th
Amendment.
(2) In re: Agland Incorporated. CO-OP.. I.F.&R. No. VHI-91C
Background:
For this case, the Respondent consented to an inspection and later
changed his mind. He argued at hearing that the evidence was
invalid because EPA had not obtained a warrant.
Ruling:
A warrant is unnecessary when an inspection is consented to and
documents requested were voluntarily given.
(3) In re: Bes Tex Insecticides Company Inc.. I.F.&R. No. VI-75C
Background:
The Respondent challenged the use of evidence obtained during an
inspection, arguing that the notice stated that no violation was
suspected. The Court ruled for EPA.
H-3
-------
IL EVIDENCE GATHERING (II. A. 1)
Ruling:
Prior to the conduct of an inspection, FIFRA does not require:
• A violation to be suspected;
• A reason to believe that the provisions of the Act have
been violated; or
• Consent of those in charge of the facility.
(4) In re: Electric Service Company. TSCA Docket No. V-C-024
Background:
The Respondent was charged with several PCB violations
discovered during inspections of his facilities. He challenged the
use of this evidence in the hearing. The Court ruled the evidence
was admissible.
Ruling:
• The right to challenge a search and seizure on appeal is
waived by consent to the inspection.
• State inspectors must conform to TSCA requirements (i.e.,
provide written notice, have TSCA authority) when'
performing an inspection on EPA's behalf.
(5) In re: George J. Huth. d/b/a Hum Oil Company and Jovce
Nichols. Docket No. TSCA -V-C-196
Background:
The Respondent filed a 4th Amendment challenge to information
collected by a TSCA state inspector.
Ruling:
, A search conducted pursuant to valid consent is constitutionally
permissible. Consent acts as a waiver to any later defenses, both
statutory and constitutional. Consent must be given in the absence
of threats, coercion, deception, or entrapment.
II-4
-------
(ELA.1) IL EVIDENCE GATHERING
Warranted Entry
(6) Marshall. Secretary of Labor et al. v. Barlow. Inc.. 436. U.S. 307
(1978)
Background:
This case presented a challenge to a warrantless OSHA search of
a business. The Supreme Court upheld the challenge and provided
guidelines for administrative search warrants. Leading case on
administrative warrants. The Agency has developed its policy to
conform to this case.
Ruling:
• Probable cause standard satisfied by showing of reasonable
administrative standards.
• Warrant showing inspection site selection under a neutral
administrative plan protects 4th Amendment rights.
• Certain industries having a history of government oversight
have no reasonable expectation of privacy.
(7) Bunker Hill Co. v. EPA. 658 F.2d 1280 (9th Cir. 1981)
Background:
The company challenged the validity of an EPA Clean Air
inspection warrant and the inspection by a contractor as an "agent"
of EPA.
Ruling:
Power of entry granted by section 114 (a)(2) of the Clean
Air Act is sufficient authority to justify obtaining a
warrant.
Warrants may be obtained ex parte, regardless of whether
the search is a "surprise search" or one that has been
announced in advance.
II-5
-------
H. EVIDENCE GATHERING (II. A.I)
(8) Boliden Metech Inc. v. United States. Docket No. 88-0081L,
(District of Rhode Island, 1988)
Background:
\
This challenge to a TSCA inspection warrant was based on the fact
that TSCA does not specifically grant authority to issue search
warrants.
Ruling:
TSCA implicitly authorizes the EPA to obtain search warrants for
the purpose of fulfilling its inspection duties under the Act.
(9) In re: N. Jonas & Co.. Inc.. I.F.&R. Docket No. HI-121C
Background:
The Respondent refused to allow an EPA inspector to sample his
product. The Court noted that a search warrant would not have
been necessary because the Respondent was registered as a
producer of pesticides.
Ruling:
Pesticides have a long history of regulation and can reasonably be
considered within the Barlow exception for closely-regulated
industries. Refusal to permit inspection and sampling pursuant to
section 9 is a violation of section 12(a)(2)(B).
(10) In re: Bradley Exterminating Company. I.F.&R. V-604C
Background:
The Respondent, a pest control company, challenged evidence
obtained under an administrative warrant. It based its challenge on
the fact that the EPA warrant did not specify the exact documents
EPA wished to inspect.
II-6
-------
(H.A.1) IL EVIDENCE GATHERING
Ruling:
Where circumstances make an exact description difficult, a warrant
need not make exact descriptions of the items sought, but only
needs to describe generic classes of items.
(11) ' In re: Sporicidin International. Docket No. FIFRA-88-H-02,
Opinion and Order Denying Motion to Suppress and Conditionally
Granting Motion for Accelerated Decision
Background:
The Respondent successfully argued that the search of its premises
was unlawful because FIFRA Section 9 searches are limited to
places where a pesticide is held for distribution and sale. The
Court ruled against EPA.
Ruling:
When evidence that pesticides were held for distribution or sale on
the premises is stale or outdated the search cannot be justified on
the basis of FIFRA section 9. Evidence that pesticides were held
for sale or distribution on the premises is stale if more than four
years Old. [case is on appeal]
Open Fields
(12) Oliver v. United States. 466 U.S. 170
Background:
Two narcotics agents investigated a tip that marijuana was being
grown on a farm and inspected two fields. The Court upheld the
search.
Ruling:
An individual has no reasonable expectation of privacy that
open fields will remain free from warrantless intrusion by
government officers under the 4th Amendment.
H-7
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IL EVIDENCE GATHERING (II.A.I)
• An individual may not legitimately demand privacy for
activities conducted out-of-doors in fields, except in the
area immediately surrounding the home.
(13) Dow Chemical Co. v. United States. 749 F. 2d 307 (1984)
Background:
In this case, EPA flew over Respondent's facility and took
photographs of smokestack emissions. Respondent challenged the
pictures as the product of an illegal search.
Ruling:
When the area observed is like an open field, an inspection which
would otherwise be a search becomes a nonsearch for 4th
Amendment purposes.
(14) In re: Boliden Metech. Inc.. Docket No. TSCA 1-87-1097, Initial
Decision (1989)
Ruling:
Collection of a sample of suspected PCB material on Respondent's
property but outside the fence did not violate Respondent's 4th
Amendment protection from unreasonable search and seizure.
Respondent had no expectation of privacy in its parking lot which
was open to the public.
Plain View
(15) Coolidge v. New Hampshire. 403 U.S. 443 (1971)
Background:
The seizure of a murder suspect's car on the basis of the plain
view exception was denied because there was an opportunity for
police to obtain a valid warrant, the location of the car was known
in advance, and the car was Intended to be seized as part of the
murder investigation.
II-8
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(DLA.1) H. EVIDENCE GATHERING
Ruling:
Criteria for a plain view exception for warrantless search and
seizure are that the inspector:
• must have a prior, independent justification for physically
being in a position to observe the evidence;
* must have immediately recognized the information as
evidence; and
• must have discovered the evidence inadvertently.
Emergency Situations
(15) Camera v. Municipal Court. 387 US 523
Background:
Camera refused to allow city housing inspectors to enter his house
without a warrant. The city brought charges against Camera. The
Supreme Court found the 4th Amendment required that a warrant
be obtained to search a home, where expectations of privacy are
paramount, except in certain narrow circumstances such as
emergencies.
Ruling:
The law has traditionally upheld prompt inspection even without
a warrant in emergency situations.
c. Special Considerations
(1) Ensure all inspection targets are selected within Barlow's
framework.
(2) Attempt consensual entry first. Elevate and document attempt to
enter to the highest available management level of the facility.
(3) Obtain a warrant when:
• entry is denied or consent is withdrawn;
• facility has a history of refusal; or
• surprise is necessary to obtain evidence.
H-9
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IL EVIDENCE GATHERING (H.A.I)
d. Process
Inspection site selection is made on the basis of reasonable cause or
pursuant to an administrative plan or scheme.
Reasonable Cause includes information from any reliable source
concerning a member of the regulated community which would lead one
to reasonably suspect that a violation may have occurred. This would
include:
• A complaint from a person outside the Agency; or
• Information given to the Agency by a facility which would raise
suspicion that a violation occurred.
Example:
A facility reports the manufacture of a chemical substance pursuant
to section 8 of TSCA but fails to enter into a testing agreement for the
same chemical substance pursuant to section 4 TSCA.
Sections 8(b) and 9(a) of FDFRA require that the Notice of Inspection
indicate if a violation of FDFRA is suspected.
A Valid Administrative Inspection Plan includes, but is not limited to, a
scheme that targets some members of a regulated community:
• on a random basis;
• within a definite time frame; or
• on the basis of a neutral, objective inspection strategy.
Example:
The PCB strategy targeted utilities as the first group to be
inspected for violations of the PCB rule because of the substantial
quantities of electrical equipment and consequent PCB dielectric fluid used
by these facilities.
Section 8(b) and 9(a) of FIFRA require that the Notice of Inspection
include an alternate and sufficient reason for the inspection.
11-10
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(ILA.1) • H. EVIDENCE GATHERING
Procurement and Execution of an Administrative Warrant
See Pesticide Inspection Manual
NOTE: All inspection forms must be completed during an inspection
conducted pursuant to a warrant as well as during a consensual
inspection.
2. ADMITTANCE PROCEDURES/DEMEANOR - ENTRY
a. Statutory Requirements
— FTFRA^ection 8(b):
...Before undertaking an inspection under this subsection, the officer or
employee must present to the owner, operator, or agent in charge of the
establishment or other place where pesticides or devices are held for
distribution or sale, appropriate credentials and a written statement as to
the reason for the inspection including a written statement as to whether
a violation of the law is suspected. If no violation is suspected, an
alternate and sufficient reason shall be given in writing. Each such
inspection shall be commenced and completed with reasonable
promptness.
FTFRA Section 9(a) (2):
Before undertaking such inspection, the officers or employees must
present to the owner, operator, or agent in charge of the establishment or
other place where pesticides or devices are held for distribution or sale,
appropriate credentials and a written statement as to the reason for the
inspection, including a statement as to whether a violation of the law is
suspected. If no violation is suspected, an alternate and sufficient reason
shall be given in writing. Each such inspection shall be commenced and
completed with reasonable promptness.
FTFRA Section 10(e):
Disclosures to contractors.—Information otherwise protected from
disclosure to the public under subsection (b) of this section may be
disclosed to contractors with the United States and employees of such
contractors if, in the opinion of the Administrator, such disclosure is
necessary for the satisfactory performance of work in connection with this
subchapter and under such conditions as the Administrator may specify.
11-11
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IL EVIDENCE GATHERING (H.A.2)
The Administrator shall require as a condition to the disclosure of
information under this subsection that the person receiving it take such
security precautions respecting the information as the Administrator shall
by regulation prescribe.
TSCA Section ll(a):
...Such an inspection may only be made upon the presentation of
appropriate credentials and of a written notice to the owner, operator, or
agent in charge of the premises or conveyance to be inspected. A separate
— ——-—notic»-siiaU-be^given-for-eaeh^ueh-iftspectionirbut-a-notice shall not be
required for each entry made during the period covered by the inspection.
Each such inspection shall be commenced and completed with reasonable
promptness and shall be conducted at reasonable times, within reasonable
limits, and in a reasonable manner.
TSCA Section 14:
(c)...In submitting data under this Act, a manufacturer, processor, or
distributor in commerce may (A) designate the data which such person
believes is entitled to confidential treatment under subsection (a), and (6)
submit such designated data separately from other data submitted under
this Act. A designation under this paragraph shall be made in writing in
such manner as the Administrator may prescribe.
(d) Criminal penalty for wrongful disclosure.
(1) Any officer or employee of the United States or former officer or
employee of the United States who by virtue of such employment or
official position has obtained possession of, or has access to, material the
disclosure of which is prohibited by subsection (a) of this section, and
who knowing that disclosure of such material is prohibited by such
subsection, willfully discloses the material in any manner to any person
not entitled to receive it, shall be guilty of a misdemeanor and fined not
more than $5,000 or imprisoned for not more than one year, or both.
Section 1905 of Title 18 does not apply with respect to the publishing,
divulging, disclosure, or making known of, or making available,
information reported or otherwise obtained under this chapter.
(2). For the purpose of paragraph (1), any contractor with the United
States who is furnished information as authorized by subsection (a)(2) of
this section, and any employees of any such contractor, shall be
considered to be an employee of the United States.
EPCRA:
No explicit inspection authority.
11-12
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(ILA.2)
H. EVIDENCE GATHERING
5.
c.
Case Law
(1) U.S. v. Stauffer Chemical Co.. 511 F. Supp. 744 (1981)
Background:
The Respondent challenged the validity of a Clean Air Search
Warrant. He refused entry to a contractor hired by EPA to
conduct the search on the grounds that only EPA employees can
represent the Administrator.
Ruling:
• The words "authorized representative" in the Clean Air Act
include private contractors and are not limited to EPA
employees.
• The contract with the corporation conducting inspections
constituted sufficient protection against disclosure of trade
secrets.
(2) Bunker Hill Company et al. v. United States. 658 F. 2d 1280
(1981)
• Contract employees are "authorized representatives" within
the meaning of the Clean Air Act.
• In view of regulatory sanctions and contractual safeguards
to prevent the dissemination of trade secrets, the Agency is
not precluded from the use of contractors to conduct
inspections pursuant to the Clean Air Act.
Special Considerations
It is EPA practice under FIFRA, TSCA, and EPCRA to:
(1) Credential all representatives of the Administrator that enter a site
for the purposes of inspection.
(2) Present credentials and a notice of inspection even in the absence
of a statutory requirement under EPCRA.
H-13
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IL EVIDENCE GATHERING (H.A.2)
(3) Enter at reasonable times (normal business hours).
(4) Define a facility (establishment, premises, conveyance) as a
contiguous site divided simply by a public right-of-way for
purposes of providing separate notices and presentation of
credentials.
(5) Use contractor personnel to conduct inspections when necessary.
d. Documentation/Process
Documentation
(1) The inspector credential serves not only as a means of
identification but also constitutes the official delegation of statutory
authority from the Administrator to the person designated to
conduct the inspection. Credentials delegating the authority to
conduct inspections under all environmental statutes must be signed
by the Administrator, Deputy Administrator, or Regional
Administrator. Statute specific credentials may be signed by the
Assistant Administrator, or the office director delegated inspection
authority under that statute.
(2) The requirements of the inspection provisions are documented by
the Notice of Inspection and Inspection Report.
The Notice of Inspection includes:
• entry rime - establishes reasonable time and moment from
which all inspection time frames are measured.
• name, title, signature of the recipient - establishes operator,
owner, or agent in charge.
• violation suspected/reason for inspection - indicates
reasonable cause or neutral administrative scheme (FIFRA)
• specification of the nature of certain data to be inspected
(TSCA - See: H.A.3. Scope)
(3) The notice to the facility explaining the right and prescribed
method for designating data for confidential treatment is the Notice
of Confidentiality.(TSCA - See: II.A.4. Exit Requirements)
11-14
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(H.A.2) H. EVIDENCE GATHERING
Process
Before reviewing the information obtained during an inspection, the Case
Development Officer should establish that the Agency has met its statutory
obligations:
• The inspection report should clearly indicate that the inspector
presented credentials to the owner, operator, or agent in charge.
• Copies of the Notice of Inspection and Notice of Confidentiality
should be contained in the file.
Although there is no exclusionary rule in civil proceedings, the Rules of
Practice at 40 C.F-.R. Section 22.22, Evidence, provide that unreliable
evidence need not be admitted. Procedural errors undermine the
credibility of the evidence obtained during the conduct of the inspection.
As part of the Initial Decision, the Administrative Law Judge specifically
reviews and evaluates the Agency's compliance with the statutory
requirements pertaining to inspection procedures.
3. SCOPE OF INSPECTION
a. Statutory Authority
FTFRA Section 8(b):
... at all reasonable times to have access to, and to copy: (1) all records
showing the delivery, movement, or holding of such pesticide or device,
including the quantity, the date of shipment and receipt, and the name of
the consignor and consignee; or (2) in the event of the inability of any
person to produce records containing such information, all other records
and information relating to such delivery, movement, or holding of the
pesticide or device.
FIFRA Section 9(a)(l):
... (A) any establishment or other place where pesticides or devices are
held for distribution or sale for the purpose of inspecting and obtaining
samples of any pesticides or devices, packaged, labeled, and released for
shipment, and samples of any containers or labeling for such pesticides or
devices, or (B) any place where there is being held any pesticide the
registration of which has been suspended or canceled for the purpose of
determining compliance with Section 19.
H-15
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IL EVIDENCE GATHERING (H.A.3)
TSCA Section 11:
(b) Scope—(I) Except as provided in paragraph (2), an inspection
conducted under subsection (a) shall extend to all things within the
premises or conveyance inspected (including records, files, papers,
processes, controls, and facilities) bearing on whether the requirements of
this Act applicable to the chemical substances or mixtures within such
premises or conveyance have been complied with.
(2) No inspection under subsection (a) shall extend to:
(A) financial data,
(B) sales data (other than shipment data),
(Q pricing data,
(D) personnel data, or
(E) research data (other than data required by this Act or under
a rule promulgated thereunder),
unless the nature and extent of such data are described with reasonable
specificity in the written notice required by subsection (a) for such
inspection.
EPCRA:
There is no explicit inspection authority under EPCRA; however, it is
implied.
b. Case Law
Inspecting and Copying Records
(3) CED's Inc. v. EPA. 745 F.2d 1092 (7th Cir 1984)
Background:
Respondent attempted to squash an administrative search warrant
because Respondent was not covered by the Clean Air Act. The
Court held that everyone is prohibited from certain activities under
the CAA.
Ruling:
EPA has authority under the Clean Air Act to inspect and copy
business records of a manufacturer and distributor even though the
Agency had never required the manufacturer and distributor to
keep any records.
H-16
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(H.A.3) IL EVIDENCE GATHERING
Photographs
(4) In re: Bunker Hill Co.. 80-2087, 15 ERC 1063 (D. Ida 1980)
Background:
The Respondent tried to limit the EPA clean air inspection
including taking custody of any film containing pictures of its
facility. The Court held such limitation was not permissible.
Ruling:
The Environmental Protection Agency has authority under section
114 of the Clean Air Act to take photographs of the facilities and
equipment it inspects.
FTFRA Packaged, Labeled, and Released for Shipment
(5) In re: Sanico. I.F.&R. Docket No. IV-234-C (1979)
Background:
An EPA FTFRA inspector asked to be shown pesticides held for
sale which he sampled. The Respondent challenged the evidence
in the case arguing that EPA had not established that the pesticide
was actually held for sale. The Judicial Officer ruled in favor of
EPA.
Ruling:
To establish that a pesticide is being held for distribution or sale
it is sufficient to show:
• the official in charge of the operation believed the product
was being held for sale; and
• the individual containers were labeled, in plastic bags, in
labeled cartons, and were stored on shelves so that a
purchaser would have been sold that product on the date of
inspection.
11-17
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IL EVIDENCE GATHERING (DJ.A.3)
(6) In re: Water Services Inc.. I.F.&R. Docket No. IV-167-C,
12/22/76
Ruling:
In response to a similar challenge that a pesticide was not held for
sale, the Judicial Officer concluded that the sampled product was
not held for sale. He applied the facts of the case and found
several determinative factors:
• the product had been returned to the company by a
purchaser;
• it was the policy and practice of the company to retest
products returned by customers prior to resale;
• the plant manager was misidentified on the receipt for
samples and no person occupied the position of plant
superintendent at the time of the inspection; and
• the product sampled sat in the warehouse for 1-1/2 years
while large quantities of the pesticide were sold.
c. Special Considerations
Whatever the statute says, fairly and straight-forwardly construed,
determines the nature and extent of post-entry activities. Administrative
warrants presuppose that a right to enter is statutorily conferred and that
a concomitant right to "search" likewise exists. While language varies
from statute to statute, the word "inspected" or "inspections" or
"inspection" appears in FIFRA and TSCA. It is EPA's position as
supported by case law that this word includes the prerogative of recording
by means of sample, photograph, tape recording, graphic/electronic
device, or any other method. The collection, recordation, or generation
of this information by the inspector constitutes a submission of data
pursuant to Section 10(a) of FIFRA and Section 14(c) of TSCA and may
be designated as trade secret or confidential.
11-18
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(H.A.3) n. EVIDENCE GATHERING
d. Documentation/Process
FIFRA
The Receipt for Samples contains an acknowledgement that samples were
obtained from pesticides or devices that were packaged, labeled, and
released for shipment. Although the receipt is signed, the respondent may
still contest a samples origin. If questions arise concerning whether the
sample was from a pesticide packaged, labeled, and released for shipment,
the evidence should be evaluated on the basis of:
• the position and authority of the person signing the receipt; and
• the policy and practice of the company regarding the release of
pesticides for shipment.
4. EXIT REQUIREMENTS
a. Statutory Authority
FIFRA Section 9(a)(2):
...If the officer or employee obtains any samples, prior to leaving the
premises, he shall give to the owner, operator, or agent in charge a
receipt describing the samples obtained and, if requested, a portion of
each such sample equal in volume or weight to the portion retained. If an
analysis is made of such samples, a copy of the results of such analysis
shall be furnished promptly to the owner, operator, or agent in charge.
TSCA Section 11:
No exit requirements at section 11.
TSCA Section 14(c):
Designation and release of confidential data.—(I) In submitting data under
this chapter, a manufacturer, processor, or distributor in commerce may
(A) designate the data which such person believes is entitled to
confidential treatment under subsection (a) of this section, and (B) submit
such designated data separately from other data submitted under this
chapter. A designation under this paragraph shall be made in writing and
in such a manner as the Administrator may prescribe.
EPCRA:
No explicit entry authority.
11-19
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IL EVIDENCE GATHERING (H.A.4)
b. Case Law
None
c. Special Considerations
A receipt for samples is completed for all inspections under FIFRA and
TSCA. While TSCA does not provide for the issuance of a receipt for
samples and documents, the receipt is the method prescribed by the
Administrator to notify the manufacturer, etc., of the information being
submitted under TSCA. The Declaration of Confidential Information is
the Administrator's prescribed method for designating in writing
information which manufacturers' believe is entitled to confidential
treatment. Completion of the Declaration form either in the affirmative
or negative indicates that the person was provided the opportunity to
exercise his right to declare any information submitted at the time of the
inspection as TSCA-CBI.
d. Documentation/Process
FIFRA - Receipt for Samples
TSCA - Receipt for Samples and Documents
- Declaration of Confidential Information
NOTE: The Declaration must be completed indicating that
the collected information was or was not designated
as confidential in order to show that the opportunity
to designate data as confidential was exercised in
accordance with 40 CFR 2.203(b) or (c). The
Declaration is not completed if the Receipt for
Samples and Documents states that no information
was taken during the inspection.
EPCRA
11-20
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(H.A.4) n. EVIDENCE GATHERING
5. POST-INSPECTION REQUIREMENTS
a. Statutory Requirements
FIFRA Section 9 (a) (2):
...If an analysis is made of such samples, a copy of the results of such
analysis shall be furnished promptly to the owner, operator, or agent in
charge.
TSCA Section 14(c):
Designation and release of confidential data.—(I) In submitting data under
this chapter, a manufacturer, processor, or distributor in commerce may
(A) designate the data which such person believes is entitled to
confidential treatment under subsection (a) of this section, and (B) submit
such designated data separately from other data submitted under this
chapter. A designation under this paragraph shall be made in writing and
in such a manner as the Administrator may prescribe.
EPCRA:
No explicit entry authority.
b. Case Law
None
c. Special Considerations
FIFRA
The Agency provides the Results of Analysis of all pesticide samples that
are analyzed.
TSCA
After the inspection, a copy of the receipt for samples and documents and
Declaration of Confidential Business Information may be sent to corporate
officials in a better position to make confidentiality determinations.
d. Documentation
FIFRA - Results on Analysis
TSCA - Declaration of Confidential Business Information
11-21
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IL EVIDENCE GATHERING
B. SUBPOENA AUTHORITY
1. Constitution/Statutory Requirements
FETRA:
No statutory authority.
TSCA Section 9: Relationship to Other Federal Laws
(a) Laws not Administered by the Administrator - (1) If the Administrator has
reasonable basis to conclude that the manufacture, processing, distribution in
commerce, use, or disposal of a chemical substance or mixture, or that any
combination of such activities, presents or will present an unreasonable risk of
injury to health or the environment and determines in the Administrator's
discretion, that such risk may be prevented or reduced to a sufficient extent by
action taken under a Federal law not administered by the Administrator, the
Administrator shall submit to the agency which administers such law a report
which describes such risk and includes in such description a specification of the
activity or combination of activities which the Administrator has reason to believe
so presents such risk.
(b) Laws Administered by the Administrator - The Administrator shall coordinate
actions taken under this Act with actions taken under other Federal laws
administered in whole or in part by the Administrator. If the Administrator
determines that a risk to health or the environment associated with a chemical
substance or mixture could be eliminated or reduced to a sufficient extent by
actions taken under the authorities contained in such other Federal laws, the
Administrator shall use such authorities to protect against such risk unless the
Administrator determines, in the Administrator's discretion, that it is in the public
interest to protect against such risk by actions taken under this Act. This
subsection shall not be construed to relieve the Administrator of any requirement
imposed on the Administrator by such other Federal laws.
TSCA Section 11: Inspections and Subpoenas
Subpoenas - In carrying out this Act, the Administrator may by subpoena
require the attendance and testimony of witnesses and the production of reports,
papers, documents, answers to questions, and other information that the
Administrator deems necessary. In the event of contumacy, failure, or refusal of
any person to obey any such subpoena, any district court of the United States in
which venue is proper shall have jurisdiction to order any such person to comply
with such subpoena. Any failure to obey such an order of the court is punishable
by the court as a contempt thereof.
11-22
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(H.B.2) H. EVIDENCE GATHERING
EPCRA Section 325(0(2):
Procedures for Administrative Penalties.-The Administrator may issue subpoenas
for the attendance and testimony of witnesses and the production of relevant
papers, books, or documents in connection with hearings under this section.
In case of contumacy or refusal to obey a subpoena issued pursuant to this
paragraph and served upon any person, the district court of the United States for
any district in which such person is found, resides, or transacts business, upon
application by the United States and after notice to such person, shall have
jurisdiction to issue an order requiring such person to appear and give testimony
"~ before the administrative law judge, or both, and any failure to obey such order
of the court may be punished by such court as a contempt thereof.
2. Case Law
a. Endicott Johnson v. Perkins. 317 U.S. 501-517 (1943)
Background:
The case involved the validity of an administrative subpoena issued by the
Secretary of Labor to investigate the overtime wages paid to employees
engaged in work performed in connection with government contracts.
Ruling:
It is the District Court's duty to order compliance if the evidence sought
by the subpoena was not plainly incompetent or irrelevant to any lawful
purpose. (
b. United States of America v. Morton Salt Company. 338 U. S. (1950)
Background:
This case involved an order by the Federal Trade Commission requiring
the production of reports showing the manner in which salt producers
complied with a court decree.
Ruling:
An administrative agency has the power of inquisition analogous to the
Grand Jury, which does not depend on a case or controversy for power
to get evidence. The Grand Jury can investigate merely on the suspicion
11-23
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IL EVIDENCE GATHERING (H.B.2)
that the law is being violated, or because it wants the assurance that it is
not.
c. Equal Employment Opportunity Commission v. Children's Hospital
Medical Center of Northern California. 719 F.2d (9thCir. 1983)
Background:
The District Director of the Equal Employment Opportunity Commission
three subpoenas-to, gather information regarding the Center's
compliance with a district court consent decree.
Ruling:
The_jscope _of judicial inquiry in an agency subpoena enforcement
proceeding is narrow and limited to whether:
• Congress has granted the authority to investigate;
• Procedural requirements have been followed; and
• The evidence is relevant and material to the investigation.
d. United States Environmental Protection Agency v. Alyeska Pipeline
Service Company. F.2d (9th Cir. 1988)
Background:
A TSCA subpoena was issued to assist in an investigation of tanker
discharges under the Clean Water Act.
Ruling:
Congress gave the EPA Administrator the authority to decide
which environmental law is appropriate to investigate individual
cases. TSCA requires resort to other environmental laws only if
the EPA has already determined that other laws would suffice.
Section ll(c) imposes no requirement that subpoenas are issued
only to investigate discrete charges of violations of the law.
TSCA is designed to regulate all chemical substances.
n-24
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(ILB.2) IL EVIDENCE GATHERING
• An EPA subpoena is not self-enforcing.. A recipient may refrain
from complying with it, without penalty, until directed otherwise
by a federal court order.
3. Special Considerations
TSCA
a. Subpoena authority pursuant to Section ll(c) of TSCA may be exercised
in order to inquire about the manufacture, processing, distribution, use,
storage or disposal of chemical substances, regardless of the ultimate
statutory authority used to take compliance or regulatory action.
b. Subpoenas may be issued to fulfill three purposes:
Regulation - To inquire about chemical substances in order to
gather information in connection with the
development of a rule or regulation. (OMB
approval required)
Investigation - To inquire into potential existence of hazards or
violations posed by the manufacture, processing,
distribution, use, storage or disposal of chemical
substances. (No OMB approval required)
Litigation - To obtain witness testimony and other evidence for
presentation at a civil administrative hearing. (No
OMB approval required) [also EPCRA section
325(f)(2)]
4. Documentation/Process
Documentation
a. Prior to issuance of a subpoena, a management plan should be prepared.
The plan will serve as the official Agency record indicating the purpose
of the action. The plan may be submitted to the district court as
background information should a court order be required to enforce the
subpoena. The plan should provide:
• Background concerning the events leading to a decision to issue a
subpoena;
11-25
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IL EVIDENCE GATHERING (H.B.4)
• Criteria used to evaluate the information;
• Description of the recipient(s); and
• Summary of the subpoena issuance, review, and evaluation process
including any standard evaluation forms.
b. If subpoenas are to be issued to a subset of regulated facilities, a targeting
strategy should be prepared either separately or as pan of the management
plan explaining the rationale for selecting a particular facility to receive
a subpoena.
c. Several documents should be prepared in connection with the issuance of
a subpoena:
• Cover letter explaining:
the purpose of the subpoena
authority to issue the subpoena
rights to declare information confidential
• Subpoena commanding:
the production of information, and/or
appearance of persons to testify
• Specifications providing:
definitions of the terms used in the subpoena
directions for responding to the information requested
list of information to be provided
form/format for responding to the request (optional)
• Certificate of Service
d. The subpoena can be amended, after it is issued, to:
• extend the time to respond or appear;
• request additional information; and
• delete the requirement to appear and give testimony.
11-26
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(ILB.4) H. EVIDENCE GATHERING
Process
a. Issuance
(1) Investigatory subpoenas may be issued to require testimony and/or
the production of documents. It is recommended that subpoenas
be issued for documents and written answers to questions
(Subpoena duces tecum) first, and subpoenas for oral testimony
(Subpoena ad tesrificandwri) at a later date. Scheduling the
production of reports and written answers prior to appearance for
oral testimony allows the Agency time to review the documents in
order to:
• formulate any questions concerning the materials; or
• determine that testimony is not required and cancel the
appearance.
(2) The subpoena recipient may be directed to provide written
responses to questions in a particular format or by completing a
form provided along with the subpoena. [By providing a form, the
person reviewing the subpoena response does not have to waste
time reading unnecessary verbiage and the respondent is not
burdened with providing superfluous narrative statements.] The
Agency can focus Respondent's attention on the necessary
information thereby saving time and resources.
b. Service
A subpoena may be served by certified mail or in person upon completion
of a certificate of service.
c. Swom Oral Testimony
(1) Testimony under a subpoena is a nonpublic investigation.
Attendees are limited to:
• EPA' authorized personnel;
• presiding officer (if any);
• the witness;
11-27
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H. EVIDENCE GATHERING (H.B.4)
• the reporter of the proceedings (if any); and
• the legal representative of the witness who is not also a
prospective witness.
(2) The interview is begun by requiring the witness to sign an oath
and application for fees.
(3) The questions in the interview may extend to facts, opinions,
suspicions, beliefs, rumor, gossip, hearsay, or any other matter
which in the opinion of the questioner may lead to the discovery
of evidence which would probably be admissible in civil
administrative proceedings.
(4) The witness cannot raise objections to the questions except to make
a claim of privilege or to challenge the investigative jurisdiction of
EPA.
(5) More than one EPA employee may pose questions of the witness.
(6) The interview may be adjourned from time-to-time to an hour and
date certain or may be continued to a new date and time certain, i
The interview should not be continued indefinitely.
(7) At the conclusion of the interview, the witnesses legal
representative may ask clarifying questions of the witness
concerning any subject of inquiry of the EPA questioners.
(8) Tape or written recordings of the interview by or for the witness
may be prevented. However the witness may inspect any
recordation made by authorized EPA personnel.
Examples:
Mercury Subpoenas: Format separates written response from appearance;
Questions relating to FIFRA, TSCA, EPCRA; and
Provides a response form
Alyeska: Precedent
Texas Eastern: Comprehensive
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H. EVIDENCE GATHERING
C. VOLUNTARY DISCLOSURE/SELF CONFESSION
PENALTY ADJUSTMENTS
1. Statutory Basis
FEFRA:
Not an adjustment factor set forth in the Act, but included as part of the FIFRA
Penalty Policy.
TSCA Section 16(a)(2)(B):
In determining the amount of civil penalty, the Administrator shall take into
account the nature, circumstances, extent, and gravity of the violation or
violations and, with respect to the violator, ability to pay, 'effect on ability to
continue to do business, any history of prior such violations, the degree of
culpability, and such other matters as justice may require.
TSCA Section 16(a)(2)(c):
The Administrator may compromise, modify, or remit, with or without
conditions, any civil penalty which may be imposed under this subsection. The
amount of such penalty, when finally determined, or the amount agreed upon in
compromise, may be deducted from any sums owing by the United States to the
person charged.
EPCRA:
Not an independent adjustment factor.
2. Case Law
In re: Rocketdyne Division. Rockwell International Corporation. TSCA Docket
No. 83-H-04
• First TSCA case involving self-confessed violations.
• Consent Agreement and Compliance Schedule
• Findings of Fact:
Established date of discovery of violation;
Stopped the violation;
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IL EVIDENCE GATHERING
Immediate notification of Agency regarding violation; and
Submitted evidence to Agency that it committed the violation.
3. Special Considerations
The Agency does consider the voluntary disclosure of violations as a factor to be
considered in the reduction of a proposed civil administrative penalty. Depending
on the statute or particular provision of the statute, voluntary disclosure may be
considered as:
• an independent adjustment factor with a fixed percentage reduction; or
• as part of the initial gravity-based penalty assessment (e.g., late reporting
for EPCRA or TSCA 8(e)).
Because of the automatic reduction of the penalty amount, persons have
historically disclosed their violations to the Agency. If the notification is made
prior to the initiation of an investigation, the Agency will consider mitigation of
the penalty.
4. Documentation/Process
a. The initial disclosure of a violation may be made orally or in writing.
Upon notification, two factors should be considered before proceeding.
They are:
• Verification of a statutory violation; and
• Whether disclosure has been made prior to the notification to the
facility of an investigation.
For example:
• A check should be made of the confidential as well as public
inventory before assuming there is a violation of the Pre-
Manufacturing Notice (PMN) requirements.
• The person disclosing the violation should be asked if there has
already been contact by the Agency to schedule an inspection.
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(ILC.3) H. EVIDENCE GATHERING
b. If, after consideration of these factors, it appears that the notification does
constitute a voluntary disclosure, the person should be advised that:
• The violative activity must cease and any further such violations
may be considered knowing and willful and -subject to criminal
action;
• Documentation must be submitted describing:
- the nature of the violation in detail;
when and how the person discovered the violation;
when and how the violative conduct was discontinued; and
whether other persons were advised of the violation;
• A civil administrative complaint for the assessment of civil
penalties will be issued in accordance with Agency policy and
adjusted to take into account the voluntary disclosure (a copy of
the appropriate penalty policy may be provided at this time);
• The civil complaint will be issued upon receipt and evaluation of
the documentation provided by the violator and any other
documents such as certified statements developed by the Agency;
and
• All communication regarding the pending enforcement action
should be directed to a specific Agency contact point.
c. The documentation describing the nature of the violation should include
as appropriate:
• Names and purposes of any chemical substances or pesticides
involved including Chemical Abstract Service numbers, EPA
registration numbers, and brand names;
• Locations of manufacturing or testing facilities, producer
establishments and their numbers, ports of entry, or use sites;
• Descriptions of the manufacturing, production, or import process,
or use or testing procedures;
• Dates and amounts of chemical substances or pesticides involved
in each violation;
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IL EVIDENCE GATHERING (H.C.4)
• Description of the types of products or crops where the chemical
substance or pesticide is used;
• Description of the marketing practice of the chemical substance or
pesticide;
• The dates of distribution or sale of the chemical substance or
pesticide;
• Amounts of the chemical substance or pesticide in inventory and
remaining unused in channels of trade; and
• The size of the violator's business.
NOTE: In lieu of actual documents such as batch or shipping
records, the violator may provide lists of documents by
date indicating the specific quantities manufactured or
distributed for that date. These lists should be
accompanied by a letter indicating that copies of the actual
documents will be provided upon request.
d. In advising the violator of the steps that must be taken to meet the
requirements of the voluntary disclosure policy, the Case Development
Officer should not speculate on the actual size of the penalty. Rather a
copy of the appropriate policy may be provided with an explanation that
the Agency will calculate the proposed penalty assessment using the
factors outlined in the policy and that until a complete evaluation of the
documentation is made, no specific penalty figure can be quoted. It is
also recommended that no settlement negotiations be initiated until a
proposed penalty is memorialized by the issuance of a civil administrative
complaint.
e. In order to avoid any ex parte communication, the Office of Toxic
Substances or Office of Pesticide Programs should be advised of any
voluntary disclosure involving a chemical substance or pesticide that is
undergoing a simultaneous review by their offices.
NOTE: At the time of disclosure, the violator may request the exercise of
prosecutorial discretion. Prosecutorial discretion is discussed in VI.
Example
Documentation Request
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(H.D.1) H. EVIDENCE GATHERING
P. OTHER DATA SOURCES
1. FEDERAL/STATE/LOCAL GOVERNMENT ACTIVITIES
a. 40 C.F.R. Part 22 - Consolidated Rules of Practice Governing the
Administrative Assessment of Civil Penalties and the Revocation or
Suspension of Permits
40 C.F.R. Section 22.22 Evidence
(a) General. The Presiding Officer shall admit all evidence which is not
irrelevant, immaterial, unduly repetitious, or otherwise unreliable or of
little probative value, except that evidence relating to the settlement which
would be excluded in the federal courts under Rule 408 of the Federal
Rules of Evidence is not admissible.
b. Case Law
(1) In re: Sporiciden International. Docket No. FIFRA-88-H-02
Background:
DC inspectors entered and searched Respondent's office under a
DC warrant. Subsequently, EPA used the evidence in a case
against Sporiciden. Respondent argued that the evidence must be
suppressed in the federal hearing because EPA inspections were
limited under FIFRA section 9 to places where pesticides are held
for distribution and sale.
Ruling:
A search conducted:
• by employees of the District of Columbia carrying both
EPA and District of Columbia credentials;
• upon receipt of an Investigation Request from EPA; and
• under a warrant issued by the Superior Court of the
District;
was held to be a federal search and federal standards were
applicable. Because evidence that pesticides were held for
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IL EVIDENCE GATHERING
distribution or sale at the premises searched was stale and
outdated, the search could not be justified under section 9 of
FIFRA and evidence seized during the search was suppressed.
(2) In re: Electric Service Company. TSCA Appeal No. 82-2
Background:
Electric Services Company consented to an inspection by an Ohio
inspector and later challenged the admissability of the evidence.
It argued that the inspector was not duly delegated the authority to
conduct an EPA inspection and did not follow TSCA procedures.
Ruling:
An inspection was conducted:
• by an Ohio inspector carrying only state credentials;
• at the request of EPA; and
• without satisfying TSCA requirements such as providing a
written notice of inspection.
The judge concluded that since the inspection was conducted on
EPA's behalf, the inspector should have been a duly-designated
representative of the Administrator regardless of his authority
under State laws and should have given a written notice of
inspection. However, the evidence obtained during the inspection
was admitted since the inspection was conducted on the basis of
consent.
(3) In re: George J. Huth d/b/a Huth Oil Company and Joyce Nichols.
Docket No. TSCA-V-C-196
Background:
Admissions entered in an unrelated civil action were later offered
by EPA in a PCB storage case. Huth objected and the court
overruled.
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(ILD.l) H. EVIDENCE GATHERING
Ruling:
Depositions taken in an action in the Court of Common Pleas,
Cuyahoga County, Ohio, contain relevant evidence and were
properly admitted into the hearing record under 40 CFR Section
22.22. The general rule is that evidence properly taken by one
court may be used in subsequent hearings by another court.
c. Special Considerations
In addition to evidence gathered during EPA investigations, relevant
evidence from the following government sources may be used to support
civil administrative cases:
• "Independent" investigations conducted in accordance with state or
local laws or statutes administered by other Federal agencies;
• Inspections conducted by state employees duly designated as
representative of officers of the Administrator and in accordance
with the applicable Federal statute;
• Exhibits admitted into evidence at any proceedings conducted in
accordance with Federal, State, or local law; and
• Records compiled in accordance with any Federal, State, or local
statute.
2. FINANCIAL DATA
Sources of financial data can be used to determine the financial status of
companies charged with TSCA and FIFRA violations. The Agency is interested
in this financial information for two reasons: (1) to establish appropriate civil
penalties in consideration of the size of the business and (2) to challenge
corporate claims that the civil penalty assessment will affect their ability to
continue in business. The Katzson Brothers case requires the Agency to consider
adjustment factors, including ability to pay, prior to assessing a penalty figure in
an administrative complaint. For most small firms, little information will be
available at this point in the case. For any case where there is insufficient
financial information available, the Case Development Officer should indicate on
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IL. EVIDENCE GATHERING (ILD)
the penalty calculation worksheet what information, if any, was considered in
determining the company's ability to pay or size of the business. If no
information is available, the worksheet should indicate that no data could be
obtained. This will demonstrate that the factor was considered although no
calculation could be made due to the lack of data. The complaint should indicate
that the calculation of the proposed penalty was based on information available
to the Agency. Once the complaint is filed, EPA's policy is to make the violator
prove inability to pay by submitting financial reports, such as audited financial
statements and tax returns. The Agency has a computer model, ABEL, to assist
in-analyzing a "for-profit" company's ability to pay. For information about this
model contact the Program Development and Testing Branch at FTS 475-6777.
Financial information may also be useful in establishing a company's violation
history by providing information on its parent and subsidiary companies, as
companies with multiple establishments generally are considered as one when
determining violation history.
It is important to keep in mind that each type of financial report has its own
purpose and slant. For example, tax returns try to minimize financial health and
annual reports tend to maximize financial health.
a. Securities and Exchange Commission (SEQ "10-K" and "10-Q"
Statements
(1) Description
The 10-K statement is the official annual business and financial
report that must be filed by companies that issue public stock.
No other source of corporate information provides more
comprehensive or current information about a company than this
report. The 10-K statement contains the following items pertaining
to a company's financial status:
• Business information identifying principal products and
services of the company, principal markets and methods of
distribution, number of employees, effects of compliance
with ecological laws, etc.;
• Summary of operations for each of the last 5 fiscal years;
• Location and character of properties and if held or leased;
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(ILD.l) H. EVIDENCE GATHERING
• Parents and subsidiaries;
• Description of material legal proceedings pending; and
• Executive officers and the nature of positions and offices
held.
The 10-Q report is a coridensed version of the 10-K and is
completed on a quarterly basis by companies as opposed to yearly.
In addition to the basic location information, the 10-Q also
provides the following for any specific quarter: statements of
financial position; statements of earnings and earnings retained;
statements of cash flows; notes to the financial statements; and
management's discussion and analysis of financial condition and
results of operations. — —
(2) Process
The Securities and Exchange Commission (SEC) is located in
Washington, D.C. Requests for certified copies of 10-K or 10-Q
statements must be made on Agency letterhead and include:
• name of company;
• type of report required;
• date or year of filing;
• method of transmittal to EPA (mail, fax, etc.); and
• phone number of EPA contact point.
The request should be sent to:
Chief, Records Management Branch
Securities and Exchange Commission
Room 1C15, Stop C-4
450 5th Street, N.W.
Washington, D.C. 20549
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IL EVIDENCE GATHERING (H.D.2)
b. Dun and Bradstreet (D&B)
(1) Description
Dun and Bradstreet publications are used to determine the general
financial condition of a business enterprise. It can provide
information on the size of a company, its gross sales, and the
names of its corporate officers. However, the general level of
detail provided by the D&B, if used as the only source of
information, may provide an incomplete and potentially-misleading
picture of a company's financial condition.
(2) Process
Check to determine if your region subscribes to the D&B service.
Dun and Bradstreet (D&B) Million Dollar Directory
(1) Description
The Million Dollar Directory is used to determine the general
financial condition of a particular business. In order to be listed
in this publication, the company (or parent company) must have
gross sales that exceed one million dollars for a given year. The
information provided includes: legal name, address, and telephone
number of the corporate headquarters; gross sales; number of
employees; products or services; and the company's financial
institution. It also includes a listing of the corporate officers. The
Directory supplies the name of the parent company (where
applicable) and also lists all of the subsidiary businesses.
However, the general level of detail provided by this publication,
if used as the only source, can paint an incomplete and potentially-
misleading picture of a company's financial condition.
(2) Process
The Dun and Bradstreet Million Dollar Directory is available in
the reference area of most public or private libraries. The set
usually consists of three volumes with the companies listed in
alphabetical order.
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OLD.2) H. EVIDENCE GATHERING
c. Financial Directories
Standard and Poor's Register
(1) Description
The Standard & Poor's Register also provides general financial
information about specific companies. It contains a listing of over
55,000 businesses and is published yearly. The information
includes: legal name, address, and telephone number of the
corporate offices; corporate officers, main accounting firm,
primary law firm, and primary financial institution; yearly
revenues; number of employees; products or services; and stock
exchange listings. Also listed is the parent company (where
applicable) and all subsidiary businesses. Like the Million Dollar
Directory, if used as the sole source, this register can provide an
incomplete and misleading financial summary of a company.
(2) Process
The Standard & Poor's Register is available in the reference
section of almost all public or private libraries. The register is
contained in three volumes; the corporate listings are usually in
Volume 1 in alphabetical order.
Moody's Industrial Manual
(1) Description
Moody's Industrial Manual provides a more comprehensive
financial picture of a company than D&B or Standard & Poor's.
This manual covers companies that are listed on the New York,
American, or regional stock exchanges. The majority of the
information available was obtained from the corporations
themselves, stockholders' reports, and Securities and Exchange
Commission reports and registrations. The information includes:
a brief history of the company; products or services; location of
corporate offices; corporate officers and directors; primary
accounting firm; number of stockholders; consolidated income
account; consolidated balance sheet; and capital stock information.
For the larger corporations, the manual also lists all properties
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H. EVIDENCE GATHERING (H.D.2)
owned and managed, all subsidiaries, debt history, and financial
rating. In addition to the Industrial Manual, Moody also publishes
manuals in the areas of Bank and Finance, International
Corporations, Municipal and Government, and Public Utilities.
Each manual is published yearly.
(2) Process
Moody Manuals can be found at most public or private libraries in
the reference area. The manuals are a single volume; each volume
represents a particular year. The index should be consulted
because companies can be listed in various places within the
manual.
3. TOXICS RELEASE INVENTORY SYSTEM (TRIS)
a. Description
The Toxics Release Inventory System (TRIS), a key provision of EPCRA,
is an annual inventory documenting the types and amounts of toxic
chemical wastes at manufacturing facilities. It contains data submitted by
certain manufacturers, processors, and users of over 300 listed toxic
chemicals on their total annual releases, both routine and accidental, of
these chemicals to air, water, and land, or sent off-site to a waste
treatment facility. Facilities are required to report TRIS data if they meet
a combination of criteria concerning the size and type of facility and the
amount and nature of their use of TRIS chemicals. Facilities must report:
1) if they are a manufacturing facility, 2) employ ten or more full-time
people, 3) manufacture, import, process, or use TRIS chemicals above
threshold amounts. Facilities submit one TRIS form for each TRIS
chemical at the facility meeting reporting requirements.
The basic information contained in the TRIS includes:
• Facility information including name, location, various business and
regulatory identifying numbers, and information on the company's
parent company;
• Off-site transfer information including the names, addresses, and
other information for all sites to which chemical wastes were
transported;
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(E.D.2) H. EVIDENCE GATHERING
• Chemical use information such as the identity of the TRI chemical
being reported, the uses of the chemical at the facility, and the
maximum amount present on-site;
• Chemical releases and transfers including the quantities of the
chemical released to air, water, or land and quantities transported
to off-site facilities;
Q Waste treatment methods used to treat chemicals on-site and the
efficiency of these methods; and
• Waste minimization activities to reduce waste generation and the
effect of these activities on TRI releases and transfers.
b. Process
TRIS can be accessed by all regions. Check with your information
systems personnel to determine the method of access for your particular
region.
4. FIFRA AND TSCA TRACKING SYSTEM (FITS)
a. Description - Violation History Report
The FIFRA and TSCA Tracking System (FTTS) is a nationwide database
that records compliance history and other information on inspections,
import reviews, samples, case reviews, enforcement actions, and referrals.
This system also produces standard and ad hoc reports on
compliance/enforcement data.
FTTS reports may cover any time period desired and provides information
such as: the type and date of an action; the case/docket number; the type
of violation; the proposed penalty and the final penalty; the investigation
type; and the region in which the violation was committed.. The system
also indicates whether the violation falls under FIFRA or TSCA. The
type of violation and the investigation type are coded; the code definitions
can be found in the FIFRA Enforcement Response Policies (ERP).
FTTS is useful for obtaining the violation history of a company or facility,
both for information on prior actions and the types of statutory violations
previously issued.
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IL EVIDENCE GATHERING (H.D.3)
b. Process
Each EPA region has its own FITS. To find information about violations
within a particular region, that region's FITS can be accessed. If the
need arises to obtain information from another region, there is the
National Compliance Database in the Office of Compliance Monitoring,
EPA Headquarters, Washington, D.C. The national database contains the
information from all of the regions. If, for example, a case is being built
against a company that committed a violation in Region 10, the Region 10
FITS can be used to find supplemental compliance information on the
company. It may also be useful to use the nationwide database to get a
more comprehensive look at the company in question. The name of the
company is all that is required to use FITS.
5. ENFORCEMENT DOCUMENT RETRIEVAL SYSTEM (EDRS)
a. Description
The Enforcement Document Retrieval System (EDRS) is an automated
search and retrieval system that contains EPA enforcement documents.
It is maintained by the Office of Enforcement (OE) and has been designed
to establish a uniform method of searching and retrieving the full text of
pertinent enforcement documents.
The EDRS is a computer-based library of documents that are considered
pertinent to the Agency's enforcement activities. The Program areas
covered include air, water, hazardous waste, and pesticides/toxic
substances. Documents within EDRS are currently divided into four
categories: Policy/Procedures, Administrative Enforcement, Judicial
Action, and Model Forms and Sample Documents. The following types
of documents are included in the four categories:
• Enforcement Policy Compendia;
• Enforcement Guidance Manuals;
• Administrative Decisions (Initial, Final, Interlocutories, and Permit
Decisions);
• Administrative and Judicial Briefs and Pleadings;
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(ILD) . H. EVIDENCE GATHERING
• Civil Judicial Consent Decrees, Defensive Litigation, and
Decisions;
• Program Enforcement Documents (not contained in the General
Enforcement Policy Compendia); and
• OE Docket Procedures.
•
The EDRS can provide information on past administrative and civil
proceedings for a company in violation of FIFRA or TSCA. It allows the
user to search for documents in a variety of ways. For example,
documents can be selected based on issue date, title, environmental law
statute, or a specific word (e.g., dioxin, landfill, pretreatment).
b. Process
EDRS is a menu-driven, user friendly system developed in BASIS on the
NCC-IBM 3090 in RTP, NC. The system can be accessed from terminals
at EPA facilities that are directly wired to the NCC-IBM 3090 or from
computers with communications software and a modem. The EDRS
system is maintained by the Office of Enforcement. For information on
accessing the system, contact the Management Operations Branch (FTS)
382-3125. The Administrative Decisions in EDRS contain an abstract of
the decision and the complete decision.
6. CERTIFIED STATEMENTS
a. Rules of Practice
40 C.F.R. Part 22 - Consolidated Rules of Practice Governing the
Administrative Assessment of Civil Penalties and the Revocation or
Suspension of Permits
40 C.F.R. Section 22.22 Evidence
(c) Verified statements. The Presiding Officer may admit an insert into
the record as evidence, in lieu of oral testimony, statements of fact or
opinion prepared by a witness. The admissibility of the evidence
contained in the statement shall be subject to the same rules as if the
testimony were produced under oral examination. Before any such
statement is read or admitted into evidence, the witness shall deliver a
copy of the statement to the Presiding Officer, the reporter, and opposing
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H. EVIDENCE GATHERING (H.D.5)
counsel. The witness presenting the statement shall swear to or affirm the
statement and shall be subject to appropriate oral cross-examination upon
the contents thereof.
b. Case Law
In re: A-2-Z Termite and Pest Control Corporation of Ocala I. F. & R.
Docket No. IV-308-C
Background:
At the hearing, EPA did not produce a witness it had identified in its
preheating exchange, and offered an unsworn statement instead. A-2-Z
objected and the court agreed.
Ruling:
Objection to the introduction of a certified statement was sustained on the
basis that:
• the statement was not in the form of an affidavit and sworn to; and
• the person making the statement was not present for cross
examination.
Consequently, the Agency was unable to make a prima facie case for the
violation.
c. Special Considerations
A certified statement is a statement of fact or policy made by:
• an EPA Division Director or above who has been delegated the
authority for the conduct of a particular activity or development of
Agency policy concerning a specific subject;
• an expert having the greatest knowledge or proficiency in a
particular technical or scientific subject; or
• a person having direct knowledge of the facts at issue in a
particular case.
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(ILD) n. EVIDENCE GATHERING
A certified statement will specify:
• the title, authority, responsibilities, and/or area of expertise of the
person making the statement;
• the Agency's position on the issue; and
• the factual basis for that position.
A certified statement is useful in:
• formulating the testimony of an expert witness; and
• documenting direct evidence regarding Agency registrations, PMN
reviews, and receipt of various required reports.
d. Process
There are standard operating procedures for requesting routine statements
such as the listing of chemical substances on the Inventory. Consult with
your regional coordinator if unique testimony is required.
Examples:
For Orkin Exterminating Company/Rollins, Inc:
SEC 10-Q statement
Dun & Bradstreet
D&B Million Dollar Directory Listing
Standard and Poor's Register Listing
Moody's Industrial Manual Listing
FITS Report/Violation History
EDRS Abstract
Certified Statements
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II
EVIDENCE GATHERING
EXAMPLES
-------
H. EVIDENCE GATHERING
EXAMPLES
n.B. Mercury Subpoenas:
Format separates written response from appearance
Questions relating to FIFRA, TSCA, EPCRA
Provides a response form
Alyeska:
Precedent
Texas Eastern:
Comprehensive
n.C. Documentation Request
H.D. For Orkin Exterminating Company/Rollins, Inc:
SEC 10-Q statement
Dun & Bradstreet
D&B Million Dollar Directory Listing
Standard and Poor's Register Listing
Moody's Industrial Manual Listing
FTTS Report/Violation History
EDRS Abstract
Certified Statements
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II.B. MERCURY SUBPOENAS
TARGETING STRATEGY FOR
ISSUANCE OF MERCURY INVESTIGATIVE SUBPOENAS
Total Initial Universe - 20
Subgroups
Paints, Coatings and Other Mixtures Manufacturers - 10
Building Materials Manufacturers - 5
Unique Users - 5
Rationales:
Paints, Coatings, and other Mixtures Manufacturers are the
principal purchasers of PMA pesticides. In order to review this
industrial group for potential violations of environmental lavs
with respect to the chemical substance mercury, 10 PMA purchasers
will be randomly selected to inlude a range in size of quantities
purchased and geographic location.
Building Materials Manufacturers also purchase a substantial
amount of PMA pesticides. Based on purchase records, a group of
5 manufacturers will be randomly selected to represent one of each
different type of building material.
Five unique purchasers of PMA pesticides will also be
selected. The selection will be made on the basis that the types
of products that are believed to be manufactured by the company do
not have a pattern of use that would necessarily require the
incorporation of mercury.
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TSCA ENFORCEMENT SUBPOENA
MANAGEMENT PLAN
Authority: Section 11(c), Toxic Substances Control Act
Purpose: Mercury has been detected at extremely high levels in
individuals exposed to this substance through
inhalation. The purpose of this document is to develop
a management plan for the review, dissemination, and use
of information received as a result of the issuance of
subpoenas to a select group of mercury users. The
subpoenaed information will be reviewed to determine if:
1. the chemical substance, mercury, or a mixture
containing such substance presents an imminent hazard
pursuant to Section 7 TSCA requiring civil action in
District Court to grant relief; and
2. violations have occured pursuant to:
FIFRA Section 12(a)(l)(E) - fail to include adequate
directions
FIFRA Section 12(a)(2)(B) - fail to report 6(a)(2)
information
FIFRA Section 12(a)(2)(G) - misuse a pesticide
TSCA Section 15(3)(A) - fail to record adverse reactions
EPCRA Section 325(c)(l) - fail to file a Section 313
toxic release inventory
report.
Universe: Paints, Coatings, or Other Mixtures Manufacturers 10
Building Material Manufacturers 5
Unique Users 5
Total 20
Required Response:
Submission of written answers to twenty-one
questions by March 2, 1990
Provision of oral testimony and copies of end product
sales records on March 16, 1990
IIE-4
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-2-
process: 1. Issuance - February 15, 1990
2. Master file and logging system creation by OCO -
February 15 to February 28, 1990
A master file will be created for each respondent.
The file will include:
•
o Subpoena action status summary, copy attached,
with list of the various milestones and their
completion dates.
o Copy of the subpoena
o Certificate of Service
o Certified receipt shoving delivery
o All notes of telephone inquiries
o Master copy of the written subpoena response
o A copy of the transcript of oral testimony
o A list of all referrals to other Agency offices
o Copies of all follow-up correspondence
o Copies of all enforcement actions
3. Inquiry Response - February 20, 1990 to
March 16, 1990
Contacts: Mike Calhoun 382-7865
Compliance Division
Office of Compliance Monitoring
(technical guidance)
Alice Crowe 475-8690
Toxics Litigation Division
Office of Enforcement and Compliance
Monitoring
(legal matters)
4. Receipt - March 2, 1990 deadline
Written responses to the subpoena will be
received in the Offitie of Compliance Monitoring
IIE-5
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5. Failure to obey the subpoena determination -
March 5, and March 20, 1990
Ifv any company fails to provide written
information or oral testimony by thedesignated
deadline, OCM will refer the master file to OECM
along with a cover memorandum and certified
statement by the Director; Compliance Division, OCM.
The memorandum and certified statement will indicate
that no response has been received or oral testimony
provided. OECM will prepare a case for referral to
the Department of Justice to obtain a District Court
order to compel compliance.
6. Preliminary Assessment -
February 20, 1990 to March 9, 1990
The written response will receive a preliminary
assessment by the Office of Compliance Monitoring.
The assessment will categorize each response under
one or more of the following headings:
a. Potential hazard
b. Potential FIFRA violation pesticide
manufacturer
c. Potential FIFRA violation pesticide user
d. Potential TSCA violation mercury user
e. Potential EPCRA violation mercury user
f. Nonresponsive
1. no information submitted
2. submitted information nonresponsive
7. Three copies of the written response along with
the preliminary assessment will be made and provided
to OPP, OTS, and the Region in accordance with any
applicable TSCA-CBI procedures.
8. Dissemination -
February 20, to March 9, 1990
The OPP, OTS, and regional copies of the
written response and preliminary assessment will be
disseminated within 3 working days of the response.
IIE-6
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9. Preliminary Evaluation
Each office will be given 3 working days to
evaluate the response to determine if a potential
violation may exist with respect to TSCA, FIFRA, or
EPCRA and to provide recommendations concerning
questions that should be posed during any oral
testimony, and the appropriateness of conducting an
immediate physical inspection.
10. Question Development
Based on the evaluation, a list of questions
will be prepared for review and concurrence by the
respective offices.
11. Premeeting
Prior to the presentation of oral testimony,
a meeting will be scheduled by OECM with the
representatives of the EPA offices who will be
attending the presentation of oral testimony. The
attendees will organize the framework for obtaining
the oral testimony regarding the various areas
of inquiry.
12. Oral Testimony
OECM will have lead responsibility for
developing and arranging the schedule for
presentation of oral testimony, directing the
presentations, and providing the transcripts of the
testimony to the respective offices.
13. Final Compliance Evaluation
Fifteen working days after receipt of the
transcript, OCM will conduct a final evaluation
of both the written response and oral testimony.
The evaluation will determine if one or more of the
following actions is warranted:
a. physical inspection of the company
b. enforcemnt action pursuant to TSCA, FIFRA,
or EPCRA, or
c. enforcemnt action to prevent an imminent
hazard.
IIE-7
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TSCA SECTION 11(o) SUBPOENA
PRELIMINARY ASSESSMENT
Company Name:
Respondent:
FIFRA Violations
Section 12(a)(l)(B) and (B) - Evidence that the registrant failed
to provide accepted and adequate directions for use? [Q12, 13,
14]
Section 12(a)(2)(B) - Evidence that registrant failed to report
6(a)(2) information? [Q 21]
Section 12(a)(2)(G) - Evidence that manufacturer misused a
pesticide? [Q 4 - 16]
TSCA VIOLATIONS
Section 15(3)(A) - Evidence that the manufacturer failed to
record adverse reactions? [Q 17, 18, 19]
EPCRA VIOLATIONS
Section 325(c)(l) - Evidence that manufacturer failed to file a
Section 313 toxic release inventory report? [Q 1 - 3]
IIE-8
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MERCURY SUBPOENA RESPONSES
FOLLOW-UP QUESTIONS
Company Name:
Address:
Question Number: Additional Information Requested:
HE-9
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CERTIFIED NAIL
RETURN RECEIPT REQUESTED
Re: Subpoena Pursuant to Section 11 of
the Toxic Substances Control Act
The Environmental Protection Agency (EPA) is investigating
the processing, distribution in commerce, and use of mercury.
Preliminary information indicates that mercury is released during
the application of paints, coatings, and other mixtures
containing this substance.
Under the provisions of Section 11 of the Toxic Substances
Control Act (TSCA), 15 U.S.C. Section 2610, the Administrator of
the Environmental Protection Agency has the authority to require
the production of reports, papers, documents, answers to
questions, and other information deemed necessary by the
Administrator in carrying out the provisions of TSCA. Pursuant
to this statutory authority, you are hereby commanded to provide
the information and documents set forth in the enclosed SUBPOENA
DUCES TECUM AND SUBPOENA AD TESTIFICANDUM on the basis of all
information and documents in your possession, your custody or
control, or the possession, custody or control of your employees,
agents, servants or attorneys.
EPA regulations governing confidentiality of business
information are set forth in Part 2, Subpart B of Title 40 of the
Code of Federal Regulations. For any portion of the information
you submit that you believe is entitled to confidential treatment
by EPA, please assert a business confidentiality claim in
accordance with 40 C.F.R. Section 2.203(b). . If EPA determines
that the information claimed confidential meets the criteria in
40 C.F.R. Section 2.200, then such information will be disclosed
by EPA only to the extent and by the procedures specified in 40
C.F.R. Part 2, Subpart B. EPA will construe your failure to
furnish a confidentiality claim with your response as a waiver of
a confidentiality claim, and the information may be made
available to the public by EPA or the Department of Justice
without further notice to you.
11E-10
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If you have any questions concerning this subpoena, please
contact Michael Calhoun at (202) 382-3809 concerning technical
matters and Alice Crowe at (202) 475-8690 concerning legal
matters.
Sincerely yours,
Michael F. Wood, Director
Compliance Division
Office of Compliance Monitoring
IIE-ll
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
BEFORE THE ADMINISTRATOR
IN THE MATTER OF: )
)
Investigation of the Processing, ) SUBPOENA DUCES TECUM AND
Distribution in Commerce, and Use ) SUBPOENA AD TESTIFICANDUM
of the Chemical Substance, Mercury )
TO:
YOU ARE HEREBY COMMANDED, pursuant to Title 15, United States Code,
section 2610(c) {Toxic Substances Control Act section 11(c)} TO
PRODUCE FOR INSPECTION AND/OR COPYING those reports, papers,
documents, answers to, and other information requested in the
ATTACHED SPECIFICATIONS, at the following date, time and place:
•
DATE AND TIME: March 2, 1990 at 3:00PM
PLACE: U.S. Environmental Protection Agency
Office of Compliance Monitoring
Compliance Division (EN-342)
401 M Street, S.W.
Washington, D.C. 20460
YOU ARE COMMANDED FURTHER TO BE AND APPEAR IN PERSON at the
following date, time and place:
DATE AND TIME: March 16, 1990 at 10:00AM
PLACE: U.S. Environmental Protection Agency
401 M Street, S.W.,
Washington, D.C.
Room 113 Northeast Mall
TO TESTIFY then and there upon oath and MAKE TRUTHFUL RESPONSE to
all lawful inquiries and questions then and there put to you on
behalf of the United States Environmental Protection Agency, and
TO REMAIN IN ATTENDANCE until expressly excused by the EPA attorney
conducting the proceeding.
FAILURE TO COMPLY WITH THIS SUBPOENA MAY RESULT IN A COURT ACTION
AGAINST YOU.
Issued at Washington, D.C. this 15th day of February 1990.
Attorney Contact: Alice Crowe, (202) 475-8690
Michael F. Wood, Director
Compliance Division
Office of Compliance Monitoring
IIE-12
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SPECIFICATIONS
I. Defini-tions
As used in this subpoena:
1. "Document" means the original or a true, correct and
complete copy and all nonidentical copies of any report, paper,
note, letter, correspondence, memorandum, study, data compilation,
circular, work sheet, minutes, test result, laboratory note or
memorandum, analysis or other transcription of information, whether
written, typed, printed, recorded on tape, microfilm, or other
device, regardless of whether circulated within the company or to
outsiders, regardless of whether generated within or without the
company and regardless of whether in the possession of your company
or any agent acting in its behalf.
2. "You" or "your" refers to both the individual addressee and
the corporate addressee.
3. "Mixture" means a combination of chemical substances in
liquid or semi-liquid form and having no defined shape e.g. a
caulk.
4. "Mercury containing end product" means the item containing
mercury that is presented for sale upon manufacture by your
company.
5. "Mercury source material" means any material that is
purchased by your company that contains mercury.
II. Directions;
1. For your convenience in reponding to the subpoena, a form is
attached to be used to answer the questions that have been posed.
If more space is required to respond to a question than is provided
on the form, attach a continuation sheet to the form and indicate
the number of the question to which you are providing additional
information. A form should be completed for each mercury
containing end product that you manufacture.
2. Each question posed should be answered. If the appropriate
response is "none" or "not applicable" that information should be.
so stated.
3. If you do not manufacture for sale any end product containing
mercury, complete the form using the terms "none" or "not
applicable" as appropriate. Attach a continuation sheet to the
form and provide:
IIE-13
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a. an explanation of the use and/or intended use of all
purchases of mercury source materials for the past 5
years e.g., research and development;
b. the net weight of mercury source material currently in
inventory; and
c. the disposal locations of any waste containing mercury.
III. INFORMATION TO BE PROVIDED!
l.a. What is your principal line of business; and
b. What is the 4 digit standard industrial code that best
describes your business activities?
2. How many full-time employees do you have?
3. Have you submitted a Toxic Chemical Release Inventory Reporting
Form concerning the processing or use of mercury or mercury
compounds pursuant to Section 313 of the Emergency Planning
and Community Right-to-Know Act (EPCRA)?
4. Identify each mercury containing end product that you
manufactured for sale in the past 5 years including the:
a. brand name and if only a particular subset contains mercury
the names of the subset items e.g., interior latex paint-
only colors red and blue;
b. principal use of the product e.g., paint, coating, or other
use, include the EPA Reg No. if claims are made for use
of the product as a pesticide;
c. purpose of the mercury in the product e.g., mildewcide
d. range of lot or code numbers of product batches
containing mercury if the current end product is no
longer formulated to contain the chemical substance
mercury;
e. latest calendar year of manufacture as a mercury
formulation e.g., 1990; and
f. net weight in pounds and volume in gallons of each size
unit of the product that you sell as a paint, coating,
or other mixture or a description and net weight of any
end product that is a building material, an item of
furniture or other equipment.
5. For each end product identified above, describe your source of
mercury by the:
a. brand name of source product, including EPA Reg. No., if
it is a pesticide;
b. name of manufacturer and city/state address;
c. chemical form of the mercury e.g., phenyl mercuric acetate;
d. percentage by weight of the chemical form of mercury in
the source material;
IIE-14
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5. e. percentage by weight of total mercury in the source
material; and
f. net weight in pounds of standard size unit of purchase
and the type of immediate container the mercury is
packaged in e.g., 25 Ib. boxes containing 50-8oz. water
soluble packets.
6. For each end product identified above, how many pounds of the
mercury source material do you use* each year in the
manufacture of that product?
7. For each end product identified above, indicate the
percentage by weight of the mercury source material in your
product.
8. For each end product identified above, indicate the
percentage by weight of total mercury in your product.
9. For each end product identified above:
a. how many of each unit size of the end product did you sell
in the last one year period from the date of the subpoena
and what total net weight does this represent (copies of
your last five years of sales records including the names
and addresses of your puchasers are to be submitted at
the time of deposition); and
b. how many of each size unit of the end product currently
remains in your inventory and what total net weight of
the product does this represent?
10. Is mercury incorporated into your end product at the point of:
manufacture, sale, or use?
11. For each end product identified above, what method do you use
to incorporate the mercury into your end product e.g., mixing,
spraying, etc.?
12. For each end product identified above, describe the source of
the directions that you follow to incorporate the mercury
source material into your own product e.g., manufacturer's
brochure, trade association bulletin, own calculations, etc..
13. Have you ever received directions for use from the supplier of
the mercury source material? If so, when did you receive
these directions (give specific dates if known, if not
indicate relative timeframes e.g., yearly, with each shipment
etc.)?
IIE-15
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L4. If you have received directions from your supplier of mercury
source material, what rate of application of the source
material does the supplier recommend to manufacture each
end product identified above e.g., percent in pounds of the
source material and total mercury?
15. For each paint, coating, or mixture end product identified
above, indicate:
a. the types of surfaces you recommend that it be applied to,
e.g., wood, wall board, plaster, concrete, etc.;
b. the locations of the surfaces e.g. indoor construction,
outdoor equipment, etc.;
c. the place of application of the product e.g., industrial,
educational, domestic, etc.;
d. the average coverage of the product in square feet;
e. the number of coats recommended for each type of
application; and
f. the method(s) of application e.g., brush, spray, etc..
16. For each product identified above that is neither a paint,
coating, nor a mixture indicate:
a. the location of the mercury in the product e.g., part of
a surface material, incorporated into a specific
component of the product etc.; and
b. the place of use of the product e.g., industrial, domestic,
etc.
17. Have you received consumer reports regarding significant
adverse health reactions from the use of the end product
identified above? Please indicate for each product identified
above:
a. the types of reactions reported;
b. the number of complaints received regarding each type of
reaction;
c. the location of the file where copies of the reports are
maintained; and
d. the name and position of the person in charge of these
files.
18. Have your employees filed reports regarding significant adverse
health reactions or have incidents occured resulting in
adverse health reactions associated with the manufacture of
the end product(s) identified above? Please indicate for each
product identified above:
a. the types of reactions reported;
b. the number of reports regarding each type of reaction;
c. the location of the file where copies of these reports
are maintained; and
IIE-16
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-6-
18. d. the name and position of the person in charge of
maintaining these files.
19. Have your employees filed reports regarding significant adverse
health reactions from the use of the mercury source material?
Please indicate for each mercury source material identified
above:
a. the types of reactions reported;
b. the number of reports regarding each type of reaction;
c. the location of the file where copies of these reports
are maintained; and
d. the name and position of the person maintaining these
files.
20. Have you received reports from consumers or employees regarding
significant adverse reactions to the environment from the use
of the end product or the mercury source material? Please
indicate for each mercury source material and end product
identified above:
a. the type of reaction reported;
b. the number of reactions reported regarding each type of
reaction;
c. the location of the file where copies of these reports
are maintained; and
d. the name and position of the person maintaining these
files.
21. Have you notified your mercury source material supplier of any
reports of significant adverse health or environmental
reactions from the use of the mercury source material? Please
indicate for each mercury source material:
a. the name and address of the supplier who was notified;
b. the type of reaction reported;
c. the number of reports for each type of reaction; and
d. the name and position of the person maintaining these
files.
IIE-17
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CERTIFICATE OF SERVICE
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
I hereby certify that on this 20th day of April, 1990, a
copy of the foregoing Subpoena Duces Tecum and Subpoena Ad
Testificandum amendment was served by certified mail, return
receipt requested, and by placement in the EPA mail room at 401 M
Street, S.W., Washington, D.C. to the following individual:
Mr. William E. Fogg, President
Wall and Floor Products
Post Office Box 26905
Philadelphia, Pennsylvania 19134
John Mason (EN-342)
Document Control Officer
U.S. Environmental Protection Agency
401 M Street, S.W.
Washington, D.C. 20460
IIE-18
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CERTIFIED MAIL
RETURN-RECEIPT REQUESTED
(name)
(title)
(address)
Re: Subpoena Pursuant to Section '11 of the Toxic Substance
Control Act
Dear (name)
Under the provisions of Section 11 of the Toxic Substance
Control Act (TSCA) , 15 U.S.C. §2610, the Administrator of the
Environmental Protection Agency has the authority to require the
production of reports, papers, documents, answers to questions,
and other information deemed necessary by the Administrator in
carrying out the provisions of TSCA. Pursuant to this statutory
authority, the Administrator issued to you on February 15, 1990,
a SUBPOENA DUCES TECUM AND SUBPOENA AD TESTIFICANDUM demanding
the submission of specified information and the testimony of
company personnel regarding the above-referenced matter.
Your written response to the above-referenced Subpoena, in
which you requested an extension, was received by the Agency on
(date, for most March 2, 1990) . Following a review of your
response, I have determined that the extension you have requested
will be granted. Therefore, I am by this letter modifying the
SUBPOENA DUCES TECUM AND SUBPOENA AD TESTIFICANDUM issued to you
on February 15, 1990 as follows:
The requirement on you, "TO PRODUCE FOR INSPECTION AND/ OR
COPYING" on March 2, 1990 at 3: 00PM is changed to March 16,
1990 at 3: 00PM.
and,
The requirement on you, "TO BE AND APPEAR IN PERSON" on
March 16, 1990 at 10: 00AM is changed to March 30, 1990 at
10:OOAM.
Sincerely yours,
Michael F. Wood, Director
Compliance Division
Office of Compliance Monitoring
IIE-19
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CERTIFIED MAIL
RETURN-RECEIPT REQUESTED
_Re: _SUBPOENA DUCES TECUM AND SUBPOENA AD TESTIFICANDUM
pursuant to Section 11 of the Toxic Substances Control Act
Dear
Under the provisions of Section 11 of the Toxic Substances
Control Act (TSCA), 15 U.S.C. Section 2610, the Administrator of
the Environmental Protection Agency has the authority to require
the production of reports, papers, documents, answers to questions,
.and other information deemed necessary by the Administrator in
carrying out the provisions of TSCA. Pursuant to this statutory
authority, the Administrator issued to you on February 15, 1990 a
SUBPOENA DUCES TECUM AND SUBPOENA AD TESTIFICANDUM demanding the
submission of specified information and the testimony of company
personnel regarding the above-referenced matter.
Your written response to the above-referenced Subpoena was
received by the Agency on March 14, 1990. As a result of a review
of your written response, I have determined that your appearance
for oral testimony as demanded by the Subpoena will be postponed
pending receipt of your response to the questions listed below.
Therefore, I am by this letter further modifying the SUBPOENA DUCES
TECUM AND SUBPOENA AD TESTIFICANDUM issued to you on February 15,
1990 as follows:
o The requirement on you to "TO PRODUCE FOR INSPECTION
AND/OR COPYING" on March 16, 1990 at 3:00PM is amended
to April 20, 1990 at 3:00PM.
o The requirement on you or your designated agent "TO BE
AND APPEAR IN PERSON** on March 16, 1990, is amended to
May 4, 1990.
IIE-21
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o The Specification, III. INFORMATION TO BE PROVIDED; 1. through
21. is amended to:
1. Your response to Specifiacation 12 indicates that one
source of the directions was the manufacturer. Your
response to Specification 13 indicates that you have not
received directions from your supplier. Provide an
e xplanation for this apparent contradiction.
Sincerely yours,
Michael F. Wood, Director
Compliance Division
IIE-22
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CERTIFIED MAIL
RETURN-RECEIPT REQUESTED
Re: SUBPOENA DUCES TECUM AD TESTIFICANDUM
pursuant to Section 11 of the
Toxic Substances Control Act
Dear Mr.
Under the provisions of Section 11 of the Toxic Substances
Control Act (TSCA), 15 U.S.C. Section 2610, the Administrator of
the Environmental Protection Agency has the authority to require
the production of reports, papers, documents, answers to questions,
and other information deemed necessary by the Administrator in
carrying out the provisions of TSCA. Pursuant to this statutory
authority, the Administrator issued to you on February 15, 1990 a
SUBPOENA DUCES TECUM AD TESTIFICANDUM demanding the submission of
specified information and the testimony of company personnel
regarding the above-referenced matter.
Your follow-up response to the above-referenced Subpoena was
received by the Agency on April 20, 1990. Following a review of
your response, I have determined that your appearance for testimony
as demanded by the Subpoena is not required. Therefore, I am by
this letter further modifying the SUBPOENA DUCES TECUM AND SUBPOENA
AD TESTIFICANDUM issued to you on February 15, 1990 as follows:
The requirement on you or your designated agent,
"TO BE AND APPEAR IN PERSON" on May 4, 1990,
is deleted.
Sincerely yours,
Michael F. Wood, Director
Compliance Division
I1E-23
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»-• - v-m—t ^f «_» «_><_> 4_*4_i^Jj_Bt -j_ LJ
II.B. ALYESKA SUBPOENA
BEFORE THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
EPA REGION 10, SUITE 1802, 1200 SIXTH AVENUE
Seattle, Washington, (206) 442-1098
THE riATTER OF:
Alyeska Pipeline Service Co., Inc.
NO. 1086-07-21-2610
SUBPOENA DUCES TECUM AND
SUBPOENA AD TESTIFICANDUM
TO: BAY TANKERS, INC., a corporation, 1 Chase Manhattan Plaza,
Suite 3800, New York City, New York, 10005; and
Its Vice-President, CHARLES NIELES,
RESPONDENT(s).
YOU ARE HEREBY COMMANDED, pursuant to Title 15, United States Code,
section 2610(c) [Toxic Substances Control Act section 11(c)] to
APPEAR PHYSICALLY IN PERSON at the following time and place:
TIME AND DATE:
PLACE:
10:00 A.M.
THURSDAY
14 AUGUST 1986
Office of Regional Counsel, EPA Region 2,
26 Federal Plaza, New York City, New York 10278
YOU ARE COMMANDED FURTHER TO TESTIFY then and there upon oath and
MAKE TRUTHFUL RESPONSE to all lawful inquiries and questions then
and there put to you on behalf of the United States Environmental
Protection Agency, and TO REMAIN IN ATTENDANCE until expressly
excused by the attorney conducting the proceeding for EPA.
YOU ARE COMMANDED FURTHER TO BRING WITH YOU at the above stated
time and place and time, and to then and there produce for inspec-
tion and/or copying by EPA, those items identified and described on
the ATTACHMENT which are possessed by you or are under your control
ANY FAILURE BY YOU TO COMPLY WITH THE COMMANDS OF
THIS SUBPOENA MAY RESULT IN A COURT ACTION AGAINST YOU.
Issued at Seattle, Washington, this
is ^r-Z d
day of July, 1986.
»OT5t act:
ATTORNEYS for EPA
Michael J. Walker, Esq.
Keith Onsdorff, Esq.
(202) 475 - 8690
(202) 382 - 3072
SUBPOENA - Page 1 of 8
\ RALPH R". BAUER
Administrator
IIE-25
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ATTACHMENT TO SUBPOENA Cause No. 1066-07-21-2610
I. DEFINITIONS: For the purpose or this Subpoena and the Attach-
ment, the following terms have the following meanings:
1. "ANS CRUDE" or "ALASKA CRUDE" means oil which was pumped
out of an Alaska well through a pipeline to the Valdez terminal.
• ' .
2. "BALLAST" means liquid or solid material placed in a ship
below the main deck for purposes of increasing stability against
rolling of the ship about a longitudinal (fore and aft) axis.
3. "BALLAST WATER" includes, without limitation, any liquid
or semi-liquid material which is or was taker, aboard a tanker, and
was or is
(A) material as described in I.5.(A) below; and
(B) used ballast under the assumption tha.t it was predomi-
nantly water as described in I.5.(A) below, and
(C) was not carried as "cargo" and was not predominantly
ANS crude containing 0% to 10% water.
4. "BWTF" or "BALLAST WATER TREATMENT FACILITY" means that
portion of an onshore facility whose predominant function is to
separate out oil from ballast water- received from ships.
5.. "CHEMICAL MIXTURE" includes, without limitation, any
liquid or semi-liquid material containing chemicals, OTHER THAN
A MIXTURE OF SOLELY THOSE MATERIALS DESCRIBED IN (A) THROUGH (D)
below; the phrase EXCLUDES any material whose only components or
ingredients are SOLELY one or a combination of the following:
(A) water taken aboard the carrying tanker directly from
(and out of) the oceans or any other body of water or any portion
thereof including bays, estuaries, or rivers.
(B) unused bunker oil suitable and destined for, and
stored aboard for, use as fuel in the boilers of the carrying
tanker.
SUBPOENA Page 2 of 8
IIE-26
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(C) unused petroleum based lubricants suitable and des-
tined for, and stored aboard for, lubricating the equipment aboard
the carrying tanker.
(D) Alaska crude carried as cargo, or carried as the
unflushed residue of cargo in a shipboard container which in the
immediate past held Alaska crude as cargo.
6. "COMPANY" means the corporation "Bay Tankers, Inc." under
that name or any assumed name.
7. "LOAD" and "LOADED" mean pumped aboard a snip from a
source or location outside the ship.
8. "OFF-LOAD" and "OFF-LOADED" mean gravity-flowed or pumped
from a tanker putatively to or into some onshore facility.
9. "RECORD" mear.s^ the original, a true copy, or a substan-
tial copy, of a physical item containing or memorializing data,
or information, or symbols, or an instruction, or an ever.c, or a
transaction, or an utterance, which item is presently in documen-
tary, film, electronic impulse, magnetic disk, magnetic tape, or
some computer storage form. THIS T£RM EXCLUDES ANY RECORD CREATED
BEFORE January 1, 1978, AND ANY RECORD CREATED AFl'cR July 1, 1986.
10. "RELEASE" or "RELEASED" me'ar.s one or any combination of
occurrences resulting in a liquid or a semi-liquid material -novir.g
to and becoming present in a body of water whose surface is exposed
to the atmosphere. It includes each occurrence des-riDed in 4Z U.S.C
§9601(22). It includes each onboard act or omission by any officer
or other crewmember of any tanker.
11. "TANKEK" or "TANKERS" includes the ships Sruyvesanc, bay
Ridge. Brooklyn, and Willi-arosburg, except where the context requires
otherwise.
12. "TERMINAL" means a crude oil handling, storage, or trans-
fer onshore facility including (without limitation) those parts of
SUBPOENA - Page 3 of 8
•»
IIE-27
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Chat facility constituting a BWTF, and tnose parts of that facility
used to remove liquids from Alaska crude oil.
(A) "PANAMA TERMINAL" means the terminal at 'which the tar{
ers typically (from January 1, 1978 to July 1. 1986.1 off-loaded
their cargoes of Alaska crude oil which had been loaded at the
Valdez terminal.
(B) "VALDEZ TERMINAL" means the terminal operated by
Alyeska Pipeline Service Co., Inc., at. or near Valdez, Alaska from
January 1, 1978 to the present.
~\l. ITEMS TO BE BROUGHT WITH YOU:
1. Each record reflecting activities aboard, or communica-
tion to or from, the tanker Stuyvesant at any time between March 1
and May 31, 1982.
2. Each record which contains or reflects cora-ur.ication co or
from the tanker Stuyvesant in the year 19"82 concerning that tanker
loading, towing, carrying, off-loading, or releasing approximately..^.
14,000 barrels of chemical mixtures or any part or portion ther.eo
3. Each record which contains or reflects cora-?.ur.i cations to or
from one or more of the tankers which concerned that tanker loading,
carrying, off-loading, or releasing any chemical mixture.
4. Each record reflecting a testing, sampling, or laboratory
analysis done on any chemical mixture which was loaded onto, ofr-
loaded from, or released from one or more of the tar.kers.
5. Each record indicating any chemical testing, sampling, or
scientific analysis performed on liquids or semi-liquids constitu-
ting the flushings resulting from flushing out a tanker's cargo
spaces, cargo tanks, ballast tanks, wing tanks, or .slop tanks.
6. Each record reflecting a spillage of oil or a chemical
mixture from one or more of the tankers occurring after January I
1981, which was not reported by Bay Tankers, Inc. to the National
SUBPOENA - page 4 of 8
IIE-28
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Response Center in Washington, D.C. operated by the Coast Guard.
7. Each record constituir.g what is sometimes called by company
employees a "ship's abstract", for each voyage of each tanker frora
the Panama terminal to the Valdez terminal, which voyage began
between January 1, 1978, and July 1, 1986.
8, Each cargo manifest for each tanker for each voyage from
the Panama terminal to the Valdez terminal, which voyage began ir.
one of the years 1978 through 1986.
9. A list of all company shareholders and directors as of the
time of each annual shareholder's meeting held after 1977 but
before 1986.
10. Each memo, report, letter, note, document, record, or
minutes of meetings of the coporate directors or a committee there-
of which, discusses in any way an aspect of governmental investiga-
tions into occurrences or operations at the Valdez terminal during
one or more of tne years 1978 through 1966.
•11. Each log entry in a tanker's logs for any portion of the
years 1978 through 1986 which records the release or ofr-loading or
a chemical mixture from such tanker, or which records the release
of any "ballast" at sea during that- tanker's voyage beginning at
the Panama terminal and ending at the Valdez terminal.
12. The logbooks for each tanker for each year 1978 through
1986 which are described below, or records which cor.tair. for such
years substantially the same entries as the logbooks described
below: .
(A) the "yellow" covered logbook required sir.ce 19t>2 by che
U.S. Coast Guard (marine pollution authorities) to be carried by
and used aboard a tanker.
(B) any logoooks preceding the one described in (A) which
were prescribed by the U.S. Coast Guard to be carried aboard
and used aboard a tanker.
SUBPOENA - Page 5 of 8
IIE-29
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13. Each record which reflects or indicates one or more of the
following occurring in relation to one or more of the tankers:
(A) the loading into such tanker at or near the Panama
terminal (or anyplace after departure from the Panama terminal but
while the tanker was enroute to the the Valdez terminal) of a chemi-
cal mixture which was used and dealt with by the tanker involved
either <1) in a manner different from-that in which liquid, cargo
was handled by such ranker, or (2) in the same manner as ballast
water used aboard the tanker involved.
(B) the release from a tanker of a chemical mixture after
such tanker off-loaded ANS crude at the Panama terminal but before
that tanker next berthed or anchored (whichever first occurred) at
the Valdez terminal.
(C) the release from a canker of a chemical mixture afcer
the tanker had berthed or anchored (whichever first occurred) at
the Valdez terminal but before that tanker started co load ANS
crude at the Valdez terminal.
(D) the release from a tanker of a chemical mixture arter
that tanker had started loading ANS crude at the Valdez terminal
and before it next berthed or anchored (whichever first occurred)
at the Panama terminal. .
(E) the loading onto a tanker of a chemical mixture to be
used to flush out any tanks on such tanker.
(F) the off-loading of a chemical mixture or tank flushings
from a tanker at any terminal.
14. Each record which contains or reflects a company prescribed
policy or work-practice or procedure in effect in one or more of
years 1978 through 1986 covering one or more of the following:
SUBPOENA - Page 6 of 8
IIE-30
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(A) by which one or more of Che cankers were co load ANS
crude ac the Valdaz terminal.
(B) by which one or more of the cankers were to load or
off-load chemical mixtures at any location.
(C) by which one or more of the tankers were to oft-load or
to otherwise dispose of the flushings-resulting from a tanker
flushing out one or more of its tanks.
(D) by which one or more of the tankers were co load Dallas
on deparcing che Panama cerminal or enrouce co Valdez, Alaska.
(E) by which one or more of the tankers were to off-load
ballast or ballast water at the Valdez terminals.
(F) by which one or more of the cankers were to release
ballast, chemical mixtures, or ballasc wacer from che canker when
moored, anchored, be/ched, or underway.
(G) by which one or more of che cankers were Co reporc
(eicher Co company headquarcers or Co governmencal auchoricies) a
release of oil or ocher liquids from such canker.
15. Each record which cor.cains or refleccs che currenc name
or currenc address of one or more of che following individuals:
(A) Chose whose main dacies for che company in any one
or more of che years 197b chrough 1986, included coramunicacing on
behalf of che company headquarcers wich che cankers.
(B) Chose from whojn such cankers received one or more
coramunicacions concerning such chemical mixcures.
(C) those to whom such communications were addressed.
SUBPOENA - Page 7 of 8
IIE-31
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(D) those who are known or beliex'ed to have Knowledge
of the existence of, the sending of, the receiving or, or the pre-
sent whereabouts of a copy of any sucn co^ir.ur.icati-^r.s.
(E) those familiar with the personnel records of the
corcpany for any of tne years 197S through 19do.
(F) those familiar with archived records of the company.
VG; tnose fd.~ilisr witn the Captains of e- --. t.ir.r-. = r •_.. r-
ing a voyage by t-. = r tinker fr.>T. the Pc-.a.r.i .•=?-'.*-'- '.:• ~~. '.'.--L--z
terminal which Degan in any or tne years "97o tr.rough. *^jo.
CH) those familiar with the First M^ces of each tanker
during a voyage by that Canker from the Pana-a terminal t .> tne Vdi
dex terreinal which began in any of the years 1973 througr. "i'^s6.
(I) tnose farailiar with the organisational structure or
the company, including the names and titles of each of its orticer
and directors frora January 1, 197B to tne present.
(J) those who know who the employees of tr,c corr.pir.y were
who were stationed at the corporate headquarters during any or
the years 1978 through 1986.
(K) tnose who know where there is now lo-ated cr»e ori^ina.
or a true copy or a substantial copy of any record whicn is both
(1) described in this subpoena, and (2) wnich is net speci r iCril Ly
pointed out as being produced in response to this subpoena, and
(3) whose existence is not specifically testified to in an answer
given under oath in response to this subpoena.
SUBPOENA - Page 8 of 8 HE-32
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II. TEXAS EASTERN SUBPOENA
BEFORE THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
401 M Street, S.W.
Washington, D.C. 20460
IN THE MATTER OF:
TEXAS EASTERN TRANSMISSION ) SUBPOENA DUCES TECUM AND
CORPORATION ) SUBPOENA AD TESTIFICANDUM
TO: H. D. CHURCH
SENIOR VICE PRESIDENT ENGINEERING
AND OPERATIONS
TEXAS EASTERN GAS PIPELINE COMPANY
1221 McKinney, P.O. Box 2521,
HOUSTON,.TEXAS 77252-2521,' RESPONDENT
YOU ARE HEREBY COMMANDED, pursuant to the provisions contained
in Title 15, United States Code, Section 2610(c) [Toxic Substances
Control Act Section 11(c)] and the Title 42, United States Code,
Section 9622(e)(3)(B) [Comprehensive Environmental Response Compen-
sation and Liability Act Section 122(e)(3)(B)] TO PRODUCE THE
DOCUMENTS and other items described herein at your offices on
1221 McKinney, Houston, Texas, at 10:00 A.M. on April 14, 1987,
for inspection and/or copying AND, at the same time and place,
PROVIDE PERSON(S) WITH KNOWLEDGE regarding the matters addressed
herein to respond to questions relative to these documents.
YOU ARE COMMANDED FURTHER TO TESTIFY then and there upon
oath and MAKE TRUTHFUL RESPONSE to all lawful inquiries and
questions then and there put to you on behalf of the United
States Environmental Protection Agency, and TO REMAIN IN
ATTENDANCE until expressly excused by the official conducting
the proceeding on behalf of EPA.
You may claim any information that you submit in response to
this subpoena to be confidential business information; please
mark each page containing such information with the word "confi-
dential." If you wish to make a claim of confidentiality for this
information, you must do so by the date set forth above. Any
documents or other information not marked confidential will be
available to the public. That portion of your response to the
subpoena marked as confidential will be handled in accordance
with EPA's public information regulations (40 C.F.R. Part 2). If
UE-33
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-2-
you claim information submitted in response to this subpoena as
confidential, you must also provide a redacted version of the
information with all TSCA/CERCLA confidential business information
deleted.
FAILURE TO COMPLY WITH THIS SUBPOENA MAY RESULT IN COURT PROCEEDINGS
AGAINST YOU IN A UNITED STATES DISTRICT COURT.
'
asued; ^Washington. D.C., this day X? of
,1987.
Attorney Contact:
David C^ Batson
Toxic Litigation Division
U.S. Environmental Protection
cw
401 M. Street, S.W.
•Washington," D.C. 20460
(202) 475-9501
National Enforcement Investigations
\ Center Contact:
Barrett E. Benson
NEIC
Building 53
pox 25277
Denver, Colorado 80225
(303) 236-5120
THOMAS L. ADAMS, JR.
Assistant Administrator for
Enforcement and Compliance
Monitoring
IIE-34
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-3-
ATTACHMENT TO SUBPOENA -
In The Matter Of Texas Eastern Gas Pipeline Company
I. INSTRUCTIONS AND DEFINITIONS
^
1. The words "and" and "or" shall be construed conjunctively
or disjunctively as necessary to make the request inclusive
rather than exclusive.
2. When a question asks for for identification or other
response regarding the "character" of a substance the identi-
fication or response shall include a description of the substance's
composition in terms of chemical elements, compounds or mixtures.
Include a statement as to the probability of the substance containing
PCBs, or other hazardous substances, their concentrations if known
and method of analysis and the basis for this statement.
3. "Chemical Substance" or "substance" includes any organic
or inorganic substance as defined in 15 H.S.C. S2602(2). A
chemical substance includes, without limitation, any solid,
semi-solid, liquid, fluid or oil material containing chemicals,
as well as any mixture thereof.
4. "Closed unit" means anv unit where the operating status of
the unit has been termintated by means of closure activities.
5. "Closure activities" means activities related to and
resulting in the termination of the operating status of a
pit or other unit. These activities may include cessation of
receipt of hazardous substances; backfilling; applying or
installing final covers or caps; disposing of decontaminating
equipment, structures, soils and residual hazardous substances;
and care and maintenance of the closed pit or unit.
6. "Disposal" or "Dispose" means the discharge, deposit,
injection, dumping, spilling, leaking, or placing of any waste
into any or on any land or water so that such waste or any
constituent thereof may enter the environment or be emitted into
the air or discharged into any waters, including ground waters.
7. The word "document" or "documents" means all written,
typewritten, handwritten, or printed matters, including drafts,
originals, and nonconforraing copies that contain deletions,
insertions, handwritten notes or comments, or graphic matter of
any kind or nature, however produced or reproduced, any form of
collected data for use with electronic data processing equipment,
and any mechanical or electronic, visual or sound recordings
including, without limitation, all tapes and discs, now or for-
merly in your possession, custody or control. It includes, but
IIE-35
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-4-
1s not limited to, any logs of materials or containers shipped, • ^
as well as other logs, invoices, purchase orders, checks, bankinefl
records, receipts, bills of lading, weight receipts, toll receipt^
loading tickets, receiving tickets, shipping orders, manifests,
inventories, letters and other correspondence, offers, contracts,
agreements, bids,.proposals, licenses, permits, communications
with government agencies, operating procedures, ledgers, accounts
receivable, accounts payable, account statements, financial
statements, monthly reports, other reports, minutes of meetings,
sales estimates, sales reports, source and use analyses, memoranda,
handwritten or other notes, calendar or diary entries, agendas,
bulletins, graphs, charts, maps, photographs, drawings, surveys,
data, sampling results, analytical results, descriptions of
materials, load schedules, price lists, summaries, telegrams,
teletypes, computer printouts, magnetic tapes discs, microfilm,
and microfiche.
For purposes of the foregoing, "drafts" means any earlier,
preliminary, preparatory, or tentative version of all or part of
a document, whether or not such draft was superseded by a later
draft and whether or not the terms of the draft are the same as
or different from the terms of the final document; and the term
"c,opies" means each and every copy of any document which is not
identical in every respect to the document being produced.
8. "Drum" includes eiehty-five (85) gallon overpack
drums, fifty-five (55) gallon drums, pails, fibre packs or
any other container or object less than fifty-five (55) gallons
capable of containment.
9. "Hazardous substance" includes all solid, liquid,
sludge-like, gaseous, or other materials (including, without
limitation, PCBs, condensates, and all residues in drums and
all contact and non-contact water or process water employed
in any chemical or industrial operation) that are, that
contain, or may contain chemicals or chemical, industrial,
domestic or other by-products, test products, unused products,
materials that may be recycled, including mixtures or sewage
which could be discharged or placed into the air, any water,
lagoon, landfill, container, storage tank, barrel, durms,
ditch, trench or surface or subsurface impoundment, and anv
other solid or hazardous waste, hazardous substance, or
pollutant or contaminant as defined in 42 U.S.C. 56903(5) and
(27) or 42 D.S.C. 59601(14).
10. "Identify" or "indicate" means:
(i) as to a document: the type of document (letter,
memorandum, etc.), the identity of the author
or originator, the date authorized or origi-
nated, the identity of each person to whom
the original or copy was addressed or delivered,
HE-36
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-5-
the identity of each person known or reasonably
believed to have present possession, custody,
or control thereof, and a brief description of
the subject matter thereof.
(ii) as to a person: the name, present or last
known business and residence/address(es),
occupation, job title, and dates so employed
and, if not an individual, state the full
name, the type of entity, the address of its
principal place of business, and the name,
title and address of its chief officer.
11. The word "include" or "including" shall be construed without
limitation.
1-2. "In-service" unit means an active unit which is receiving,
treating, storing, disposing, or otherwise handling hazardous
substances and which is not a closed unit or undergoing closure
activities.
13. The terms "liquid" or "liquids," and "fluid" or
"fluids," and "oil" or "oils," shall be construed broadly to
include sludges, sludge-like materials and semi-solids so as
to make the request inclusive rather than exclusive.
14. The word "person" or "persons" as used herein includes
natural persons, firms, partnerships, associations, joint ventures,
corporations, business trusts, banking institutions, unincorporated
organizations, and any other legal entity. The word "person"
or "persons" also means personnel or employees.
15. The term "pipeline" includes any pipeline components
associated with the transmission of product.
16. "Pit" includes surface impoundments, lagoons, ponds,
diked areas, natural depressions, excavated holes, ditches, or
any other discrete natural or man-made structure or area which
is currently in use, has been used, or is intended for use for
the receipt, accumulation, storage, treatment, or disposal of
chemical or hazardous substances and which is not a tank nor drum
as defined herein.
17. "Polychlorinated Biphenyls" (PCB or PCBs) means any
chemical substance that it is limited to the biphenyl molecule
that has been chlorinated to varying degrees or any combina-
tion of substances which contain such substances as defined
in 40 C.F.R. S761.3.
18. A document or communication "relating to," that "relates
to," or that is "in connection with" a given subject means any
document or communication that constitutes, contains, embodies,
IIE-37
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-6-
comp rises, reflects, identifies, states, refers to, deals with,
comments on, responds to, describes, analyzes, or is in any way
pertinent to that subject, including, without limitation, a docu-
ment concerning the presentation of other documents.
19. "Service Facility Site" means any property previously
or currently maintained or used by Texas Eastern or on behalf
of Texas Eastern including compressor stations, gas dehydration
facilities, filter-separation facilities, sweetening facilities,
pumping stations, pipeline maintenance yards, any building,
structure, installation, equipment, pipe or pipeline (including
any pipe into a sewer or publicly owned treatment works), well,
pit, pond, lagoon, impoundment, ditch, landfill, storage container,
motor vehicle, rolling stock, or aircraft; any present, or
past pits or other unit and any other location, titles and job
description used to generate, treat, store, dispose, place,
accumulate, collect, receive, transport, ship, or otherwise
manage waste, waste oils, lubricants, pipeline liquids and
compressor, dehydrator, hydraulic, and dielectric fluids,
PCBs, PCB containing materials or other substances used at
any time in the maintenance and operation of the Company's
natural gas pipeline, or where any waste has otherwise comes
to be located.
•
20. "Storage" or "Store" means the containment of wastes,
either on a temporary basis or for a period of years, in such a
manner as not to constitute disposal of such wastes.
21. "Tank" includes any object capable of containment
that is not subject to inclusion under the def inition(s) of
"drum" or "pit", regardless of size, capacity or
construction.
22. "Texas Eastern Transmission Corporation" or "Texas Eastern"
includes Texas Eastern Gas Pipeline Company (Texas Eastern Gas),
Roy F. Weston, Inc. (Weston) and any officers, directors, agents
or employees of Texas Eastern, Texas Eastern Gas, or Weston.
23. "Treatment" or "Treat" means any method, technique, or
process, including neutralizaton, designed to change the physical,
chemical, or biological characteristic or composition of any
waste so as to neutralize such waste or so as to render such waste
nonhazardous, safer for transport, amenable for recovery, amenable
for storage, or reduced in volume.
24. When a question asks for identification or other response
regarding "type" of a substance the identification or response shall
include a description of the substance by method of generation,
such as pipeline condensate or pipeline liquid.
25. "Unit
structure, whethe
means any descernible unit, building, equipment, or
her man-made or natural, which is now or was ever
IIE-38
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-7-
used for the treatment, storage, disposal, or other handling of
wastes and substances. This definition includes pits, drums,
tanks, waste piles, land treatment units, ditches, incenerators,
injection wells, container storage areas, and transfer stations.
26. Each document submitted shall be clearly and precisely
identified as to its title, author, date of preparation subject
matter, the numbered question to which it responds, and any and
all persons having any knowledge relating to the documents
sought by this subpoena. •
I
27. Two sets of documents shall be submitted in response to
each question. The first set of documents will be arranged by
Service Facility Site with the exception 'that documents provided
in response to questions regarding corporate-wide programs will
be organized in a separate group. The second set of documents
will be arranged by question number.
28. If the information sought by this subpoena is not
contained in a document, separately identify the person(s)
who provided the information in your response, and the basis
for each person's knowledge.
29. The plural shall include the singular and the singular
shall include the plural. Any reference to a male pronoun shall
also constitute reference to a female pronoun.
30. If any document was, but is no longer, in the possession,
custody, or control of Respondent, provide the following informa-
tion:
(a) state the disposition of the document;
(b) state the date such disposition was made;
(c) identify the present custodian of the document
and state his address or, if the document no
longer exists, so state;
(d) identify the person who made the decision to
regarding the disposition of the document;
(e) state the reason for the disposition; and,
(f) describe the document and the contents of
the document, including the title, the author,
the position or title of the author, addressee,
the position or title of the addressee, indicated
or blind copies, date, subject matter, number of
pages, attachments or appendices, and all persons
to whom the document was distributed, shown, or
explained.
IIE-39
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-7a-
31. In preparing responses to this subpoena, all Information
or documents requested by the government are to include and
cover the period beginning January 1, 1978 and continuing to
the present. In the event that information or documents which
are responsive to this subpoena pre-date 1978, but relate to
information or documents requested herein, they must also be
provided.
IIE-4Q
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II. Information and Documents Requested
SERVICE FACILITY SITE DESCRIPTION
1. Provide a description of each service facility site including:
a. topographic map
b. schematic layout - designating all compressors,
pits, storage tanks(above and below ground), blow
down tanks, liquid separators, transformers,
large high and large low voltage capacitors, or
other units
c. architectural and engineering drawings of all
systems as installed
d. any available geologic data including distance to
ground water, analysis of ground water, ground water
flow direction
e. the location of all domestic and industrial wells
within a 5 mile radius and analysis of water at these
wells
f. narrative description of the operations which take
place or have ever taken place .at the site
g. copies of all operating procedures developed by
or for each individual service facility site:
- compressor operation/servicing
- removal of fluid
- storage of fluid
- disposal of fluid
- clean-up of spills
- filter separator operation/servicing
2. For each pit, tank or other unit at each service facility
site, describe the purpose of each unit (e,g., evaporation,
sedimentation, neutralization, burning or incineration).
3. For multiple pits, tanks or other units for each service
facility site, provide flow charts describing the relationship
between units.
4. Provide a list by service facility site of all compressors
operated by Texas Eastern, indicate the type of compressor
and size.
COMPRESSORS
5. For each compressor at each service facility site, provide
a monthly summary and supporting documents of the volume,
type, vendor, scientific name, commercial name, and character
of the chemical substances purchased for maintenance, repair
or replacement of each compressor, and names, title, and
job description of employees who executed the purchases.
IIE-41
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-9-
6. For each compressor at each service facility site, provide
a monthly summary and supporting documents of the volume,
type, source, scientific name, commercial name, and
character of the chemical substances added to each compressor;
and names, title, and job description of employees who
performed this function.
7. Provide maintenance and servicing records for each compressor
by service facility site, including the names, title and job
description of employees who performed this function.
8. For each compressor at each service facility site, provide
a monthly summary and supporting documents of the volume,
type, and character of the hazardous substances intentionally
or unintentionally removed from each compressor; the reason
and method of removal, the volume, character and location of
any of this hazardous substance placed in storage, the
method of transport to the storage unit, the volume, character,
method of disposal and ultimate disposal site of the removed
ahzardous substances and the names, title and job description
of employees who performed these functions.
9." ' For each compressor a't each service facility site, provide
a monthly summary and supporting documents of compressor
"blowouts" or seal failures and the volume of chemical or
hazardous substance lost in each failure.
10. Provide all documents pertaining to the sources and causes of
pipeline liquids, the character of the liquids, and programs
implemented for their removal.
10(a). Provide all documents, or in the absence of documents prepare
a narrative, describing what occurs due to compressor "blowouts'
or seal failures and the resultant entry of compressor fluids'
into the pipeline system.
FILTER SEPARATORS
11. Provide a list by service facility site of all filter
separators that are now or have ever been operated by Texas
Eastern. Indicate the type of filter separator, size,
installation date, and any and all removal efficiency data
developed by the manufacturer and Texas Eastern.
11(a). For each filter separator at each service facility site,
provide a monthly summary and supporting documents of the
volume, type, and character of chemical or hazardous
substances intentionally or unintentionally removed from
each filter separator; the volume, character and location of
any chemical or hazardous substances placed in storage, the
volume, character and ultimate disposal site of the removed
IIE-42
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-10-
chemical or hazardous substances, and the names, titles, and
job description of employee who performed these functions.
DEHYDRATORS
12. Provide a list by service facility site of all dehydrators
that are operated by Texas Eastern. Indicate the type of
dehydrators, size, installation date, and any and all removal
efficiency data developed by the manufacturer and Texas
Eastern.
13. For each dehydrator at each service facility site, provide
a monthly summary and supporting documents from of the
volume, type, and character of chemical or hazardous substances
intentionally or unintentionally removed from each dehydrator;
the volume, character and location of any chemical or hazardous
substances placed in storage, the volume, character and
ultimate disposal site of the removed chemical or hazardous
substances, and the names, title, and job description of
employees who performed these functions.
OTHER UNITS
14. Provide a list by service facility site of any and all units
other than those described or listed in response to questions
above or below, that are now or have ever been operated
by Texas Eastern. Indicate the type of device or system, its
size, installation date, and any or all removal efficiency
data developed by the manufacturer and Texas Eastern.
t
15. For each unit not described or listed in response to questions
above or below, at each service facility site, provide a
monthly summary and supporting documents of the volume,
type, and character of chemical and hazardous substances
intentionally or unintentionally removed from each compressor;
the volume, character, and location of any chemical and
hazardous substances placed in storage, the volume, character,
and ultimate disposal site of the removed chemical and
hazardous substances, and the names, title and job description
of employees who performed these functions.
ADDITION, COLLECTION, AND REMOVAL POINTS
16. Provide a listing by service facility site of all pipeline
liquid addition, removal and collection points.
17. Provide for each addition point at each service facility
site, a monthly summary and supporting documents of the
volume, type, vendor, brand name, scientific name, purpose,
and character of all substances added, and the names, title
and job description of the employees who performed this
function.
IIE-43
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.18. For each collection and removal point at each service
facility site, provide a monthly summary and supporting
documents of chemical or hazardous substances, the volume and
character of substances removed, the reason removed, method
of removal, the volume, character, and location of any
chemical or hazardous substances placed in storage, the
method of transportation to the storage unit, and the volume,
character, method of disposal, and name and location of the
ultimate disposal site of the removed substances, and the
names, titles, and job description of the employees who
performed this function. For each collection point where
pipeline chemical or hazardous substances are no longer
removed, provide the reasons they are no longer removed.
DRUM/BARREL STORAGE AREAS
19. Provide a list by service facility site of all drum/barrel
storage areas and a description of the structural components
of the areas, and types of chemical or hazardous substances
and materials stored.
20. For each drum/barrel storage area at each service facility
site, provide a monthly summary and supporting documents of
the volume, source, type,.and character of the chemical
or hazardous substances added to the area, the method of
transport to the area, and the names, title, and job
description of the employees who performed this function.
21. For each drum/barrel storage area at each service facility
site, provide a monthly summary and supporting documents of
the volume, source, type, number of drums or barrels, and
character of chemical substance or hazardous substance
removed from the area, the method of transportation to .the
disposal site, and location and ownership of the ultimate
disposal site of any chemical substances or hazardous sub-
stance removed from the area, and the names, titles, and
job description of the employees who performed this function.
TANKS
22. Provide a list by service facility site of all tanks,
indicating their purpose, current status as in service or
closed, the dates placed in service and closed, the location
above or below ground, their containment volume, if the
tanks ever contained PCBs, the basis for this determination/
including the concentration of any PCBs, if known, and method
of analysis, and the name of any previous owners.
23. For each tank at each service facility site, provide a
monthly summary and supporting documents of the volume,
source, type and character of the chemical or hazardous
substance added to the tank, the method of transport to the
IIE-44
-------
-12-
tank, the purpose of the addition, and the names, titles,
and job description employees who performed this function.
24. For each tank at each service facility site, provide a
monthly summary and supporting documents of the volume,
source, type, and character of the chemical or hazardous
substances removed, the purpose of removal, the name and
location of the ultimate disposal site, the method of'transport
to the site, the method of disposa'l, and the names, titles,
and job description of the employees who performed this
function.
25. Provide all documents pertaining to the institution of a
tank installation program in lieu of using pits, including
dates of all tank installations at each service facility
site.
PITS
26. Provide a list by service facility site of all pits operated
by Texas Eastern indicating the current status as either in
service or closed, the dates placed in service and closed,
. and the approximate dimensions (width, length, depth) of
each pit, and the date each pit was constructed, and actively
used.
27. For each pit, provide a chronological listing with supporting
documents by month of all chemical or hazardous substances
placed in each pit, by service facility site, indicating the
purpose, volume, source, type, and character of the chemical
or hazardous substance, method of transport to the site,
purpose of placement, the names, title, and job description
of employees who performed this function.
28. For each pit, provide a chronological listing with supporting
documents by month of all chemical or hazardous substances
removed from the pit indicating the volume, type, method of
removal, method of transport, the name and location of the
ultimate disposal site, method of disposal, and the names,
titles, and job description of the employees who performed
this function.
29. For each pit provide an estimate of the substances remaining
in the pit. Supply supporting documents.
30. Provide a list by service facility site of all pits where
materials were burned, a listing of materials which were
burned, dates of burning, frequency of burning and quantity
burned.
31.
Provide all documents pertaining to the program for the
discontinuation of use of pits by service facility site.
IIE-45
-------
-13-
32. Describe the method used to close each pit including
procedures used to clean, decontaminate or remove chemical
or hazardous substances from the pit, a description of any
and all chemical or hazardous substances and procedures used
to stabilize chemical or hazardous substances or residues
remaining in the pit, and any and all methods used to determine
the levels of contamination of chemical or hazardous substances
remaining at the time of closure, and the adequacy of stabi-
lization and other elements of the closure process.
33. Provide a monthly summary of all purchases of PCS fluids for
compressors/ electrical equipment, transformers, capacitors,
heat transfer and hydraulic systems, and any other equipment
used in connection with the operation and maintenance of the
pipeline system indicating the vendor, commercial name,
scientific name, quantity purchased, and the type of equipment
where the PCB fluid was, is, or will be used.
34. Provide a monthly summary by service facility site of any
hazardous substances treatment operations conducted at
Texas Eastern service facility sites. Indicate the volume,
' type, and character of the hazardous substances before
treatment, the method of treatment, the volume, type and
character of the treated hazardous substances, the location
and ownership of the ultimate disposal site of the treated
hazardous substances, method of transportation of the treated
hazardous substances, and the names, titles, and job descrip-
tion of the employees who performed this function.
35. For each service facility site, provide a monthly summary
and supporting documents of all disposal of pipeline liquids,
dielectric and hydraulic fluids, compressor fluids and lubri-
cants, waste oils and hazardous substances at sites other
than those owned by Texas Eastern. Indicate the dates of
shipment and receipt of the hazardous substances, volume,
type and character of the hazardous substances; location
and ownership of the disposal site, method of disposal of
the hazardous substances, and the names, title, and job
description of the employees who performed this function.
36. Provide all documents relating to spills, releases, or other
emissions of PCBs, PCB contaminated materials, or hazardous
substances, including:
a. all data on or records of known releases
b. likely or actual dates/details of occurrences
c. all actions taken to mitigate/remedy any releases not
reported by Texas Eastern in response to any previous
information requests
d. all data regarding fires, explosions or other unanti-
cipated events.
IIE-46
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-14-
37. Provide copies of all documents in use or that have ever been
used which contain instructions on the method of disposal of
substances intentionally or unintentionally generated during
the operation and closure of service facility sites. In the
event that the documents are no longer available, provide a
list of such documents, and an explanation for their unavail-
ability. . Such documents include instruction documents on:
a. Compressor station operations
b. Filter separator operations
c. Removal of pipeline fluids, PCB oils and other
liquids
d. Storage of pipeline liquids, PCB oils and other
liquids
e. Disposal of pipeline liquids, PCB oils and other
liquids
f. Clean up of PCB spills, PCB compressors and pipeline
fluids.
38. Provide a copy of all instructions, protocols, methods,
directions and other documents regarding Texas Eastern's
procedures for, and records of, the retention and destruction
of documents. Such documentation includes:
a. Any and all logs or other documents identifying
documents which have been destroyed, and the date
of such destruction;
b. Instructions for the length of time documents are
to be retained, including any exceptions to those
procedures, and the title of any employee authorized
to make such exceptions.
39. Provide all documents and make whatever inquiries are neces- '
sary to obtain information that describes and identifies
the character, type, quantity, extent, sources, and causes
of soil, air, ground water, surface water, and sediment
contamination beyond unit or service facility site boundaries,
at all Texas Eastern service facility sites where such
contamination has been detected.
40. For each service facility site, provide all documents
containing analytical results from the monitoring of air,
surface water, ground water, sludge, or soil at or in the
vicinity of each of these service facility sites.
41. Provide all documents pertaining to the need for and
implementation of a monitoring program at service facility
sites owned or operated by Texas Eastern.
42. Provide a list by each service facility site of all
PCB items, PCB storage areas and PCB transport vehicles
which have been marked in accordance with 40 CFR 761 and
the date of marking.
IIE-47
-------
-15-
43. Provide all records and reports prepared by Texas Eastern
to fulfill the requirements imposed by 40 CFR 761.
44. Provide all documents showing the manufacturer import,
export, or processing of PCBs by Texas Eastern.
45. Provide all documents relating to the preparation of PCB
monitoring reports submitted to EPA as part of the gas
pipeline remedial monitoring program.
46. Provide any and all documents and raw data collected by
Texas Eastern in investigating/surveying all Texas Eastern
service facility sites including data collected for the
purpose of preparing the reports titled: "Results of Compressor
Station Disposal Pit Investigations" (dated April 21, 1986);
"Preliminary Report of Sampling Program at Texas Eastern
Compressor Stations" (dated December 1986); and "Generic
Clean-Up Plan for PCBs at Compressor Station Sites" (dated
December 1986). For purposes of this request, "raw data"
includes sampling and analytical results in both raw and
numerical form, quality assurance/quality control data and
information, data sheets, field notes and logs, maps, drawings,
plans, photographs, surveys, memoranda, work plans, sampling
plans, interim progress reports, and other information
collected or maintained for any and all service facility
sites or pits. The request includes all service facility
sites investigated and is not limited to the eight stations
discussed in the above-referenced reports. Describe the
method used to collect samples and identify any laboratory(ies)
that conducted analyses of the samples. Include the names,
addresses, phone numbers and job descriptions and qualifications
for each person involved in the Roy F. Weston investigations
of service facility sites. Texas Eastern shall provide a
listing and brief summary of the contents of each set or
grouping of raw data being provided.
47. Provide all permits, certifications, and/or authorizations
received by Texas Eastern from any or all Federal, State,
or local regulatory agencies for construction, operation,
disposal, closure, or other activities occurring at any and
all of the service facility sites that are or were operated
by Texas Eastern. Also, provide copies of any and all
notifications of such activities submitted by Texas Eastern
to any or all Federal, State or local regulatory agencies.
48. If any service facility site or component thereof discharges
chemical or hazardous substances to surface waters or to
publicly owned treatment works, provide analyses for all
discharges and provide copies of permits.
49. Provide all documents, manifests, correspondence, shipping
bills of ladings for PCB liquid, solid, or sludge-like
IIE-48
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-16-
materials transported to any storage or disposal facilities.
50. Provide all documents pertaining to any and all programs for
the phase out or discontinuation of specific chemical or
hazardous substances at service facility sites. This shall
include Monsanto product OS-81 and Turpinol 153.
IIE-49
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II.C. DOCUMENTATION REQUEST
; UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
f WASHINGTON, O.C. 20460
"3EC I 8
OFFCfiOF
r-pTTpy_n MATT ' ENFOflCEfcCNT AND
CFPTIFIFP MAIL COMPIIANC* MONfTQRlNC
PFTUPN PFCEIPT PEOUESTED
Washington, D.C. 20004
Pe: Peport of Chenical Manufacture:
Dear Mr. Sussman:
This letter follows our earlier meeting of this afternoon
in which . officials disclosed certain
information to U.S. EPA regarding chemical substances claimed to
be TSCA Confidential Business Information. To be eligible for
EPA to treat the disclosure of chemical manufacture of
as voluntary, the following information must be provided
to U.S. EPA within twenty (20) days of receipt of thit. letter:
1. Confirm in writing the schedule for filing pre-
manufacture notices for the substances.
2. Provide a listing of the specific dates and
quantities that the substance(s) were manufactured.
Please submit hatch records of production and certify
that they are authentic copies of original documents.
3. Identify the primary purchasers of these chemical
substances. What were the primary end-uses for these
products?
4. Did license or permit any contractors or
subcontractors to manufacture these chemical substances?
5. who ffacility and personnel) developed the chemical
formulations for the substances.
6. At what facility or facilities within the United States
were the substances manufactured?
7. Did import or export any quantities of the
substances?
IIE-51
-------
- 2 -
8. What is the status of any remaing stocks of these
products? where are the stocks being kept? Was a
recall initiated? If a recall was initiated,
please submit copies of all directives, memoranda or
corresponder'-e regarding the recall.
9. Identify who discovered that the chemical substances
were not on the T5CA chemical inventory on or about
November f>, 19fl9. Pescribe with, particularity what
process led to this discovery and provide copies of
internal correspondence that documented the discovery.
Please respond in writing within twenty (20) days of
receipt of this letter. Any materials claimed as Confidential
or TSCA Confidential should be so designated and sent in double
envelopes. The response should be sent directly to:
Michael F. Wood, Director
Compliance Division fEN-3421
Office of Compliance Monitoring
IT. S. EPA
401 M Street SW
Washington, D.C. 20460
After we have the opportunity to evaluate your submittal, we
will contact you to arrange a foliowup meeting as necessary. If
you have any questions, please calA me at 475-8690.
Mich/pl J. Walker
Ass/rtant Enforcement Counsel
To/yes Litigation Division
cc: Michael Hackett [EN-3421
John Foley [EN-342]
Carol H«tfield (TS-794J
Vincent Giordano^x
IIE-52
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II.D. SEC 10-Q STATEMENT
JIJL 3 i I'jO
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
Quarterly Report Under. Section 13
^-ef—the—Securities ^Exeh-ange—Act—of 1934
For the Quarter Commission
ended June 30, 1990 File Number 1-4422
^ROLLINS, INC
Incorporated I.R.S. Employer
in „ Identification Number
Delaware 51-0068479
2170 Piedmont Road, N.E., Atlanta, Georgia 30324
Telephone Number — (404) 888-2000
Indicate by check mark whether the registrant (1) has filed all
reports required to be filed by Section 13 or 15 (d) of the Securities
& Exchange Act of 1934 during the preceding 12 months (or for such shorter
period that the registrant was required to file such reports), and (2) has
been subject to such filing requirements for the past 90 days.
Yes X No
At June 30, 1990, there were 23,642,718 shares of Common Stock $1
Par Value, outstanding.
IIE-53
-------
ROLLINS, INC. AND SUBSIDIARIES
INDEX
Page No.
Part I Financial information
Condensed Statements of Financial Position
June 30, 1990 and December 31, 1989
Condensed Statements.. of—Earnings—and; Earnings
Retained - six months ended June 30, 1990
and 1989 2
Condensed Statements of Cash Flows
six months ended June 30, 1990 and 1989 3
Notes"tor~ConcTens"ecr FTnancTal 'Statements ~ 4
Management's Discussion and Analysis of
Financial Condition and Results of
Operations 5
Part II Other information
Item 4. Submission of Matters to a Vote of 7
Security Holders
Item 5. Other Information 7
Item 6. Exhibits' and Reports on *Forms 8-K. 7
IIE-54
-------
ROLLINS, INC. AND SUBSIDIARIES
CONDENSED STATEMENTS OF FINANCIAL POSITION
'$ In Thousands)
ASSETS
CURRENT ASSETS:
Cash and short-term investments $
Trade receivables, net
Materials and supplies
Other current assets
Total current assets
EQUIPMENT AND reOFERTY, at cost
Less accumulated depreciation and amortization_
June 30,
1990
(Unaudited)
29,277
40,360
13,705
15,978
99,320
74,391
44,378
INTANGIBLE ASSETS
OTHER ASSETS
30,013
41,058
11,556
181,947
LIABILITIES AND STOCKHOLDERS' EQUITY
LIABILITIES:
Accounts payable
Accrued insurance expense
Accrued expense
Income taxes payable
Unearned revenue
Total current liabilities
DEFERRED INCOME TAXES
OTHER LONG^TERM LJABILTTIES
Total liabilities
STOCKHOLDERS' EQUITY:
Common stock
Earnings retained
Less - Common stock in treasury, at cost
Total stockholders' equity
12,731
12,539
20,215
2,362
7,450
55,297
20,925
24,190
100,412
27,622
108,619
136,241
54,706
81,535
181,947
December 31,
1989
$
(Audited)
25,983
35,955
11,489
10,957
84,384
70,301
41,657
28,644
40,315
6,778
$
$
160,121
8,180
11,600
14,657
569
5,434
40,440
24,507
22,945
87,892
27,622
99,424
127,046
54,817
72,229
$
160,121
Jhe accompanying notes are an integral part of these financial statements.
1 of 8
IIE-55
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ROLLINS, INC. AND SUBSIDIARIES
CONDENSED STATEMENTS OF EARNINGS AND EARNINGS RETAINED
($ In Thousands, except per share data)
(Unaudited)
Three Months Ended
REVENUES $
EXPENSES:
Cost of services provided
Sales, general and administrative
expenses
Depreciation and amortization
Interest income, net
INCOME BEFORE PROVISION FOR
INCOME TAXES
PROVISION FOR INCOME TAXES:
Current
Deferred
NET INCOME
EARNINGS RETAINED:
Balance at .Beginning of Period
Cash Dividends
Employee Benefit Plans
BALANCE AT END OF PERIOD $
EARNINGS PER 'SHARE $
WEIGHTED AVERAGE
SHARES OUTSTANDING 23
June 30,
1990
123,843 $
9
63,350
39,127
• 1,851
(641)
103 , 687
20,156
8,399
(437)
7,962
12,194
99,722
(3,310)
13
108,619 -$
0.52 $
,640,280 23,
The accompanying notes are an integral part of these
2 of 8
IIE-56
1989
115,523
59,080
37,409
1,854
(558)
97,785
17,738
7,593
(409)
7,184
10,554
88,499
(3,189)
(13)
95,851
0.45
623,977
financial
Six
1990
$ 221,421
114,876
77,961
3,655
(1,187)
195,305
26,116
11,278
(962)
10,316
15,800
99,424
(6,619)
14
$ 108,619
$ 0.67
23,638,238
statements.
Months Ended
June 30,
1989
$ 204,323
105,138
73,783
3,582
(1,018)
181,435
. 22, jtt
^^B
10,246
(996)
9,250
13,538
88,522
(6 ,.260)
1
$ 95,851
$ 0.58
23,620,537
-------
ROLLINS, ING. AND SUBSIDIARIES
CONDENSED STATEMENTS OF CASH FLOWS
($ In Thousands)
(Unaudited)
Operating Activities:
Net income
Noncash charges (credits) to earnings:
Depreciation and amortization
Deferred income taxes
Other-net
(Increase) decrease in:
Trade receivables
Materials and supplies
Other current assets
Increase (decrease) in:
Accounts payable and accrued expenses
Unearned revenue
Long-term self-insurance
non-current assets
provided by operating activities
Investing Activities: t
Purchases of equipment and property, net of sales
Net cash used for acquisition of companies
Net cash used in investing-activities
Financing Activities:
Dividends paid
Treasury stock issued to benefit plans
Net cash used in financing activities
Net increase in cash and short-term investments
Cash and short-term investments at beginning of period
Cash and short-term investments at end of period
Six Months Ended
June 30,
1990
15,800
3,655
(4,969)
772
(4,115)
(1,987)
(3,558)
12,118
2,016
1,185
(1,015)
19,902
(4,034)
(6,080)
(10,114)
(6,619)
125
(6,494)
3,294
25,983
29,277
1989
13,588
3,582
(1,747)
183
(3,804)
86
(2,989)
8,640
619
(489)
(511)
17,158
(4,450)
(1,667)
(6,117)
(6,260)
115
(6,145)
4,896
16,916
21,812
The accompanying notes are an integral part of these financial statements.
3 of 8
IIE-57
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ROLLINS, INC. AND SUBSIDIARIES
NOTES TO CONDENSED FINANCIAL STATEMENTS
(Unaudited)
NOTE 1. BASIS OF PRESENTATION
The condensed financial statements included herein have been
prepared by the Registrant, without audit, pursuant to the
rules and regulations of the Securities and Exchange
Commission. Footnote disclosures normally included in
financial statements prepared in accordance with generally
accepted accounting principles have been condensed or omitted
pursuant to such rules and regulations. These condensed
financial statements should be read in conjunction with the
financial statements and related notes contained in the
Registrant's annual report on Form 10-K for the year ended
December 31, 1989.
*
In the opinion of management, the condensed financial
statements included herein contain all adjustments necessary to
present fairly the financial position of the Registrant as of
June 30, 1990 and December 31,1989, and the results of
operations and cash flows for the six months ended June 30,
1990 and 1989.
NOTE 2. PROVISION FOR INCOME TAXES
The book provision for income taxes includes the liability
state income taxes, net of the federal income tax benefit.
deferred provision for income taxes arises as the result of the
use of accelerated depreciation methods, and other timing
differences between financial and income tax reporting.
NOTE 3. EARNINGS PER SHARE
Earnings per share is computed by dividing net income by the
weighted average number of shares outstanding during the
respective periods.
4 of 8
IIE-58
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ROLLINS. INC. AND SUBSIDIARIES
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION
AND RESULTS OF OPERATIONS
FOR THE SECOND QUARTER ENDED JUNE 30. 1990
SECOND QUARTER 1990 COMPARED TO SECOND QUARTER 1989
Results of Operations
Revenues for the quarter ended June 30, 1990, were
$123,843,000 compared to $115,523,000 for the same quarter a
year ago, an increase o£ 7 percent. Net income increased 16
percent to $12,194,000 from $10,554,000. Earnings per share
increased 16 percent to 52 cents from 45 cents.
Revenues for OrJcin, including pest control, termite, lawn care
and plantscape services, increased 8 percent to $110,150,000
from $102,503,000 a year ago. The pest control segment
continued its strong growth. Rollins Protective Services
revenues increased 4 percent to $12,480,000 from $12,059,000.
Late in the quarter, the new System VI, an advanced state-of-
the-art residential security system, »was introduced.
The cost of services provided for the quarter increased 7
percent to $63,350,000. This results from serving a larger
customer base than a year ago. As a percent of revenues,
costs were 51 percent, the same as a year ago. Sales and
administrative expenses increased 5 percent to $39,127,000.
As a percent of revenues, these expenses decreased to 31.6
percent compared to 32.4 percent last year. Sales expenses
for the OrJcin termite and lawn care services were more
productive this year. Lawn Care services operated at a profit
for the quarter compared to a loss a year ago. Depreciation,
amortization and interest income had no significant change.
The provision for income taxes, as a percent of income before
taxes, decreased 1 percent to 39.5 percent from 40.5 percent
last year.
5 Of 8
IIE-59
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ROLLINS. INC. AND SUBSIDIARIES
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION
AND RESULTS OF OPERATIONS
FOR THE SIX MONTHS ENDED JUNE 30, 1990
SIX MONTHS 1990 COMPARED TO SIX MONTHS 1989
Results of Operations
Revenues for the six months ended June 30, 1990 increased 3
percent to $221,421,000 compared to $204,373,000 for the same
period last year. Net income and earnings per share increased
16 percent to $15,800,000 and 67 cents, respectively.
Revenues for Orkin increased 9 percent to $194,612,000
compared to $178,851,000 a year ago. Revenues for the pest
control, termite and lawn care services increased. Rollins
Protective Services increased 4 percent to $24,548,000
compared to $23,683,000 last year.
Cost of services provided increased 9 percent. As a percent
of revenues, cost of service was 51.8 percent; an increase of
.4 percent compared to 51.4 percent
-------
ROLLINS, INC. AND SUBSIDIARIES
Part II. OTHER INFORMATION
ROLLINS, INC. AND SUBSIDIARIES
ITEM 1. LEGAL PROCEEDINGS
NONE.
ITEM 2. SUBMISSION OF MATTER TO A VOTE OF SECURITY HOLDERS
NONE.
ITEM 5. OTHER INFORMATION
NONE.
ITEM 6. EXHIBITS AND REPORTS OF FORM 8-K
(a) Reports of Torm 8-K
•
No reports of Form 8-K were filed or required to be
filed during the quarter ended June 30, 1990.
7 of 8
IIE-61
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed
on its behalf by the undersigned thereunto duly authorized.
DATE: July 30. 1990
Rollins. Inc.
(Registrant)
O. Wavne Rollins
0. Wayne Rollins
Chairman of the Board and
Chief Executive Officer
(Principal Executive Officer)
^ James R. Hicks. Jr.
James R. Hicks, Jr.
Vice President, Treasurer
and Secretary
(Principal Financial Officer)
8 of 8
IIE-62
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II.D. DUN AND BRADSTREET
NSSP
FACTS
FAQD04P3
U.S. ENVIRONMENTAL PROTECTION AGENCY
FACILITY AND COMPANY TRACKING SYSTEM
DUN & BRADSTREET DISPLAY
FACILITY NAME:
SECONDARY NAME:
FACILITY ADDRESS
MAILING ADDRESS:
ROLLINS INC
2170 PIEDMONT RD NE
ATLANTA GA
PO BOX 647
DUNS NUMBER
COUNT/:
30324 3M3A: 43
TELEPHONE:
09/21/9C
15:54:49
FAQD04M3
00691 9::-:-;i
404--83d.:-2350
PARENT/SUBS: P NBR SUBS: 336
PARENT OR HEADQUARTER COMPANY:
ULTIMATE COMPANY
006919033
HQ/BR: H NBR BRANCHES: 57
ROLLINS INC
6141
MAUFACTURING N
LINE: OF BUSINESS: TERMITE PEST CTRL
SIC CODES: 7342 0732 7332
YEAR STARTED 1943
E TO NXT PAGE (Y): _ LIST SUBS/BRANCHES (Y): _ LIST PARENT/HQ : _
PF1/13 = HELP
PF3/15 = PREV
PF4/16 = MAIN
NSSP
FACTS
FAQD04P3
U.S. ENVIRONMENTAL PROTECTION AGENCY
FACILITY AND COMPANY TRACKING SYSTEM
DUN «. BRADSTREET DISPLAY
09/21/90
15:54:49
FAQD04M4
DUNS NUMBER: 006919038
ACTUAL
FACILITY NAME: ROLLINS INC
PRINCIPAL OFFICER/TITLE: 0 WAYNE ROLLINS CHB
ACTUAL
SALES: 371000000 NET WORTH: 0
ACTUAL ACTUAL
EMPLOYEES THIS LOCATION: 500 TOTAL EMPLOYEES FOR COMP: 7400
BASE YEAR SALES: 0 BASE YEAR EMPLOYMENT: 0
LIST SUBSIDIARIES/BRANCHES (Y) _ LIST PARENT/HQ (Y)
PF1/13 = HELP
PF3/15 = PREV
PF4/16 = MAIN
IIE-63
-------
N3SP U.S. ENVIRONMENTAL PROTECTION AGENCY 09/21/9C
FACTS FACILITY AND COMPANY TRACKING SYSTEM 15:56-2?
FAQD04P3 DUN & BRADSTREET DISPLAY FAQD04M3
FACILITY NAME. . ORKIN EXTERMINATING COMPANY DUNS NUMBER: 00250942C
SECONDARY NAME: ORKIN LAUN CARE
FACILITY ADDRESS: 2170 PIEDMONT RD NE COUNTY:
ATLANTA GA 30324 SMSA: 43
MAILING ADDRESS: PO BOX 647 TELEPHONE. 404--383-200C
PARENT/SUBS: P/S NBR SUBS: 3 HQ/BR : H NBR BRANCHES 35:"
PARENT OR HEADQUARTER COMPANY:
006919088 ROLLINS INC
ULTIMATE COMPANY : 006919088 ROLLINS INC
LINE OF BUSINESS: PEST CTRL SVCS LAWN rtAuFACTURING: Y
SIC CODES: 7342 0732 2879 7311
YEAR STARTED: 1964
CONTINUE TO NXT PAGE (Y): _ LIST SUBS/BRANCHES (Y): _ LIST PARENT/HO (Y):
PFi/13 = HELP PF3/15 = PREV PF4/16 = MAIN
NSSP U.S. ENVIRONMENTAL PROTECTION AGENCY 09/21/9-
FACTS FACILITY AND COMPANY TRACKING SYSTEM 15-56-2
FAQD04P3 DUN & BRADSTREET DISPLAY FAGD04M
FACILITY NAME: ORKIN EXTERMINATING COMPANY DUNS NUMBER: 00250941;
PRINCIPAL OFFICER/TITLE: JAMES E HICKS JR VP
ACTUAL ACTUAL
SALES: 294000000 NET WORTH; 0
ACTUAL ESTIMATE
EMPLOYEES THIS LOCATION: 150 TOTAL EMPLOYEES FOR COMP : 5900
BASE YEAR SALES: 0 BASE YEAR EMPLOYMENT: 0
LIST SUBSIDIARIES/BRANCHES (Y) _ LIST PARENT/HQ (Y)
PF1/13 = HELP PF3/15 = PREV PF4/16 = MAIN
IIE-64
-------
II.D. STANDARD AND POOR'S REGISTER
STANDARD:&PPOOR'S>KEGISTER
RINGER MANUFACTURING CO.,,* ,.
9S Wbodfock IA. W*ynw«rlvtMaM.'031«f ^,1»
Arthur Kyrico* . • ••>: ''\La-.-7 .i
Ifg)— Richard Renna -j.Ji^.nxi.".. t^hid^— 1-V •
nlgr— Roderick Orinfet --.-us. -T» :: - .-P 1.V
— MacDonald, Levine. Savy A Co,^o*ton.-,Ma*a>
iry Bank— Shawmut Bank, N-A. ^t'. e\ltZ Vny.
~ingB S2 — 5MU Emptoyeat 12-,i— «.;i UJ3 .
•AIM DIRECTORS -<• r-vO 1>n
'CTS: Confectionery A ice. cream' flavon,-^yrapi,
..tfi. plastic moldf . • ,,j.-y;:.> rtqw^U-isl/! bo-it
1081; 2064; 30W ..... • .-?•',••
(RIOLE COMMUNICATIONS.
— H«>Hn«^SI, -Vmtcwvw, IX, C«w V4C 1W3-
^-•- Tal. 604^*7-1527 Vi-*'^ *«-**
a J. Hortoo- .-•* "-•-... i • ^^••jnary.-.O OMrf«)l
-A. M. Neljon '.r-:u- • . • ','r..i«iif<; ,'J sbvyitO
— Cuneroa, Pletrobon A Wong. Vtncoarcr/ B. C,'
r Ba^i— 'The Royal Bank of CanadaMICiSO
T Law Flra— Shea A Gould
tchaage(t): VAN. OTC. -.- ,- : <- * •
^ta DIRECTORS rT-Otber.Diracton Are: .
'''
ORIOLE HOMES CORP.1JT. -.»
i N..W. 24th SI.. ••(TiDem* S««cb.fta:J30MA
Tei 303-975-7660 •'•••'•>-'••.* .frT-'K
A Chief Exec Officer—Richard O,LsrftnrfifQ
•lark A. Levy • • >. ;» •"^'r-ti-Vrviijiid'
.•vikrg}—Eugene Bern*
Land Devel)—James I
Constr)—Christopher A. Feller
omblnfj^&udolph M. Potesu " „
iml Dla^^khen B. Tolce*1':1' ** *•-.-
chltecn^^^H>ealgn)—George C. Wicaman
:el Consoltant—Ronald Como? Ronald Como A'^
ociatea, 19 Warren SL. New York. N::Y. 10007°
Pannell Kerr Fonter, Miami. TU.''""*'" »-1«*;
Bank— Rorida National Bank/Miami
Law Fir**—She* A Gould *J-> : '••'•
..20.55M1I _ Employees: 300
:xcaang«(§): ASE, BST, PSE. ''i? ' A
J*»-' .DIRECTORS —Other- Director* r.Jam .
- C McCloiky.^.vSamuel,LrAdler t •
E. Deems :|,» >/ ••. •r,T'
7TS: Builds A sells home* .A.- condominium
ats, scquire* A improves undeveloped-land.>>•,A
J52; 1331 ' ,
RtON BROADCAST GROUP,
•JU S. Ulsrar J>, DMIVOT, Goto.-. M2371A*
• Tat 303^704369 ' -o?rf t.3
Chief Exec Officcrr-WiUiam White C
*. E. Matthew* •.-.-.-•
In) A Secy—Thomas A. Breen " ~l»0f -*Vi ?-'•
Bank— Colorado National Bank, of Denver
Law Finn — Jeruen. Byrne, ^Panona A Run. P.C [
''
-changed): NAS . . ...... ,, _ , ...a*
Iso DIRECTORS— Other Dlrecton.ArciqvJ
Boedeker . . D. W. Dionea
.
5S: Mortgage servicin,— L^
.JON CAPITAL CORPORATION^'1
Rodi.Ull.r Plai., New York, N. Y.,.l [0
"
Chief Exec Officer—Alan R. Gruber
li«f Oper Offlcer-^Roben
-Peter B. Hawea,.^',,....
—Roger B. Ware • '. • "" » T-'itr. ;) i.a'
ecy A Gen Coun—Michael P,.-Malpney **- r :
Treaa—Vincent T Papa "• \"',~ roj..' :
"ont—Daniel L. Barry' •"•'o."i«.-n»^»»
est)—Raymond J. Schuyler-t/;' l:*°v'.a „ j
raid Pastor • • .•»•,<;*.•'•* bism;X—^«rtl ,
_.o J. Colernan. Jr. '." ' V."'J'1 "«!A-V 'I':?"
)avid A.^^k(< . , '->
-uryD.^HT . ' .-'"I
"irren Rl^Bien - -«M.M-.:
orge H. Slick •••-''•' • -^:..
Deloitte A Tpuche. Hanfprd. Conn.' '•'"•;< •*'•*?•
. .Bank— National Westminster Bank USA
T Law Plim Donovan Leisure Newton A~lrvtne'i
i DIRECTORS r-Olher Director* Arc
Colman ' > •., •• Bertram J: Cohn »•
J. JefTrey ,.-;. •- Jamea K. Me William*
• ' Prlaury Bank— Bay. Bank- Middkaei. ;
Prunary Law Firm— Hale A Dorr THX*
Sale* Raag« JlV-2MU:'.EmplOT»««^40.O
^ '„"•*" "> ;
Sluart D. Huamer .^
PRODUCTSi Gaaket
SJ.C.3053 " '
O.I.2
'»•'.. •..
g. A. sealing device*
« • ~
\ORION MACHINERY A'^,;
/.ENGINEERING.
sal IndesrrUI ReU Bra
PRODUCTS: Skin?icarai:
• Pra* Ooeti'Arndt ~,i:
Tree* RusseU P. Jemea 1 ~. . . .. „
'Aciits Smith.A Company, Stamford. Cecuwj
Primary Bank— Union Trust Company '•> 7 ii—nO
Prlaury Law Flna—Kilpa4ricavJ^|A.Jc«*v$oq
Sutan Maddem i -.->• — r—«<»
...ORION NETWORK SOLUTIONS INC ^
"' • /c . Te*. 619-2M-U1S '' *•-•«*"-' ''r
•Pra* R. A. Houtand
•Exec V-P—David
CkM FU Oflkw-Danie Marka
Acct>— Spicer A pppenncimi^DeeAW. Cola. A ;•
EaptofMS 60 . •* ,.' . ''". j?*^.1,
Stoek'£zcka«te<(): OTC-
. . 'Alao DIRECTORS — Otfcer DlraeMn
, Alice B. Houaand r/-'' Brian Kkmax
.'Connie E. Ro|cn ^Sr^O i*1*C • •
BUSlNES&-D«»itn.A|inir»l)itioq,pfJoea)lr»jwid€ ana.
networking »ya, .,;«£*-n»-t3t .UT ' v """ i
SJ.C7373 . • ' •• •• .,. - -i ..? •>.:•-> •„.«•',
ORION PICTURES. CORPORATION Mu
h Av*. ttow Ye«k. N.,Y.-100Z»<(..a./
-
•dam— Arthur B. Krim JC >-"••>»— «rtT A (n«)'H-
•Pr«A CUe/ Exec Ofllon— Erie. PleakowH—
•Eue V-P— William Bcrnium.nrt/J.ufBoJT—
,»Eue V.P— Mike Medavoy - ^--- -"
Sr V-P (Bu A—John D.'Logigun "V" '
Aectt— Ernst A Young, New York. N."Y. •"—"•»!"* .1
•Prisaary BaaJt— Manufacturen H*nover,Trust'C
Reveaac S46J.86MU' Employee*: 675'r«-v>fi
Slock Excaaage2'
;•••.' 'Alao "DIRECTORS,— Other Diractor* "Are: . |
E. John Roaenwald. Jr.-"3 J John W. Kluge^'f 1a"(v ;
Eugene M. Kline • > ''V^A.Mkhaal 1? Sovern^ »*ihiM .
'Sluart Subotnick"''^l1>iSTi1'>'''"--'""'»l .'.W.rGJif.
BUStMES&.MoUoo picture A TV' Onance,' producer A'
distr l.'.en:.-v»t> •;»£!• ;inrr _>.Le:
'''' '
j . . ORION RESEARCH INCORPORATED
VOV..C 529 MeUa SU MstM, MUaa. 02129 'm t
' ..... v • - T«L 617-242-3900 ' .>.-««T-A »j^lj
•Chra A Chief Eue Officer— Alexander Jenkins, III-">^
Pra* A. Chief Oper Officer— Thomaa Ri;We*chler'«2U— Albert A. Diggne* - '
•V-P (Research)— James W.Rosi^m
« Treaa A Chief Fta Offlcerr-Rooert.E-Kinneuj
iClerk— H. Kenneth F"uh-. "r »rp «.T
Chief L*gal Cou A Asat dark— Susan, F^
• Dlr Oper— Michael DeTillio ..... .... ' .•.,^_,r)>
• Acct* Arthur Andersen A Co.. Boston. Mas*. • . ,„,-;
• Primary Bank^ The First National Bank of Boston,),.^
Prunary Law Flra — Foley, Hoag A Eliot,
Rerenoe: S30.S3MU Employee*: rfM/l-jB,
Stock Exchmnge:£AS . ? . •• -.,- •
IIE-65
William A-'Drucker t" r4; Frederick Erekiel
' David A.; Hatch ' nte
ORKIN PESTCOK
'• • (Subs. Rollbi
t, ihela.OTe.iVVj
•' V.P— Charle*
Sales Ranges $5— lOMil -W£»»
PRODUCTSt Peitirine* «t*m 1
SJ.C2I79
' FRANK ORLANC
Rttk 109,
•V-»i?,- *.v« T«*,516-*2Wlfl
.'PiM— Richard Orl*nd|-x*» 1'
' V-P. A-Trea*— Arthur Ortandll
•'Acct* Trager. Gtau A Co^NcwJ
'Prlaury Baak— Norstar Bank, 1
Sale* S12MU > Eaiptove*e> 3004
PRODUCTS: Printing, acenting.-A.fl
SJ.C. Z7S4; 3999; 73I» ^ > .t,^
,-^'c ORLANDO BAKING
Ore** Av«,
vBmboula*. Scbwartx A Tc
4t>>U -••!•' "-'I ••' '
iltney National Bank" '•
Kl-TnSfRE'CTORS-^-
HEMICALS CORP. (SU
PN>*.KNO.WU$ COW
Yv.-?'-' »•>•"•* • "< •
iOTRONICS CORP.
A Olusman. Philadelph
County Bank * Tru»|
•Pree— Nick Orlando"' '«M«
; • V.P— Joseph A- OrtandolH^
•V.P (Sales)— Chester C OrlaadbJ
•V.P (Mfg>- John C Orlando-i
•Secy ATrasa John A.-
-• Aect* • Quoi AJ>snichu.Inc,(
" Prlaasoy Baa*— Central Rational 1
•-• Primary Law Flra Oimicn,
Sale*) RaaflB S10— 20MU -E*s.
-V . • '.-I. 'Ala* DIRKCIOI
gfVJaW e> ** •"»
„, „ pneumatic. a*ey»
i-equip, cable euy*. *xu
BM( Exec Offleer—JarreU D
Fse«T*TT*a«--R.. Allen. Hi
—Robert J. -Thus*
'-'ung/Long «—*
ORLANDO PAYINGS
(Sub*. HvbbanJ Coiutncktml
»-«r—'V P.O. ftM n««,0rlen*e,l
^eia—i..-: v Tei. 407-293-U404
•Ckraa A Pri* Selby W. Sullio
.•Exec V.P—R. Wayne Evans-
"V-P A AtM Secy—Jack FInleyi
• V.P—Reginald H. Stern* *_*«•"
• Trie* i Ray Line • i.<« 35] "
' ' Secy Sandra Sullivan n -^
'Acct* Ernst A Young, Orlando, 1
{- Priaaary Beak— Sun Bank.- >LAVS
Prtaaary Law Flrsa—Maguire,''
twiu-Dallas. N.A. -•-"
rDooky RuckerMaru.
Mt; cnei ""> '..
*3llMOND SHOPS, IN
UAv*.. rtorrli ««rt«n, N
2ef201-M1-5»00 ..,,,
> B. Goodman '
I F. Good
BUSINESS! Asphalt '-'
8J.C. 1771
tyr.ORLANDO UTILITIES
lie.--. :• 500 S.. Grant* Av«, (
• •• v- ' '•• TeC 407-43M1MJ
•Pra* Jame* H. Puih. Jr.'' ••,*-•"*•*
I Exec V.P, Secy A CM ML
• 1st V-P—Jerry Chicone. JO
i»2a4 V.P—Royee B. Walden*
S Mgr Fla Oper—Richard D,'
Gen Cow—T.-R Tart'-***
Asst Gea MgN-L.'E,:Stofl*-'
Mgr.Elcc Oper—W. H. He
. Mgr Water Oper—A, Raymond. I
1 Mgr Cast Rel A Sapport T
•'Mgr Strat Plast—D. E Moore J
.' Dlr Coeamaa—T. L. Smith,
-•' Per Dlr—Arthur Fenton
p Parch Dlr—Donald M. Justus-
•' Data Proc Dlr—Barney J. Jenkins]
Real EatalaJVIgT A.Aa*tJMarJ~
Accta— Ernst A Young. OrU
• Primary Bank— Sun Bank. N j
, Sales: S24SMU " Employee*:: l.(
/ ,'Also DIRECTORS—Other!
• Bill Frederick ' :1< Su ~
PRODUCTS: Electricity A water^
SJ.C 4911; 4941 .
INTERNATIC
ryoon,. New York. N. Y.
inufacturen Hanover T
-Moore, Benon, Um*
^Boesche- ., ,
One.' Akron. N.A..
«MU '' Employee* 70
~
' misc. troo wot
tusel wartbo.tte.jt.!.-.>
j
t
.... .•>."!>Si.»f-T«i.3l»*iy
• Pra* Harry Tuahman •>•••*
•y.P (uti) A Chief Exec OnVsti
Tuahman
•Secy A Chief EXM Officer (DOM
Tushman' '• ': ' • •'*&&
Comft—lern Linderman '"
Gen Coaa—Fred Babbin. Soi
• Acct* BDO Seidman. Detroit.
.Primary Bank—
' Detroit •
Sales: »175 Mil
a
r Officer— Robert W: E
.William lA. Engel.»'
•*'»* ' ' * • IjUi't-
. Heary r •te-S.
:O.Tetlow.> -l */'
Sci«m« «" ;«•'' '
. Baucom '•• ir-^
* Aaaociate*, C
NCNB National Bank <
'-
jputer hardware, aircral
INO'RESOURCED
laat* Exotoratiai
Herbert Fusfeld
Milton B..Hollander
O ..._.- J
r.i,- Frederick J- ROM I
imported
to ORLEANS MA
-------
II.D. STANDARD AND POOR'S REGISTER
2328
^,r'i;y,^*;^
"•'• ""• " :STANDARD?&7POOR.VS3REGISTER '
DIRECTORS -Otfc«r Dlraeton
Richard E. Cote . " ..... .,' Daniel T. Cox' C :nj«/l«ni3
' Ronald JC HolmberrVCl^Bruc* !_• Miller •
I Thomas P.SuIlivifl.i. »,: • • Joseph E. WOsonl'J'JUOSI
BUSINESS^ Multi-national i"«..~~-T broken IM».
SJ.C MM ' '•-•- ••.!>.«»-ftV»"»a
ROUJNS BUROICK HUNTER OF. NEW
«V'* .I'f.^K-'YORKr' INC...A 'iyi'"> 4
(Sub.. Rollins Bwdlck Hunter Co.)
.v"v *i.tOS ThM Av*, Nww Y»rfc, MJY^IOISIM »£>
•..•'• '1 ----- ;-' T«4. aiwn-woo •«< "aoa— *jn«o
Ckrm A Chlaf Exac Officer— G"jr Reid,' JI-/-.Q — *mA
Vlr» dual Julm M. R«id-"°"'unoJ — 4asd ru
.- Pro— Oearn K. Psgoumian ^MTolqrwf liMS*
r Eue V-P— Steven J. Bality (••«**> ••
£**e V-P * Chief Opar Officer— George W: 'Douglsm'-Z
. Sr V-P— BTXJ«rtrd
Sr V.P-John P.
. . ,
" ?<*lc;5
-_~
-••> Sr V-P— Dartov* O. Did —wiH-itfrMoJ— <»3l«aj «-V«
Sr V-P— Frand* J. Ferg«*c«™-»}ro35,«n«.-n3— r**
Sr.V.Pr-JoMpbR. Oullo •^i'.A'jiili .vftiiitoO — «r»A
Sr V-P— Harry H. Haack* Jo- j«.iJ •.-. • .y • K
« Sr V-P— James R. Hedge* ywist -s* — 4ad riamrrT
•c. Sr V.P— Robert T. Joycr. f 4-riiO^-anR w*
Sr V.P— -Eramett. Martin wTVKKEJ
0 Sr V.P— Charles M. Mull* mO,. «**• ^' ;l tr -.
rSr V.P— John P. PfeifTer .-^ii,.. iciiibniip :irr}'.iaom
'! Sr-V-.P—Wnnim R Tiylbr
.Sr V-P—Jonathan A. VUchos "'T
V.P—George J. Bishop.
V-P—John " ~
t, A
V'P— John P. KcUy
V.P— Vtleh«H. Kohler, -•"'»'
-V-P— M. Frtnk Mich«lotli-*
.V.P_fclw«d P. Mimkel •J''*
v.p_Miciu«j w. Moff«
V.P— Loretu C Ortiz
V-P.
V.
'•P—Loretta C Ortiz -t-'«WinHl—-TT,--oi"*.if s>T3tJaCW«l
Pm A Ckl«f Ezw Offlcn>— Dtrrell M. Trent owil «3-i-;gI
"J. Caleb Bou.;-:lP7...-'-Henry.Ti; ~
. ^^^.^...j,.^ ., -w««ft •«»
•SO.C 4953 nrr'j .... - 'i
. .,-,P^..t, .ROLUNS,ii
3170 n««iw«tt M, N.t, AMainta.
„.,;,«>,.-. <,/>«• 7*4. 4O4-UA-2OOO <^rfi
•Chrm A Chief Exac Officer—O. Wiyn*.'Rollins.rtO. 1.2
••Sr Vk*-Chrm—R. Rsndall Rollins' ' "
S.LC. 0782; 7342; 7382 d ' "
•' ROLLINS LEASING CORP.
BIC PJI««I > . — .A' '
•Carat— Jama O. Nelson
• Pro— Davu F. Burr
.
?. •, -m-l •
•Car*— Norman & Prey .-< ,v " '. nri»b— (<».'»()
•Pro- A A«> Mar— Roland a.'PnysouO—Cdi.ra'O
•Ezec V.P (Suit*)— Jewel Nicnaif ..-^-.CI-- c-ll/')
•Saey. Tma. Coat A Per Dlr— Onytoa L.Beckerl^
vS«a« Mgr— Peu Mulc^O/.-j^wuuuurt'vi/ ^onl
DAn Ettfr— Rodger .Davia>M(^)iO—itm«
...TrfieMfT— DanJd'Preyj. li^6f-0'«» .->7
. Acefc i Wipfli. Ullrioh A Co..'*W!*con*in Rapid«,T Wla,
, Prtafary Baak— AuocUted Gtizeni Bank. N.AJ um«[
• - ' \ • wr. 'Alio -DISECTORS ''
PROEKCTSi Modular houae.
JftOLLS-ROYCE MOTORS^ INC
~ . il. M.-J. 07071 «C
Sale* Ra*f«
PRODUCTS: Can tT;-'-;
SJ.C 3711) 3714 ••
,,,x
•. .• >-.S '•<
huiaM Khiaj* Mflnray
.T«t
•Ckr»— Da»id
••Praa John P. Kochia*
•*SMy A Tr«a— Frank O. Btrgami >
••Acct*— L*r«nthor A Honrath, New. HaTenJCoon.
Primary- Bamk—.Peopl«'t Bank.' - c J«- Vv c "•" • " '
Primary LMW Plr»... SkaA.O'Cannor; SchUT. Zangari A
*.' Kaiaen. P.C" %:«•* -or" r,--**.-. -lr*.tf»»ir , ..-T«
SaUa Ra*a*i Sit— 12MU Eaptoycoi 130 One Sub»V
,'. .< *Ala* • DIRECTORS,— Otter. Dlraetan,,Ara»i.y ;
Mario Zangari ' •'•- ..... •••.•ifloT '••'•• --'tiilV* " '•> '•
PRODUCT& Fabocatad •»
eent, ttmoiphan
A CkM Ei*c Offletr— Howard M
V-P (Mktf>— R.
'reaauat
Axootrol equip.hM>O
8J.C. 359* 38JJ -•« '=!-••• - •• - --.I* -
ROLODEX CORPORATION^
249 •wCWCWft Rwkgi
••
Pras Robert W.'Burton '.'-
,• Ene V-P—Joseph C Growler, Jr..
.rV.P (A4ml>>—K«nn«th C:.OU»* .
.Accts-T Prio* W*terhous*..N*w York. N.'.Y. :,.„_
i Primary Baak— Midlands Nttional Bank/North ,',,^
Primary Law Firm Simpson Thacher A Bartlctt , '
PRODUCTS:- Sled A plastic offlca products, rotary dies y
g f f\ ina*. 7)17j* 3409 ' * ' ' ''* ' f' r . "
o ••'•'••• :- ROLOFF MFG.1 CORPr" ;"***
..400 Osnr»4* SI, ••* 1271, Kavkmmav.Wts. 541)0
,'-.-.••. „ •; . .,. 1*4.414^44-0501 . «s, py».i--' '*• •
•Carm A Pro— Harold W.Roloff. •.-
•V.P (Saw*, Mktf A P»» Ral) A Seer^Robarj J, RqJ
Co««—Dennis C Kickland ,
1?I
. Mfg Eagr— Ken Jeteski (.r...1',.^ ... ^«,_ ».-<>'i
•,Accte— {JrhMmalfff. Bnm«nftlro>A Asaoot ApplettaM.v
^ Wia. .' •-'•' . , -....••'. .-^/v-iw'-l) S-V
Primary Bank— Kaukauna Credit Union •' - -.q.-i •' A
.Primary Law Firm— McCarty, Curry.-. WydaveaoPeetan
A Rieiler -^ ' ' .«*«jquU
Sal*c J3.25MU Employ***: 37 :," ..... -' -.
.. *Al*o ,. DIRECTORS —Otaer Dlncton
Kenneth L. Rolotf . . • Florence E. Roloff -•
PRODUCTS: Oray Iron- • cailings,u-,inaruMa At hardware
products, antique gifts A novejlks-:— «rrft w»J rwnhT '
SJ.C 3321; 3429; 3499 "'•• -..-— •?— '^- !>••>:» aaua
v.pROLON MANUFACTURING CORPt
V-T f> 60* HwfiM' Sl^ lochoilvr, a Y: 14404 'A*
•Ckrm A'Pr**—Roland A. Paul.:i
•V.P—Louis A. Carter'• '•••* • '••' .. . -
Aects— Conland L. Brovitz A Co.. Rochester, N.1, Y.'
p*4M**v Rtt«b UanM«* ILfiHI.nH Dank .'—••' -.1. <^.*i;ll
''
.Primary Baak— Marine Midland Bank
Primary taw Firm— Moutaw. Vigdor. Reevo.'et al
Sales JtttfK $2— JMil ,V Emplof
. . .s>. ..;.-r».^, » »Aiso' DIRECT
PRODUCTS, Preosio.
DIRECTORS ;
w ROLSCREEN COMPANY
F^.cr 102 Main St., P.llo, Iowa 50219- OT<1.
•< T.I. 515-628-1000^ej«-JoMpk>a
•V.P (Intl)— Will
•V.P (S
Cot— Mik*(
Accts— dart-Nut
Primary B«ak
Salac J9.30M11'-
' 'Also DC
Pstrick H.
PRODUCTS: Pip*
SJ.C 3494; 5074: MtJ*
,ROMAINE PIE
- -
•Pm A Ptbt-W.'*.J
•Owl—Michael 1
•MktiDtr—Uonardl
GeaCoa—Jackv
Accts Lavcatbnl i
PRODUCTS: -1
SJ.G r 21 -• <•"
ROMAN ART
Pna— Robenl
' Co«.»-Pitrida1
• Aorts— Richtrd.BJJ
> Primary I
Primary Lew J
Saks: S2Mil:&!
PRODUCTS: ~
baseball caps, |
SJ.C, 1499-^1
Dipt.''.- '•> RO/I
•Ckrm AChMbaci
•Pm«CsierO>arC
•V-P—Stephen 0. Ra
•V-PATnas PH
•S*ey-J. S.OruL,
Accts—Cooperi A1
Primary Baai-Oj
Primary Law flim. -
ComsoL Ntt Earalaa?!
Stock Kif»a»t«(»)fTOL
"••" 'Alsg" DOUCTOI
U'O.'Tspp'11
IIE-66
V-P (SXLESr-^la
•V-P (RNV-HeriM
• V-» /M»a\— mni.ni
Suns* "
C«M U*a*ak
"T -«
«>w'-9 •<•*<>
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Robert N. '
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t 4312; 7389
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3206 ORIGINAL CRISf Y PIZZA CRUST CO
BUSINESSES ALPHABETICALLY
0-U-N-S 01-932-9655
ORIGINAL CRISPY PIZZA CRUST CO
TRIOS
IS Auburn St ChaUaa. MA
lie 02150 raf (617) 884-5211
Sam 2MM fmo 44
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A Oamran S»t> Bk.OanMn.MA
Iccn Pnea Wanrhouta
Paul StaMns Pr
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0-U-H.S 03-O64-1450
IRIGINAL LOOK
STERIORS BY TONI
.6 E 106th Tarr. Kantai City. MO
lie 64114 Ttl (816) 942-5402
Sam 61M fmp 2
'C 7389 5719 manor dalignma; houiaaam.
tettart F SpamM Pr
Tom Sparroo PI
O-U-N-S 07-197-3077
ORIGINAL MINERAL SPRING HOTEL in.)
506 HanoMr. Okawvilla. X.
062271 Ttl (618) 243-9498
Ml 700M fmp 34
C 7011 Hotat*.
_, F,nt Nat Bk ncOkairmna.il.
•Albart Krohna Pr
•William Frank Tr
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toy NoltgraM VP
\n jonanoack VP
rad Piaoar VP
ORIGINAL PANCAKE HOUSE
See PANCAKE HOUSE OF GROSSE POINTE
lflfl^k|M-S 01-421-2849
RIGINA^HELEKS GREENHOUSE
rONDEL£l^a»PlST & GREENHOUSE
1524 Eaton Rd. I laHaftyrm. PA
to 18055 ra/(215)838-0961
' «« NA fmp 4*
C 5992 Flonarl. train: plant*, pottad.
Firit Vaaay Bk.Allanlomm.PA
Pearl PondaMk Bodor Pt
0-U-N-S OO-985-8022
RIGINAL SOUND RECORD CO
JNNYV1EW ADVT
.20-7122 Suniat Bhjd. Lot Anfakn. CA
t.o 90044 r«* (213) 851-2900
Saraj NA imp 25
ilC 7311 36S2 3944 AdMrtnata. cornuKme
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Saeumy Panne Nat Bk.Loa AncamCA
rthur Egnoyn Pr
'Arthur AMII Sac Tr
'Arwatta laon VP AoVT
'Paul Polity VP
0-U-N-S 05-829-7O60
ORIGINIT FABRICS OE
.. 9 w 40m si. Naw Tom. Nr
•-010018 r« (212) 354.3050
L*«i 7MM (me 25
en ore
r 5131 Ptacacoodl4 notknt. •
en Waoart LipVua 1 Co
' Ctl Sauadran ManoM POM & Lahrar
M.lton L Rultr CFO CK Ba
Malvw Yorka Pr
Annatta Raitar Sac
O-U-N-S 01-477-6249
(IGLIO ANTONIO INC
6O61 S WHkM Or Sla 117. Enr.in.oeo. CO
/« 80111 r*/(303) 770-6369
Sam 6MM fmp 112
Tkr Srm rjaa I«cn OTC
SC 4841 Caola 4 otMr pay taia«ion tarweav
8k Cha*a MaMuman Bk NA IncNao lon.Hl
LfCil Jaman Byma Panon 4 Huh
•Wham J Whrta Oi U
•SmalE Mamia.i Pr
•Thomaa Braan Sac Tr
Kami RStmvydar
0-U-H-S 19-902-203*
ORION BUILDERS
1112 Rua Oawraa. Ban Rauta. LA
fie 70810 Ta) (904) 766-8465
Sam 1MM fmp 3
SC 1921 Naar ujnuiuinuu. »uj>a-lan«ly hmnaa
NrmmfGoPu O»nr
O-U-H.S O4-441-9939
A • ORION CAPITAL CORP ioc>
30 Ikxnatallar PU. Nan York. NY
/« 10112 far (212)541.4*46
Sam NA ' . fmp MOO
rkrSrmOC
SC 6331 6531 I
manna 4 caaually muranca 4 caman; workan'
Ok Naoonal «»anmn>lar
4cm Patoina 4 Towcna
•Alan R Gruoar
•Rooart S Sandom
HofarBWara
Oanialt.Banv
Lao JCoMman Jr
Oand A Famma
Larry 0 I aim
Raymond J ScnurMr
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Oi M CfO
fr COO
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O-U-H-S 10-247.8807
ORION DRILLING CO INC (TD
ORtON PAQFIC
( Sucy o* MADBON MVCRALS CORP)
2525 Paart St Odaua. TX
Bo 79761 r* (915) 332-OO58
SaMa 2MM • Cmo 5*
SC 2891 AdnaHiai. ptaaac.
Ok Ta»aa Commarca Bk.Odaua.Odaua.n(
•J Nick Foxar Pr
•J Allan Cnattaa Sac Tr
ar VP
0-U-H-S 07-613-5994
ORION FASHIONS INC (NT>
20 w 36m. Naw torn. Nr
Zip 10018 Taf (212)563-5420
Sam 8MM Cma 35
SC 5094 Ja»alry.
8k Chamicaiak.NaoYork.NY
Acca BkxMar Saymour 4 Shaow
•Don w«f Pr
•Roean Kam Sac
•Irnnf ParHna VP
O-U-H-S 03-064-3894 !
ORION FITTINGS INC <«>
( Suor 01 MC COY CO INC)
6 1 3 N 5m. Kaniaa City. KS
/>« 66101 Taf (913) 342-1653
Sam NA (me 50*
SC 3432 PlaUc plumbln( fiitura mwip. auamtly.
Sk To»ar Start 8kjunia> Oty.KS
•JoKnMcCoy Pr
•Clay Raadar Tr
•JoiaonMcCor Sac
•»ll Me Coy VP
•Oaudatta Me Coy VP
•Jamai B Me Coy VP
O-U-N-S 06-599-0814
A*ORION GROUP INC (cn
(Sue? of ORION CAPITAL CORP)
9 Farm Sorwigs Or. Fanrunfton. CT
Ap 06032 r«f (203) 674-6600
Saws NA fmo 14OO
Tkr Srm OC C*cfi BSE MSE NYS
SC 6331 6411 F>a. mama 4 casually miuranca:
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8k Aruona 8k.PKMnti.AZ
Acca OakMta 4 Toucna
•Alan Gruoar CnWCTO
•Rooan 8 Sanoom Pr COO
Oaraal L Barry VP Tr Cent
Slanlay FulhMOd VP Sac Couna
Sir>akxa J Cab Sr VP
Lao JColaman SrVP
Own) A Farranta Sr VP
PatarBHaoat SrVP
Mlcnaal P MaUnay , SrVP
Vtocant OPapa SrVP
Wei i at H Patcresn Sr VP
Raymond J ScXuyMr SrVP
GaortaHSlack SrVP
IficfiardC Tardrt VP
Bynum t Vtefcofy VP
Jamai 0 VMckmra VP
O-U-N.S 04.459-1196
ORION INDUS (WA>
76OO 5th Ava S. Saama. WA
/w 9810S Taf (2O6) 762-89OO
Sam 2MM tmo 1O6
SC 3444 Shaat II«K~
560 NW 16501 SI. Mam. a
lie 33169 Taf (305) 945-920O
Sam NA Cma 15
SC 6331 Pmoartydm
8k >ilanunl»«nu« Bk.Miami.a
1.0 Ca HMUman Knniman EouaM
•Paul Fraynd Pr
Jamat A Cartar COO
StaMn J Bacon CfO
•fanny Sinfar Sac Tr
SaulFraynd SrVP
•ClaaytOmar VP
O-U-N.S 05-488-1479
ORION INSTRUMENTS INC
702 Mannal SI 4n Fl. RadMod Cny. CA
A) 94063 TH (415) 361-8883
S«af 5MM Cme 43 "
SC 3825 Taat •qujomam kx mmuiiii. 4 Haitinal
8k Warn Fanjo 8k NA.San MKau.CA
Accn Coooara 4 Lyorand
BnicaMackay PrCXO
Thomaa R Bukatlaa VP fficft
Richard PmorU VP Mklf lit
O-U-H-S 07-878-5623
A*ORION LIFT SVC INC (M)
ORION AIR
(SuDr of AVIATION GROUP INC)
4505 Fan at Nauaa Rd. Rak«n. NC
tie 276O9 ra« (919)872.0868
iam,NA fme 100O
Tk, Srm PMK frcft NTS PCS
SC 4512 Air carao camar. KhadukM.
•Rooart C Butnman Pr
•MichaalJ Sanont VP
O-U-H-S 08-084-O945
ORION MCHY & ENGG «m
Cotfrow* knduscnal Pk. ttranlunl. CT
Zv 06405 Ttl (203)481-5555
Sam 6MM fmo 16
SC 6719 5084 3669 7379 7372 »»«tenant
noMing comparNai. aicapl bankt: nduttnal maclunary
4 admomanl comoutar ralatad oonsultmf saoncav
praoackatad wfnvara.
8k Unon Tr Co.Slamford.CT
Lft Cll Kanl Joiaonian 4 Taylor
•Goatz Amai Pr
•Ruuall P Jaman Tr Aut Sac
•Oonald H Fisnar Sac
Wlinakn Staktmoar VP
Kan EopM. Slamay Joiaphion. Suian Mmaam
ORION PACIFIC
See ORION DRILLING CO INC
O-U-N-S OO-698.3842
A • ORION PICTURES CORP «x)
711 5n A«a, Na» York. NY
7/0 10022 Ttl (212) 75B-51OO
Sam 328MM Cma 650
Tkr Srm OPC t«n BSE MSE NYS PBS
ORION HOMI VIOCO Motion DKtura praducaon 4
distnbutnn: tel«wi«on film pmiuctcn.
SC 7812 Mooon (netura productun 4 drtmbution.
8k Manufacturan HamMr Tr Co.Na» 1arf.H1
Acen Emsl 4 Youn«
•Amur B Hrm C7i U
•Enc Pla«ko» Pr CfO
ta*n Schwan V VP CFO
•WHKam Bamitam CJT VP
Mika Mada»oy Ci VP
f. VP
SrVP
Laonard Pack Sr VP Ganf Cam •
Jonathan J Shataoanj SrVP
Wandy Smrth Slovar Sr VP
K>itoarla A Aranaon VP
Oomhy B Baroar VP
Lananca Bamstan VP
Loci 2 Braokt VP
Mark ACaroany VP
JOM O Lo|i(ian VP
StarHay Naufak) • VP
Allrad C Parnar VP
MarcE Plan VP
Enc H Shorn VP
Mlchaal w Barlow. Jamaa A Harmon. Euaana M KUna. E
Jr
O-U-N.S 09-901-1987
ORION RESEARCH CORP
1315 MM AM. Ouranag. CO
lie 81301 raf (303) 247-8855
Sam 2MM fmp 100
SC 7371 2731 Comoutar iofl»ara Uanlonmant
8k Unttad ak.Ouranrjo.CO
•Roaar Rohn Pr
•Marty Rohra vPSac
O-U-H-S OO-277-4891
ORION TEL EXCHANGE ASSN <«.>
1020 401 St. Onon. «.
lie 61273 Taf (309) 926-3305
Sam 8OOM fmo 12
SC 4813 Leca) maohona unnriruniLalluiil.
8k Stata 9k Mc.Onon.IL
•wniam SandaM Pr
•Wyman Coultar SK Tr
•Oonald J Lanon VP
0-U-H.S 07-669-2698
• ORITANISVGS(Nj)
321 Man St. Hackanuck. NJ
He 07601 raf (201)343-3800
Sam NA fmp 112
SC 6035 radaraJ wrtnn 4 loan auoBabon*.
8k Lkutad Janay BkJUckamaclkNJ
•PMlp 0 Wykl V Pr
•Chana* Lndnar It VP
Gaoraa Sharkay VP
0-U-N-S 02-030-5876
ORKAND CORP (oo
8484 Gaorfia AM. SJvar Spring. MO
lie 20910 W (301) 989-8480
Sam 28MM fmp 500
SC 7373 737J Comoutar jfltama «illyii» 4 damn:
bufawia onantad computar lofNvara.
8k Maryland Nal BkJJainmora.MO
•Or Oonald S Orkand Pr
•Jonaman Sondla Sac Tr
OandLCan Sr VP
•Thomaa N Kykt Sr VP
JOMDhE Sclmaro Sr VP
BamRGold VP
0-U-N.S 00-290-9420
A • ORKIN EXTERMINATING CO 4 accauonaii pipa 4 tuona, nax.
Accn AOranam Borda 4 Ca
Robart H Onun Pr Sac Tr
Many Schryoar Pur M|r
Batty BUM Aut Sac
YvonnaOnun
A • ORKIN LAWN CARE
See ORKIN EXTERMINATING CO
O-U-H-S 18-360-8637
ORKNEY & YOST ANTIQUES
148 watar SI Storanfton. CT
Be 06378 Ttl (203) 535-4402
S«a» 9OOM Cmp 2
SC 5932 Armquaa.
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I AU'rtAbfclK.ALLT
ROUO W1UJAM R 3663
K.748-3468
IB*MCrcA)
r« (111) 712-4000
(••IS
I M-413-4288
SMC (DC)
•vat Mi
W (313) 847-0361
(••-• 6n» 10O
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fr
n»Sae fr
: 06.461-9240
L POTS CORP (CA>
• Itytn. CA
r* (213) 723-8836
Crna 100
ItaftcMfMnnf Ofttaal Snaps*.
kM*OMAnfiMs.CA
Otoa'Pr
VPIV
COM
01-289-4653
M G INC (NT)
no. ow aimpaa*, NY
'* (516)420-9600
(/up 10
kCHalBaaralus 4 aquwmant:
rPTr
Sac
'MUM 02-315-6936
Id CO INC (wi)
•«•» Wl
U (608) 734-0035
f/np 70
•Mot nations.
VPSac Tr
WM-S 00-510-167O
•Mia Cm* «», «.
W (708)437-3000
fm» ISO*
IMa*. MM m«ta1; udnf. shaat matal.
• aj»rr.Chea|e-.l.
Pr
VP
VP
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I INC I-)
00-S3S-9SOO
r« (313) 971-1700
fmp 21
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l matal: window * door
94"-*. J 00-204-7280
r*(516) 473-1630
fmp 120
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r Tr CaJ*>namla.Nr
|0arr Emr 4 OomUy.Nw T
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»(/.»-$ OS-040-7790
COfNCINC(NC)
( (516) 475-1630
fmp 240
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k of NT NA.Patcno|ua.Nr
a Pr
• !••*» Sic Tr
. .' 0-U-H-S 04-101-9462
• ROLLIC OF VA INC
4OO £ Man SL Pstchofua. NT
id 11772 W (516) 475-1630
Sato NA f/np 21O
X 2369 Play suits: Hflf. cMdran't 4 Wants'.
Sk Chamcal 8k NA.Huntin(lonNY
•Richard T Pt«rfl« PC
'Kcnratfi Ptaflc t^
•Lew* A PtarfM v*>
O-U-H-S 02-398-2364
ROLLIN ROAD RESTAURANT INC (VA>
AMPHORA RESTAURANT
377 MapM AM W. Viama, VA
Ap 22180 TH (703)938-7877
S*M 4MM fmp 12S
SC 5812 S813GyaakrasUurartt drnkniaujcas.
8» SOWK 8k NA.RlcMnond.VA
Aem CaortaH Jonas
•Lours ChoWui *>
•G4ord C B«d*l S4C
•SmftMii M>
•AlhM ChoUW* VP
0-(/-Af.5 06-339-8200
ROLLING ACRES
Rd 5 Our 8ta 99-«. To»«nd.. PA
A> 18848 r* (717) 265-3400
SMO 4MM Cm IS
SC 5261 OM0 mppHM 4 BOM: j«rO«n melon 4
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St
• ROLLING GREEN AT FALL RIVER
See ROBERTS FALL RIVER ASSOCS
• ROLLING HILLS ARTS
See ROSE-MALLOW PARTNERSHIP
O-U-H-i 02-238-2865
• ROLLING HILLS F S INC (IA>
421 N ion. Wnttrut IA
A> 50273 r« (315) 462-2644
S4M< 9MM fmo 32
SC 1111 1 1 1 1 ruiirn ilitr.il nminr mm-
l«rcMn 4 no.tr tvnvnr 4 rmMnr momit.
£• Unton SUM 8fc.WnMTMI.IA
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•Maunu UoMnt Pr
UtrM RMmon Tr
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Cin Kkwand S*e
Otal Hf
•j«ftr£iiit
Wayno Sour
•Jom Knoottcn
0-U-H-S 36-073-4333
ROLLING HILLS INVESTMENT
1214 N Man St. A. Anowion. SC
la 29621 r* (803) 224-6873
&M> 10OM fmp 1
SIC 6331 Baal not* «g«nn 4 niaiatan.
JVMIMW Hanu Pr
Rarmand Hanki V Pt
0-U-N-t 02-934.4269
ROLLING HILLS NURSERY INC
AIRPORT NURSERY
25225 Cramna* Bhd. Tarrmx*. CA
Zv 905O5 r« (213) 326-18*2
Sakn 3MM fmp 6O«
SJC 5261 0781 3193 Nunanre «ard»n medal 4
Bolt: landicapa faram: plaM*. 000*0.
8k Unon 8k.Torranca.CA
•Tom Akiyama Pr Tr
•Fumi T«
ROLLING LANES
See MARK LANES INC
O-U-N-t 02-580-9526
ROLLING PLAINS BROADCSTNG CORP in)
KVRP-AM & FM
14O6M luSI.HaMial.TX
£079321 Ttl (817)864-8505
S«ai NA f/np 16
SJC 4832 Radio oroadcaitni Hinonv
St Flnl Nat Bk.Stamtord.TX
•Hannam 8 Lana Pr Tr
•NaWa K Law vf> Sac
0-U-H-S 08-223-4939
• ROLLING ROCK FARMS <>A>
Rl 381. Lifonar. PA
//p 13658 Ttl (412) 238-9593
SJMI 2MM fmp 55
SC 7999 RkHn« >UMa.
fffc Mallon Bk NA.LicorMar.PA
•Saward Prowar Malkjii Pr
•Caorf a R wnMn Uf
• ROLLING STONE MAGAZINE
See STRAIGHT ARROW PUBLISHERS INC
O-U-H-S- 06-440-8164
ROLLING STONES CORP 14841 TH (607)546-9302
Sato 1SOM f/np 2
SC 0172 2084 Gnpac »«a caHan. DonoMCC
A Honor Bk NA.Warkm Glan.MT
tdnrdCn* Pr
•Joama Craw Sac Tr
O-U-N-t 05-977-5437
ROLLINGS CORP
AMERICA WEST PRIMITIVE
363 5 Mayar St. Tuaan. A2
/« 85701 r«l(602)623-4091
Sato NA fmp NA
SC 6799 6331 7999 *
(Sucre* ROUJNS BUROCK HUNTER CO)
300 S Cnna SI 3Om Fl. Lot Anaakn. CA
A90071 T* (213) 620-3776
Sato NA . fmp 23OO
r*r Jrtn AOC • f «n SSI M5£ NTS PCS
SC 6411 Mmabrokarv
» Fim Maram 8k.Pnoanii.AZ
*Cary Hamon CnaaCCO
•VanaMaoal Tr *
•Oarak Own C* VP Stc
O-U-H-S 00-542-8873
A • ROLLINS BUROICX HUNTER CO Quam Pr
•Norman J Pm SrVPTr
DanaM A wmon Sr VP
Ricnard C Cola. Frad FUdman. RonaM Hoknbart, Harvay
N llajni. Bruc* L M«ar. John R PaJMlUA R Jam
Pran, Mknjal 0 Of*. Roaar M S«wien Jr. Raymond I
JUknt Thomaa F SuHnan. Joiaph E WUion
0-U-H-S 11-368-8220
A • ROLLINS BURDICK HUNTER OF IL in.)
(Suor or ROLUNS 8UROCK HUNTCR CO)
123 N Wacfcar Or. Cracafo. n.
Da 6O6O6 Ttl (312) 701-40OO
SM> 35MM fmp 420
Tkr Srm AOC Cicf SSI MX NTS PCS
SC 6411 Hturanca Drokan.
8k Camnamal Bk NA.CncacoJL
•Jorn R PKtMKfc Pr
•Norman J Pnar Tr
•Virfma Schoolay Sac
•Tnomai F O'CamM f J VP
•OaniM A Wdun f> VP
•William Craanflald Sr VP
•Wayna L Scnnadar Sr VP
0-U-H-S 05-397-6331
A • ROLLINS ENVIRONMENTAL SVCS too
IRollini Pit Wrimnnon. K
lie 19803 Ttl (302)479-2700
Sato 206MM fmp 803
TU Srm REN ficA BSE MSI NTS PBS PCS
FIELD SVC INC Huarooui walM conacnon 4 Oiieonal.
SC 4953 mcnaiam oparauon: unury landHI
Sk Taus Commarca Bk-Austn.Austn.TX
4cea Put Manwk Man 4 Co
•Jorn W Rollns CfiSadO
•Jack E Raoan Pr COO
•William e PIMiooar Jr VCKBo
Ricnard W ramami VP Tr
•Jom C Part Jr VP CaW Coun> Stc
0-U-H-S 01-233-3191
A • ROLLINS ENVIRONMENTAL SVCS LA
(DC)
(Suor a/ ROLLINS ENVIRONMENTAL SVCS)
I Rolhns Pit Wilmnfton. OE
A> 198O3 Ttl (302)479-2700
Sato NA fmp 110
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SC 49S3RrhaasyiMms.
tarn Put Uarwck Man 4 Co
•Frank K Willis Pr
•J CartitM Ptn m Sac
Jorn C Pan Jr Sic
•Thomas C OioniHtta VP
0-U-H-S 00-387-8675
ROLLINS FARM SVCS
OH Hw, 278 E. HarMBn. AL
2it> 35570 TU (203) 921-2139
Sato 1MM fmp 8*
SC 2874 Phosphates.
Bk First Nat 8k.Hamllon.AL
Lfldl JicJualsom
8 W Rollins PT Hgr
Eufana Rollns Pr
EursBn RoNns Pr
Jorn u RMWis Jr Pr
Mrs Jorn U Rollns Pr
Judrtn Rollins Tamnt Pr
0-U-H.S 00-691-9088
A*ROLLINS INC (DO
2170 Piattmil Rd NE. Adanta. QA
Be 3O324 r* (404) 888-2330
Sato NA fmp 7400
Ho- Sr"> ROL f icf, BSE MSE NTS PBS PCS
ORKIN LAWN CARC Ljwn ear* sarncas.
SC 7342 0782 7382 6141 Ttrmita contnH: prst
control n structures: lawn cara Mmcas: fira alarm
manMnanca 4 moniBm|: burglar riarm mint«n«nca
4 rncmBini; cansumar hnanca coivioaikai.
a* Rhoda islaM Hosp Tr Nat Bk.Pnndanca.RI
Acea Amur Anoarsan 4 Ca
•O Warna Rollns C» OH CfO
•Gary W Rollns Pr COO
Jamas R rkcks Jr VP Tr S«c
R Randan Rollns. BUI J Orsmuka. WIIBn Laomy. Jam W
Rewra. Hanry 8 Ticc*. Jams* B WWiams
O-U-H-S 05-I42-4OOO
A • ROLLINS LEASING CORP (on
(SudreyRLCCORP)
1 RoMns Pll, WamnjMn. OC
fa 19803 Ttl (302)479-2784
SMI 259MM fmp 20OO
Tkr Srm RLC ' f .eft BSE MS NYS PBS PCS
EXftMTID TKUCK SVC A|amv sKippni.
ROLLINS DCS Truck raral 4 laasni. no dman.
SC 7313 7338 4212 Truck laasna, without drwars:
truck ramal. witnout dmars: truck cn|na rcoar. ncrat
ndustnal: truck ranta) wrtn dnvars.
» First ntarstata Bk.Phoam.AZ
Acca Ptal MVMC> Man 4 Ca
•Oand F Burr CH 80 Pr
•Frank H Mnnar VP Tr Aia Sac
Jom CarksW Pad Sac
O-U-H-S 15-192-213O
ROLLINS R G CONSTRN INC
OLD LINE CONSTRN
3720A Encutm Camar >. Mamntt. CA
fa 30907 r*f (404) 868-6926
SUM SOOM fmp 1
SC 1342 1341 CamrnarcM 4 offlca bwkXnf. na»
construction.
•R Caorfa RolNns Pr
•Ctona w RoUns VP Stc Tr
O-U-H-S OO-347-1000
ROLLINS SUPPLY CO INC (NO
15O2 Mill SI. Graansboro. NC
lie 27408 Ttl (919) 273-0833
Sato 5MM fmp 8
SC 3033 Rconnf. s«)n| 4 nsulaoon.
8k Sautnam Nal Bk of NC.Graanseore.NC
4CC1S Putman Sykas 4 Co
•J Floyd Rollns Jr Pr
•Oawn A Ritctua SK Tr
•Francn O RoUns Am Stc Tr
O-U-H-S 09-318-1402
ROLLISON LOGGING EQUIP OF AL (AD
(SuOral ROLUSON LOGGING EQUIP)
Hwy 20 t Bur Rl 4 901 391. TuKumM. AL
lie 35674 TU (205) 381-7323
S*«» 7MM fmp 14
SC 3082 l.oun| aqulpmanl 4 supdlas.
•Lovama Rolllian Pr
•Randall Rolllian Sac Tr
Rolllson VP
D-U-H-S 07-947-3823
ROLLO WILLIAM R
RICHARD ROLLO REALTY
3O2 S Wllinf SI Sla C. MUBn. FL
Ho 32370 r« (904) 623-0116
Sato 62M fmp 4
SC 6531 6552 5731 Raal *i«a'brokers 4 a|ants;
uibdmdars 4 a«»«looan: radns. two-way, cituans'
band, waailiai. snort-wawa. ate.: taiavrswn s«is: ht|h
fidality sttrao aquipmant.
Lfl Csl J Lotton Waitmoraland.Pansama
William R Rollo Ownr
IIE-68
FOR MORE INFORMATION ABOUT OUR DIRECTORIES CALL (800) 526-0651
-------
II.D. MOODY'S INDUSTRIAL MANUAL
MOODrS INDUSTRIAL MANUAL
6161
Ik U> Awl**, 00. Tana, were MM eobakUariea b engaged la
jdea and treatment of haaardoua waetea
. aao pro»vjaa high-technology eafationa
of moM chemical weatea
NetKkhldra'eqnaT...
Total.
Netc
JIJ.U4
44.717
14.401
«7JII
IM.MO
171.
59,041
g aeMamment. collection, treatment, diepa-
A leaiiliaiinn Another •ubaidiary opereiee
f 1— '•"-* laboratory «ad proykfa aaalyb-
j Co. ~'—'~ ita headquarter*, ia
Del. aad operatia* lanlinea are
T.JKOO.MO.
Ana Arbor. Mick,
Deer Park. Tea.
.«> Crumpa«
SanJoea.CU.
Carol Stream. OL
Ana Arbor. Mich,
OuadiFont.pl.
(Wholly-owned)
*ntal Servtcee (NT) Inc.
• Cewonmental Sei«kta of Loutaiaaa. lac.
alavuoamental Servtcea (TX) Inc.
•ra. li duel Oper. Of I.
k Jr. Senior VIce-Chma,
II. Jr, Vm-Chmo.
__jior We-Ptea.
. J. Ji, Vice Prea, Gen. Couneel ft Sec.
iTewatll. Vk»Prea. ft Treaa,
J.E.Ravan
J.w. Roiliaa,Jr.
•
..
(.Jl. O.M. Trent
• Peat Marwidl Mil. ft Co.
• JC.Peet.Jr.
atetioiiei Richard W. Yenninn |
r In Jan.
i Sept. 10. I9*m.ajae,
Twaat Sept. 10.19**. 7501
_lOne RoUln* Plaaa. P.O. Box U4*. '
ICE 19*99. Tali (MI) 4J9-2717.
19** 19*7 . If
I2I4I1 97J*T alj
9J94 7.4IJ..
It.M*
14,01 ... 11.1
. - 411
50.41 J .. 31.411
17.2*4 2J.01*
iljll . J*J91
67JII 41.70*
1,791
i Onat*. Sept. 10, 19**. (eadad-
lag current portion). 14.761.000 a.1%-10% real
eatale mortgage obUgaoona payable in inataumenta
over varioua perioda to 2001. Land with a carrying
value of II 1.414.000 ia pledged aa coUateraL
Sept. 30. 19**,
L. 1.4II.I21 aha;
2-tor-1
21.
AUTH. — 60.000.000 ana, e
39.147.1*1 «ha^ reaervedlor
parti.
SI par aha. toUt l-(or-2 Nov. JO. 19*4: 2-1
Sept. 21. 19*5: Tlor-2 Sept. 25. I9*a aad )ur*
19*7 and Hor-4 Sept. JO. 19*1.
VOTING RIGHTS— Entitled to one vot
tive voting for director*.
with
u loOow,— ,
PAID — I9
cmicadar yean):
Alur 1-lor-I agtte
I«M - I0-03'/i 19*1 - «UJ7Vl
After 2-for-l aptit:
j - an i94»
A/k IMk I4>«
Low ........... 9 UVj IIVl 7 4
IHAfter l-for-2 icJlc before. I9V.-9*. tBAdl. lor
2-lor-l taut, IXAdi. lor HOT- 2 toot ia year. SlAdi.
for Mor-4 BOOI
IROUUN8.IN&
laa Roiliaa
lacarporaled la Delaware Pea. 24. l««l
ladopud Jan. 25. 1961. At July II. 1961 acquired
I certain aaaeta of Tnbole Adveroalag of Corpua
I Oinau. Inc lor U JOO.OOO.
I OnSepL I. 1964 acquired Orkm enanmnadiur
I Co. and Klare CorpTui exchange for 142.400400
I and 11.000 aharea of nock reapecuvery.
I In Dec 1964 acquired Dettelbach Ptatkkle Corp.
I aad on Jan. 2. 1965 acquired L.P. Mania Malale-
laace Corp, Atlanta. (Sold in Jury 19*0.)
. Oa May I. 1961 acquired ArweU. Inc. Mldweat
I tarrnha aad peat control firm, lor over lj.OOO.OOO.
1 Arw«U, headquartered in Weukegan, III, operate*
ta IU, Mich.. Wla, O, Ind_- U, Minn, STE and
Neb, with about 1OO cmployece. Now operated aa
of Orkla Eiurminatin* Co.. Inc
Oa Jan. I. 196* acquired Dwoakla. lac and tub-
ridiary Dwoakin Decorating Co. fqr 4O.OOO pre-
ferred aharea (told in Apr. 19)5).
la 1970 acquired Star Wallpaper ft Paint Co.
(jotd la Apr. 1975): Carole Teadle Co. aad Marka
fNrvm Draperiea. Inc (aold ia June 19*1). for aa
aggregate of 1S.611 com. aha.
Ln May. 1972. purchaaed United Buying
a eoneumer cooperative (diacootinued 1978).
In Dec, 1972. acquired Patxeraoa
Houraa. La. for caah and Mack.
On June JO. 19*4. tpun off ta uackaolden Ita
hiiiinrai (radio, tdeviaion. outdoor advertja-
la Feb. I9gr. acquired Pi exaction. lac.
In May 1917. acquired Aracare, lac. for
Mjoaooo.
BueMaea: Cotopaay operate! mniuiiiaj atfrtcea
hiiiinraara iacludine lennite and peat coatrol. pro-
tective atnicta and lawn care.
•»iuueil». Co. maimaina facultial located la
Atlanta, Ga.
O.W. RaOlaa. Cham, ft Chief f— Off.
R.R. RoUiaa. Senior Vice-China.
G.W. RoUiaa, Prea. ft Chief Oper. OH.
J.R. Hick*. Jr. Vice-Prea, Treaa. ft Sac.
B.J. DUrmita
Wilton Looaey
G.W. Rolliai
J.W. Rolliai
Atlanta. GA JOJ24. Tell (4O4) igg.2OOa~
O.W. Rolllni
R.R. RoUina
H.B.Tippie
J.B. Wiilixme
Arthur Aadenea ft Co.
itf. tn Oct.
MP, or ItoOhBUara. June JO. 19«g. 4Jgq
• Miaen Haoinai P.O. Box 647. Atlanta.
170.716
1M.MI
I15JIO
7.161
crtjio
40.769
I6JIJ
14.2U
71.020
II.9U
Caahft
Receirablea.net
OlMalanaal ft luppltaa ...
Other curr. aaatta
Total current
L-TSrW.
-OJ1
Toul Cttrreat.
Del. income u
Lf.-tm. accrued liaba,
Commaaeta.(SI)
Retained caminga
(BUacquired Mack...
NciitahldnVa
Total.
Netrarreatl
„ of coat (filo) or
«jOI l JOO < I9«T. 4.01MIJ).
AUTHORIZED. 99.100.000 ahaToulitanrHng. June
10. 19**, 21.6O9J2* aharea: ia treaaury, 4.0IIJOO
aharea: reaerved for flfHHma. *00.000 ahareat par SI.
SI par aharea iplit J-for-4 on Jan. 21. 196*. 2-for-
I Jan. 2J. I960, l-lor-2 Mar. 24. 1971 and 2-lor-l
Mar. 10. 1941.
DIVIDENDS (calendar yean):
miiMi «n ii 1962—_«OJ4 ^«ai «na«
""ft 01196! O.IJVI
Oa SI par aha, altar 20O%atock drvlrland:
196! 0.15 I94*_^_OJ2 ">" nvl
On SI par^M. after 5-for-4 rpUc
19*1 O22V> 1969 0.07
-------
/ 10/90 VIOLATION BISTORT REPORT PAGE 1
HOI: 10/10/01 TO: 09/10/90
PONSIBLB PARTY: ORHN EITSRMIN
TION ^ptCTION ACTION CASE NUMBER / PROPOSED FINAL TSCA / INVEST. REGION /
TPE ISSUE DATE CLOSE DATE DOCKET NUMBER VIOLATIONS PENALTY PENALTY FIFRA TYPE STATE
QC 09/22/86 11/26/86 85101010-010100 26A 1000 800 F GPR OT
TOTAL PENALTIES $ 1000 $ 800
IIE-71
-------
09/10/30 VIOLATION HISTORY REPORT PAGE 1
PECK: 10/10/01 TO: 09/10/90
RESPONSIBLE PARTY: ORIII EXTERKINATING CONPANY, IMC.
ACTION
TYPE
CC
CC
ACTION
ISSUE DATE
01/26/87
03/12/87
ACTION
CLOSE DATE
03/10/88
12/30/87
CASE NUMBER /
DOCIET NUMBER
301-P
305-P
VIOLATIONS
2GA
2GA
PROPOSED
PENALTY
5000
10000
FINAL
PENALTY
5000
1200
TSCA /
PIFRA
F
F
INVEST.
TYPE
UGN
UGH
REGION /
STATE
03
03
TOTAL PENALTIES f 15000 $ S200
IIE-72
-------
UO/90 VIOLATION ilSTOkf kWOIW
FROI: 10/10/01 TO: 09/10/90
PONSIBLE PilTT: ORIIN BITERIINATING CO IMC
rioN ^PCTIOI ACTIOI CASE mm / PROPOSED FINAL TSCA / IMVBST. REGION /
fPK ISSUE DATE CLOSE DATE DOCKET 10MBER VIOLATIONS PENALTY PENALTY FIFRA TYPE STATE
±>*V4B* •••««»•«<•*« •*•••»*•* ••»«»••***•• •••••—•••••••••• — •••••••• •«•»*** «••••••• *••••• »««*••• •»»•»
7C 04/21/88 05/18/88 04308TF230809 2GA 500 0 ? DGN 07
TOTAL PENALTIES I 500 $ 0
IIE-73
-------
09/10/90 ttOLATIOl HISTOIT REPORT PACK 1
FROI: 10/10/01 TO: 09/10/90
RESPONSIBLE PARTT: ORIIM BXTBRIflNATING CO
ACTION
TYPE
CC
ACTION
ISSUE DATE
02/29/88
ACTION
CLOSE DATE
04/06/88
CASE NUIBER /
DOCIET NDKBBR VIOLATIONS
07J186IS-0101 2GA
PROPOSED
PENALTY
500
FINAL
PENALTY
500
TSCA /
F
INVEST.
TYPE
UGN
REGION /
STATE
07
TOTAL PENALTIES I 500 $ 500
IIE-74
-------
/ 10/90 VIOLATION BISTORT UPOET PiGE I
PROM: 10/10/01 TO: 09/10/90
PONSIBll PAETT: ORIIN EXTERMINATING
ACTIOI ACTIOI CASE NUMBER / PROPOSED FINAL TSCi / INVEST. REGION /
JPE ISSOE DATE CLOSE DATE DOCKET NUKBER VIOLATIONS PENALTY PENALTY PIFRA TYPE STATE
;C 02/29/88 04/13/88 060688IS-0101 2GA 500 500 P UGN 07
TOTAL PENALTIES t 500 $ 500
IIE-75
-------
II.D. EDRS ABSTRACT
IAL DECISION.. Qrkin Exterminating Co... Inc., FIFRA III-301-C.
Decides by: Honorable Thomas B. Ycst
Decided on: January 15, 1989
FACTS. Qrkin Exterminating Co., Inc. '• Or kin > was charged with violating
FIFRA by applyir.g the pesticide Qrkil in a manner inconsistent witn its
'labeling. In treating a house for. ter.nites, an Orkin applicator pumped
scprcximatsly 29 gallons cf Qrkil through a hole in tne concrete slab of tna
house and allowed the machine to puaio pesticide under the slab while he *as
rot ir. attendance. An excessive amount of pesticide was pumpec underneath
the house causing some o-f the pesticide to oasa.up through the floorSoards
into the kitchen. The residents ware -forcsci to permanently vacate thsir
houss. Or'
-------
(
II.D. CERTIFIED STATEMENTS
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
OFFICI OF
PKSTICIDCS ANO TOXIC SUBSTANCES
CERTIFIED STATEMENT
I, James W. Akerman, am the Acting Director of the
Registration Division, Office of Pesticide Programs. The
Registration Division is responsible for the registration of
pesticides pursuant to the Federal Insecticide, Fungicide,
and Rodenticide Act including the review and acceptance of
data submitted in support of pesticide registrations and
related food tolerance petitions. I certify that the final
reports of the studies named on the attached "BASF WYANDOTTE
CORP. DATA SUBMISSIONS" list were submitted and accepted in
support of the designated food tolerances and pesticide
registrations as of the dates specified. The final reports
of these studies, and related food tolerance petitions and
pesticide registrations are maintained by the Registration
Division.
Janves W. Akerman, Acting Director
Registration Division
Date
IIE-79
Attachment B
-------
271996
NOTE TO FILE
Cannon data for fluchloralin wer.e submitted and/or
referenced by BASF in support of the applications for
experimental penults and accompanying temporary tolerances
[3G1395 (cotton), 5G1543 (soybeans), and 7G1876 (peanuts)].
These permits were issued and temporary tolerances were
established based in part on Cannon data. See attached
lists for Cannon studies.
These same studies^Cannon data^were also submitted and/or
referenced in support or the permanent tolerances (cotton,
soybeans, and peanuts) and for the registration (see attached
lists for Cannon studies). The product was registered under
the name Basalin Emulsifiable Concentrate Preplant Incorporated
Herbicide (Reg. No. 7969-46). The initial registration issued
on 12/22/75. Subsequently, amendments have been accepted.
BASF requested voluntary cancellation 11/27/85. Although
the PM does, not have a copy of the BASF request, OCM does have
a copy. The request has not been processed by Registration
Division as of 2/26/86.
James Akermaff; Deputy Director
/Registration Division
Attachment
IIE-81
-------
PAGE 1
BASF UYANUUIIL IOKH.
DATA SUBMISSIONS
M
00
N>
MR ID
NO.
36751
36752
36753
36754
36755
36756
106534
106537
STUDY
TITLE
Rotational Crop Study -
Residues In Carrots
Rotational Crop Study -
Residues In Sandy Clay
Soil
Rotational Crop Study -
Residues In Red Beets
Rotational Crop Study -
Residues In Radishs
Rotational Crop Study -
Residues In Sorghum
Rotational Crop Study -
Residues In SIHy Clay
Loan Soil
Analytical and Residues
Data
Acute Fish Study -
Blueglll Sunflsh and
Rainbow Trout
DATES
SUBMITTED/
4/75
4/75
4/75
4/75
4/75
4/75
4/75
4/75
FOOD
TOLEKANCE
NUMBER
5F1621
H
H
H
N
M
M
M
FOOD TOLERANCE
PETITION
NAME
Permanent Petition
for Fluchloralin
Herbicide for Soy-
bean and Cotton
u u n
HUH
H H H
HUH
H H U
U H H
H H H
DATE
TOLERANCE
GRANTED
12/22/75
PESTICIDE
EPA
HEli.NO.
7969-46
H
H
H
H
II
H
N
PESTICIDE
PHODOCT
NAME
Basal In Pre-plant
Incorporated Herbicid
H H H
H H H
H H H
MM H
H H H
H H U
H H II
•
DATES RECISTERQ)/
CANCELLED AND
12/22/75
: Voluntary Cancel 1 at 1o
requested on 11/27/6
H H M
H M •
H H H
II H II
MM H
II. H H
II U U
/ ' I t •'
-------
CERTIFIED STATEMENT
I, Linda A. Travers, am the Director of the Information
Management Division in the Office of Toxic Substances. The
Information Management Division is responsible for maintaininq
and updating the list of chemical substances compiled under
Section 8(b) of the Toxic Substances Control Act (TSCA) known as
the TSCA Chemical Substance Inventory (TSCA Inventory). I
certify that the substance identified below has completed the
Agency's PMN review process but is not included in the TSCA
Inventory as of the date specified.
PMN Case Number:
PMN Submitter ;
CAS Registry Number: N/A
Specific Chemical Name:
Dat° PMN Received for Acrency Review•
Date PMtJ Review Period Expired:
Date Notice of Commencement of Manufacture
for PMN Substance Submitted to Agency:
Dat° Notice of Commencement of Manufacture
for PMN Substance Received by Agency:
Dat° PMN Substance Included in TSCA Inventory-
Linda A.Travers,Director
Information Management Divsion
Date
IIE-83
' I
-------
Ill
PROOF/EVIDENCE
EVALUATION
AND ORGANIZATION
-------
III. PROOF/EVIDENCE EVALUATION AND
ORGANIZATION
A. BURDEN OF PROOF AND PERSUASION/PRIMA
FACIE CASE
B. DEGREE OF PROOF AND PERSUASION
C. VIOLATIONS AND ELEMENTS OF PROOF
D. PENALTIES AND ADJUSTMENT FACTORS
•
E. ADEQUACY, QUALITY, AND AUTHENTICITY OF
EVIDENCE
-------
PROOF/EVIDENCE EVALUATION AND
ORGANIZATION
A. BURDEN OF PROOF AND PERSUASION/PRIMA FACIE CASE
1. Statutory/Regulatory Requirements
40 C.F.F. Part 22-Consolidated Rules of Practice Governing the
Administrative Assessment of Civil Penalties and the Revocation or
Suspension of Permits
Section 22.24 Burden of Presentation; Burden of Persuasion.
The complainant has the burden of going forward with and of proving that
the violation occurred as set forth in the complaint and that the proposed
civil penalty, revocation, or suspension, as the case may be, is
appropriate. Following the establishment of a prima facie case,
respondent shall have the burden of presenting and of going forward with
any defense to the allegations set forth in the complaint. Each matter of
controversy shall be determined by the Presiding Officer upon a
preponderance of the evidence.
Equal Access to Justice Act (5 U.S.C. 504) Effective 10/1/81:
(a)(l) An agency that conducts an adversary adjudication shall award, to
a prevailing party other than the United States, fees and other expenses
incurred by that party in connection with that proceeding, unless the
adjudicative officer of the agency finds that the position of the agency as
a party to the proceeding was substantially justified or that circumstances
make an award unjust.
40 C.F.R. Part 17—Implementation of the Equal Access to Justice Act
in EPA Administrative Proceedings
Section 17.3 Proceedings Covered.
(a) These rules apply to adversary adjudications required by statute to be
conducted by EPA under 5 U.S.C. 554. To the extent that they are
adversary adjudications, the proceedings conducted by EPA to which these
rules apply include:
(3) A hearing to consider the assessment of any civil penalty under
section 16(a) of the Toxic Substances Control Act (15 U.S.C. 2615(a));
(4) A hearing to consider ordering a manufacturer of hazardous chemical
substances or mixtures to take action under section 6(b) of the Toxic
Substance Control Act (15 U.S.C. 2605(b)), to decrease the unreasonable
risk posed by a chemical substance or mixture;
ra-i
-------
PROOF/EVIDENCE EVALUATION AND ORGANIZATION (HI. A.I)
(5) A hearing to consider the assessment of any civil penalty under
section 14(a) of the Federal Insecticide, Fungicide, and Rodenticide Act
as amended (7 U.S.C. 136);
(6) A hearing to consider suspension of a registrant for failure to take
appropriate steps in the development of registration data under section
3(c)(2)(B) of the Federal Insecticide, Fungicide, and Rodenticide Act as
amended (7 U.S.C. 136a);
(7) A hearing to consider the suspension or cancellation of a registration
under section 6 of the Federal Insecticide, Fungicide and Rodenticide Act
as amended (7 U.S.C 136d);
40 C.F.R. Section 17.5 Eligibility of applicants.
(a) To be eligible for an award of attorney's fees and other expenses under
. the Act, the applicant must be a prevailing party in the adversary
adjudication for which it seeks an award. The term "party" is defined in
5 U.S.C. 551(3). The applicant must show that it meets all conditions of
eligibility set out in this subpart and in subpart B.
(b) The types of eligible applicants are as follows:
(1) An individual with a net worth of not more that $1 million;
(2) The sole owner of an unincorporated business which has a net worth
of not more than $5 million and not more than 500 employees;
(3) A charitable or other tax-exempt organization described in ^ection
501(c)(3) of the Internal Revenue Code (26 U.S.C. 501(c)(3)) with not
more than 500 employees;
(4) A cooperative association as defined in section 15(a) of the
Agricultural Marketing Act (12 U.S.C. 114j(a)) with not more than 500
employees; and
(5) Any other partnership, corporation, association, or public or private
organization with a net worth of not more than $5 million and not more
than 500 employees.
(c) For the purpose of eligibility, the net worth and number of employees
of an applicant shall be determined as of the date adversary adjudication
was initiated.
(d) An applicant who owns an unincorporated business will be considered
as an "individual" rather than a "sole" owner of an unincorporated
business" if the issues on which the applicant prevails are related primarily
to personal interests rather than to business interest.
(e) The employees of an applicant include all persons who regularly
perform services for remuneration for the applicant under the applicant's
direction and control. Part-time employees shall be included.
(f) The net worth and number of employees of the applicant and all of its
affiliates shall be aggregated to determine eligibility. An individual or
ra-2
-------
(D1.A.1) ffl. PROOF/EVIDENCE EVALUATION AND ORGANIZATION
group of individuals, corporation, or other entity that directly or indirectly
controls or owns a majority of the voting shares of another business'
board of directors, trustees, or other persons exercising similar functions,
shall be considered an affiliate of that business for purposes of this part.
In addition, the Presiding Officer may determine that financial
relationships of the applicant other than those described in this paragraph
constitute special circumstances that would make an award unjust.
(g) An applicant is not eligible if it'has participated in the proceeding on
behalf of other persons or entities that are ineligible.
2. Case Law
Prima Facie
a. In re: Petroleum and Power Maintenance. Docket No. TSCA-V-
C-189, Default Order (1984)
Background:
PPM failed to respond to the Prehearing Exchange Order and a
default order was issued against it based on the information EPA
put before the court.
Ruling:
Documents and exhibits submitted as part of the prehearing
exchange established a prima facie case against respondent. Since
respondent fails to respond to a show cause order, respondent is
found to be in default.
b. In re: Ralph R. Kerr. d/b/a Northwest Dual Control Company
and Northwest Petroleum Recycling Corporation. Docket No. X
84-01-03-3HO/2614, Initial Decision (1986)
Background:
EPA moved for an accelerated decision based on Kerr's admission
of the allegations. The court ordered the parties to submit
argument on the amount of the penalties. Kerr did not submit any
information of an inability to pay the proposed penalty.
m-3
-------
PROOF/EVIDENCE EVALUATION AND ORGANIZATION (H.A.2)
Ruling:
The Court's finding that calculations were proper presents a prima
facie case of their correctness and it then rests upon the respondent
to demonstrate why the calculations were improper (penalty).
Equal Access to Justice
c. In re: Robert Ross and Sons. Inc.. Docket No. TSCA-V-C-008,
Recommended Decision, 9/13/84
Background:
In this case, the Agency charged Ross with the improper disposal
of PCBs greater than the 500 ppm. The evidence presented
showed PCBs of 4.4 ppm. The ALJ dismissed EPA's case for
failure to sustain its burden of proof. Ross sued for fees and
expenses incurred in this hearing.
Ruling:
Under the Equal Access to Justice Act (EAJA), a "substantially
justified" standard requires more of the government than the
establishment of a prima facie case. The government must show
that the action had a reasonable basis in law and fact requiring as
a minimum some evaluation of opposing evidence. The
application for fees and expenses was allowed.
d. In re: Reabe Spraying Service. Inc.. Docket No. V-651-C,
Appeal No. 83-4
Background:
This FIFRA case was brought by EPA based on complaints from
several day care workers that they had been sprayed by an aerial
applicator with parathion. Respondent successfully rebutted the
testimony and these counts were dismissed. Reabe sued for fees
and expenses.
ra-4
-------
(m.A;l) EL PROOF/EVIDENCE EVALUATION AND ORGANIZATION
Ruling:
Even if the Region's interpretation is not "substantially justified,"
it is justified by the EAJA's "special circumstances" exemption
which allows an agency latitude to advance in good faith the novel
but credible extensions and interpretations of the law that often
underlie vigorous enforcement efforts, without being deterred by
the prospect of attorney's fees and expenses, should it fail to
prevail. Therefore the application for fees and expenses was
denied.
3. Special Considerations
It is EPA's practice to go forward with an action if a prima facie case can
be established.
4. Process
In preparing a case, the Case Development Officer must ensure that there
is sufficient evidence to support:
• each factual allegation; and
• the appropriateness of the penalty assessment.
m-5
-------
PROOF/EVIDENCE EVALUATION AND ORGANIZATION
B. DEGREE OF PROOF AND PERSUASION
1. Statutory/Regulatory Requirements
FIFRA Section 14:
(a) Civil penalties.—
(1) In general.-Any registrant, commercial applicator, wholesaler,
dealer, retailer, or other distributor who violates any provision of this
subchapter may be assessed a civil penalty by the Administrator of not
more than $5,000 for each offense.
(2) Private applicator.-Any private applicator or other person not
included in paragraph (1) who violates any provision of this subchapter
subsequent to receiving a written warning from the Administrator or
following citation for a prior violation, may be assessed a civil penalty by
the Administrator of not more than $1,000 for each offense: Provided,
That any applicator not included under paragraph (1) of this subsection
who holds or applies registered pesticides, or uses dilutions of registered
pesticides, only to provide a service of controlling pests without delivering
any unapplied pesticide to any person so served, and who violates any
provision of this subchapter may be assessed a civil penalty by the
Administrator of not more than $500 for the first offense nor more than
$1,000 for each subsequent offense.
(b) Criminal penalties.—
(1) In general.-Any registrant, commercial applicator, wholesaler,
dealer, retailer, or other distributor who knowingly violates any provision
of this subchapter shall be guilty of a misdemeanor and shall on conviction
be fined not more than $25,000, or imprisoned for not more than one
year, or both.
(2) Private applicator.-Any private applicator or other person not
included in paragraph (1) who knowingly violates any provision of this
subchapter shall be guilty of a misdemeanor and shall on conviction be
fined not more than $1,000, or imprisoned for not more than 30 days, or
both.
TSCA Section 16:
Penalties (a) Civil (1) Any person who violates a provision of section
15 shall be liable to the United States for a civil penalty in an amount not
to exceed $25,000 for each such violation. Each day such a violation
continues shall, for purposes of this subsection, constitute a separate
violation of section 15.
(2)(A) A civil penalty for violation of section 15 shall be assessed by the
Administrator by an order made on the record after opportunity (provided
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in accordance with this subparagraph) for a hearing in accordance with
section 554 of Title 5. Before issuing such an order, the Administrator
shall give written notice to the person to be assessed a civil penalty under
such order of the Administrator's proposal to issue such order and provide
such person an opportunity to request, within 15 days of the date the
notice is received by such person, such a hearing on the order.
(b) Criminal-Any person who knowingly or willfully violates any
provision of section 15, shall, in addition to or in lieu of any civil penalty
which may be imposed under subsection (a) of this section for such
violation, be subject, upon conviction, to a fine of not more than $25,000
for each day of violation, or to imprisonment for not more than one year,
or both.
EPCRA Section 325 (c):
Civil and administrative penalties for reporting requirements. (1) Any
person (other than a governmental entity) who violates any requirement
of section 312 or 313, shall be liable to the United States for a civil
penalty in an amount not to exceed $25,000 for each such violation.
(3) Each day a violation described in paragraph (1) or (2) continues
shall, for purposes of this subsection, constitute a separate violation.
(4) The Administrator may assess any civil penalty for which a person
is liable under this subsection by administrative order or may bring an
action to assess and collect the penalty in the United States district court
for the district in which the person from whom the penalty is sought
resides or in which such person's principal place of business is located.
40 C.F.R. Part 22-Consolidated Rules of Practice Governing the
Administrative Assessment of Civil Penalties and the Revocation or
Suspension of Permits >
Section 22.24 Burden of Presentation; Burden of Persuasion.
The complainant has the burden of going forward with and of proving that
the violation occurred as set forth in the complaint and that the proposed
civil penalty, revocation, or suspension, as the case may be, is
appropriate. Following the establishment of a prima facie case,
respondent shall have the burden of presenting and of going forward with
any defense to the allegations set forth in the complaint. Each matter of
controversy shall be determined by the Presiding Officer upon a
preponderance of the evidence.
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PROOF/EVIDENCE EVALUATION AND ORGANIZATION (EI.B.2)
2. Case Law
Strict Liability
FTFRA
a. In re: Harmack Grain Company. Inc., Docket No. I.F.&R. VIII-
150-C, Order Granting Motion for Accelerated Decision and
Accelerated Decision (1986)
Background:
This case alleged a sale by Harmack of a restricted use pesticide
(RUP) while Harmack was not registered as a RUP dealer.
Harmack's defense was that it did not know of the regulation.
Ruling:
FIFRA "and its regulations impose strict liability on pesticide
dealers and other persons. In order to establish a violation, it is
not necessary to show that the violator had actual knowledge of
statutory and regulatory requirements.
b. In re: South Coast Chemical. Inc.. Docket No. TX-0372-C-84-5,
Order Reversing and Remanding Initial Decision (1986)
Background:
EPA Region DC appealed the dismissal of the complaint alleging
the sale of an unregistered pesticide by an unregistered production
establishment. In the underlying case, the ALJ found that South
Coast had attempted to find out if its product was a pesticide and
had received no answer. Because of this good faith effort, the
ALJ dismissed the case. The Chief Judicial Officer overruled the
ALJ.
Ruling:
FIFRA is a strict liability statute. Accordingly, a respondent's
good faith is not a defense to a charge that the statute has been
violated. Good faith may be a factor to weigh in considering
whether a proposed penalty should be reduced, or even eliminated.
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TSCA
c. In re: Hodag Chemical Corporation. Docket No. TSCA-V-C-025-
88, Initial Decision (1988)
Background:
•.
Respondent argued that it failed to keep PCB records because it
did not know of the presence of PCBs. The Court disagreed that
this was a legal defense.
Ruling:
• While section 15(2) of TSCA includes the requirementjhat
respondent "knew or had reason to know," sections 15(1)
and (3) contain no requirement for knowledge by the
respondent.
• Knowledge by the respondent that it is committing a
violation of sections 15(1) and (3) of TSCA is not a
requirement for the finding a violation thereof nor for the
resulting imposition of a civil penalty under section 16(a).
• A person who "knowingly and willfully" violates section 15
shall be subject to certain criminal penalties.
Preponderance of Evidence
d. In re: Empire Ace Insulation Manufacturing Corporation. Docket
No. TSCA ASB-8a-85-0216, Initial Decision (1986)
Background:
Empire failed to file the required forms for the importation of
asbestos. The president testified he had mailed the forms to EPA
which EPA had lost. The judge found this and other testimony
was not credible.
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PROOF/EVIDENCE EVALUATION AND ORGANIZATION (IH.B.2)
Ruling:
It is to be determined in a civil administrative hearing whether or
not the alleged violation is supported by a preponderance of the
evidence. "Preponderance of the evidence" is that degree of
relevant evidence which a reasonable mind, considering the record
as a whole, might accept as sufficient to support a conclusion that
the matter asserted is more'fikely to be true than not true.
3. Special Considerations
In establishing a prima facie case for the alleged violation in a civil
administrative case, the Case Development Officer should disregard good
faith efforts or lack of knowledge of the violator. These factors should
be considered only in establishing a prima face case for the
appropriateness of the penalty.
4. Process
a. Civil Administrative Proceedings
• Burden of Proof - Strict liability, showing of intent is not
required, only the fact that the violation occurred.
• Burden of Persuasion - Preponderance, evidence standard
which is of greater weight or more convincing than the
evidence which is offered in opposition to it.
b. Civil Judicial Proceedings (Injunction)
In addition to strict liability and preponderance of the evidence, a
further showing must be made that:
• There is an inadequate remedy at law;
• Applicable administrative remedies have been exhausted;
and
• Irreparable injury, loss, or damage will result if the relief
is not granted.
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A preliminary injunction or temporary restraining order would
require showing:
• Immediate and irreparable injury, loss, or damage will
result if relief is not granted; and
• There is a likelihood of success at trial, based on facts
before the court.
c. Criminal Prosecution
• Burden of Proof - The violation occurred and was
committed knowingly and willfully, consciously and
intentionally.
• Burden of Persuasion - All elements of the crime must be
proved by the government beyond a reasonable doubt.
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C. VIOLATIONS AND ELEMENTS OF PROOF
1. Constitutional/Statutory/Regulatory Requirements
5th Amendment:
No person shall be held to answer for a capital, or otherwise infamous
crime, unless on a presentment or indictment of a Grand Jury, except in
cases arising in the land or naval forces, or in the Militia, when in actual
service in time of War or public danger, nor shall any person be subject
for the same offense to be twice put in jeopardy of life or limb; nor
shall be compelled in any criminal case to be a witness against himself,
nor be deprived of life, liberty, or property, without due process of law;
nor shall private property be taken for public use, without just
compensation.
FTERA Section 12:
Unlawful Acts, (a) In General.— (1) Except as provided by subsection (b),
it shall be unlawful for any person in any State to distribute or sell to any
person—
(A) any pesticide that is not registered under section 3 or whose registration has
been canceled or suspended, except to the extent that distribution or sale
otherwise has been authorized by the Administrator under this Act;
(B) any registered pesticide if any claims made for it as a part of its distribution
or sale substantially differ from any claims made for it as a part of the statement
required in connection with its registration under section 3;
(C) any registered pesticide the composition of which differs at the time of its
distribution or sale from it composition as described in the statement required in
connection with its registration under section 3;
(D) any pesticide which has not been colored or discolored pursuant to the
provisions of section 25(c)(S);
(E) any pesticide which is adulterated or misbranded; or
(F) any device which is misbranded.
(2) It shall be unlawful for any person—
(A) to detach, alter, deface, or destroy, in whole or in part, any labeling
required under this Act;
(B) to refuse to-
(i) prepare, maintain, or submit any records required by or under section 5, 7,
8, 11, or 19;
(ii) submit any reports required by or under section 5, 6, 7, 8, 11, or 19; or
(iii) allow any entry, inspection, copying of records, or sampling authorized
under this Act;
(Q to give a guaranty or undertaking provided for in subsection (b) which is
false in any particular, except that a person who receives and relies upon a
guaranty authorized under subsection (b) may give a guaranty to the same effect,
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which guaranty shall contain, in addition to his own name and address, the name
and address of the person residing in the United States from whom he received
the guaranty or undertaking;
(D) to use for his own advantage or to reveal, other than to the Administrator,
or officials or employees of the Environmental Protection Agency or other
Federal executive agencies, or to the courts, or to physicians, pharmacists, and
other qualified persons, needing such information for the performance of their
duties, in accordance with such directions as the Administrator may prescribe,
any information acquired by authority of this Act which is confidential under this
Act;
(E) who is a registrant, wholesaler, dealer, retailer, or other distributor to
advertise a product registered under this Act for restricted use without giving the
classification of the product assigned to it under section 3;
(F) to distribute or sell, or to make available for use, or to use, any registered
pesticide classified for restricted use. for some or all purposes other than in
accordance with section 3(d) and any regulations thereunder. It shall not be
unlawful to sell, under regulations issued by the Administrator, a restricted use
pesticide to a person who is not a certified applicator for application by a
certified applicator;
(G) to use any registered pesticide in a manner inconsistent with its labeling;
(H) to use any pesticide which is under an experimental use permit contrary to
the provisions of such permit;
(I) to violate any order issued under section 13;
(J) to violate any suspension order issued under section 3(c)(2)(B), 4, or 6;
(K) to violate any cancellation order issued under this Act or to fail to submit
a notice in accordance with section 6(g);
(L) who is a producer to violate any of the provisions of section 7;
(M) to knowingly falsify all or part of any application for registration,
application for experimental use permit, any information submitted to the
Administrator pursuant to section 7, any records required to be maintained
pursuant to this Act, any report filed under this Act, or any information marked
as confidential and submitted to the Administrator under any provision of this
Act;
(N) who is a registrant, wholesaler, dealer, retailer, or other distributor to fail
to file reports required by this Act;
(O) to add any substance to, or take any substance from, any pesticide in a
manner that may defeat the purpose of this Act; or
(P) to use any pesticide in tests on human beings unless such human beings (i)
are fully informed of the nature and purposes of the test and of any physical and
mental health consequences which are reasonably foreseeable therefrom, and (ii)
freely volunteer to participate in the test.
(Q) to falsify all or part of any information relating to the testing of any
pesticide (or any ingredient, metabolite, or degradation product thereof),
including the nature of any protocol, procedure, substance, organism, or
equipment used, observation made, or conclusion or opinion formed, submitted
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PROOF/EVIDENCE EVALUATION AND ORGANIZATION (m.C.l)
to the Administrator, or that person knows will be furnished to the Administrator
or will become part of any records required to be maintained by this Act;
(R) to submit to the Administrator data known to be false in support of a
registration; or
(S) to violate any regulation issued under section 3(a) or 19.
TSCA Section 15:
Prohibited Acts. It shall be unlawful for any person to-
(1) flail or refuse to comply with (A) any rule promulgated or order
issued under section 4, (B) any requirement prescribed by section 5 or 6;
(Q any rule promulgated or order issued under section 5 or 6; or (D) any
requirement of Title n;
(2) use for commercial purposes a chemical substance or mixture which
such person knew or had reason to know was manufactured, processed,
or distributed in commerce in violation of section 5 or 6, a* rule or order
under section 5 or 6, or an order issued in action brought under section
5 or 7;
(3) foil or refuse to (A) establish and maintain records, (B) submit
reports, notices, or other information, or (C) permit access to or copying
of records, as required by this Act or a rule thereunder; or
(4) fail or refuse to permit entry or inspection as required by section 11.
EPCRA Section 325 (c):
Civil and administrative penalties for reporting requirements. (1) Any
person (other than a governmental entity) who violates any requirement
of section 312 or 313, shall be liable to the United States for a civil
penalty in an amount not to exceed $25,000 for each such violation.
2. Case Law
Double Jeopardy and Elements of Proof
a. United States of America v. Robbins. 476 F. 2d 26 (10th Cir.
1973)
Background:
In this criminal case, Robbins was charged with possession of an
unregistered firearm and possession of a firearm not identified by
a serial number. Robbins argued that because there was only one
firearm, he could not be charged with both crimes. The court
ruled against him.
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(D1C.1) m. PROOF/EVIDENCE EVALUATION AND ORGANIZATION
Ruling:
• The well-settled rule is, that for the double jeopardy
provision to apply, the offense charged and tried in the first
count and the offense charged in the second count must be
identical in law and fact.
• The test for determining whether the offenses charged are
identical is whether the facts alleged in one, if offered in
support of the other, would sustain a conviction.
b. In re: Amvac Chemical Corporation I.F.&R. Docket No. IX-
98C, Final Decision (1976)
Background:
In this FIFRA label case, Amvac was charged with misbranding
and sale of an adulterated product. The court found that both
resulted from one act on the part of the Respondent.
Ruling:
The actual test which must be applied to determine whether
separate civil penalties shall be assessed is a two-pronged test:
(1) Each violation must result from an independent act (or
failure to act) of the respondent; and
(2) Each violation must be substantially distinguishable from
any other charge.
Complainants showing that each charge requires an element of
proof not required by the other does not negate the fact that both
charges resulted from one independent act.
c. In re: N.O.C.. Inc. T/A Noble Oil Company. Docket No. II-
TSCA-PCB-81-105, Initial Decision (1982)
Background:
Noble Oil challenged EPA's method of sampling PCBs.
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PROOF/EVIDENCE EVALUATION AND ORGANIZATION (HI.C.4)
Ruling:
Complainant has burden of establishing all elements of a violation
charged by a preponderance of the evidence.
d. In re: Cooperative Grain and Supply Company. I.F.&R. VII
719C-86P, 739C-86P, 740C-86P, Final Decision (1990)
*•
Background:
Region vn appealed from an ALJ decision that held Co-op Grain's
failure to file as a RUP distributor for two dealerships was one
violation of FIFRA and not two as the Region had alleged. The
Chief Judicial Officer affirmed the lower finding against the
Region.
Ruling:
Two charges are independently assessable only if each charge
results from an independent act or failure to act and each charge
requires an element of proof not required by the other charge.
3. Special Considerations
If it appears that two potential counts have identical elements of proof and
evidence to support those elements of proof, there may be potential for
double jeopardy. Consult with your attorney to determine if separate
penalties may be assessed for both counts.
4. Process
A violation is an act or failure to act defined by statute. Each violation
contains several elements that must be proven in order to establish the
violation. Sometimes, as with FIFRA, these elements are evident within
the statute itself. In other cases, TSCA and EPCRA, the rules and
regulations may have to be consulted to determine the elements of proof.
Examples:
FIFRA
The FIFRA Compliance/Enforcement Guidance Manual, Chapter 7,
breaks down the elements of proof for each FIFRA violation.
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(DLC.4) m. PROOF/EVIDENCE EVALUATION AND ORGANIZATION
TSCA
Violation
Section 15 - It shall be unlawful for any person to (1) fail or refuse
to comply with ...(B) any requirement prescribed by section 5 or 6.
Section 5(a) In general. (1) Except as provided in subsection (h),
no person may—
(A) manufacture a new chemical substance on or after the 30th day after
the date on which the Administrator first publishes the list required by
section 8(b) unless such person submits to the Administrator, at least 90
days before such manufacture or processing, a notice, in accordance with
subsection (d), of such person's intention to manufacture, or process, such
substance and such person complies with any applicable requirement of
subsection (b).
Elements of Proof
For violation of section 5(a), the elements of proof are:
• Manufacture;
• Date of manufacture 30 days after publication of the Inventory;
• Substance is a new chemical not on the Inventory;
• Activity is not exempted under section 5(h); and
• No PMN has been submitted 90 days prior to the date of
manufacture.
EPCRA
Violation
Section 325(c)(l)—Any person (other than a governmental entity)
who violates any requirement of section 312 or 313, shall be liable to the
United States for a civil penalty in an amount not to exceed $25,000 for
each such violation.
Section 313 Toxic Chemical Release Forms
(a) Basic requirement.—The owner or operator of a facility subject
to the requirements of this section shall complete a toxic chemical release
form as published under subsection (g) for each toxic chemical listed
under subsection (c) that was manufactured, processed, or otherwise used
in quantities exceeding the toxic chemical threshold quantity established
by subsection (f) during the preceding calendar year at such facility. Such
form shall be submitted to the Administrator and to an official or officials
of the State designated by the Governor on or before July 1, 1988, and
annually thereafter on July 1 and shall contain data reflecting releases
during the preceding calendar year.
(b) Covered owners and operators of facilities.-(1) In general.-(A)
The requirements of this section shall apply to owners and operators of
facilities that have 10 or more full-time employees and that are in
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IH. PROOF/EVIDENCE EVALUATION AND ORGANIZATION (m.C.4)
Standard Industrial Classification Codes 20 through 39 (as in effect on
July 1, 1985) and that manufactured, processed, or otherwise used a toxic
chemical listed under subsection (c) in excess of the quantity of that toxic
chemical established under subsection (f) during the calendar year for
which a release form is required under this section.
Elements of Proof
For failure to submit a Toxic Chemical Release Form, the elements of
proof are:
• Toxic chemical listed under subsection (c);
• Date of manufacturing, processing, or use;
• Manufactured, processed, or otherwise used chemical above the
threshold quantities;
• Facility within designated SIC Code;
• Facility has 10 or more full time employees; and
• No form has been received by the Agency.
To assist yourself in identifying violations, elements of proof, and the evidence
available to you to establish the violation, you may wish to use a worksheet. A
blank worksheet and an example of a worksheet used in an actual case are
attached.
Examples
Blank and Completed Violation Worksheets
Excerpt from FIFRA Compliance/Enforcement Guidance Manual on Elements of a
Violation
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D. PENALTIES AND ADJUSTMENT FACTORS
1. Statutory/Regulatory Requirements
FIFRA Section 14:
(a) Gvil penalties. -
(1) In general.—Any registrant, commercial applicator, wholesaler,
dealer, retailer, or other distributor who violates any provision of this
subchapter may be assessed a civil penalty by the Administrator of not
more than $5,000 for each offense.
(2) Private applicator.—Any private applicator or other person not
included in paragraph (1) who violates any provision of this subchapter
subsequent to receiving a written warning from the Administrator or
following citation for a prior violation, may be assessed a civil penalty by
the Administrator of not more than $1,000 for each offense: Provided,
That any applicator not included under paragraph (1) of this subsection
who holds or applies registered pesticides, or uses dilutions of registered
pesticides, only to provide a service of controlling pests without delivering
any unapplied pesticide to any person so served, and who violates any
provision of this subchapter may be assessed a civil penalty by the
Administrator of not more than $500 for the first offense nor more than
$1,000 for each subsequent offense.
(3) Hearing.—No civil penalty shall be assessed unless the person
charged shall have been given notice and opportunity for a hearing on
such charge in the county, parish, or incorporated city of the residence of
the person charged.
(4) Determination of penalty.-In determining the amount of the penalty,
the Administrator shall consider the appropriateness of such penalty to the
size of the business of the person charged, the effect on the person's
ability to continue in business, and the gravity of the violation. Whenever
the Administrator finds that the violation occurred despite the exercise of
due care or did not cause significant harm to health or the environment,
the Administrator may issue a warning in lieu of assessing a penalty.
(5) References to Attorney General.—In case of inability to collect such
civil penalty or failure of any person to pay all, or such portion of such
civil penalty as the Administrator may determine, the Administrator shall
refer the matter to the Attorney General, who shall recover such amount
by action in the appropriate United States district court.
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TSCA Section 16:
Penalties (a) Civil— (1) Any person who violates a provision of section 15
shall be liable to the United States for a civil penalty in an amount not to
exceed $25,000 for each such violation. Each day such a violation
continues shall, for purposes of this subsection, constitute a separate
violation of section 15.
(2)(A) A civil penalty for violation of section 15 shall be assessed by the
Administrator by an order made on 'die record after opportunity (provided in
accordance with mis subparagraph) for a hearing in accordance with section 554
of Title 5. Before issuing such an order, die Administrator shall give written
—notice to die person to be assessed a civil penalty under such order of the
Administrator's proposal to issue such order and provide such person an
opportunity to request, within 15 days of the date die notice is received by such
person, such a hearing on the order.
(B) In determining die amount of a civil penalty, the Administrator shall take
into account the nature, circumstances, extent, and gravity of the violation or
violations and, with respect to the violator, ability to pay, effect on ability to
continue to do business, any history of prior such violations, the degree of
culpability, and such other matters as justice may require.
. (Q The Administrator may compromise, modify, or remit, with or without
conditions, any civil penalty which may be imposed under this subsection. The
amount of such penalty, when finally determined, or the amount agreed upon in
compromise, may be deducted from any sums owing by the United States to the
person charged.
(3) Any person who requested in accordance with paragraph (2)(A) a
hearing respecting the assessment of a civil penalty may file a petition for
judicial review of such order with the United States Court of Appeals for
the District of Columbia Circuit or for any other circuit in which such
person resides or transacts business. Such petition may only be filed
within the 30-day period beginning on the date the order making such
assessment was issued.
(4) If any person fails to pay an assessment of a civil penalty—
(A) after the order making the assessment has become a final order if such
person does not file a petition for judicial review of die order in accordance with
paragraph (3), or
(B) after a court in an action brought under paragraph (3) has entered a final
judgement hi favor of the Administrator,
the Attorney General shall recover the amount assessed (plus interest at
currently prevailing rates from the date of the expiration of the 30-day
period referred to in paragraph (3) or the date of such final judgement, as
the case may be) in an action brought in any appropriate district court of
the United States. In such an action, the validity, amount, and
appropriateness of such penalty shall not be subject to review.
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EPCRA Section 325(c)
Civil and administrative penalties for reporting requirements.-(1) Any
person (other than a governmental entity) who violates any requirement
of section 312 or 313, shall be liable to the United States for a civil
penalty in an amount not to exceed $25,000 for each such violation.
(2) Any person (other than a governmental entity)'who violates any
requirement of section 311 or 323(b), and any person who fails to furnish
the Administrator information required under section 322(a)(2) or
requested by the Administrator under section 322(d) shall be liable to the
United States for a civil penalty in an amount not to exceed $10,000 for
each violation.
(3) Each day a violation described in paragraph (1) or (2) continues
shall, for purposes of this subsection, constitute a separate violation.
(4) The Administrator may assess any civil penalty for which a person
is liable under this subsection by administrative x>rder_or may. bring an_
action to assess and collect the penalty in the United States district court
for the district in which the person from whom the penalty is sought
resides or in which such person's principal place of business is located.
40 C.F.R. Part 22-Consolidated Rules of Practice Governing the
Administrative Assessment of Civil Penalties and the Revocation or
Suspension of Permits
Section 22.14 Content and Amendment of the Complaint.
(c) Derivation of proposed civil penalty. The dollar amount of the
proposed civil penalty shall be determined in accordance with any criteria
set forth in the Act relating to the proper amount of a civil penalty and
with any civil penalty guidelines issued under the Act.
40 C.F.R. Section 22.27 Initial Decision
(b) Amount of civil penalty. If the Presiding Officer determines that a
violation has occurred, the Presiding Officer shall determine a dollar
amount of the recommended civil penalty to be assessed in the initial
decision in accordance with any criteria set forth in the Act relating
to the proper amount of a civil penalty, and must consider any civil
penalty guidelines issued under the Act. If the Presiding Officer decides
to assess a penalty different in amount from the penalty recommended to
be assessed in the complaint, the Presiding Officer shall set forth in the
initial decision the specific reasons for the increase or decrease. The
Presiding Officer shall not raise a penalty from that recommended to be
assessed in the complaint if the respondent has defaulted.
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2. Case Law
a. In re: National Railroad Passenger Corporation (AMTRAIQ.
TSCA Docket No. VI-24C, Initial Decision (1981)
Background:
In calculating the penalty, the ALT performed his own calculations
using the facts of the case and the penalty policy.
Ruling:
The Rules of Practice (40 C.F.R. Part 22) provide for the
consideration of EPA's penalty policy in determining the
appropriate penalty. The Administrative Law Judge (ALJ) need
not, however, accept the penalty proposed in the complaint, even
if it originally conforms to the policy, if the ALJ finds the penalty
so calculated is inappropriate.
b. In re: Welco Manufacturing Company. Inc.. I.F.&R. Docket No.
VH-197C, Initial Decision (1978)
Background:
The ALJ considered the facts of the case as is required and the
arguments of EPA. He then reduced the proposed penalty.
Ruling:
The equity question is: Does the proposed penalty appear fair?
This question can only be answered in light of two policy
objectives, to wit:
• Enforcement should be as uniform as possible throughout
the region and throughout the Nation; and
• Compliance, not punishment, is the main goal of the Act
and the regulations implementing the same.
m-22
-------
OILD) m. PROOF/EVIDENCE EVALUATION AND ORGANIZATION
c. In re: Pasadena Department of Water and Power. Docket No.
TSCA-09-89-0004, Initial Decision (1989)
Background:
The ALJ discussed what discretion he had, under the Consolidated
Rules, to determine the amount of a civil penalty.
Ruling:
The ALJ is bound pursuant to regulations to consider the penalty
guidelines. The obligation to consider the penalty guidelines
means more than giving them a cursory reading. While the civil
penalty guidelines must be considered, the ALJ is not bound by
them.
d. In re: Amvac Chemical Corporation. I.F.&R. No. DC-4C, Initial
Decision (1974)
Background:
The ALJ listed the factors he felt bound to consider when
assessing a penalty.
Ruling:
In considering appropriateness of the penalty to the "gravity of the
violation," the evaluation should be made from two aspects-
gravity of harm and gravity of misconduct. As to gravity of harm
there should be considered the actual or potential harm or damage.
As to gravity of misconduct, matters which may be properly
considered include such elements as intention and attitude of
respondent, knowledge of statutory and regulatory requirements,
whether there was negligence, degree of responsibility, history of
compliance, and good faith or lack thereof.
e. In re: Alden-Leeds. Inc.. I.F.&R. Docket No. II-lIOC and 111C,
Initial Decision (1976)
Background:
The ALJ considered all aspects of the penalty policy.
in-23
-------
PROOF/EVIDENCE EVALUATION AND ORGANIZATION (HI.D.2)
Ruling:
Violations such as misbranding swimming pool treatment
chemicals in addition to a lack of a quality control program
constitute negligence and demonstrate a disregard for the
requirements of the Act. Based upon this record, it is difficult to
find even a small degree of good faith effort to comply with the
requirements of the Act.
f. In re: State of West Virginia Highways. Docket No. TSCA IH-
136, Initial Decision (1986)
Background:
The EPA penalty policy was accepted by the court "as being a
rational and logical means of calculating penalties..."
Ruling:
• Where the Agency correctly applied the Agency' s published
penalty policy in arriving at the proposed penalty, the
burden for showing that such penalty amount should be
reduced shifts to the respondent.
• The mere fact that a respondent is a government entity and
supported solely by tax revenues is not a valid basis for
reducing a penalty.
• Presentation of data which purports to show that, in other
cases the Agency has, through settlement, accepted a
reduced penalty is not a persuasive or valid reason to
reduce a penalty in another case.
g. Katzson Brothers. Inc. v. United States Environmental Protection
Agency. 839 F.2d 1396 (10th Cir. 1988)
Background:
The respondent was found in default and was subject to a final
order assessing $3,200 for failure to file an annual pesticide
production report. The respondent appealed the order.
m-24
-------
(ELD) EL PROOF/EVIDENCE EVALUATION AND ORGANIZATION
Ruling:
The court set aside the penalty amount because of a deficient
review by the Regional and Chief Administrators. The
Administrators failed to make findings regarding factors that might
. mitigate the penalty, such as prior compliance history and ability
to pay. The case was remanded to EPA with instructions to grant
the respondent a hearing to consider mitigating factors.
3. Special Considerations
Penalty policies and guidelines are developed to ensure the consideration
of all the factors'set forth in the statute for determining the amount of the
penalty. Although TSCA provides for the remission of a civil penalty
(section 16(c)), guidelines under both FIFRA and EPCRA permit the
remission of penalties for the implementation of environmentally-beneficial
expenditures or pollution prevention measures. The Agency's general
policy GM-22, also provides further guidance concerning the remission of
penalties.
4. Process
To establish a prima facie case for the size and equity of the penalty, the
Agency must show that it considered all factors established by statute for
consideration of the size of the penalty. These factors are presented in
table form as part of the guidelines. It is the Case Development Officer
who will be called upon during the administrative hearing to provide
testimony concerning the basis for arriving at the proposed penalty. The
evidence to support the calculation will include such documents as D&B
reports, Agency records of compliance history, and certified statements
regarding the hazards presented by the pesticide or chemical substance.
Examples:
FIFRA Civil Penalty Calculation Worksheet
TSCA Civil Penalty Assessment Worksheet
Example Penalty Calculations
m-25
-------
PROOF/EVIDENCE EVALUATION AND ORGANIZATION
E. ADEQUACY, QUALITY, AND AUTHENTICITY OF EVIDENCE
1. Constitutional/Statutory/Regulatory Requirements
5th Amendment
No person shall be held to answer for a capital, or otherwise infamous
crime, unless on a presentment or .indictment of a Grand Jury, except in
cases arising in the land or naval forces, or in the Militia, when in actual
service in time of War or public danger; nor shall any person be subject
for the same offense to be twice put in jeopardy of life or limb; nor shall
be compelled in any criminal case to be a witness against himself, nor be
deprived of life, liberty, or property, without due process of law; nor shall
private property be taken for public use, without just compensation.
* •
40 C.F.R. Part 22 - Consolidated Rules of Practice Governing the
Administrative Assessment of Civil Penalties and the Revocation or
Suspension of Permits
Section 22.22 Evidence
(a) General. The Presiding Officer shall admit all evidence which is not
irrelevant, immaterial, unduly repetitious, or otherwise unreliable or of
little probative value, except that evidence relating to the settlement which
would be excluded in the federal courts under Rule 408 of the Federal
Rules of Evidence is not admissible. In the presentation, admission,
disposition, and use of evidence, the Presiding Officer shall preserve the
confidentiality of trade secrets and other commercial and financial
information. The confidential or trade secret status of any information
shall not, however, preclude its being introduced into evidence. The
Presiding Officer may make such orders as may be necessary to consider
such evidence in camera, including the preparation of a supplemental
initial decision to address questions of law, fact, or discretion which arise
out of that portion of the evidence which is confidential or which includes
trade secrets.
(b) Examination of witnesses. Witnesses shall be examined orally, under
oath or affirmation, except as otherwise provided in these rules of practice
or by the Presiding Officer. Parties shall have the right to cross-examine
a witness who appears at the hearing provided that such cross-examination
is not unduly repetitious.
(c) Verified statements. The Presiding Officer may admit an insert into
the record as evidence, in lieu of oral testimony, statements of fact or
opinion prepared by a witness. The admissibility of the evidence
contained in the statement shall be subject to the same rules as if the
testimony were produced under oral examination. Before any such
m-26
-------
(m.E.1) m. PROOF/EVIDENCE EVALUATION AND ORGANIZATION
statement is read or admitted into evidence, the witness shall deliver a
copy of the statement to the Presiding Officer, the reporter, and opposing
counsel. The witness presenting the statement shall swear to or affirm the
statement and shall be subject to appropriate oral cross-examination upon
the contents thereof.
(d) Admission of affidavits where the witness is unavailable. The
Presiding Officer may admit into evidence affidavits of witnesses who are
unavailable. The term "unavailable" shall have the meaning accorded to
it by Rule 804(a) of the Federal Rules of Evidence.
(e) Exhibits. Where practicable, an original and one copy of each exhibit
shall be filed with the Presiding Officer for the record and a copy shall be
furnished to each party. A true copy of any exhibit may be substituted for
the original.
(f) Official notice. Official notice may be taken of any matter judicially
noticed in the Federal courts and of other facts within specialized
knowledge and experience of the Agency. Opposing parties shall be given
adequate opportunity to show that such facts are erroneously noticed.
2. Care
Type of Evidence
a. In re: Farmers Cooperative Elevator Company, Docket No. VII-
632C-85P, Initial Decision (1986)
Background:
The EPA inspector was told by the production manager that the
toxaphene (a canceled pesticide) in the company warehouse was
for sale and he signed a statement to that effect. At the hearing,
the Respondent's general manager testified the production manager
did not know what he was signing.
Ruling:
No substantial evidence was introduced in the form of written
documents to support respondent's testimony. Therefore,
respondent's testimony must be disregarded in favor of the best
evidence which is the signed written statement and direct testimony
concerning respondent's operations.
m-27
-------
EL PROOF/EVIDENCE EVALUATION AND ORGANIZATION
b. In re: National Railroad Passenger Corporation (AMTRAK").
Appeal No. 82-1, Final Decision (1982)
Background:
In this TSCA appeal, the company argued that EPA had not
proved that a transformer labeled "Inerteen" actually contained
PCBs. The Chief Judicial Officer disagreed.
Ruling:
Direct evidence is not essential to prove a fact. Facts may also be
proved by circumstantial or indirect evidence. Certain
presumptions or inferences of fact may arise or be drawn in the
course of proving a fact. Thus, absent evidence to the contrary,
it may be presumed or inferred that things are what they purport
to be.
Representative Sampling/Analytical Quality
c. In re: Electric Service Company. Appeal No. 82-2, Final
Decision (1985)
Background:
This TSCA appeal argued that samples taken by EPA were not
representative because EPA inspectors did not follow Agency
sampling procedures. The court disagreed and found both the
representative and grab samples to have evidentiary value.
Ruling:
If proof of a violation depends on producing evidence that
accurately describes some quality or condition of the larger
body, a representative sample is essential.
Proof of a disposal violation does not hinge on accurately
describing the condition or quality of some larger body.
The sample itself is the uncontrolled discharge. If
unrebutted, it is sufficient evidence to establish a violation.
m-28
-------
GILE.1) HL PROOF/EVIDENCE EVALUATION'AND ORGANIZATION
d. In re: Robert Ross and Sons. Inc.r Appeal No. 82-4, Final
Decision (1984)
Background:
In this TSCA appeal, Ross challenged the evidence presented by
EPA. The Chief Judicial Officer ruled for EPA on its grab sample
and analytical procedures.
Ruling:
Although a grab sample cannot be regarded as
representative of the contents of the tank as a whole, the
sample, if analyzed properly is circumstantial that PCBs
were added to the tank in concentrations as high as those
found in the sample. The presumption that arises from
finding the PCBs in the tank is sufficient basis for
establishing a violation.
The discrepancies between a computer printout and the
analyst's final determination of the dilution are not
supported by solid evidence, but only speculation.
Therefore, it is not sufficient for purposes of sustaining
complainant's burden of proof. Even if the analyst who
performed the analysis had testified at the hearing, the lack
of documentation would still be a matter of serious
concern.
Hearsay
e. In re: Evergreen Pest Control. I.F.&R. Docket No. IX-157C,
Initial Decision (1977)
Background:
EPA charged that Evergreen had failed to follow label procedures
when fumigating a house. Evergreen objected to the use at
hearing of affidavits of people not present at the hearing. The ALJ
disagreed.
m-29
-------
PROOF/EVIDENCE EVALUATION AND ORGANIZATION (m.E.2)
Ruling:
The introduction of hearsay is not inconsistent with the rules.
Affidavits and reports were properly admissible and entitled to
some weight because they contained relevant information by
eyewitnesses. The facts in them were corroborated and such use
of hearsay is entirely proper.
•.
f. In re: Cantor Brothers. Inc.. I.F.&R. Docket No. II-93C, Initial
Decision (1976)
Background:
Cantor challenged the admission of sworn statements made by
people not present at hearing and not available for cross
examination. The court allowed the statements into evidence.
Ruling:
It is well established that hearsay evidence is admissible in
administrative hearings. The rules permit evidence that is reliable,
relevant, competent, material, and substantial.
3. Special Considerations
Adequacy and Quality
It is the Case Development Officer's responsibility to review and
determine the adequacy of the documentation for each element of proof.
To prove each element of the case, the Case Development Officer should
seek to establish each fact by direct evidence. Direct evidence proves
existence of the fact without inference or presumption. If direct evidence
is not available, the fact may be established by circumstantial or indirect
evidence.
Authenticity
The Case Development Officer is also responsible for ensuring that any
items presented as evidence are authentic. Proving authenticity includes
showing that:
m-30
-------
(HLE.2) EL PROOF/EVIDENCE EVALUATION AND ORGANIZATION
• all items are the actual objects on which the inquiry is
focused; and
• the condition of the items is substantially the same as it was
at the time of the investigation.
4. Process
Adequacy and Quality
The Case Development Officer should prepare a list of the type (direct or
circumstantial) of evidence to support each element of proof and the form
(oral testimony, photographs, or samples) of the evidence to support the
element of proof. Direct oral testimony, photographs, videotapes,
samples, and business records are the best forms of evidence to support
an element of proof. However, all corroborative circumstantial evidence
should also be included to further support the Agency's prima facie case.
Authenticity
To ensure authenticity, the Case Development Officer should check that
all documents have been appropriately identified and that the chain of
custody has been maintained for all collected documents.
m-31
-------
m
PROOF/EVIDENCE EVALUATION
AND ORGANIZATION
EXAMPLES
-------
. PROOF/EVIDENCE EVALUATION AND ORGANIZATION
EXAMPLES
m.C. Blank and Completed Violation Worksheets
Excerpt from FIFRA Compliance Manual on Elements of a Violation
ELD. FIFRA Civil Penalty Calculation Worksheet
TSCA Civil Penalty Assessment Worksheet
Blank Penalty Calculation Worksheet
Example Penalty Calculations
IIIE-l
-------
VIOLATION WORKSHEET
Respondenti
Date
Activity
w
u>
Violation
Elements
of Proof
Evidence to
Support Element
M
M
•
O
O
as
§
V)
I
-------
M
I
.-1
DATE
5/25j£
6/29/84
8/31/84
9/7/84
11/2/84
11/9/84
12/4/84
1/2/84
ACTIVITY
IMPORT/MANUFACTURE
FALSE CERTIFICATION
IMPORT/MANUFACTURE
FALSE CERTIFICATION
IMPORT/MANUFACTURE
FALSE CERTIFICATION
IMPORT/MANUFACTURE
FALSE CERTIFICATION
IMPORT/MANUFACTORE
FALSE CERTIFICATION
IMPORT/MANUFACTURE
FALSE CERTIFICATION
o AGENCY NOTIFICATION
o PMN FILED
WRITTEN NOT I CAT I ON OF
AGENCY
FALSE CERTIFICATION
SUBSTANCE
M
n
it
n
it
u
II
II
II
II
II
II
II
II
AMOUNT
2,205 A
u
11,023
n
39,600
u
39,600
n
39.600
u
11,000
II .
N/A
n
EVIDENCE
CUSTOMS ENTRY DOCUMENT
INVOICE
UNDATED/STAMPED CERTIFICATION
CUSTOMS ENTRY DOCUMENT
INVOICE
CUSTOMS ENTRY DOCUMENT
INVOICE
UNDATED/STAMPED CERTIFICATION
CUMSTUM ENTRY DOCUMENT
INVOICE
UNDATED/STAMPED CERTIFICATION
CUSTOMS ENTRY DOCUMENT
INVOICE
UNDATED/ STAMPED CERTIFICATION
CUSTOMS ENTRY DOCUMENT
INVOICE
UNDATED/STAMPED CERTIFICATION
o MEETING SIGN-OFF SHEET
o CERTIFIED STATEMENT
BADISCHE LETTER
UNDATED/ STAMPED CERTIFICATION
H
O
•
O
I
M
H
8
O
5S
§
w
«
w
g
-------
III.C. EXCERPT FROM. FIFRA COMPLIANCE MANUAL ON ELEMENTS OF A VIOLATION
Chapter Seven Elements of a Violation; ***•*«*stra.tl^
Section 12 (*)(!)(A)
Any pesticide not registered under Section 3.
ELEMENTS OF THE VIOLATION
ESTABLISHING THE VIOLATION
2.
Respondent (person) distributed,
sold, offered for sale, held for
sale, shipped, delivered for
shipment, or received sad (having
so received) delivered or offered
to deliver a pesticide.
Determination that the product Is
a pesticide*
3.
Determination that the pesticide
Is not registered.
4.
Determination that the continued
sale and use of existing stocks
Is not permitted under I6(a)(l)
if the product has been cancelled.
Identification of the respon-
sible party for suspected
violation in commerce. See
"Additional Sources of Documen-
tation* (Chapter 4). .
2. Appropriate regional or
Baglstration Division (SD)
personnel review product
labeling claims to determine
whether the product is a
pesticide. See "Further
Processing of the ID Jacket—
Enforcement Case Review"
(Chapter 4).
3. Appropriate regional or RD
personnel determine regis-
tration status after a search
of their files. See "Further
Processing of the ID
Jacket—Enforcement Case
Review" (Chapter 4).
4. Same as Ho. 3, above.
7-4
1983
-------
FIFRA CIVIL PENALTY CALCULATION WORKSHEET
RESPOHDBMT
ADDRESS
DOCKET HO.
DATE
1. Statutory Violation
2. PITS Code
3. Violation Level
Table 2
4. Violator Category -
§14 (a) (1) or §14 (a) (2)
5. Size of Business Category
Table 1
6. Base Penalty
_
7. qaifity Adjustments:
a. Pesticide Ttxicity
b. Hunan Harm
c. Environmental Harm
d. o^npi jarioe History
e. Culpability
f . Total Gravity
Adjustment Value
(add items 7a - 7e)
Table 3
g. Percent Adjustment
h. Dollar Adjustment
8. Final Penalty*
(item 7h from item 6)
Tbtal Penalty
of all Columns
line 8, above)
PREPARED BY
count 1
count 2
count 3
count 4
^
*
<•>
,
•l-A
, S.
i
Wsmmmmmtm
*$
^
'i >'',^£"> *?
• NOTE: The QnaJ penalty in eacn column of line 8 anoot
IIIE-9
the tuiuuxy
-------
FIFRA CIVIL PENALTY CALCULATION WORKSHEET (cont.)
count
count
count
count
1. Statutory Violation
2. PTES Code
3. Violation Level
4 . Violator
or S14(a)(2)
5. Size of Business Category
Table 1
6. Base Penalty
7. Gravity Adjustments:
a. Pesticide TtucLcity
b. Human Harm
c. Bwironmental Harm
d. fir^pHflr History
e.
f . Total Gravity
Adjustment Value
(add item 7a - 7e)
Table 3
o;. Percent Adjustment
h. Dollar Adjustment
8. Final Penalty*
(item 7h from item 6)
PAGE
OF
NOTE: The Cnal penalty in each column of line 8 cannot
IIIE-10
stltUtOfV 1*l
-------
III.D.
TSCA Civil Penalty Assessment Worksheet
Name oc Respondent:
Address of Respondent:
(1) Complaint I.D. Number:
(2) Date Complaint Issued:
(3) Data Answer Received:
(4) Date Default Order Sent:
(5) Date Consent Agreement Signed:
(6) Date Final Order Sent:
(7) Date Remittance Received:
1. Gravity Based Penalty (GBP) from matrix. $
2. Percent increase or decrease for culpability. %
3. Percent increase for violation history. %
4. Add lines lines 2 and 3. %
« Multiply GBP by percentage total on line 4. $
Add lines 1 and 5 (subtract line S from line 1
if negative percentage). $
7. Enter line 6 amount or $25,000, whichever is less. $
8. Multiply line 7 by the number of days of violation. $
9. Government cleanup costs, if any. $
10. Economic gains from non-compliance, if appropriate. $
11. Add lines 8 through 10. $
12. Total of other adjustments as justice may require. $
13. If line 12 represents a net increase to the penalty,
add line 12 to 11. $
-or-
If line 12 represents a net decrease to the penalty,
subtract line 12 from line 11. $
Note: Line 13 should be the proposed penalty for a given violation. This
procedure is repeated for each violation.
IIIE-11
-------
PENALTY CALCULATION FACTORS
NATURE: "Failure to Notify" is a "Hazard Assessment Violation".
Each date of manufacture (importation) of each new chemical
substance constitutes one violation.
•.
EXTENT: Calculated on the number of pounds of product manufactured.
CIRCUMSTANCES: Calculated on the basis that all the manufactured product
was distributed to customers or was part of inventory
transferred control.
CULPABILITY: informed on April 1, 1981, that there was
no CAS NO. for the chemical substances but that they were
submitted for the inventory and the numbers would be provided
to as soon as they were available. There is no document
available showing that followed up on the numbers. (+0)
VIOLATION HISTORY: There is no record of any prior civil administrative
actions. (+0)
GOVERNMENT CLEAN-UP COSTS: There was no monetary expenditure by the government.
(+0)
ECONOMIC GAIN FROM NON COMPLIANCE: invoices indicate the product was sold
for $2.75 per pound. reported
sold 103,310 Ibs. Therefore, the
firms gross sales were approximately
$284,102.50. (+0)
IIIE-13
-------
-2-
COUNT
I
II .
Ill
IV
V
VI
VII
vin
IX
X
XI
XII
XIII
XIV
XV
XVI
XVII
NATURE
HAZ-ASSESS,
PTN
n
w
ti
n
ft
tt
it
tt
.tt
it
tt
n
it
it
it
tt
EXTENT
MAJOR
3031.3 IBS.
MAJOR
5291 IBS.
SIGNIFICANT
881.8 LBS.
MAJOR
2645.5 LBS.
MAJOR
6613.8 IBS.
MAJOR
2417 LBS.
it n
MAJOR
19,276 LBS.
it n it
MAJOR
18,974 LBS.
tt n n
MAJOR
20,178 LBS.
n it it
MAJOR
49,409 LBS.
n tt if
ft it ft
it n tt
CIRCUMSTANCES
LEVEL I
DIST. TO CUSTOMERS
w n it
• •
n tt tt
it tt n
n tt tt
n ft tt
tt tt it
'
n it it
tt ft tt
tt tt n
n tt it
n n tt
n tt it
tt tt ft
tt it tt
it tt it
tt n ti
GBP
$25,000
n
$17,000
$25,000
«
n
n
n
it
'
it
it
tt
it
tt
ti
tt
n
IIIE-14
-------
-3*
COUNT
xvin
XIX
XX
XXI
XXII
xxrn
xxrv
XXV
XXVI
XXVII
NATURE
HAZ-ASSESS,
PIN
ft
n
n
n
it
tt
tt
it
it
TOTAL
EXTENT
MAJOR
49,409 LBS.
it it n
MAJOR
5,079 LBS.
n n n
MAJOR
21,017 LBS.
MAJOR
21,017 LBS.
MAJOR
23,064 LBS.
n n it
n it w
it n n
3MBDRT
18,463.4 LBS.
MANUFACTURE
159,414 LBS.
177,877.4 LBS.
CIRCUMSTANCES
LEVEL I
DIST. TO CUSTCMERS
it tt it
• .
n it it
it it n
n it it
it tt it
n it it
it it it
it n it
it it tt
TOTAL
GBP
$25,000
it
it
«
it
n
it
n
ii
»t
$667, OC
IIIE-15
-------
EXTENT CALCULATION
"N
1 » 3 - 4 LITERS
3.785 LITERS » 1 Gallon
MAX DETECTED LEVEL * 420 ppm
< 499 ppm a .70 reduction
Therefore 1 • » .30 Gallons Extent
Major >_ 1100 Gallon . *•
Therefore >_ 3667, a Major
220 £ significant < 1100 Gallons
Therefore 733 £ significant < 3667 » significant
Minor < 220 Gallons
Therefore minor < 733
Import * Manufacture » Level 1
DATE CALCULATION
o Typed or stamped date on the bill of lading
o Typed or stamped date on the latest invoice
IIIE-17
-------
DATE
5/21/85
5/29/85
6/4/85
6/6/85
6/7/85
6/11/85
6/11/85
(2)
6/13/85 ?
6/14/85
6/17/85
6/18/85
6/19/85
6/20/85
(2)
B/L NUMBER
0220943
1004
75203/J
N/A
LIV/37
0221107
N/A
916
N/A
N/A
0221103
N/A
N/A
LGHJ 13309
INVOICE
NUMBERS
578 A 586
566
568, 569, 573
665
600, 602, 606
589, 593. 670,
675. 673. 681.
683
654. 659, 657,
658
682, 688, 698
703, 704
707 & 713
686
720
729 & 731
709,716, 730
NUMBERS OF
UNITS
11,300
5 ,650
16,950
5,650
16,950
30510 Total
9040
7910
11300
5650
2260
3840
5800
9640
EXTENT
LEVEL
MAJOR
MAJOR
MAJOR
MAJOR
MAJOR
MAJOR
MAJOR
MAJOR
MAJOR
MAJOR
SIGNIFICANT
MAJOR
CIRCUMSTANCES
LEVEL
1 (Import)
1 (Import)
1 (Import)
1 (Import)
1 (Import)
1 (Import)
1 (Import)
1 (Import)
1 (Import)
1 (Import)
1 (Import)
1 (Import)
PROPOSED
PENALTY
$25,000
(25.000
$25,000
$25.000
$25.000
$25.000
$25,000
$25,000
$25^000
$25,000
$17tOOO
$25,000
-------
7
DATE
6/25/85
6/26/85
7/2/85
7/5/85
7/8/85
7/9/85
(3)
7/11/85
7/12/85
B/L NUMBER
N/A
1002
N/A
3925
N/A
0221419
0221404
0221392
1002
TVSCHI 9066
TVSATL 9089
TVSNYC 2039
TVSSLU 9097
TVSCHI 9065
INVOICE
NUMBERS
760
694
749, 758, 759
812, 813
818, 834,
848
857
768, 778. 781,
721, 740, 747,
748, 769, 770,
779, 795, 741,
771
855
790
780 & 782
839 & 846
739
NUMBERS OF
UNITS
3390
5120
7530
4970
1114
32690
5897
1280
10,867
2260
5650
2260
3840
2560
14310
EXTENT
LEVEL
SIGNIFICANT
MAJOR
MAJOR
MAJOR
SIGNIFICANT
MAJOR
SIGNIFICANT
MAJOR
CIRCUMSTANCES
LEVEL
1 (Import)
1 (Import)
1 (Import)
1 (Import)
1 (Import)
1 (Import!)
•
•
1 (Import)
1 (Import)
! i
|.
i
PROPOSED
PENALTY
$17,000
$25,000
$25,000
$25,000
$17,000
$25.000
$17.000
$25,000
-------
M
SJ
O
DATE
7/13/85
7/14/85
7/15/85
7/19/85
7/20/85
7/22/85
B/L NUMBER
022 1366
022 1323
022 1333
12/LIV
17046L
17059L
17045L
LGHT 14090
75450/J
75451/J
0221511
TVSSUN2108
TVSBAL
022 1516
022 1510
933
INVOICE
NUMBERS
837 & 845
836
810 A 820
894, 895. 914
827 & 828
800, 811. 819
853
926
887 & 888
899, 903, 905
854, 856, 911
912, 974 975
976
809
817
867, 893, 971
868 & 869
896 & 945
NUMBERS OF
UNITS
6400
2000
3060
100
11560
5950
5650
1130
12,730
5000
6780
3690
15470
5264
3390
2324
. 2410
13,388
640
2260
EXTENT
LEVEL
MAJOR
MAJOR
MAJOR
MAJOR
MINOR
SIGNIFICANT
CIRCUMSTANCES
LEVEL
1 (Import)
1 (Import)
1 (Import)
1 (Import)
1 (Import
1 (Import)
PROPOSED
PENALTY
$25,000
$25,000
$25,000
$25,000
$5,000
$17,000
-------
H
M
M
N>
DATE
7/25/85
7/29/8§
7/31/85
8/2/85
8/4/85
8/5/85
8/6/85
B/L NUMBER
LEDA 800
925
929
N/A
17162L
17165L
17173L
75576/J
22
906
LGHI 15164
LGHJ 14949
022 1751
INVOICE
NUMBERS
910 & 1001
982, 983, 985,
1002
984 & 986
1018
1009
948, 970, 972,
932, 947, 969.
1010
1008
843, 870, 922
923, 933, 973
1041
1081
1088
1025. 1053.
1058. 1064.
1065, 1084,
1085
NUMBERS OF
UNITS
2560
3840
1280
2560
10t240
2560
2260
4970
9790
3840
5430
5650
5120
1280
7440
8720
EXTENT
LEVEL
MAJOR
MAJOR
MAJOR
MAJOR
MAJOR
MAJOR
MAJOR
CIRCUMSTANCES
LEVEL
1 (Import)
1 (Import)
1 (Import)
1 (Import)
1 (Import)
1 (Import)
•
1 (Import)
PROWSED
PENALTY
$25,000
$25,000
$25,000
$25,000
$25,000
$25.000
$25,000
-------
DATE
8/7/85
8/12/85
8/13/85
8/14/85
8/15/85
8/26/85
8/30/85
9/7/85
B/L NUMBER
N/A
022 1753
174 16L
022 1752
905
944
814
17499L
17501L
17502L
022 1877
022 1879
904
908
904
INVOICE
NUMBERS
1011, 1044,
1052, 1089,
1090
977, 1101,
1107, 112
1023, 1026
1045^ 1059
1024 A 1111
1016, 1114,
1123, 1042 &
1043
1124
1108 & 1169
1152
1161, 1162
1168
1136 & 1219
1137
1138 & 1210
1140, 1150,
1151, 1153,
1158, 1139
NUMBERS OF
UNITS
9040
6765
5120
2260
10170
2260
14690
1130
1130
1130
5650
7910
3390
1280
4670
1130
5800
1224
8154
EXTENT
LEVEL
MAJOR
MAJOR
MAJOR
MAJOR
SIGNIFICANT
MAJOR
MAJOR
MAJOR
CIRCUMSTANCES
LEVEL
1 (Import)
1 (Import)
1 (Import)
1 (Import)
1 (Import)
*
1 (Import)
1 (Import)
1 (Import
PROPOSED
PENALTY
$25,000
$25,000
$25,000
$25,000
$17,000
$25,000
$25,000
$25,000
-------
M
W
U>
DATE
9/9/85
9/12/85
9/18/85
9/19/85
9/23/85
9/24/85
10/1/85
10/7/85
10/8/85
B/L NUMBER
922
17537L
17558L
53
903
903
920(44)
0222173
LGHJ 15741
908
17725L
N/A
INVOICE
NUMBERS
1149
1297
1186, 1202,
1296
1408, 1409,
1411
1159, 1369,
1328, 1329,
1330, 1350,
1368
1284, 1285,
1351. 1410,
1457
1398. 1431,
1446
1491
1520 41551
1596 & 1598
NUMBERS OF
UNITS
1130
880
6780
7660
5650
3690
2260
4670
10620
3894
8960
4520
2504
1612
EXTENT
LEVEL
SIGNIFICANT
MAJOR
MAJOR
MAJOR
MAJOR
MAJOR
MAJOR
SIGNIFICANT
SIGNIFICANT
CIRCUMSTANCES
LEVEL
1 (Import)
1 (Import)
1 (Import)
1 (Import)
1 (Import)
1 (Import)
1 (Import)
1 (Import)
1 (Import)
PROPOSED
PENALTY
$17.000
$25,000
$25,000
$25,000
$25,000
$25,000
$25.000
$17,000
$17,000
-------
DATE
10/10/85
10/16/85
10/17/85
10/25/85
10/26/85
10/29/85
11/7/85
11/15/85
B/L NUMBER
17818L
17758L
17744L
87
88
90
2
89
1012
1011
1038
1020
TVS NYC 2013
74
022 2266
1797 IL
1017
INVOICE
NUMBERS
1519
1552
1425, 1521
1530, 1553
1465
1507
1569 & 1570
1603
1508
1672
1668
1630
1580. 1644
1643, 1671
1731
1779
1352
1818, 1821.
1829, 1830
1891, 1900,
1912, 1914
NUMBERS OF
UNITS
1130
. 1130
5650
7910
6780
1130
2410
7910
3390
1130
22,750
2260
504
5650
8414
3390
490
1130
1160
12957
EXTENT
LEVEL
MAJOR
MAJOR
MAJOR
SIGNIFICANT
MINOR
SIGNIFICANT
MAJOR
MAJOR
CIRCUMSTANCES
LEVEL
1 (Import)
f
1 (Import)
1 (Import)
•
•
1 (Import)
1 (Import)
1 (Import)
1 (Import)
1 (Import)
PROPOSED
PENALTY
$25,000
$25,000
$25,000
$17,000
$5,000
$17.000
$25,000
$25,000
-------
8
Ui
DATE
11/18/85
11/21/85
11/28/85
3/27/86
4/8/86
5/2/86
6/9/S6
7/23/86
B/L NUMBER
501
LGHJ 17308
GOAJ 07075
18100L
N/A
N/A
N/A
N/A
N/A
INVOICE
NUMBERS
1928
1953
1958
1951 ft 1952
499
392
663
827 & 829
1167. 1169,
1170
NUMBERS OF
UNITS
792
3390
4182
7910
4520
3
392
90
3540
4520
EXTENT
LEVEL
MAJOR
MAJOR
MAJOR
MINOR
MINOR
MINOR
SIGNIFICANT
MAJOR
CIRCUMSTANCES
LEVEL
1 (Import)
1 (Import)
1 (Import)
1 (Import)
1 (Import)
1 (Import)
1 (Import)
1 (Import)
Total
PROPOSED
PENALTY
$25.000
$25.000
$25.000
$5.000
$5.000
$5.000
$17.000
$25.000
$1.454.000
-------
H
H
H
DATE
7/25/86
•
8/1/86
8/2/86
B/L NUMBER
811143595
LAX600086
811144541
INVOICE
NUMBERS
M00157
M00159
M00158
M00160
M00161
MOO 156
M00163
M00164
MOO 166
M00165
M00150
M00147
M00151
MOO 152 •
MOO 154
M00155
M00148
M00153
M00149
M00176
M00175
MOO 169
M00171
M00172
M00173
M00170
M00179
M00177
MOO 174
M00178
M00168
M00180
NUMBERS OF
UNITS
22,477
•
14096
851
EXTENT
LEVEL
MAJOR
MAJOR
SIGNIFICANT
CIRCUMSTANCES
LEVEL
2 (Distribution In
commerce for export)
2 (Distribution tn
commerce for export)
2 (Distribution In
commerce for export)
PROPOSED
PENALTY
$20,000
$20,000
$13,000
$53,000 Total
-------
IV
CIVIL ADMINISTRATIVE
PROCESS
-------
IV. CIVIL ADMINISTRATIVE PROCESS
A. ISSUANCE OF THE COMPLAINT
B. CONTENT OF THE COMPLAINT
C. SERVICE OF THE COMPLAINT AND TIMELY AND
APPROPRIATE FILING OF OTHER PLEADINGS
D. ANSWER TO THE COMPLAINT
E. MOTIONS
F. INFORMAL SETTLEMENT
G. HEARING PROCESS
H. APPEALS
-------
IV. CIVIL ADMINISTRATIVE PROCESS
A. ISSUANCE OF THE COMPLAINT
1. Statutory/Regulatory Requirements
FIFRA Section 14:
(a) Civil penalties.—
(1) In general.—Any registrant,*'commercial applicator, wholesaler,
dealer, retailer, or other distributor who violates any provision of this
subchapter may be assessed a civil penalty by the Administrator of not
more than $5,000 for each offense.
(2) Private applicator.—Any private applicator or other person not
included in paragraph (1) who violates any provision of this subchapter
subsequent to receiving a written warning from the Administrator or
following citation for a prior violation, may be assessed a civil penalty by
the Administrator of not more than $1,000 for each offense: Provided,
That any applicator not included under paragraph (1) of this subsection
who holds or applies registered pesticides, or uses dilutions of registered
pesticides, only to provide a service of controlling pests without delivering
any unapplied pesticide to any person so served, and who violates'any
provision of this subchapter may be assessed a civil penalty by the
Administrator of not more than $500 for the first offense nor more than
$1,000 for each subsequent offense.
(3) Hearing.—No civil penalty shall be assessed unless the person
charged shall have been given notice and opportunity for a hearing on
such charge in the county, parish, or incorporated city of the residence of
the person charged.
(4) Determination of penalty.-In determining the amount of the penalty,
the Administrator shall consider the appropriateness of such penalty to the
size of the business of the person charged, the effect on the person's
ability to continue in business, and the gravity of the violation. Whenever
the Administrator finds that the violation occurred despite the exercise of
due care or did not cause significant harm to health or the environment,
the Administrator may issue a warning in lieu of assessing a penalty.
(5) References to Attorney General.-In case of inability to collect such
civil penalty or failure of any person to pay all, or such portion of such
civil penalty as the Administrator may determine, the Administrator shall
refer the matter to the Attorney General, who shall recover such amount
by action in the appropriate United States district court.
IV-1
-------
IV. CIVIL ADMINISTRATIVE PROCESS (IV. A. 1)
TSCA Section 16:
Penalties (a) Civil—(I) Any person who violates a provision of section 15
shall be liable to the United States for a civil penalty in an amount not to
exceed $25,000 for each such violation. Each day such a violation
continues shall, for purposes of this subsection, constitute a separate
violation of section 15.
(2)(A) A civil penalty for violation of section IS shall be assessed by the
Administrator by an order made on the record after opportunity (provided in
accordance with this subparagraph) for a hearing in accordance with section 554
of Title 5. Before issuing such an order, the Administrator shall give written
notice to the person to be assessed a civil penalty under such order of the
Administrator's proposal to issue such order and provide such person an
opportunity to request, within 15 days of the date the notice is received by such
person, such a hearing on the order.
(B) In determining the amount of a civil penalty, the Administrator shall take
into account die nature, circumstances, extent, and gravity of die violation or
violations and, with respect to the violator, ability to pay, effect on ability to
continue to do business, any history of prior such violations, the degree of
culpability, and such other matters as justice may require.
(Q The Administrator may compromise, modify, or remit, with or without
conditions, any civil penalty which may be imposed under this subsection. The
amount of such penalty, when finally determined, or the amount agreed upon in
compromise, may be deducted from any sums owing by the United States to the
person charged.
(3) Any person who requested in accordance with paragraph (2)(A) a
hearing respecting the assessment of a civil penalty may file a petition for
judicial review of such order with the United States Court of Appeals for
the District of Columbia Circuit or for any other circuit in which such
person resides or transacts business. Such petition may only be filed
within the 30-day period beginning on the date the order making such
assessment was issued.
(4) If any person fails to pay an assessment of a civil penalty—
(A) after the order making the assessment has become a final order if such
person does not file a petition for judicial review of the order in accordance with
paragraph (3), or
(B) after a court in an action brought under paragraph (3) has entered a final
judgement in favor of the Administrator,
the Attorney General shall recover the amount assessed (plus interest at
currently prevailing rates from the date of the expiration of the 30-day
period referred to in paragraph (3) or the date of such final judgement, as
the case may be) in an action brought in any appropriate district court of
the United States. In such an action, the validity, amount, and
appropriateness of such penalty shall not be subject to review.
IV-2
-------
(IV.A. 1) IV. CIVIL ADMINISTRATIVE PROCESS
EPCRA Section 325(c)
Gvil and administrative penalties for reporting requirements. -(1) Any
person (other than a governmental entity) who violates any requirement
of section 312 or 313, shall be liable to the United States for a civil
penalty in an amount not to exceed $25,000 for each such violation.
(2) Any person (other than a governmental entity) who violates any
requirement of section 311 or 323(b), and any person who fails to furnish
the Administrator information required under section 322(a)(2) or
requested by the Administrator under section 322(d) shall be liable to the
United StatesJbr a civil penalty in an amount not to exceed $10,000 for
each violation.
(3) Each day a violation described in paragraph (1) or (2) continues
shall, for purposes of this subsection, constitute a separate violation.
(4) The Administrator may assess any civil penalty for which a person
— is liable-underohis subsection by administrative order or may bring an
action to assess and collect the penalty in the United States district court
for the district in which the person from whom the penalty is sought
resides or in which such person's principal place of business is located.
EPCRA Section 325(0:
Procedures for Administrative Penalties.—(I) Any person against whom
a civil penalty is assessed under this section may obtain review thereof in
the appropriate district court of the United States by filing a notice of
appeal in such court within 30 days from the date of such order and by
simultaneously sending a copy of such notice by certified mail to the
Administrator. The Administrator shall promptly file in such court a
certified copy of the record upon which such violation was found or such
penalty imposed. If any person fails to pay an assessment of a civil
penalty after it has become a final and unappealable order or after the
appropriate court has entered final judgement in favor of the United
States, the Administrator may request the Attorney General of the United
States to institute a civil action in an appropriate district court of the
United States to collect the penalty, and such court shall have jurisdiction
to hear and decide any such action. In hearing such action, the court shall
have authority to review the violations and the assessment of the civil
penalty on the record.
IV-3
-------
IV. GIVE. ADMINISTRATIVE PROCESS (IV.A.I)
40 C.F.R. Part 22-Consolidated Rules of Practice Governing the
Administrative Assessment of Civil Penalties and the Revocation or
Suspension of Permits
Section 22.13 Issuance of complaint.
If the complainant has reason to believe that a person has violated any
section of the Act or regulations promulgated or a permit issued under the
Act, he may institute a proceeding fjor the assessment of a civil penalty by
issuing a complaint under the Act and these rules of practice. If the
complainant has reason to believe that:
(a) A permittee violated any term or condition of the permit, or
(b) A permittee misrepresented or inaccurately described any material
fact in the permit application or failed to disclose all relevant facts in the
permit application, or
(c) Other good cause exists for such action, he may institute a
proceeding for the_ jevocation--or -suspension o£ a permit-by issuing a
complaint under the Act and these rules of practice. A complaint may be
for the suspension or revocation of a permit in addition to the assessment
of a civil penalty.
28 U.S.C. Section 2462 - Statute of Limitations
Except as otherwise provided by an Act of Congress, an action, suit, or
proceeding for the enforcement of any civil fine, penalty, or forfeiture,
precursory or otherwise, shall not be entertained unless commenced within
five years from the date when the claims first occurred . . .
2. Case Law
In re: Tremco. Inc.. Docket No. TSCA-88-H-05, Initial Decision
(1989)
Background:
In this TSCA case, the Respondent asked the court to dismiss the
complaint on the grounds that there is a five year "statute of
limitations' or required time limit for bringing a government case.
The Judge ruled for EPA holding that the statute of limitations
does not apply to administrative cases.
Ruling:
An administrative proceeding is not one which enforces a
civil fine, penalty, or forfeiture; rather it merely assesses
IV-4
-------
(IV.A. 1) IV. CIVIL ADMINISTRATIVE PROCESS
a fine or penalty. Compelling payment, as opposed to
assessing payment, is what characterizes "enforcement"
• No legislative intent to apply Section 2462 to proceedings
on an administrative complaint has been expressed.
• . The enforcement of TSCA cases is stated in 15 U.S.C
Section 2615(a)(4).''
b. In re: 3M Company (Minnesota Mining and Manufacturing).
Docket No. TSCA-88-H-06, Initial Decision (1989)
Background:
3M also raised the five year statute of limitations which the Judge
overruled as a defense. This holding went on to say that the five
year statute of limitations would apply to the collection action.
Ruling:
After a final order by the Administrator of EPA assessing a civil
penalty (or after a final judgement in favor of the Administrator
where judicial review of the Administrator's order has been
brought), an action may be brought by the Attorney General in
Federal District Court to recover the penalty which was previously
assessed. It is to such an action for the enforcement of the civil
penalty that 28 U.S.C. Section 2462 clearly applies.
3. Special Considerations
The Statute of Limitations does not apply to the issuance of civil
administrative complaints pursuant to FIFRA, TSCA, and EPCRA. While
other factors may be considered that may make it more difficult to pursue
the case, such as whether the evidence is stale, there is no provision in
TSCA, FIFRA, or EPCRA that sets a time limit for issuing a civil
administrative complaint for the assessment of a penalty.
IV-5
-------
IV. CIVIL ADMINISTRATIVE PROCESS
B. CONTENT OF THE COMPLAINT
1. Statutory/Regulatory Requirements
40 C.F.R. Part 22-Consolidated Rules of Practice Governing the
Administrative Assessment of Civil Penalties and the Revocation or
Suspension of Permits
Section 22.03 Definitions.
(a) The following definitions apply to Part 22:
"Complainant" means any person authorized to issue a complaint on
behalf of the Agency to persons alleged to be in violation of the Act. The
complainant shall not be the Judicial Officer, Regional Judicial Officer,
or any other persons who will participate or advise in the decision.
"Complaint" means a written communication, alleging one or more
violations of specific provisions of the Act, or regulations promulgated
thereunder, issued by the complainant to a person under sections 22.13
and 22.14.
40 C.F.R. Section 22.14 Content and Amendment of the Complaint.
(a) Complaint for the assessment of a civil penalty. Each complaint for
the assessment of a civil penalty shall include:
(1) A statement reciting the section(s) of the Act authorizing the issuance
of the complaint;
(2) Specific reference to each provision of the Act and implementing
regulations which respondent is alleged to have violated;
(3) A concise statement of the factual basis for alleging the violation;
(4) The amount of the civil penalty which is proposed to be assessed;
(5) A statement explaining the reasoning behind the proposed penalty;
(6) Notice of respondent's right to request a hearing on any material fact
contained in the complaint, or on the appropriateness of the amount of the
proposed penalty.
A copy of these rules of practice shall accompany each complaint
served.
(c) Derivation of proposed civil penalty. The dollar amount of the
proposed civil penalty shall be determined in accordance with any criteria
set forth in the Act relating to the proper amount of a civil penalty and
with any civil penalty guidelines issued under the Act.
IV-6
-------
(TV.B.1) IV. CIVIL ADMINISTRATIVE PROCESS
2. Case Law
a. In re: Willis Stores. I.F.&R. No. Vm 59C, Accelerated Decision
Dismissing Complaint and Denying Motion to Amend (1981)
Background:
In this FIFRA case, a Suspension Order omitted the words "offer
for sale." When a FIFRA inspector found the suspended pesticide
on the store shelf, this case was brought.
Ruling:
The respondent was alleged to have violated a suspension order by
offering a suspended pesticide for sale. The suspension order
prohibited sale of the pesticide but did not prohibit the offering for
sale. The complaint was dismissed because the respondent's
activities did not constitute a violation of the suspension order.
3. Special Considerations
In preparing the civil complaint, the Case Development Officer should be
mindful that the ultimate audience for the document is the Administrative
Law Judge. The complaint should be written and organized to clearly
explain what happened and that what happened constitutes a violation.
4. Process
The Case Development Officer must ensure that the complaint
contains the six elements set forth at Section 22.14 of the Rules of
Practice:
• Statement of authority;
• Reference to each provision of the Act or regulations
violated;
• Factual basis for alleging the violation;
• Amount of proposed penalty;
• Reasoning for the penalty; and
• Notice of respondent's rights.
IV-7
-------
IV. CIVIL ADMINISTRATIVE PROCESS (W.B)
b. Section 22.14 also requires that a copy of the Rules of Practice
accompany each complaint.
c. A copy of the pertinent penalty policy is usually included along
with the Rules to support the reasoning for the penalty proposed
in the complaint.
d. The complaint should be signed by the person officially delegated
the authority to issue the complaint as designated in the FIFRA,
TSCA, and EPCRA chapters of the Agency delegations manual.
This delegation should be a person who will never participate or
advice in the decision.
Confidential Business Information (CBI)
e. If a complaint must contain confidential business information
(CBI), two separate complaints must be filed. One containing the
confidential business information and a "sanitized" version with the
CBI deleted or with substitute designations. The nonconfidential
complaint will be accompanied by a statement explaining the
deletions and is filed by the clerk in the public record.
Example
Example Complaint with Confidential Information
IV-8
-------
IV. CIVIL ADMINISTRATIVE PROCESS
C. SERVICE OF THE COMPLAINT AND TIMELY AND
APPROPRIATE FILING OF OTHER PLEADINGS
1. Statutory/Regulatory Requirements
40 C.F.R. Part 22-Consolidated Rules of Practice Governing the
Administrative Assessment of Cfril Penalties and the Revocation or
Suspension of Permits
Section 22.05 Filing, Service, and Form of Pleadings and Documents.
(a) Filing of pleadings and documents.—(I) Except as otherwise provided,
the original and one copy of the complaint, and the original of the
answer and of all documents served in the proceedings shall be filed with
the Regional Hearing Clerk.
(2) A certificate of service shall accompany each document filed or
served. Except as otherwise provided, a party filing documents with the
Regional Hearing Clerk, after the filing of the answer, shall serve copies
thereof upon all other parties and the Presiding Officer. The Presiding
Officer shall maintain a duplicate file during the course of the proceeding.
(3) When the Presiding Officer corresponds directly with the parties, the
original of the correspondence shall be sent to the Regional Hearing
Clerk, a copy shall be maintained by the Presiding Officer in the duplicate
file, and a copy shall be sent to all parties. Parties who correspond
directly with the Presiding Officer shall in addition to serving all other
parties send a copy of all such correspondence to the Regional Hearing
Clerk. A certificate of service shall accompany each document served
under this subsection.
(b) Service of pleadings and documents.—(I) Service of complaint, (i)
Service of a copy of the signed original of the complaint together with a
copy of these rules of practice, may be made personally or by certified
mail, return receipt requested, on the respondent (or his representative).
(ii) Service upon a domestic or foreign corporation or upon a partnership
or other unincorporated association which is subject to suit under a
common name shall be made by personal service or certified mail, as
prescribed by paragraph (b)(l)(i) of this section, directed to an officer,
partner, a managing or general agent, or to any person authorized by
appointment or by Federal or State law to receive service of process.
(iii) Service upon an officer or agency of the United States shall be made
by delivering a copy of the complaint to the officer or agency, or in any
manner prescribed for service by applicable regulations. If the agency is
a corporation, the complaint shall be served as prescribed in paragraph
(b)(l)(ii) of this section.
IV-9
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IV. CIVIL ADMINISTRATIVE PROCESS (IV.C.l)
(iv) Service upon a State or local unit of government, or a State or local
officer, agency, department, corporation, or other instrumentality shall be
made by serving a copy of the complaint in the manner prescribed by the
law of the State for the service of process on any such persons, or:
(A) If upon a State or local unit of government, or a State or local
department, agency, corporation, or other instrumentality, by delivering
a copy of the complaint to the chief executive officer thereof;
(B) If upon a State or local officer by delivering a copy to such officer.
(v) Proof of service of the complaint shall be made by affidavit of the
person making personal service, or by properly executed return receipt.
Such proof of service shall be filed with the complaint immediately upon
completion of service.
(2) Service of documents other than complaint, rulings, orders, and
decisions. All documents other than the complaint, rulings, order, and
decision, may be served personally or by certified or first class mail.
(c) Form of pleadings and documents.—(I) Except as provided herein, or
by order of the Presiding Officer or Administrator, there are no specific
requirements as to the form of documents.
(2) The first page of every pleading, letter, or other document shall
contain a caption identifying the respondent and the docket number which
is exhibited on the complaint.
. (3) The original of any pleading, letter, or other document (other than
exhibits) shall be signed by the party filing or by his counsel or other
representative. The signature constitutes a representation by the signer
that he has read the pleading, letter, or other document, that to the best
of his knowledge, information, and belief, the statements made therein are
true, and that it is not interposed for delay.
(4) The initial document filed by any person shall contain his name,
address, and telephone number. Any changes in this information shall be
communicated promptly to the Regional Hearing Clerk, Presiding Officer,
and all parties to the proceeding. A party who fails to furnish such
information shall be deemed to have waived his right to notice and service
under these rules.
(5) The Administrator, Regional Administrator, Presiding Officer, or
Regional Hearing Clerk may refuse to file any document which does not
comply with this paragraph. Written notice of such refusal, stating the
reasons therefor, shall be promptly given to the person submitting the
document. Such person may amend and resubmit any document refused
for filing upon motion granted by the Administrator, Regional
Administrator, or Presiding Officer, as appropriate.
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(IV.C.l) ' IV. CIVIL ADMINISTRATIVE PROCESS
40 C.F.R. Section 22.06 Filing and Service of Rulings, Orders, and
Decisions.
All rulings, orders, decisions, and other documents issued by the Regional
Administrator, Regional Judicial Officer, or Presiding Officer, as
appropriate shall be filed with the Regional Hearing Clerk. All such
documents issued by the Administrator or Judicial Officer shall be filed
with the Hearing Clerk. Copies of such rulings, orders, decisions, or
other documents shall be served personally, or by certified mail, return
receipt requested, upon all parties by the Administrator, Regional
Administrator, Judicial Officer, Regional Judicial Officer, or Presiding
Officer, as appropriate.
40 C.F.R. Section 22.07 Computation and Extension of Time.
(a) Computation. In computing any period of time prescribed or allowed
in these rules of practice, except as otherwise provided, the day of the
event from which the designated period begins to run shall not be
included. Saturdays, Sundays, and Federal legal holidays shall be
included. When a stated time expires on a Saturday, Sunday, or legal
holiday, the stated time period shall be extended to include the next
business day.
(b) Extensions of time. The Administrator, Regional Administrator, or
Presiding Officer, as appropriate, may grant an extension of time for the
filing of any pleading, document, or motion (1) upon timely motion of a
party to the proceeding, for good cause shown, and after consideration of
prejudice to other parties, or (2) upon his own motion. Such a motion by
a party may only be made after notice to all other parties, unless the
movant can show good cause why serving notice is impracticable. The
motion shall be filed in advance of the date on which the pleading,
document, or motion is due to be filed, unless the failure of a party to
make timely motion for extension of time was the result of excusable
neglect.
(c) Service by mail. Service of the complaint is complete when the return
receipt is signed. Service of all other pleadings and documents is
complete upon mailing. Where a pleading or document is served by
mail, five (5) days shall be added to the time allowed by these rules
for the filing of a responsive pleading or document.
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IV. CIVIL ADMINISTRATIVE PROCESS (IV.C)
2. Case Law
a. Katzson Brothers. Inc. v. United States Environmental Protection
Agency. 839 F. 2d 1396 (10th Cir. 1988) (FIFRA)
Background:
•.
Katzson Brothers raised failure of service as a defense in this
FIFRA case, alleging that the employee who signed for the
registered mail was "sabotaging" the company. The court
disallowed the defense holding the secretary who routinely
received the mail was a "representative" of Mr. Katzson.
Ruling:
• EPA properly served a complaint by sending the complaint
to the secretary-treasurer of the producer by certified mail,
return receipt requested.
• If the Agency employs procedures reasonably calculated to
achieve notice, successful achievement is not necessary to
satisfy due process requirements.
b. In re: Weed Heights Development Company. Mesaba Service and
Supply Company: and Martin Electric Company. Docket No.
TSCA-09-84-0010, Order Granting Motions to Dismiss Filed by
Weed Heights Development Company and Mesaba Service and
Supply Company and Dismissing Complaint Against Martin
Electric Company
Background:
In this case, Weed Heights, Mesaba Service, and Martin Electric
all denied ownership of the PCB transformer. The ALJ granted
the first two and denied the motion of Martin. He could not
dismiss a complaint not properly before the court.
Ruling:
The complaint against Martin Electric was dismissed because the
record contained no certificate of service showing that the
respondent was ever served with the complaint.
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(TV.C.2) IV. Cim ADMINISTRATIVE PROCESS
c. In re: Robert Ross and Sons. Inc.. Docket No. TSCA-V-C-008,
Appeal No. 82-4 (1985)
Background:
Robert Ross was awarded attorney's fees under the Equal Access
to Justice Act. The Act provides for 20 days in which to file an
appeal. EPA missed the deadline by almost two weeks.
Ruling:
Motion to Appeal is denied because the region did not provide a
legitimate excuse for its failure to file the motion for appeal on
time.
d. In re: State of Maryland. Docket No. TSCA-m-289, Order
Denying Motion for Default Order (1987)
/
Background:
EPA filed a complaint and the State of Maryland failed to respond
in the required 20 days. While EPA's motion for default judgment
was denied, the Judge's ruling made several important points:
• Under 40 C.F.R. Section 22.07(c), service of the complaint
is complete when return receipt is signed.
• All other pleadings' service is complete upon mailing; and
five (5) days are added to the relevant filing deadline where
a pleading is served by mail.
• 40 C.F.R. Section 22.05(b)(l)(iv)(A) authorized service
upon the chief executive officer of the state Agency. The
Secretary of the Maryland State Department of
Transportation is the chief executive officer of the
Maryland Port Authority.
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IV. CIVIL ADMINISTRATIVE PROCESS (T/.Q
e. In re: Selco Supply Company. Inc.. IF&R Docket No. VHI-32C
Background:
Selco was charged with producing chlordane and heptachlor in
violation of a suspension of registration order. One of the
defenses Selco raised was that it had no notice of the order.
* *
Ruling:
The ALJ found that Selco had legal notice of the order and found
Selco had violated the order.
• A duly addressed letter which has been deposited in the
mail is presumed delivered.
• When Respondent is a party to a suspension proceeding and
is represented by counsel, service on counsel is sufficient
to give Respondent notice.
3. Special Considerations
It is the joint responsibility of the Case Development Officer and Attorney
to ensure that the case is well managed by ensuring that all activities in
support of the case are performed in a timely fashion.
4. Process
a. Use the D&B or other source of corporate information to
determine the appropriate person to be served with the complaint.
In the case of a corporation, the complaint may be sent to the
President, Chief Executive Officer, or Statutory Agent for Service
of Process. In the case of a partnership, the complaint should be
served on one of the partners.
b. The complaint should be sent certified mail, return receipt
requested. The certified receipt should contain the name, title, and
address of the recipient and the name, tide, and address of the
Agency employee responsible for maintaining evidence of service.
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D. ANSWER TO THE COMPLAINT
1. Statutory/Regulatory Requirements
40 C.F.R. Fart 22-Consolidated Rules of Practice Governing the
Administrative Assessment of Civil Penalties and the Revocation or
Suspension of Permits
Section 22.15 Answer to the Complaint.
(a) General. Where respondent (l>contests any material fact upon which
the complaint is based, (2) contends that the amount of the penalty
proposed in the complaint or the proposed revocation or suspension, as the
case ~may be, is inapyiupiiau;r-or-(3)~contends-that he is entitled to
judgement as a matter of law, he shall file a written answer to the
complaint with the Regional Hearing Clerk. Any such answer to the
complaint must be filed within twenty (20) days after service of the
complaint.
(b)~Contents of the answer. The answer shall clearly and directly admit,
deny, or explain each of the factual allegations contained in the complaint
with regard to which respondent has any knowledge. Where respondent
has no knowledge of a particular factual allegation and so state, the
allegation is deemed denied. The answer shall also state (1) the
circumstances or arguments which are alleged to constitute the grounds of
defense, (2) the facts which respondent intends to place at issue, and (3)
whether a hearing is requested.
(c) Request for hearing. A hearing upon the issues raised by the
complaint and answer shall be held upon request of respondent in the
answer. In addition, a hearing may be held at the discretion of the
Presiding Officer, sua sponte, if issues appropriate for adjudication are
raised in the answer.
(d) Failure to admit, deny, or explain. Failure of respondent to admit,
deny, or explain any material factual allegation contained in the complaint
constitutes an admission of the allegation.
(e) Amendment of the answer. The respondent may amend the answer to
the complaint upon motion granted by the Presiding Officer.
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IV. CIVIL ADMINISTRATIVE PROCESS
2. Case Law
In re: Electric Service Company. TSCA Docket No. V-C-02,
Order (1981)
Background:
Electric Services filed an answer which stated generally that it did
not have enough facts to respond to the allegations of the
complaint EPA moved for an order to require.lhe_RespQndent.to
place defensive facts before the court. The court agreed.
Ruling:
40 C-FrR. Section-22.15- contemplates that a specific as opposed
to a general denial is contemplated and that to place "at issue"
facts in the complaint, respondent must plead material facts which
contradict complainant's allegations.
b. In re: Frankfort Power and Light. Docket No TSCA-II-PCB-85-
0258, Initial Decision (1986)
Background:
Frankfurt filed an answer and request for a hearing which it then
withdrew. EPA filed a motion for default. Based on the fact that
Frankfurt sent a letter saying that the proposed penalty was
excessive, the ALJ overruled EPA's motion.
Ruling:
Withdrawal of an answer and request for a hearing will ordinarily
be construed as an admission of the facts alleged in the complaint
and a consent to the imposition of the proposed penalty. However,
since the respondent insists that the penalty is excessive and the
record contains support for the contention, the Motion for Default
is denied and an Initial Decision is issued ordering a lower
penalty.
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(IV.D) IV. CIVIL ADMINISTRATIVE PROCESS
3. Special Considerations
Extensions of time to file an answer pending settlement negotiations are
discouraged. By filing an answer, the respondent places the issues in
dispute on the table, triggers the assignment of an Administrative Law
Judge, and begins moving the case forward to resolution.
4. Process
a. In the answer the respondent contests the alleged facts, the size of
the penalty, or raises issues of law.
b. Upon receipt, the answer should be reviewed by the Case
Development Officer and Attorney to determine if any
unanticipated facts or arguments are raised that require further
investigation. If the facts are uncontested, a motion for
accelerated decision should be considered.
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IV. CIVIL ADMINISTRATIVE PROCESS
E. MOTIONS
1. Statutory/Regulatory Requirements
40 C.F.R. Part 22-Consolidated Rules of Practice Governing the
Administrative Assessment of Civil Penalties and the Revocation or
Suspension of Permits
Section 22.16 Motions.
(a) General. All motions, except those made orally on the record during
a hearing, shall (1) be in writing; (2) state the grounds therefor with
particularity; (3) set forth the relief or order sought; and (4) be
accompanied by any affidavit, certificate, other evidence, or legal
memorandum relied upon. Such motions shall be served as provided by
Section 22.05(b)(2).
(b) Response to motions. A party's response to any written motion must
be filed within ten (10) days after service of such motion, unless
additional time is allotted for such response. The response shall be
accompanied by any affidavit, certificate, other evidence, or legal
memorandum relied upon. If no response is filed within the designated
period, the parties may be deemed to have waived any objection to the
granting of the motion. The Presiding Officer, Regional Administrator,
or Administrator, as appropriate, may set a shorter time for response, or
make such other orders concerning the disposition of motions as they
deem appropriate.
(c) Decision. Except as provided in Section 22.04(d)(l) and Section
22.28(a), the Regional Administrator shall rule on all motions filed or
made before an answer to the complaint is filed. The Administrator shall
rule on all motions filed or made after service of the initial decision upon
the parties. The Presiding Officer shall rule on all other motions. Oral
argument on motions will be permitted where the Presiding Officer,
Regional Administrator, or the Administrator considers it necessary or
desirable.
40 C.F.R. Section 22.14 Content and Amendment of the Complaint.
(d) Amendment of the complaint. The complainant may amend the
complaint once as a matter of right at any time before the answer is filed.
Otherwise the complainant may amend the complaint only upon motion
granted by the Presiding Officer or Regional Administrator, as
appropriate. Respondent shall have twenty (20) additional days from the
date of service to file his answer.
(e) Withdrawal of the complaint. The complainant may withdrawal the
complaint, or any part thereof, without prejudice one time before the
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(IV.E.1) IV. CIVIL ADMINISTRATIVE PROCESS
answer has been filed. After one withdrawal before the filing of an
answer, the complainant may withdrawal the complaint, or any part
thereof, without prejudice, only upon motion granted by the Presiding
Officer or Regional Administrator, as appropriate.
40 C.F.R. Section 22.20 Accelerated Decision; Decision to Dismiss.
(a) General. The Presiding Officer, upon motion of any party or sua
sponte, may at any time render an accelerated decision in favor of the
complainant or the respondent as to all or any part of the proceeding,
without further hearing or upon such limited additional evidence, such as
affidavits, as he may require, if no genuine issue of material fact exists
and a party is entitled to judgement as a matter of law, as to all or any
part of the proceeding. In addition, the Presiding Officer, upon motion
of the respondent may at any time dismiss an action without further
hearing or upon such limited additional evidence as he requires, on the
basis of failure to establish a prima facie case or other grounds which
show no right to relief on the part of the complainant.
(b) Effect.—(I) If an accelerated decision or a decision to dismiss is issued
as to all the issues and claims in the proceeding, the decision constitutes
an initial decision of the Presiding Officer, and shall be filed with the
Regional Hearing Clerk.
(2) If an accelerated decision or decision to dismiss is rendered on less
than all issues or claims in the proceeding, the Presiding Officer shall
determine what material facts exist without substantial controversy and
what material facts remain controverted in good faith. He shall thereupon
issue an interlocutory order specifying the facts which appear substantially
uncontroverted, and the issues and claims upon which the hearing will
proceed.
40 C.F.R. Section 22.11 Intervention.
(a) Motion. A motion for leave to intervene in any proceeding
conducted under these rules of practice must set forth the grounds for the
proposed intervention, the position and interest of the movant and the
likely impact that intervention will have on the expeditious progress of the
proceeding. Any person already a party to the proceeding may file an
answer to a motion to intervene, making specific reference to the factors
set forth in the foregoing sentence and paragraph (c) of this section, within
ten (10) days after service of the motion for leave to intervene.
(b) When filed. A motion for leave to intervene in a proceeding must
ordinarily be filed before the first prehearing conference or, in the absence
of a prehearing conference, before the initiation of correspondence under
Section 22.19(e), or if there is no such correspondence, prior to the
i
IV-19
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IV. CIVIL ADMINISTRATIVE PROCESS (IV.E.1)
setting of a time and place for a hearing. Any motion filed after that time
must include in addition to the information set forth in paragraph (a) of
this section, a statement of good cause for the failure to file in a timely
manner. The intervenor shall be bound by any agreements, arrangements,
and other matters previously made in the proceeding.
(c) Disposition. Leave to intervene may be granted only if the movant
demonstrates that (1) his presence in the proceeding would not unduly
prolong or otherwise prejudice the adjudication of the rights of the
original parties; (2) the movant will be adversely affected by a final order;
and (3) the interests of the movant are not being adequately represented
by the original parties. The intervenor shall become a full party to the
proceeding upon the granting of leave to intervene.
(d) Amicus curiae. Persons not parties to the proceeding who wish to file
briefs may so move. The motion shall identify the interest of .the
applicant and shall state the reasons why the proposed amicus brief is
desirable. If the motion is granted, the Presiding Officer or Administrator
shall-issue an order setting the time for filing such brief. An amicus
curiae is eligible to participate in any briefing after his motion is granted,
and shall be served with all briefs, reply briefs, motions, and orders
relating to issues to be briefed.
40 C.F.R. Section 22.17 Default Order.
(a) Default. A party may be found to be in default (1) after motion,
upon failure to file a timely answer to the complaint; (2) after motion or
sua sponte, upon failure to comply with a prehearing or hearing order of
the Presiding Officer; or (3) after motion or sua sponte, upon failure to
appear at a conference or hearing without good cause being shown.. No
finding of default on the basis of a failure to appear at a hearing shall be
made against the respondent unless the complainant presents sufficient
evidence to the Presiding Officer to establish a prima facie case against
the respondent. Any motion for a default order shall include a proposed
default order and shall be served upon all parties. The alleged defaulting
party shall have twenty (20) days from service to reply to the motion.
Default by respondent constitutes, for purposes of the pending action only,
an admission of all facts alleged in the complaint and a waiver of
respondent's right to a hearing on such factual allegations. If the
complaint is for the assessment of a civil penalty, the penalty proposed
shall become due and payable by respondent without further proceedings
sixty (60) days after a final order issued upon default. If the complaint
is for the revocation or suspension of a permit, the conditions of
revocation or suspension proposed in the complaint shall become effective
without further proceedings on the date designated by the Administrator
FV-20
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(IV.E.1) IV. CIVIL ADMINISTRATIVE PROCESS
in his final order issued upon default. Default by the complainant shall
result in the dismissal of the case with prejudice.
(b) Procedures upon default. When Regional Administrator or Presiding
Officer finds a default has occurred, he shall issue a default order against
the defaulting party. This order shall constitute the initial decision, and
shall be filed with the Regional Hearing Clerk.
(c) Contents of a default order. A default order shall include findings of
fact showing the grounds for the order, conclusions regarding all material
issues of law or discretion, and the penalty which is recommended to be
assessed or the terms or conditions of permit revocation or suspension, as
appropriate.
(d) For good cause shown the Regional Administrator or the Presiding
Officer, as appropriate, may set aside a default order.
40 C.F.R. Section 22.28 Motion to Reopen a Hearing.
(a) Filing and content. A motion to reopen a hearing to take further
evidence must be made no later than twenty (20) days after service of the
initial decision on the parties and shall (1) state the specific grounds upon
which relief is sought, (2) state briefly the nature and purpose of the
evidence to be adduced, (3) show that such evidence is not cumulative,
and (4) show good cause why such evidence was not adduced at the
hearing. The motion shall be made to the Presiding Officer and filed with
the Regional Hearing Clerk.
(b) Disposition of motion to reopen a hearing. Within ten (10) days
following the service of a motion to reopen a hearing, any other party to
the proceeding may file with the Regional Hearing Clerk and serve on ail
other parties an answer thereto. The Presiding Officer shall announce his
intent to grant or deny such motion as soon as practicable thereafter. The
conduct of any proceeding which may be required as a result of the
granting of any motion allowed in this section shall be governed by the
provision of the applicable sections of these rules. The filing of a motion
to reopen a hearing shall automatically stay the running of all time periods
specified under these rules until such time as the motion is denied or the
reopened hearing is concluded.
40 C.F.R. Section 22.32 Morion to Reconsider a Final Order.
Motions to reconsider a final order shall be filed within ten (10) days
after service of the final order. Every such motion must set forth the
matters claimed to have been erroneously decided and the nature of the
alleged errors. Such motion shall not stay the effective date of the final
order unless specifically so ordered by the Administrator.
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IV. CIVIL ADMINISTRATIVE PROCESS (IV.E)
2. Case Law
Accelerated Decision
a. In re: JF&M Company. Inc.. Docket No. TSCA-HI-057, Initial
Decision (1985)
Background:
* The president of the company responded to the complaint with a
letter which the ALJ accepted as an answer. In the letter, he did
not deny any of the factual allegations and EPA filed for a default
judgement on the issue of liability which was granted.
Ruling:
Where the respondent in his answer admits violation of all counts
in the complaint, a motion for accelerated decision on the issue of
liability* may be properly granted.
b. In re: Axia. Inc.. Docket No. TSCA-V-C-076, Accelerated
Decision (1983)
Background:
Respondent's answer did not deny the facts of the complaint. Its
argument was that the violations were unintentional and quickly
corrected. The ALJ granted EPA's motion for accelerated
decision on liability.
Ruling:
Accelerated decision is issued when the Administrative Law Judge
finds that no genuine issue of material fact exists to the
respondent's guilt.
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(TV.E.2) IV. CIVIL ADMINISTRATIVE PROCESS
Motion to Strike
c. In re: Boliden Metech. Inc.. Docket No. TSCA-I-87-1097, Order
(1988)
Background:
Boliden objected to the manner of sampling for PCBs and moved
for exclusion of the evidence. The court overruled the motion and
set the matter for hearing.
Ruling:
Respondent's motion to strike exhibits on the basis that they were
unscientific and improperly obtained is denied. The denial is
based on the need to resolve factual issues concerning the
circumstances regarding how the evidence was obtained.
Motion to Amend
d. In re: Imitec. Inc.. Docket No. TSCA-PMN-H-89-0222, Order
Granting Motion to Amend Complaint
Background:
In this TSCA PMN case, Imitec asserted that EPA had
misidentified the chemical at issue. EPA then moved to amend the
complaint to correct the error and Imitec objected. The basis for
the objection was a seven month delay in filing for the amendment.
EPA responded that the delay had also been allowed because the
case appeared ripe for settlement. It had filed the motion to
amend when Imitec had broken off negotiations. The ALJ found
that Respondent did not show it had been prejudiced by the delay
and allowed the correcting amendment.
Ruling:
A motion to amend a complaint to change the name of the
chemical substance at issue is granted over the respondents
objections that prosecution of the case was characterized by undue
delay.
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IV. CIVIL ADMINISTRATIVE PROCESS (IV.E)
Motion to Dismiss
e. In re: Weed Heights Development Company; Mesaba Service and
Supply Company: and Martin Electric Company, Docket No.
TSCA-09-84-0010, Order Granting Motion to Dismiss (1984)
Background:
* •
As a defense in this TSCA case, Weed Heights stated it did not
own the six transformers which were the basis of the case and filed
a motion to dismiss. EPA did not respond to the motion until after
the time period had passed. In addition, EPA relied on an
assumption of ownership and presented no factual information.
The ALT dismissed the case with prejudice.
Ruling:
A motion to dismiss should be granted upon showing of respondent
by substantial evidence, unrefuted by complainant, that a prima
facie case has not been established.
Motion for Default
f. Katzson Brothers. Inc. v. U.S. EPA. 839 F. 2d 1396 (10th Cir.
1988)
Background:
Katzson Brothers failed to file an answer and EPA was granted a
default judgment and a civil penalty. Katzson appealed to the
Administrator who upheld the initial decision. The basis for the
proposed penalty was not fully presented in the record below.
Katzson then appealed the Administrator's decision to the district
court. The court reviewed the record and remanded the case.
Ruling:
After issuance of a Default Order, the case is remanded on appeal
to EPA. The court orders EPA to grant the respondent a hearing
concerning factors that may mitigate the penalty.
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(TV.E.2) IV. CIVIL ADMINISTRATIVE PROCESS
Motion to Intervene
g. In re: Chemical Waste Management. Inc.. Docket No. 84-H-03,
Order Granting Leave to Intervene (1984)
Background:
Chemical Waste and EPA negotiated a CAFO whereupon Alabama
filed a motion for intervention by its Attorney General. The basis
for its intervention was that its citizens would be affected by the
storage of PCBs in Alabama, that the consent agreement contained
errors of fact, and that the "goal" of the consent agreement (ocean
incineration of PCBs) was not in the State's interest.
Ruling:
The State of Alabama is allowed to intervene in a proceeding and
join in negotiating settlement. The order is granted because: the
State's interest is in protecting its citizens; the interests of the
complainant and State are different; and the intervention will not
unduly delay the proceeding.
3. Special Considerations
Motions for Accelerated Decision should be made whenever the
respondent admits the violation or fails to provide any facts to dispute its
liability. The motion will demonstrate for the AU that the respondent's
answer has not raised any issues refuting the allegations of the complaint
or the prima facie case.
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IV. CIVIL ADMINISTRATIVE PROCESS
F. INFORMAL SETTLEMENT
1. Statutorv/Reeulatorv Requirements
40 C.F.R. Part 22-Consolidated Rules of Practice Governing the
Administrative Assessment of Civil Penalties and the Revocation or
Suspension of Permits
Section 22.18 Informal Settlement: Consent Agreement and Order.
(a) Settlement policy. The Agency encourages settlement of a proceeding
at any time if the settlement is consistent with the provisions and
objectives of the Act and applicable regulations. The respondent may
confer with complainant concerning settlement whether or not the
respondent requests a hearing. Settlement conferences shall not affect the
respondent's obligation to file a timely answer under Section 22.16.
(b) Consent agreement. The parties shall forward a written consent
agreement and a proposed consent order to the Regional Administrator
whenever settlement or compromise is proposed. The consent agreement
shall state that, for the purpose of this proceeding, respondent (1) admits
the* jurisdictional allegations of the complaint; (2) admits the facts
stipulated in the consent agreement or neither admits or denies specific
factual allegations contained in the complaint; and (3) consents to the
assessment of a stated civil penalty or to the stated permit revocation or
suspension, as the case may be. The consent agreement shall include any
and all terms of the agreement, and shall be signed by all parties or their
counsel or representatives.
(c) Consent order. No settlement or consent agreement shall dispose of
any proceeding under these rules of practice without a consent order from
the Regional Administrator. In preparing such an order, the Regional
Administrator may require that the parties to the settlement appear before
him to answer inquiries relating to the consent agreement or order.
40 C.F.R. Section 22.10 Appearances.
Any party may appear in person or by counsel or other representative.
A partner may appear on behalf of a partnership and an officer may
appear on behalf of a corporation. Persons who appear as counsel or
other representative must conform to the standards of conduct and ethics
required of practitioners before the courts of the United States.
40 C.F.R. Section 22.08 Ex pane Discussion of Proceeding.
At no time after the issuance of the complaint shall the Administrator,
Regional Administrator, Judicial Officer, Regional Judicial Officer,
Presiding Officer, or any other person who is likely to advise these
1V-26
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IV. CIVIL ADMINISTRATIVE PROCESS
officials in the decision on the case, discuss ex parte the merits of the
proceeding with any interested person outside the Agency, with any
Agency staff member who performs a prosecutorial or investigative
function in such proceeding or a factually related proceeding, or with any
representative of such person. Any ex parte memorandum or other
communication addressed to the Administrator, Regional Administrator,
Judicial Officer, Regional Judicial Officer, or the Presiding Officer during
the pendency of the proceeding and relating to the merits thereof, by or
on behalf of any party shall be regarded as argument made in the
proceeding and shall be served upon all other parties. The other parties
shall be given an opportunity to reply to such memorandum or
communication.
2. Case Law
a. in re: C.F. Industries. Inc.. Docket No. FIFRA-09-0465-C-5,
Recommended Decision (1987)
Background:
CFI and EPA negotiated a settlement in this case. Following the
entry of the consent agreement, CFI applied for attorney's fees and
expenses under the Equal Access to Justice Act. The basis for
CFI's motion was that EPA had reduced the proposed penalty from
$28,160 to $3,000. The judge denied the award, holding that to
be eligible, CFI would have had to have been a "prevailing party."
Ruling:
The substantial reduction of a penalty reflected in a consent
agreement did not suggest weakness in the Agency's case because
the settlement agreement when read in its entirety shows a
favorable settlement for the EPA on all charges of the complaint.
Therefore, Respondent's claims for reimbursement pursuant to the
EAJA were determined to be unjustified.
3. Special Considerations
It is the Case Development Officer's responsibility to:
• serve as EPA's co-representative with the Attorney at the
settlement conference;
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IV. GIVE. ADMINISTRATIVE PROCESS (II.F.1)
• monitor the respondent's compliance with all terms of the consent
agreement; and
• notify the Attorney of any violation of the terms of the agreement.
4. Process
a. Settlement Conference
• Thoroughly review the case file prior to the conference.
• At the conference, the Case Development Officer should:
explain facts on which the complaint's allegations
are based;
review all factors taken into consideration in
determining the proposed penalty;
describe other mitigating factors that the Agency
may take into consideration (godd faith); and
reaffirm that the violative activity has been
discontinued.
• At the conference, the Attorney or Case Development
Officer should:
explain the administrative process to Respondent;
and
review typical settlements in similar cases and
provide copies of typical consent agreements with
Respondent.
b. Monitoring Consent Decree
Once the consent agreement is filed, the Case Development Officer
should prepare a Schedule of Activities required by the terms of
the agreement. As each requirement is met, the date of
completion should be documented and retained as evidence in the
file.
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(IV.F) IV. CIVIL ADMINISTRATIVE PROCESS
Example
Example Consent Agreement Schedule of Activities
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IV. CIVIL ADMINISTRATIVE PROCESS
G. HEARING PROCESS
1. Statutory/Regulatory Requirements
40 C.F.R. Part 22-Consolidated Rules of Practice Governing the
Administrative Assessment of Civil Penalties and the Revocation or
Suspension of Permits
Section 22.21 Scheduling the Hearing.
(a) When an answer is filed, the Regional Hearing Clerk shall forward the
complaint, the answer, and any other documents filed thus far in the
proceeding to the Chief Administrative Law Judge who shall assign
himself or another Administrative Law Judge as Presiding Officer, unless
otherwise provided in the Supplemental rules of practice. The Presiding
Officer shall then obtain the case file from the Chief Administrative Law
Judge and notify the parties of his assignment.
(b) Notice of hearing. If the respondent requests a hearing in his answer,
or one is ordered by the Presiding Officer under Section 22.15(c), the
Presiding Officer shall serve upon the parties a notice of hearing setting
forth a time and place for the hearing. The Presiding Officer may issue
the notice of hearing at any appropriate time, but no later than twenty (20)
days prior to the date set for the hearing.
(c) Postponement of hearing. No request for postponement of a hearing
shall be granted except upon motion and for good cause.
(d) Location of the hearing. The location of the hearing shall be
determined in accordance with the method for determining the location of
the prehearing conference under Section 22.19(d).
40 C.F.R. Section 22.19 Prehearing Conference.
(a) Purpose of prehearing conference. Unless a conference appears
unnecessary, the Presiding Officer, at any time before the hearing begins,
shall direct the parties and their counsel or other representatives to appear
at a conference before him to consider:
(1) The settlement of the case;
(2) The simplification of issues and stipulation of facts not in dispute;
(3) The necessity or desirability of amendments to pleadings;
(4) The exchange of exhibits, documents, prepared testimony and
admissions or stipulation of fact which will avoid unnecessary proof;
(5) The limitation of the number of expert or other witnesses;
(6) Setting a time and place for the hearing; and
(7) Any other matters which may expedite the disposition of the
proceeding.
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(TV.G.l) IV. CIVIL ADMINISTRATIVE PROCESS
(b) Exchange of witness lists and documents. Unless otherwise ordered
by the Presiding Officer, each party at the prehearing conference shall
make available to all other parties (1) the names of the expert and other
witnesses he intends to call, together with a brief narrative summary of
their expected testimony, and (2) copies of all documents and exhibits
which each party intends to introduce into evidence. Documents and
exhibits shall be marked for identification as ordered by the Presiding
Officer. Documents that have not been exchanged and witnesses whose
names have not been exchanged shall not be introduced into evidence or
allowed to testify without permission of the Presiding Officer. The
Presiding Officer shall allow the parties reasonable opportunity to review
new evidence.
(c) Record of the prehearing conference. No transcript of a prehearing
conference relating to settlement shall be made. With respect to other
prehearing conferences, no transcript of any prehearing conferences shall
be made unless ordered by the Presiding Officer upon motion of a party
or sua sponte. The Presiding Officer shall prepare and file for the record
a written summary of the action taken at the conference. The summary
shall incorporate any written stipulations or agreements of the parties and
all rulings and appropriate orders containing directions to the parties.
(d) Location of prehearing conference. The prehearing conference shall
be held in the county where the respondent resides or conducts the
business which the hearing concerns, in the city in which the relevant
Environmental Protection Agency Regional Office is located, or in
Washington, D.C., unless (1) the Presiding Officer determines that there
is good cause to hold it at another location in a region or by telephone; or
(2) the Supplemental rules of practice provide otherwise.
(e) Unavailability of a prehearing conference. If a prehearing conference
is unnecessary or impracticable, the Presiding Officer, on motion or sua
sponte, may direct the parties to correspond with him to accomplish any
of the objectives set forth in this section.
(f) Other discovery. (1) Except as provided by paragraph (b) of this
section, further discovery, under this section, shall be permitted only upon
determination by the Presiding Officer:
(i) That such discovery will not in any way unreasonably delay the
proceeding;
(ii) That such information to be obtained is not otherwise obtainable; and
(iii) That such information has significant probative value.
(2) The Presiding Officer shall order depositions upon oral questions
only upon a showing of good cause and upon finding that:
(i) The information sought cannot be obtained'by alternative methods;
or
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IV. CIVIL ADMINISTRATIVE PROCESS (IV.G.l)
(ii) There is a substantial reason to believe that relevant and probative
evidence may otherwise not be preserved for presentation by a witness at
the hearing.
(3) Any party to the proceeding desiring an order of discovery shall
make a motion thereof. Such motion shall set forth:
(i) The circumstances warranting the taking of the discover;
(ii) The nature of the information expected to be discovered; and
(iii) The proposed time and place where it will be taken. If the
Presiding Officer determines that the motion should be granted, he shall
issue an order for taking of such discovery together with the conditions
and terms thereof.
(4) When the information sought to be obtained is within control of one
of the parties, failure to comply with an order issued pursuant to this
paragraph may lead to (i) the inference that the information to be
discovered would be adverse to the party from whom the information was
sought, or (ii) the issuance of a default order under Section 22.17(a).
40 C.F.R. Section 22.22 Evidence
(a) General. The Presiding Officer shall admit all evidence which is not
irrelevant, immaterial, unduly repetitious, or otherwise unreliable or of
little probative value, except that evidence relating to the settlement which
would be excluded in the federal courts under Rule 408 of the Federal
Rules of Evidence is not admissible. In the presentation, admission,
disposition, and use of evidence, the Presiding Officer shall preserve the
confidentiality of trade secrets and other commercial and financial
information. The confidential or trade secret status of any information
shall not, however, preclude its being introduced into evidence. The
Presiding Officer may make such orders as may be necessary to consider
such evidence in camera, including the preparation of a supplemental
initial decision to address questions of law, fact, or discretion which arise
out of that portion of the evidence which is confidential or which includes
trade secrets.
(b) Examination of witnesses. Witnesses shall be examined orally, under
oath or affirmation, except as otherwise provided in these rules of practice
or by the Presiding Officer. Parties shall have the right to cross-ex •> mine
a witness who appears at the hearing provided that such cross-exam tion
is not unduly repetitious.
(c) Verified statements. The Presiding Officer may admit an insert into
the record as evidence, in lieu of oral testimony, statements of fact or
opinion prepared by a witness. The admissibility of the evidence
contained in the statement shall be subject to the same rules as if the
testimony were produced under oral examination. Before any such
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(TV.G.l) IV. CIVIL ADMINISTRATIVE PROCESS
statement is read or admitted into evidence, the witness shall deliver a
copy of the statement to the Presiding Officer, the reporter, and opposing
counsel. The witness presenting the statement shall swear to or affirm the
statement and shall be subject to appropriate oral cross-examination upon
the contents thereof.
(d) Admission of affidavits where the witness is unavailable. The
Presiding Officer may admit into evidence affidavits of witnesses who are
unavailable. The term "unavailable1* shall have the meaning accorded to
it by Rule 804(a) of the Federal Rules of Evidence.
(e) Exhibits. Where practicable, an original and one copy of each exhibit
shall be filed with the Presiding Officer for the record and a copy shall be
furnished to each party. A true copy of any exhibit may be substituted for
the original.
(f) Official notice. Official notice may be taken of any matter judicially
noticed in the Federal courts and of other facts within specialized
knowledge and experience of the Agency. Opposing parties shall be given
adequate opportunity to show that such facts are erroneously noticed.
40 C.F.R. Section 22.27 Initial Decision.
(a) Filing and contents. The Presiding Officer shall issue and file with the
Regional Hearing Clerk his initial decision as soon as practicable after the
period for filing reply briefs under Section 22.26 has expired. The
Presiding Officer shall retain a copy of the complaint in the duplicate file.
The initial decision shall contain his findings of fact, conclusions
regarding all material issues of law or discretion, as well as reasons
thereof, a recommended civil penalty assessment, if appropriate, and a
proposed final order. Upon receipt of an initial decision, the Regional
Hearing Clerk shall forward a copy to all parties, and shall send the
original, along with a record of the proceeding, to the Hearing Clerk.
The Hearing Clerk shall forward a copy of the initial decision to the
Administrator.
(b) Amount of civil penalty. If the Presiding Officer determines that a
violation has occurred, the Presiding Officer shall determine a dollar
amount of the recommended civil penalty to be assessed in the initial
decision in accordance with any criteria set forth in the Act relating to the
proper amount of a civil penalty, and must consider any civil penalty
guidelines issued under the Act. If the Presiding Officer decides to assess
a penalty different in amount from the penalty recommended to be
assessed in the complaint, the Presiding Officer shall set forth in the initial
decision the specific reasons for the increase or decrease. The Presiding
Officer shall not raise a penalty from that recommended to be assessed in
the complaint if the respondent has defaulted.
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IV. CIVIL ADMINISTRATIVE PROCESS (TV.G.l)
(c) Effect of initial decision. The initial decision of the Presiding Officer
shall become the final order of the Administrator within forty-five (45)
days after its service upon the parties and without further proceedings
unless (1) an appeal to the Administrator is taken from it by a party to the
proceedings, or (2) the Administrator elects, sua sponte, to review the
initial decision.
t
40 C.F.R. Section 22.25 Filing the Transcript.
The hearing shall be transcribed verbatim. Promptly following the taking
of the last evidence, the reporter shall transmit to the Regional Hearing
Clerk the original and as may copies of the transcript of testimony as are
called for in the reporter's contract with the Agency, and also transmit to
the Presiding Officer a copy of the transcript. A certificate of service
shall accompany each copy of the transcript. The Regional Hearing Clerk
shall notify all parties of the availability of the transcript and shall furnish
the parties with a copy of the transcript upon payment of the cost of
reproduction, unless a party can show that the cost is unduly burdensome.
Any person not a party to the proceedings may receive a copy of the
transcript upon payment of the reproduction fee, except those parts of the
transcript order to be kept confidential by the Presiding Officer.
40 C.F.R. Section 22.26 Proposed Findings, Conclusions, and
Order.
Within twenty (20) days after the parties are notified of the availability of
the transcript, or within such longer time as may be fixed by the Presiding
Officer, any party may submit for consideration of the Presiding Officer,
proposed findings of fact, conclusions of law, and a proposed order,
together with briefs in support thereof. The Presiding Officer shall set a
time by which reply briefs must be submitted. All submissions shall be
in writing, shall be served upon all parties, and shall contain adequate
references to the record and authorities relied on.
40 C.F.R. Section 22.35 Supplemental Rules of Practice Governing the
Administrative Assessment of Civil Penalties Under the Federal
Insecticide, Fungicide, and Rodenticide Act.
(a) Scope of these Supplemental rules. These Supplemental rules of
practice shall govern, in conjunction with the preceding Consolidated
Rules of Practice (40 CFR Part 22), all formal adjudications for the
assessment of any civil penalty conducted under section 14(a) of the
Federal Insecticide, Fungicide, and Rodenticide Act as amended (7 U.S.C.
1261 (a)). Where inconsistencies exist between these Supplemental rules
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OV.G.l) IV. GIVE. ADMINISTRATIVE PROCESS
and the Consolidated rules (sections 22.01 through 22.32), these
Supplemental rules shall apply.
(b) Venue. The prehearing conference and the hearing shall be held in the
county, parish, or incorporated city of the residence of the person
charged, unless otherwise agreed in writing by all parties.
(c) Evaluation of proposed civil penalty. In determining the dollar amount
of the recommended civil penalty assessed in the initial decision, the
Presiding Officer shall consider, in'addition to the criteria listed in section
14(a)(3) of the Act, (1) respondent's history of compliance with the Act
or its predecessor statute and (2) any evidence of good faith or lack
thereof. The Presiding Officer must also consider the guidelines for the
Assessment of Civil Penalties published in the FEDERAL REGISTER (39
FR 27711), and any amendments or supplements thereto.
40 C.F.R. Section 22.33 Supplemental Rules of Practice Governing the
Administrative Assessment of Civil Penalties Under the Toxic Substances
Control Act.
(a) Scope of these Supplemental rules. These Supplemental rules of
practice shall govern, in conjunction with the preceding consolidated rules
of practice (40 CFR Part 22), all formal adjudications for the assessment
of any civil penalty conducted under section 16(a) of the Toxic Substances
Control Act (15 U.S.C. 2615(a)). Where inconsistencies exist between
these Supplemental rules and the Consolidated rules (sections 22.01
through 22.32), these Supplemental rules shall apply.
(b) Subpoenas. (1) The attendance of witnesses or the production of
documentary evidence may be required by subpoena. The Presiding
Officer may grant a request for a subpoena upon a showing of (i) the
grounds and necessity therefor, and (ii) the materiality and relevancy of
the evidence to be adduced. Requests for the production of documents
shall describe the evidence sought as specifically as practicable.
(2) Subpoenas shall be served in accordance with section 22.05(b)(l) of
the Consolidated Rules of Practice.
(3) Witnesses summoned before the Presiding Officer shall be paid the
same fees and mileage that are paid witnesses in the courts of the United
States. Fees shall be paid by the party at whose instance the witness
appears. Where a witness appears pursuant to a request initiated by the
Presiding Officer, fees shall be paid by the agency.
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IV. CIVIL ADMINISTRATIVE PROCESS (IV.G)
2. Case Law
Discovery
a. In re: Eastman Chemicals Division. Eastman Kodak Company,.
Docket No. TSCA-88-H-07, Order Denying Motion to Compel
Discovery (1989)
Background:
Eastman filed motions for discovery, in particular, to compel
EPA's witnesses to answer interrogatories. EPA objected on the
grounds that the Consolidated Rules required it to provide "brief
summaries" of testimony. The ALJ ruled in EPA's favor, noting
that "amplified statements" would be provided at trial.
Ruling:
• Neither party shall be permitted under the guise of
discovery to engage in delaying, paper-producing, action-
avoiding tactics.
• There is no constitutional right to discovery.
FIFRA Venue
b. In re: Stauffer Chemical Company. I.F.&R. Docket No. VI-23C,
Initial Decision (1975)
Background:
Stauffer made three requests for a hearing, each time proposing
another location. It then filed a formal objection to the Houston
site proposed by the ALJ.
Ruling:
Respondent was denied a motion to hold the hearing near its
corporate headquarters or place of incorporation. The hearing was
held at the city where its local facility was situated and where the
violation occurred.
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(IV.G.l) IV. CIVIL ADMINISTRATIVE PROCESS
c. In re: Agland. Inc.. Docket No. I.F.&R. Vm-88-243C, Initial
Decision (1989)
Background:
Agland filed an answer and requested a hearing. The ALJ
considered Respondent's prehearing request for a hearing in Weld
County and set the hearing in Denver. Five months later, at the
beginning of the hearing, Respondent objected. The ALJ
overruled the objection.
Ruling:
Respondent waived its right to object to the location of the hearing
when it failed to interpose a timely and sufficient objection to the
scheduling of the hearing in Denver instead of Weld County,
Colorado.
3. Special Considerations
The Case Development Officer and Attorney are jointly responsible for
ensuring that:
• all exhibits and witnesses are identified in a timely manner before
the prehearing exchange;
• the witnesses and exhibits are prepared for the hearing; and
• the Case Development Officer is prepared to testify regarding the
size of the penalty.
4. Process
a. Discuss with the attorney the types and levels of expertise needed
by witnesses testifying to the facts and gravity of the violation
which will support the proposed penalty.
b. Once witnesses are identified, explore possible examples of facts
or gravity that may be presented to buttress the Agency's case.
c. Ensure that all exhibits, original and appropriate number of copies,
are available, organized, and identified for the hearing.
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IV. CIVIL ADMINISTRATIVE PROCESS
H. APPEALS
1. Statutory/Regulatory Requirements
40 C.F.R. Part 22-ConsoIidated Rules of Practice Governing the
Administrative Assessment of Civil Penalties and the Revocation or
Suspension of Permits
Section 22.29 Appeal from or Review of Interlocutory Orders or Rulings.
(a) Request for interlocutory appeal. Except as provided in this section,
appeals to the Administrator shall obtain as a matter of right only from a
default order, an accelerated decision or decision to dismiss issued under
section 22.20(b)(l), or an initial, decision rendered after an evidentiary
hearing. Appeals from other orders or rulings shall He only if the
Presiding Officer or Regional Administrator, as appropriate, upon motion
of a party, certifies such orders or rulings to the Administrator on appeal.
Requests for such certification shall be filed in writing within six (6) days
of notice of the ruling or service of the order, and shall state briefly the
grounds to be relied upon on appeal.
(b) Availability of interlocutory appeal. The Presiding Officer may certify
any ruling for appeal to the Administrator when (1) the order or ruling
involves an important question of law or policy concerning which there is
substantial grounds for difference of opinion, and (2) either (i) an
immediate appeal from the order or ruling will materially advance the
ultimate termination of the proceeding, or (ii) review after the final order
is issued will be inadequate or ineffective.
(c) Decision. If the Administrator determines that certification was
improvidently granted, or if he takes no action within thirty (30) days of
the certification, the appeal is dismissed. When the Presiding Officer
declines to certify an order or ruling to the Administrator on interlocutory
appeal, it may be reviewed by the Administrator only upon appeal from
the initial decision, except when the Administrator determines, upon
motion of a party and in exceptional circumstances, that to delay review
would be contrary to the public interest. Such motion shall be made
within six (6) days of service of an order of the Presiding Officer refusing
to certify a ruling for interlocutory appeal to the Administrator.
Ordinarily, the interlocutory appeal will be decided on the basis of the
submissions made by the Presiding Officer. The Administrator may,
however, allow further briefs and oral argument.
(d) Stay of proceedings. The Presiding Officer may stay the proceedings
pending a decision by the Administrator upon an order or ruling certified
by the Presiding Officer for an interlocutory appeal. Proceedings will not
be stayed except in extraordinary circumstances. When the Presiding
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(IV.H.1) IV. CIVIL ADMINISTRATIVE PROCESS
Officer grants a stay of more than thirty (30) days, such stay must be
separately approved by the Administrator.
40 C.F.R. Section 22.30 Appeal From or Review of Initial Decision.
(a) Notice of appeal. (1) Any party may appeal any adverse ruling or
order of the Presiding Officer by filing a notice of appeal and an
accompanying appellate brief with the Hearing Clerk and upon all other
parties and amicus curiae within twenty (20) days after the initial decision
is served upon the parties. The notice of appeal shall set forth alternative
_findings_ojf_facjU- alternative conclusions regarding issues of law or
discretion, and a proposed order together with relevant references to the
record and the initial decision. The appellant's brief shall contain a
statement of the issues presented for review, a statement of the nature of
the case and the facts relevant to the issues presented for review,
argument on the issues presented, and a short conclusion stating the
precise relief sought, together with appropriate references to the record.
(2) Within fifteen (15) days of the service of notices of appeal and briefs
under paragraph (a)(l) of this section, any other party or amicus curiae
may file and serve with the Hearing Clerk a reply brief responding to
argument raised by the appellant, together with references to the relevant
portions of the record, initial decision, or opposing brief. Further briefs
shall be filed only with the permission of the Administrator.
(b) Sua sponte review by the Administrator. Whenever the Administrator
determines sua sponte to review an initial decision, the Hearing Clerk
shall serve notice of such intention on the parties within forty-five (45)
days after the initial decision is served upon the parties. The notice shall
include a statement of issues to be briefed by the parties and a time
schedule for the service and filing of briefs.
(c) Scope of appeal or review. The appeal of the initial decision shall be
limited to those issues raised by the parties during the course of the
proceeding. If the Administrator determines that issues raised, but not
appealed by the parties, should be argued, he shall give counsel for the
parties reasonable written notice of such determination to permit
preparation of adequate argument. Nothing herein shall prohibit the
Administrator from remanding the case to the Presiding Officer for further
proceedings.
(d) Argument before the Administrator. The Administrator may, upon
request of a party or sua sponte, assign a time and place for oral argument
after giving consideration to the convenience of the parties.
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IV. CIVIL ADMINISTRATIVE PROCESS (IV.H.1)
40 C.F.R. Section 22.31 Final Order on Appeal.
(a) Contents of the final order. When an appeal has been taken or the
Administrator issues a notice of intent to conduct review sua sponte, the,
Administrator shall issue a final order as soon as practicable after the
filing of all appellate briefs or oral argument, whichever is later. The
Administrator shall adopt, modify, or set aside the findings and
conclusions contained in the decision or order being reviewed, and shall
set forth in the final order the reason's for his actions. The Administrator
may, in his discretion, increase or decrease the assessed penalty from the
amount recommended to be assessed in the decision or order being
reviewed, except that if the order being reviewed is a default order, the
Administrator may not increase the amount of penalty.
(b) Payment of a civil penalty. The respondent shall pay the full amount
of the civil penalty assessed in the final order within sixty (60) days after
receipt of the final order unless otherwise agreed by the parties. Payment
shall be made by forwarding loathe Regional Hearing Clerk a cashier's
check or certified check in the amount of the penalty assessed in the final
order, payable to the Treasurer, United States of America.
40 C.F.R. Section 22.32 Motion to Reconsider a Final Order.
Motions to reconsider a final order shall be filed within ten (10) days
after service of the final order. Every such motion must set forth'the
matters claimed to have been erroneously decided and the nature of the
alleged errors. Such motion shall not stay the effective date of the final
order unless specifically so ordered by the Administrator.
2. Case Law
a. Noble Automotive Chemical and Oil Company v. U.S. EPA. Civil
Action No. 82-1581, Order Denying Application for Declaratory
Judgement and Injunction to Prevent the Administrative Law Judge
from Issuing a Decision (1982)
Background:
After an Initial Decision was remanded against Noble Oil, Noble
Oil filed a motion to reopen based on the grounds that EPA's PCB
testing analysis was faulty and in the alternative, that the penalty
assessed was excessive. The court overruled holding that the
information Respondent wished to present could have been
presented at the hearing as could the financial information for
mitigation of the penalty.
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(IV.H.1) IV. CIVIL ADMINISTRATIVE PROCESS
Ruling:
All available administrative remedies must be exhausted before the
parties may resort to judicial remedies unless the administrative
procedure is inadequate to prevent injury or when there is a clear
and unambiguous statutory or constitutional violation.
b. In re: Mexico Feed and 'Seed Company. Inc. and Jack Pierce
d/b/a Pierce Waste Oil Services. TSCA Docket No. VII-84-T-312,
Final Decision (1986)
Background:
Mexico Feed appealed first to the Administrator and then to the
District Court. Both upheld the Initial Decision after reviewing
the record below.
Ruling:
On appeal, analysis of the sufficiency of the evidence is guided by
the standard of whether the issue has been resolved by a
preponderance of the evidence. Questions of fact raising issues of
credibility among competing witnesses are to be determined, in the
first instance, by the Presiding Officer based upon his first-hand
observation of the testimony. Absent overwhelmingly compelling
reasons to the contrary, deference is accorded to the Presiding
Officer's determinations of credibility.
c. In re: Baker. Bean, and Feed Company. FIFRA Docket No. VIII-
240C Order Denying Motion to Suppress
Background:
Respondent filed a motion to suppress evidence stating that the
search of its facility was illegal. EPA objected on the grounds that
ALJs are not empowered to rule on constitutional issues. The ALJ
denied Respondent's motion but clarified the authority of the ALJ
to rule on such matters.
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IV. CIVIL ADMINISTRATIVE PROCESS (IV.H.1)
Ruling:
• Ruling on the constitutionality of congressional enactments
is beyond the jurisdiction of the Administrative Law Judge.
• Ruling on constitutional issues such as admissibility of
evidence is within the scope of the Administrative Law
Judge's authority.
d. In re: Pueblo Chemical and Supply. IF&R Docket No. VI-98C
Background:
Pueblo Chemical shipped a canceled pesticide in violation of a stop
sale order in unmarked drums. A complaint was issued for
misbranding.
Ruling: *
Pueblo asserted as a defense that under FIFRA section 9(c), it
should have been given notice that EPA intended to issue a
complaint. The court dismissed the defense finding no such
advance notice was required. Pueblo also asserted that the case
against it should be dropped because the aerial applicator who
received the drums was not prosecuted. The ALJ dismissed the
defense as having no bearing on the facts of this case.
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CIVIL ADMINISTRATIVE PROCESS
EXAMPLES
-------
IV. CIVIL ADMINISTRATIVE PROCESS
EXAMPLES
IV. B. Example Complaint with Confidential Information
IV.F. Example Consent Agreement Schedule of Activities
IVE-1
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UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY
IN THE MATTER OF: )
ESTRON CHEMICAL, INC. )
CALVERT CITY, KENTUCKY ) Docket No. TSCA 88-H-08
Respondent. )
Notice of Treatment of Confidential Business Information
Portions of the attached Complaint require use of information
which Respondent submitted to the United States Environmental
Protection Agency (EPA) as Confidential Business Informatipn (CBI),
Information in the Complaint constituting or based on CBI has
been deleted as indicated by the following: (CBI deleted). The
original complaint containing CBI is filed with the Headquarters
Hearing Clerk. It will itself be treated as confidential unless
Respondent waives confidentiality thereto or EPA releases the
information in accordance with 40 C.F.R. Part 2.
IVE-3
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UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY
IN THE MATTER OF:
ESTRON CHEMICAL, INC.
CALVERT CITY, KENTUCKY
Respondent
Docket No. TSCA-88-H-08
COMPLAINT AND NOTICE OF
OPPORTUNITY FOR"HEARING
UNDER SECTION 16(a) OF
THE TOXIC SUBSTANCES
CONTROL ACT
COMPLAINT
This is a civil administrative action issued under the
authority of Section 16(a) of the Toxic Substances Control Act,
15 U.S.C. 2601 et sea, (hereinafter "TSCA"). The Complainant
is Connie A. Musgrove, Chief Executive Officer, Office of Compliance.
Monitoring, Office of Pesticides and Toxic Substances, United
States Environmental Protection Agency (hereinafter "EPA" or "the
Agency"), who has been duly delegated the authority to institute
this action. The Respondent is Estron Chemical, Inc., 1130 Route
46 West, Parsippany, New Jersey (hereinafter "Respondent").
This Complaint serves as notice that Complainant has reason
to believe that Respondent manufactured a chemical substance in
violation of Section 5 of TSCA, 15 U.S.C. Section 2604, and Section
15 of TSCA, 15 U.S.C. Section 2614, as follows:
IVE-4
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COUNTS I THRO XII
1. Respondent is included in the word "Person" as defined in
40 CFR 720.3(x) and as such is subject to TSCA and the
regulations promulgated thereunder.
2. On or about September 11, 1987, an inspection of Respondent's
«
facility located in (CBI deleted), was performed
by an authorized employee of EPA pursuant to Section 11
of TSCA. The purpose of the inspection was to determine
Respondent's compliance with TSCA §5 requirements.
3. As a result of the inspection Respondent provided EPA
with copies of records covering the production of the
new chemical substance (CBI deleted) , hereinafter
known as Chemical A. Chemical A is also known as
(CBI deleted). '
4. The production records that Respondent provided the Agency
reveal that between (CBI deleted) respondent produced
Chemical A for commercial purposes on (CBI deleted)
seperate days. During this period Respondent manufactured
a total of (CBI deleted), of Chemical A.
5. On the dates stated in paragraph 4, the chemical substance,
Chemical A, did not appear on the Chemical Substance
Inventory maintained by the Administrator pursuant to 15
U.S.C. 2607.
IVE-5
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-2-
6. Section 5(a)(l) of TSCA, 15 O.S.C. 2604(a)(l), provides
that no person may manufacture a chemical substance which
•.
does not appear on the TSCA Chemical Substance Inventory
unless such person submits a Premanufacture Notification
to the Administrator of EPA at least 90 days before such
manufacture. Respondent's Premanufacture Notification to
the Administrator for Chemical A was received by the Agency
for review on (CBI deleted). The review period for
Chemical A expired (CBI deleted).
7. Section 15(1)(B) of TSCA, 15 U.S.C. 2614(1)(B), provides that
it is unlawful for any person to fail or refuse to comply with
any requirement prescribed by Section 5.
8. The conduct described in Paragraph 4 above was in violation
of Sections 5(a)(l) and 15(1)(B) of TSCA, in that Respondent
failed to notify the Administrator of the manufacture the
chemical substance, Chemical A, at least 90 days before
manufacturing Chemical A.
IVE-6
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-3-
COUNT XIII
1-3. Paragraphs 1 through 3 of Count I are hereby incorporated
by reference as if fully set forth in this Count.
•.
4. 40 CFR 720.102 was promulgated pursuant to Section 5 of TSCA.
It requires that any person who commences to manufacture a new
chemical substance for a commercial purpose for which that person
previously submitted a Premanufacture Notification under
Section 5 of TSCA must submit a notice of commencement of
manufacture to the Administrator of EPA on or no later than
thirty days after beginning manufacture of the new chemical
substance for commercial purposes.
5. Respondent's Premanufacture Notification to the Administrator
(CBI deleted) for Chemical A was received by the Agency on (CBI
deleted). The review period for Chemical A expired (CBI deleted)
6. The production records that Respondent provided the Agency
reveal that on (CBI deleted), Respondent began manufacture of
Chemical A for commercial purposes. On (CBI deleted), Chemical
A did not appear on the Chemical Substance Inventory maintained
by the Administrator pursuant to 15 U.S.C. 2607.
7. Respondent did not submit a notice of commencement within
thirty calendar days after beginning the manufacture of the
new chemical substance, Chemical A, for commercial purposes as
reauired under S40 CFR 720.102.
IVE-7
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-4-
8. Section 15(1)(C) of TSCA, 15 O.S.C. 2614(1)(C), provides
that it is unlawful for any person to fail or refuse to
comply with any rule promulgated or order issued under
Section 5 or 6. Section 15(3)(B) of TSCA, 15 O.S.C.
2614(3)(B) provides that it is unlawful for any person
to fail or refuse to submit reports, notices or other
information as required by the Act.
9. The conduct described in Paragraph 7 was in violation of
40 C.F.R. 720.102 and S5 15(1)(C), and 15(3)(B) of TSCA,
in that Respondent did not submit a notice of commencement to
the Administrator within 30 calendar days after beginning
the commerical manufacture of the new chemical substance,
Chemical A, as reauired.
IVE-8
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-5-
PROPOSED CIVIL PENALTY
Section 16 of TSCA, 15 O.S.C. Section 2615, authorizes the
assessment of a civil penalty of up to .$25,000 per day for each
violation of TSCA. Based upon the facts alleged in this Complaint,
a-nd—upon the nature, circumstances, extent and gravity of the
violations alleged, as well as Respondent's history of prior
violations of TSCA, the degree of culpability, and such other
matters as justice may require, the Complainant proposes that
Respondent be assessed the following civil penalty for the
violations alleged in this Complaint:
COUNTS I THRU XII
»
Manufacture of a chemical substance which did not appear
on the TSCA Chemical Substance Inventory on twelve separate
days $120,000
15 O.S.C. 2604(a)(l)
15 O.S.C. 2614(1)(B)
COONT XIII
Failure to file a notice of commencement on or no later than
30 calendar days after beginning commercial manufacture of a
new chemical substance for which a Premanufacture Notification
had been filed , $15,000
15 O.S.C. 2604(a)(1)
15 O.S.C. 2614(1)(C)
15 O.S.C. 2614(3)(B)
TOTAL PROPOSED PENALTY .$135,000
IVE-9
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-6-
NOTICE OF OPPORTUNITY TO
REQUEST A HEARING
As provided in Section 16(a)(2)(A) of TSCA, and in
accordance with 554 of Title 5, United States Code/ you have
the right to request a formal hearing 'to contest any material
fact set forth in this Complaint or to contest the appropriate-
ness—of" th~e proposed penalty. To avoid being found in default
and having the above-cited penalty assessed without further
proceedings/ you must file a written Answer within twenty (20)
days "of your receipt of this Complaint. Your Answer should
(1) clearly and directly admit/ deny/ or explain each of the
factual allegations contained in this Complaint/ (2) briefly
state all facts and circumstances/ if any/ which constitute
grounds for a defense, and (3) specifically request an
administrative hearing (if desired). The denial of any
material fact or the raising of any affirmative defense shall
be construed as a request for hearing. Failure to deny any
of the factual allegations in this Complaint will constitute
an admission of the undenied allegations. The Answer should
be sent to:
Headquarters Hearing Clerk (A-110)
United States Environmental
Protection Agency
401 M Street/ S.W./ Room 3706
Washington/ DC 20460
The hearing which will be held upon your request will be
conducted in accordance with the Administrative Procedure Act
IVE-10
-------
-5-
PROPOSED CIVIL PENALTY
Section 16 of TSCA, 15 O.S.C. Section 2615, authorizes the
assessment of a civil penalty of up to<$25fOOO per day for each
violation of TSCA. Based upon the facts alleged in this Complaint,
and upon the nature, circumstances, extent and gravity of the
violations alleged, as well as Respondent's history of prior
violations of TSCA, the degree of culpability, and such other
matters as justice may require, the Complainant proposes~that~
Respondent be assessed the following civil penalty for the
violations alleged in this Complaint:
COUNTS I THRU XII
Manufacture of a chemical substance which did not appear
i
on the TSCA Chemical Substance Inventory on twelve separate
days $120,000
15 O.S.C. 2604(a)(l)
15 O.S.C. 2614(1)(B)
COONT XIII
Failure to file a notice of commencement on or no later than
30 calendar days after beginning commercial manufacture of a
new chemical substance for which a Premanufacture Notification
had been filed $15,000
15 U.S.C. 2604(a)(1)
15 O.S.C. 2614(1)(C)
15 O.S.C. 2614(3)(B)
TOTAL PROPOSED PENALTY , $135,000
IVE-9
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-6-
NQTICE OF OPPORTUNITY TO
REQUEST A HEARING
As provided in Section 16(a)(2)(A) of TSCA, and in
accordance with 554 of Title 5, United States Code, you have
the right to request a formal hearing 'to contest any material
fact set forth in this Complaint or to contest the appropriate-
ness of the proposed penalty. To avoid being found in default
and having the above-cited penalty assessed without further
proceedings, you must file a written Answer within twenty (20)
days of your receipt of this Complaint. Your Answer should
(1) clearly and directly admit, deny, or explain each of the
factual allegations contained in this Complaint, (2) briefly
state all facts and circumstances, if any, which constitute
grounds for a defense, and (3) specifically request an
administrative hearing (if desired). The denial of any
material fact or the raising of any affirmative defense shall
be construed as a request for hearing. Failure to deny any
of the factual allegations in this Complaint will constitute
an admission of the undenied allegations. The Answer should
be sent to:
Headquarters Hearing Clerk (A-110)
United States Environmental
Protection Agency
401 M Street, S.W., Room 3706
Washington, DC 20460
The hearing which will be held upon your request will be
conducted in accordance with the Administrative Procedure Act
IVE-10
-------
-5-
PROPOSED CIVIL PENALTY
Section 16 of TSCA, 15 O.S.C. Section 2615, authorizes the
assessment of a civil penalty of up to $25,000 per day for each
• •
violation of TSCA. Based upon the facts alleged in this Complaint,
and upon the nature, circumstances, extent and gravity of the
violations alleged, as well as Respondent's history of prior
violations of TSCA, the degree of culpability, and such other
matters as justice may require, the Complainant proposes that
Respondent be assessed the following civil penalty for the
violations alleged in this Complaint:
COUNTS I THRU XII
Manufacture of a chemical substance which did not appear
on the TSCA Chemical Substance Inventory on twelve separate
days $120,000
15 O.S.C. 2604(a)(l)
15 O.S.C. 2614(1)(B)
COONT XIII
Failure to file a notice of commencement on or no later than
30 calendar days after beginning commercial manufacture of a
new chemical substance for which a Premanufacture Notification
had been- filed $15,000
15 O.S.C. 2604(a)(1)
15 O.S.C. 2614(1)(C)
15 O.S.C. 2614(3)(B)
TOTAL PROPOSED PENALTY ..$135,000
IVE-9
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-6-
NOTICE OF OPPORTUNITY TO
REQUEST A HEARING
As provided in Section 16(a)(2)(A) of TSCA, and in
accordance with 554 of Title 5, United States Code/ you have
the right to request a formal hearing 'to contest any material
fact set forth in this Complaint or to contest the appropriate-
ness of the proposed penalty. To avoid being found in default
and having the above-cited penalty assessed without further
proceedings, you must file a written Answer within twenty (20)
days of your receipt of this Complaint. Your Answer should
(1) clearly and directly admit, deny, or explain each of the
factual allegations contained in this Complaint, (2) briefly
state all facts and circumstances, if any, which constitute
grounds for a defense, and (3) specifically request an
administrative hearing (if desired). The denial of any
material fact or the raising of any affirmative defense shall
be construed as a request for hearing. Failure to deny any
of the factual allegations in this Complaint will constitute
an admission of the undenied allegations. The Answer should
be sent to:
Headquarters Hearing Clerk (A-110)
United States Environmental
Protection Agency
401 M Street, S.W., Room 3706
Washington, DC 20460
The hearing which will be held upon your request will be
conducted in accordance with the Administrative Procedure Act
IVE-10
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— 5—
PROPOSED CIVIL PENALTY
Section 16 of TSCA, 15 O.S.C. Section 2615, authorizes the
assessment of a civil penalty of up to<$25,000 per day for each
violation of TSCA. Based upon the facts alleged in this Complaint,
and upon the nature/ circumstances, extent and gravity of the
violations alleged, as well as Respondent's history of prior
violations of TSCA, the.degree of culpability, and such other
matters as justice may require, the Complainant proposes that
Respondent be assessed the following civil penalty for the
violations alleged in this Complaint:
COUNTS I THRU XII
Manufacture of a chemical substance which did not appear
on the TSCA chemical Substance Inventory on twelve separate
days $120,000
15 O.S.C. 2604(a)(l)
15 O.S.C. 2614(1)(B)
COUNT XIII
Failure to file a notice of commencement on or no later than
30 calendar days after beginning commercial manufacture of a
new chemical substance for which a Premanufacture Notification
had been filed $15,000
15 U.S.C. 2604(a)(1)
15 O.S.C. 2614(1)(C)
15 O.S.C. 2614(3)(B)
TOTAL PROPOSED PENALTY $135,000
I7E-9
-------
-6-
NOTICE OF OPPORTUNITY TO
REQUEST A HEARING
As provided in Section 16(a)(2)(A) of TSCA, and in
accordance with 554 of Title 5, United States Code, you have
the right to request a formal hearing 'to contest any material
fact set forth in this Complaint or to contest the appropriate-
ness of the proposed penalty. To avoid being found in default
and having the above-cited penalty assessed without further
proceedings/ you must file a written Answer within twenty (20)
days of your receipt of this Complaint. Your Answer should
(1) clearly and directly admit, deny, or explain each of the
factual allegations contained in this Complaint, (2) briefly
state all facts and circumstances, if any, which constitute
grounds for a defense, and (3) specifically request an
administrative hearing (if desired). The denial of any
material fact or the raising of any affirmative defense shall
be construed as a request for hearing. Failure to deny any
of the factual allegations in this Complaint will constitute
an admission of the undenied allegations. The Answer should
be sent to:
Headquarters Hearing Clerk (A-110)
United States Environmental
Protection Agency
401 M Street, S.W., Room 3706
Washington, DC 20460
The hearing which will be held upon your request will be
conducted in accordance with the Administrative Procedure Act
IVE-10
-------
-5-
PROPOSED CIVIL PENALTY
Section 16 of TSCA, 15 O.S.C. Section 2615, authorizes the
assessment of a civil penalty of up to ,$25,000 per day for each
violation of TSCA. Based upon the facts alleged in this Complaint,
and upon the nature, circumstances, extent and gravity of the
violations alleged, as well as Respondent's history of prior
violations of TSCA, the degree of culpability, and such other
matters as justice may require, the Complainant proposes that
Respondent be assessed the following civil penalty for the
violations alleged in this Complaint:
COUNTS I THRU XII
Manufacture of a chemical substance which did not appear
on the TSCA Chemical Substance Inventory on twelve separate
days $120,000
15 O.S.C. 2604{a)(l)
15 O.S.C. 2614(1)(B)
COUNT XIII
Failure to file a notice of commencement on or no later than
30 calendar days after beginning commercial manufacture of a
new chemical substance for which a Premanufacture Notification
had been filed.... $15,000
15 U.S.C. 2604(a)(1)
15 O.S.C. 2614(1)(C)
15 O.S.C. 2614(3)(B)
TOTAL PROPOSED PENALTY $135,000
IVE-9
-------
-6-
NOTICE OF OPPORTUNITY TO
REQUEST A HEADING
As provided in Section 16(a)(2)(A) of TSCA, and in
accordance with 554 of Title 5, United States Code, you have
the right to request a formal hearing "to contest any material
fact set forth in this Complaint or to contest the appropriate-
ness of the proposed penalty. To avoid being found in default
and having the above-cited penalty assessed without further
proceedings, you must file a written Answer within twenty (20)
days of your receipt of this Complaint. Your Answer should
(1) clearly and directly admit, deny, or explain each of the
factual allegations contained in this Complaint, (2) briefly
state all facts and circumstances, if any, which constitute
grounds for a defense, and (3) specifically request an
administrative hearing (if desired). The denial of any
material fact or the raising of any affirmative defense shall
be construed as a request for hearing. Failure to deny any
of the factual allegations in this Complaint will constitute
an admission of the undenied allegations. The Answer should
be sent to:
Headquarters Hearing Clerk (A-110)
United States Environmental
Protection Agency
401 M Street, S.W., Room 3706
Washington, DC 20460
The hearing which will be held upon your request will be
conducted in accordance with the Administrative Procedure Act.
IVE-10
-------
-7-
(5 U.S.C. Section 551 et seq.) and the "Consolidated Rules of
Practice Governing the Administrative Assessment of Civil
Penalties and the Revocation or Suspension of Permits" 40 CFR
Part 22 (45 PR 24360). A copy of the Consolidated Rules
•.
accompanies this Complaint.
INFORMAL SETTLEMENT CONFERENCE
Whether or not you request a hearing, you may confer
informally with EPA to discuss the facts of this case, or amount
of the proposed penalty, and the possibility of settlement. An
informal settlement conference does not, however, affect your
obligation to file a written Answer to the Complaint.
EPA has the authority to modify the amount of the proposed
penalty, where appropriate, to reflect any settlement reached
with you in an informal conference. The terms of such an
agreement would be embodied in a Consent Agreement and Final
Order. A Consent Agreement signed by EPA and yourself would
be binding as to all terms and conditions specified therein.
Any requests for an informal conference, copies of all
documents to be filed by Respondent, and any other questions
that you may have regarding this Complaint should be directed to;
Mr. Vincent Giordano
U.S. Environmental Protection Agency
Toxics Litigation Division (LE-134P)
Room 113 Northeast Mall
401 M Street, S.W.
Washington, D.C. 20460
(202) 475-8690
IVE-11
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-8-
PAYMENT OF PENALTY
Instead of filing an Answer requesting a hearing or requesting
an informal settlement conference, you may choose to pay the pro-
posed penalty. Such payment should be made by sending to the
Headquarters Hearing Clerk's address listed below a cashier's
or certified check in the amount of the penalty assessed in this
Complaint. Your check must be made payable to the United
States of America and sent to:
EPA-Washington
(Hearing Clerk)
P.O. Box 360277M
Pittburgh, PA 15251
UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY
Complainant
BY:
Connie A\J
Chier*^ Executive Officer
Office of Compliance Monitoring (EN-342)
Date:
IVE-12
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.IV.F. EXAMPLE CONSENT AGREEMENT SCHEDULE OF ACTIVITIES
CONSENT AGREEMENT - SCHEDULE OF ACTIVITIES
(Effective date November 3, 1987)
Day *l
.60
('January 2, 1988)
Provision in
the Consent
Agreement
Activity Received
Scope of Work (Audit) 1/4/88
Outline & Schedule for 1/4/88
Employee -Training (USA)
Agenda & Schedule* Tor 1/4/88
Training in UK
Stipulated
Penalties
SlOO/day
$100/day
90
(February 1, 1988)
120
(March 2, 1988)
180
(Ma\M^ 1988)
210
(May 31, 1988)
270
(July 30, 1988)
290
(August 19, 1988)
Pay $84,000 civil penalty
Plan/Schedule for test inputs
Interim Report #1 (Audit)
Complete Training (USA)
Letters sent to Customs
Procedures developed for
- PMNs and their submissions
- Determining Status of
proposed imports
- Bonaf ide Intent Letters
Interim Report #2 (Audit)
Guidance Manual to EPA
Develop & Implement Import
Agreement with:
- Suppliers
- Affiliated companies .
Complete Test Inputs
Complete Training in UK
Interim Report #3 (Audit)
Attorney's Report re: UK
Establish Procedures
Termination Date of Audit
12/10/87
2/1/88
2/1/88
3/2/88
3/2/88
3/2/88
4/2/88
4/2/88
4/2/88
(Sent in
5/31/88
7/29/88
8/1/88
SlOO/day
$50/day
550/day
550/day
$100/day
$50/day
CBI)
$100/day
$100/day
SSOO/day
325
(September 23, 1988)
Final Report to EPA
9/23/88
IVE-13
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CONSENT AGREEMENT - SCHEDULE OF ACTIVITIES
Day
60
,JAugust 30, 1987)
Provision in
the Consent
Agreement
Activity Received
Pay $1,000,000 civil penalty 8/17/87
Stipulated
Penalties
**90
(September 29, 1987)
180
(December 28, 1987
270
(March 27, 1988)
360
(June 25, 1988)
420
(August 24, 1988)
465
(October 8, 1988)
* Day /I is Julv 1. 1987
Summary of Past Employee
Training Sessions
Schedule of Future Employee
Training Sessions
Schedule for EPA to perform
Seminar for Semi-conductor
* List of Trade Magazines for
Public Service' Announcements
Published
* Interim Report #1 .
(on* Roport&ble Event - 8(c))
Guidance Manual to EPA
(mailed 12/22/87)
* Interim Report #2
(No Reportable Event)
* Interim Report #3
(one Reportable Event
per letter - S, PUN)
Interim Report #4
Termination of Survey
Final Report
which is the first day after the effectiv
8/19/87
8/19/87
8/10/87
9/1/87
4/15/88
9/22/87
12/29/87
12/14/87
3/ /88
6/22/88
10/3/88
e date (June
$100/day
$100/day
$50/day
$50/day
$250/day
up to
$50,000
$50/day
$250/day
up to
$50,000
$250/day
up to
$50,000
$250/day
up to
$50,000
$100/day
up to
$15,000
$250/day
up to
$50,000
30, 1987) of
the CAFO in this matter.
** Days for these training sessions will be added to the compliance schedule at day 90.
IVE-14
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V
OTHER ACTIONS
\ * f
-------
V. OTHER ACTIONS
A. SEIZURES
B. STOP SALE, USE, AND REMOVAL ORDERS
C. RECALL
D. CIVIL JUDICIAL PROCEEDINGS
*
E. CRIMINAL PROCEEDINGS
F. NOTICE OF WARNING/NOT^ CJE _OF
NONCOMPLIANCE/NOTICE OF CONTEMPLATED
PROCEEDINGS
-------
V. OTHER ACTIONS
A. SEIZURES
1. Statutory/Regulatory Requirements
FCFRA Section 13:
(b) Seizure.—Any pesticide or device that is being transported, or having
been transported, remains unsold of in original unbroken packages, or that
is sold or offered for sale in any State, or that is imported from a foreign
country, shall be liable to be proceeded against in any district court in the
district where it is found and seized for confiscation by a process in rem
for condemnation if—
(1) in the case of a pesticide—
(A) it is adulterated or misbranded;
(B) it is not registered pursuant to the provisions of section 3;
(C) its labeling fails to bear the information required by this Act;
(D) it is not colored or discolored and such coloring or discoloring is required
under this Act; or
(E) any of the claims made for it or any of the directions for its use differ in
substance from the representations made in connection with its registration;
(2) in the case of a device, it is misbranded; or
(3) in the case of a pesticide or device, when used in accordance with
the requirements imposed under this Act and as directed by the labeling,
it nevertheless causes unreasonable adverse effects on the environment.
In the case of a plant regulator, defoliant, or desiccant, used in accordance
with the label claims and recommendations, physical or physiological
effects on plants or parts thereof shall not be deemed to be injury, when
such effects are the purpose for which the plant regulator, defoliant, or
desiccant was applied.
(c) Disposition after condemnation.—If the pesticide of device is
condemned it shall, after entry of the decree, be disposed of by
destruction or sale as the court may direct and the proceeds, if sold, less
the court costs, shall be paid into the Treasury of the United States, but
the pesticide or device shall not be sold contrary to the provisions of this
Act or the laws of the jurisdiction in which it is sold. On payment of the
costs of the condemnation proceedings and the execution and delivery of
a good and sufficient bond conditioned that the pesticide or device shall
not be sold or otherwise disposed of contrary to the provisions of the Act
or the laws of any jurisdiction in which sold, the court may direct that
such pesticide or device be delivered to the owner thereof. The
proceedings of such condemnation cases shall conform, as near as may be
to the proceedings in admiralty, except that either party may demand trial
V-l
-------
'V. OTHER ACTIONS (V.A.1)
by jury of any issue of fact joined in any case, and all such proceedings
shall be at the suit of and in the name of the United States.
(d) Court costs, etc.—When a decree of condemnation is entered against
the pesticide or device, court costs and fees, storage, and other proper
expenses shall be awarded against the person, if any, intervening as
claimant of the pesticide or device.
TSCA Section 17(b):
Seizure.—Any chemical substance or mixture which was manufactured,
processed, or distributed in commerce in violation of this Act or any rule
promulgated or order issued under this Act or any article containing such
a substance or mixture shall be liable to be proceeded against, by process
of libel for the seizure and condemnation of such substance, mixture, or
article, in any district court of the United States within the jurisdiction of
which substance, mixture, or article is found. Such proceedings shall
conform as nearly as possible to proceedings in rem in admiralty.
2. Case Law
None.
3. Special Considerations
Seizure is a rarely used remedy and has several drawbacks:
• the time to complete the process is far longer than for issuance of
a stop sale;
• the seizure extends only to the goods at the particular site of
seizure; and
• if unclaimed, the goods become the property of the government
and must be disposed of at the taxpayers' expense.
4. Process
a. Consult with Attorney to discuss:
• advisability of implementing seizure action; and
• potential for alternative actions.
V-2
-------
(V.A.4) V. OTHER ACTIONS
b. Prepare a draft complaint.
c. Assist Attorney in preparing referral package.
d. Monitor compliance with seizure and any reconditioning of the
goods.
e. Maintain a record of Agency costs for possible reimbursement.
V-3
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V. OTHER ACTIONS
B. STOP SALE, USE, AND REMOVAL ORDERS
1. Statutory/Regulatory Requirements
FEFRA Section 13(a):
Stop sale, etc., orders.—Whenever any pesticide or device is found by the
Administrator in any State and there is reason to believe on the basis of
inspection or tests that such pesticide or device is in violation of any of
the provisions of this Act, or that such pesticide or device has been or is
intended to be distributed or sold in violation of any such provision, or
when the registration of the pesticide has been canceled by a final order
or has been suspended, the Administrator may issue a written or printed
"stop sale, use, or removal" order to any person who owns, controls, or
has custody of such pesticide or device, and after receipt of such order no
person shall sell, use, or remove the pesticide or device described in the
order except in accordance with the provisions of the order.
2. Case Law
a. In re: Fleming and Company. I.F. & R. Docket Nos. VH-92C
and VH-135C, Initial Decision (1977)
Background:
The President of Fleming testified that its violation of the Stop
Sale Order was the result of an unusual circumstance and not a
deliberate or conscious effort to the violate the Order. The judge
found this was not a defense.
Ruling:
Shipment of "returned" goods to another customer constitutes
removal from custody and control, and sale in violation of the Stop
Sale, Use, or Removal order.
b. In re: Coharie Mill and Supply Company. Inc.. I.F. & R. Docket
No. -04-8545-C
Background:
An EPA inspector found 14 cans of a suspended EBD pesticide.
A Stop Sale and Removal Order was issued and Coharie buried the
V-4
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(V.B) V. OTHER ACTIONS
cans. Coharie argued it had not been told how to dispose of the
product.
Ruling:
Burial of a pesticide under stop sale was not justified
notwithstanding that:
• the order contained no reference to disposal;
• a state inspector told the distributor to get rid of the
pesticide; and
• the cans were deteriorating.
The order's key word is "removed." The terms of the order were
sufficient to place upon the distributor the duty of inquiring of
EPA the proper method of disposal of the pesticide.
3. Special Considerations
Stop sale, use, and removal orders may be issued any time a pesticide is
in violation of the Act. However, stop sale, use, and removal orders are
generally reserved for situations involving a potential hazard to health or
the environment. A stop sale order:
• can be expeditiously issued on the basis of a "reason to believe"
a hazard'exists;
• extends to all of the pesticide material under the custody or control
of the person; and
• keeps the responsibility for disposal of the material with the person
receiving the order.
4. Process
a. Identify violation and develop evidence to support the existence of
a violation.
b. Prepare a complete description of the material to be stop saled
including batch codes.
V-5
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V. OTHER ACTIONS
c. Prepare and issue the stop sale.
d. Monitor compliance with the order.
e. Vacate the order upon disposal or reconditioning of the material.
V-6
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V. OTHER ACTIONS
C. RECALL
1. Statutory/Regulatory Requirements
FEFRA Section 19(b):
Recalls.—(I) In general.—If the registration of a pesticide has been
suspended or canceled under section 6, and if the Administrator finds that
recall of the pesticide is necessary to protect health or the environment,
the Administrator shall order a recall of the pesticide in accordance with
this subsection.
(2) Voluntary recall.—If, after determining under paragraph (1) that a
recall is necessary, the Administrator finds that voluntary recall by the
registrant and others in the chain of distribution may be as safe and
effective as a mandatory recall, the Administrator shall request the
registrant of the pesticide to submit, within 60 days of the request, a plan
for the voluntary recall of the pesticide. If such a plan is requested and
submitted, the Administrator shall approve the plan and order the
registrant to conduct the recall in accordance with the plan unless the
Administrator determines, after an informal hearing that the plan is
inadequate to protect health or the environment.
(3) Mandatory recall.—If, after determining under paragraph (1) that a
recall is necessary, the Administrator does not request the submission of
a plan under paragraph (2) or finds such a plan to be inadequate, the
Administrator shall issue a regulation that prescribes a plan for the recall
of the pesticide. A regulation issued under this paragraph may apply to
any person who is or was a registrant, distributor, or seller of the
pesticide, or any successor in interest to such a person.
(4) Recall procedure.—A regulation issued under this subsection may
require any person that is subject to the regulation to—
(A) arrange to make available one or more storage facilities to receive and store
the pesticide to which the recall program applies, and inform the Administrator
of the location of each such facility;
(B) accept and store at such a facility those existing stocks of such pesticide that
are tendered by any other person who obtained the pesticide directly or indirectly
from the person that is subject to such regulation;
(Q on the request of a person making such a tender, provide for proper
transportation of the pesticide to a storage facility; and
(D) take such reasonable steps as the regulation may prescribe to inform
persons who may be holders of the pesticide of the terms of the recall regulation
and how those persons may tender the pesticide and arrange for transportation
of the pesticide to a storage facility.
(5) Contents of recall plan.-A recall plan established under this
subsection shall include—
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V. OTHER ACTIONS
(A) die level in the distribution chain to which the recall is to extend, and a
schedule for recall; and
(B) die means to be used to verify the effectiveness of the recall.
(6) Requirements or procedures.—No requirement or procedure imposed
in accordance with paragraph (2) of subsection (a) may require the recall
of existing stocks of pesticides except as provided by this subsection.
2. Case Law
None.
3. Special Considerations
The voluntary/mandatory statutory recall provision was added to FIFRA
in 1988 and relates only to pesticides suspended and canceled under
section 6. Prior to 1988, the Agency requested informal/formal recalls
for pesticides that were suspended, canceled, or ineffective, or presented
a hazard. Though not supported by statute, this voluntary program came
about as a result of congressional hearings. Informal/formal recalls
provide the most expeditious means of removing pesticides from channels
of trade and may continue to be used for these purposes. Failure to
comply with an informal/formal recall will result in the issuance of a stop
sale, use, or removal order to the consignees of the pesticide in question.
4. Process
a. Identify the violation and develop evidence to support the violation
and the hazard presented.
b. Prepare a complete description of the material to be recalled and
the level in the distribution chain to which the recipient will be
requested to remove the product.
c. Prepare and issue the recall.
d. Monitor the quantities from each location returned.
e. Monitor the disposition of all returned material.
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V. OTHER ACTIONS
D. CIVIL JUDICIAL PROCEEDINGS
1. Statutory/Regulatory Requirements
FTFRA Section 16(c):
(c) Jurisdiction of district courts.—The district courts of the United States
are vested with jurisdiction specifically to enforce, and to prevent and
restrain violations of this Act.
(d) Notice of judgments.-The administrator shall by publication in such
manner as he may prescribe, give notice of all judgments entered in
actions instituted under the authority of this Act.
TSCA Section 17a:
Specific enforcement. —(1) The district courts of the United States shall
have jurisdiction over civil actions to—
(A) restrain any violation of section IS,
(B) restrain any person from taking any action prohibited by section 5 or 6 or
by a rule or order under section 5 or 6,
(C) compel the taking of any action required by or under this Act, or
(D) direct any manufacturer or processor of a chemical substance or mixture
manufactured or processed in violation of section 5 or 6 or a rule or order under
section 5 or 6 and distributed in commerce, (i) to give notice of such fact to
distributors in commerce of such substance or mixture and, to the extent
reasonably ascertainable, to other persons in possession of such substance or
mixture or exposed to such substance or mixture, (ii) to give public notice of
such risk of injury, and (iii) to either replace or repurchase such substance or
mixture, whichever the person to which the requirement is directed elects.
(2) A civil action described in paragraph (1) may be brought—
(A) in the case of a civil action described in subparagraph (A) of such
paragraph, in the United States district court for the judicial district wherein any
act, omission, or transaction constituting a violation of section 15 occurred or
wherein the defendant is found or transacts business, or
(B) in the case of any other civil action described in such paragraph, the United
States district court for the judicial district wherein the defendant is found or
transacts business.
In any such civil action process may be served on a defendant in any
judicial district in which a defendant resides or may be found. Subpoenas
requiring attendance of witnesses in any such action may be served in any
judicial district.
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V. OTHER ACTIONS (V.D)
TSCA Section 7:
(a) Actions authorized and required.-(\) The Administrator may
commence a civil action in an appropriate district court of the United
States-
(A) for seizure of an imminently hazardous chemical substance or mixture or
any article containing such a substance or mixture,
(B) for relief (as authorized by subsection (b)) against any person who
manufactures, processes, distributes in •commerce, or uses, or disposes of, an
imminently hazardous chemical substance or mixture or any article containing
such a substance or mixture, or
(C) for both such seizure and relief.
A civil action may be commenced under this paragraph notwithstanding
the existence of a rule under section 4, 5, or 6 or an order under section
5, and notwithstanding the pendency of any administrative or judicial
proceeding under any provision of this Act.
(2) If the Administrator has not made a rule under section 6(a)
immediately effective (as authorized by subsection 6(d)(2)(A)(i)) with
respect to an imminently hazardous chemical substance or mixture, the
Administrator shall commence in a district court of the United States with
respect to such substance or mixture or article containing such substance
or mixture a civil action described in subparagraph (A),(B), or (C) or
paragraph (1).
(b) Relief authorized.-^) The district court of the United States in which
an action under subsection (a) is brought shall have jurisdiction to grant
such temporary or permanent relief as may be necessary to protect health
or the environment from the unreasonable risk associated with the
chemical substance, mixture, or article involved in such action.
(2) In the case of an action under subsection (a) brought against a person
who manufactures, processes, or distributes in commerce a chemical
substance or mixture or an article containing a chemical substance or
mixture, the relief authorized by paragraph (1) may include the issuance
of a mandatory order requiring (A) in the case of purchasers of such
substance, mixture, or article known to the defendant, notification to such
purchasers of the risk associated with it; (B) public notice of such risk;
(C) recall; (D) the replacement or repurchase of such substance, mixture,
or article; or (£) any combination of the actions described in the preceding
clauses.
(3) In the case of an action under subsection (a) against a chemical
substance, mixture, or article, such substance, mixture, or article may be
proceeded against by process of libel for its seizure and condemnation.
Proceedings in such an action shall conform as nearly as possible to rem
in admiralty.
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(V.D.1) V. OTHER ACTIONS
(c) Venue and consolidation.—(1)(A) An action under subsection (a) against
a person who manufactures, processes or distributes a chemical substance or
mixture or an article containing a chemical substance or mixture may be brought
in the United States District Court for the District of Columbia or for any judicial
district in which any of defendants is found, resides, or transacts business; and
process in such an action may be served on a defendant in any other district in
which such defendant resides or may be found. An action under subsection (a)
against a chemical substance, mixture; or article may be brought in any United
States district court within the jurisdiction of which the substance, mixture, or
article is found.
(B) In determining the judicial district in which an action- may be brought-
under subsection (a) in instances in which such action may be brought in more
than one judicial district, the Administrator shall take into account the
convenience of the parties.
(C) Subpoenas requiring attendance of witnesses in an action brought under
subsection (a) may bfr served in-aay judicial district^-
(2) Whenever proceedings under subsection (a) involving identical
chemical substances, mixtures, or articles are pending in courts in two or
more judicial districts, they shall be consolidated for trial by order of any
such court upon application reasonably made by any party in interest,
upon notice to all parties in interest.
(d) Action under section 6.— Where appropriate, concurrently with the
filing of an action under subsection (a) or as soon thereafter as may be
practicable, the Administrator shall initiate a proceeding for the
promulgation of a rule under section 6(a).
(e) Representation.—Notwithstanding any other provision of law, in any
action under subsection (a), the Administrator may direct attorneys of the
Environmental Protection Agency to appear and represent the
administrator in such an action.
(f) Definition.--For the purpose of subsection (a), the term "imminently
hazardous chemical substance or mixture" means a chemical substance or
mixture which presents an imminent and unreasonable risk of serious or
widespread injury to health or the environment. Such a risk to health or
the environment shall be considered imminent if it is shown that the
manufacture, processing, distribution in commerce, use, or disposal of the
chemical substance or mixture, or that any combination of such activities
is likely to result in such injury to health or the environment before a final
rule under section 6 can protect against such risk.
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V. OTHER ACTIONS (V.D)
2. Case Law
a. United States of America v. Commonwealth Edison Co.. 620 F.
Supp. 1404 (D.C.ni 1985), Memorandum and Order Denying
Motions
Background:
In this PCB case, EPA alleged an imminent hazard for PCB spills
in a residential area. Commonwealth Edison argued a section 7
case could not be brought because PCB use was allowed under
TSCA and EPA had not yet set PCB cleanup levels. The court did
not find Commonwealth Edison's argument persuasive.
Ruling:
* EPA may bring Toxic Substances Control Act action under
section 7 against imminent hazard notwithstanding the
existence of a regulation governing the use of the
substance.
• EPA may bring Toxic Substances Control Act action under
section 7 to require clean up of an imminently hazardous
chemical substance even when there is no regulation
governing the substance to be promulgated.
• EPA may commence a civil action under section 7
notwithstanding the existence or the pendency, of any
administrative or judicial proceeding.
b. United States of America v. Texas Eastern Transmission
Corporation d/b/a Texas Eastern Gas Pipeline Company. Civil
Action No. H-88-1917 (Entered 1989)
Background:
The consent agreement between EPA and Texas Eastern was
entered by the District Court for the Southern District of Texas.
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V. OTHER ACTIONS (V.D.2)
Ruling:
Company consents to the assessment of a penalty, $15,000,000, in
a civil judicial proceeding pursuant to section 17 of TSCA.
c. United States of America v. Environmental International Electrical
Services. Inc.. Civil Action No. 88-2084-S, Consent Decree
(Entered 1988)
Background:
The court entered and retained jurisdiction over the Consent
Decree negotiated by EPA and E.I.E.S.
Ruling:
Consent Decree sets the terms for clean up and payment of
stipulated penalties of a civil administrative consent agreement and
consent order.
3. Special Considerations
Civil judicial action should be taken when:
• other remedies to stop a violation, such as a Stop Sale Order, have
not been effective;
• other remedies would be inadequate to stop or prevent the violation
or risk posed to health or the environment; or
• irreparable injury or loss will result if relief is not granted.
Civil administrative and civil judicial actions provide for different
remedies, penalties versus relief. Therefore in certain situations, parallel
proceedings may be warranted.
4. Process
a. Consult with Attorney to determine if civil judicial action is
appropriate.
V-13
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V. OTHER ACTIONS (V.D.4)
b. Develop evidence to support violation and/or risk posed and any
recalcitrance by violator.
c. Identify the type(s) of relief and possible alternatives required and
the basis for each type of relief.
d. Assist Attorney in the development of the referral package.
«
e. Prepare for trial.
f. Develop plan and schedule for monitoring the activities to be
conducted in compliance with the decree or order.
V-14
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V. OTHER ACTIONS
E. CRIMINAL PROCEEDINGS
1. Statutory/Regulatory Requirements
FIFRA Section 14 (b):
Criminal penalties.-(1) In general.—
(A) Any registrant, applicant for a registration, or producer who knowingly
violates any provision of this Act shall be fined not more than $50,000 or
imprisoned for not more than 1 year, or both.
(B) Any commercial applicator of a restricted use pesticide, or any other person
not described in subparagraph (A) who distributes or sells pesticides or devices,
who knowingly violates any provision of this Act shall be fined not more than
$25,000 or imprisoned for not more than 1 year, or both.
(2) Private applicator.—Any private applicator or other person not
included in paragraph (1) who knowingly violates any provision of this
Act shall be guilty of a misdemeanor and shall on conviction be fined not
more than $1,000, or imprisoned not more than 30 days, or both.
(3) Disclosure of information,,—Any person who, with intent to defraud,
uses or reveals information relative to formulas of products acquired under
the authority of section 3, shall be fined not more than $10,000, or
imprisoned for not more than 3 years, or both.
(4) Acts of officers, agents, etc.—When construing and enforcing the
provisions of this Act, the act, omission, or failure of any officer, agent,
or other person acting for or employed by any person shall in every case
be also deemed to be the act, omission, or failure of such person as well
as that of the person employed.
TSCA Section 16:
Penalties.—(b) Criminal.—Any person who knowingly or willfully violates
any provision of section 15 shall, in addition to or in lieu of any civil
penalty which may be imposed under subsection (a) of this section for
such violation, be subject, upon conviction, to a fine of not more than
$25,00 for each day of violation, or to imprisonment for not more than
one year, or both.
2. Case, Law
United States of America v. Kordel. 397 U.S.I, 11 (1970)
Background:
In this case, Kordel appealed his criminal conviction because it was based
largely on interrogatories he had answered in a civil proceeding. Kordel
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V. OTHER ACTIONS (V.E.2)
argued his 5th Amendment rights had been violated. The court disagreed,
noting he had not raised a 5th Amendment challenge to the interrogatories.
Ruling:
The government's use in criminal prosecution of evidence obtained
through interrogatories in a civil discovery proceeding did not violate the
corporate officer's fifth amendment privilege against self-incrimination
since the corporate officer had been notified of contemplated proceedings
and no claim of fifth amendment privilege had been made.
3. Special Considerations
The Agency has recently instituted a policy concerning the review of cases
for criminal action. Cases that may indicate knowing or willful violations
of the statute should be referred to the appropriate office for review by
criminal investigators. Criminal and civil proceedings have different
burdens of proof and degree of constitutional protections. Once potential
criminal activity is identified, the case is developed by the criminal staff.
If parallel civil and criminal proceedings are contemplated, separate staffs
are used to develop the cases.
4. Process
Criminal Review
It is EPA policy that civil Case Development Officers review cases for
possible criminal referral. These factors should be considered:
1. Knowing or willful behavior - not carelessness or negligent
behavior which is the result of not knowing or
understanding the law;
2. Evidence to establish all elements of the statutory offense;
3. Severe impact on the Government's ability to conduct its
regulatory programs - particularly for falsification of
records;
4. Harm to humans or the environment; and
5. History of repeated noncompliance.
V-16
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V. OTHER ACTIONS
If you suspect criminal activity, the Office of Criminal Investigation
should be consulted immediately and the file given to the Special Agent
for his review.
V-17
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V. OTHER ACTIONS
F. NOTICE OF WARNING/NOTICE OF
NONCOMPLIANCE/NOTICE OF CONTEMPLATED
PROCEEDINGS
1. Statutory/Regulatory Requirements
FTFRA Section 9:
Inspection of Establishments, etc.-(c) Enforcement—(I) Certification of
facts to Attorney General.-The examination of pesticides or devices shall
be~made~irrthe Environmental Protection Agency or elsewhere as the
Administrator may designate for the purpose of determining from such
examinations whether they comply with the requirements of this Act. If
it shall appear from any such examination that they fail to comply with the
requirements of this Act, the Administrator shall cause notice to be given
to the person against whom criminal or civil proceedings are
contemplated. Any person so notified shall be given an opportunity to
. present his views, either orally or in writing, with regard to such
contemplated proceedings, and if in the opinion of the Administrator it
appears that the provisions of this Act have been violated by such person,
then the Administrator shall certify the facts to the Attorney General, with
a copy of the results of the analysis or the examination of such pesticide
for the institution of a criminal proceeding pursuant to section 14(b) or a
civil proceeding under section 14(a), when the Administrator determines
that such action will be sufficient to effectuate the purposes of this Act.
(2) Notice not required.—The notice of contemplated proceedings and
opportunity to present views set forth in this subsection are not
prerequisites to the institution of any proceeding by the Attorney General.
(3) Warning notices.—Nothing in this Act shall be construed as requiring
the Administrator to institute proceedings for prosecution of minor
violations of this Act whenever he believes that the public interest will be
adequately served by a suitable written notice of warning.
FTFRA Section 14:
(a) Civil penalties.—
-------
(V.F.) V. OTHER ACTIONS
2. Case Law
In re: Cantor Brothers. I.F.&R. Docket No. H-93C, Initial Decision
(1976)
Background:
Respondent argued he should have been issued a Notice of Warning
before a complaint was issued.
Ruling:
The Administrator has broad discretion in deciding whether a violation is
minor and to be disposed of by a warning notice or whether prosecution
is warranted.
3. Special Considerations
Although EPCRA and TSCA do not provide for notices of noncompliance,
TSCA penalty policies do provide for notices of noncompliance as a
matter of prosecutorial discretion. While notices of warning/non-
compliance are not considered in determining a penalty adjustment for past
violations, they are used in determining an increase in the level of action
to be taken.
4 process
a. Develop evidence to support violation.
b. Issue notice.
V-19
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OTHER ACTIONS
Authority
Evidence
Expedience
Level
Custody
of
Materials
Seizure
FIFRA 13
and
TSCA 17
Is/Was
in
Violation
U.S. Attorney
District
Court Judge
In Rem
On Site
U.S.
Government
Stop Sale,
Use , and
Removal
Order
FIFRA 13
Reason
to Believe
in Violation
"On the
Spot"
Custody
or Control
Recipient
of Order
Informal/
Formal
Recall
Request
•
None
No
Standard
Program
Office
Channels
of Trade
Recipient
of
Request
Injunction
FIFRA 16
and
TSCA 7 fi 17
Preponderance
"•f"
U.S. Attorney
District
Court Judge
Cease or
Conduct
Activities
Defendent
Voluntary/
Mandatory
Recall
FIFRA 19 (b)
Registration
Suspended or
Cancelled
Program Office/
. Regulation
Holders of
Pesticide in
Distribution
Chain
Recipient/
Subject of
Regulation
V-20
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VI
ENFORCEMENT
DISCRETION
-------
VI. ENFORCEMENT DISCRETION
A. BY AGENCY POLICY
B. REQUESTS FOR ENFORCEMENT DISCRETION TO
USE EXISTING STOCKS OF AN ILLEGALLY
MANUFACTURED CHEMICAL SUBSTANCE
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VI. ENFORCEMENT DISCRETION
A. BY AGENCY POLICY
1. Pesticide Enforcement Policy Statements that were later included in statute
under misuse definition
2. Penalty Policies identify "minor" violations for issuance of notice of
warning or noncompliance
B. REQUESTS FOR ENFORCEMENT DISCRETION TO USE
EXISTING STOCKS OF AN ILLEGALLY MANUFACTURED
CHEMICAL SUBSTANCE
1. A fairly common request from companies (especially self confessors)
concerns the right to use the existing stocks of a chemical substance which
was manufactured in violation of TSCA. The use of a chemical substance
manufactured in violation of TSCA is prohibited. However, the Agency
may allow the use of existing stocks of illegally manufactured substance
that meet certain safety criteria on a limited case-by-case basis.
Prosecutorial discretion is exercised in this type of situation in order to
avoid the unnecessary disposal of a substance that could be legitimately
marketed after a specific date. Without prosecutorial discretion, disposal
capacity would be needlessly diminished creating a detriment to the
environment.
2. The company should be told that since the law prohibits the use of any
illegally manufactured substances, the granting of the right to use such
stocks is closely scrutinized on a case-by-case basis. The right to use such
stocks has been granted in certain limited circumstances only after the
PMN has cleared review.
3. Headquarters has applied a TWO-TIER test in order to determine whether
the exercise of such enforcement discretion is warranted.
a. First, a request for an "Expedited Safety Review" must be forwarded to
the Office of Toxic Substances (OTS-New Chemical Branch). An
Expedited Safety Review is basically a brief preliminary determination by
OTS of the health and environmental risks of the chemical substance.
This review does not take the place of the "full-scale" in-depth 21 or 90
day PMN review process but both reviews may occur concurrently. This
request asks OTS to determine that, based on the result of the preliminary
review, EPA finds that the substance will not present an unreasonable risk
VI-1
-------
of injury to: 1) human health, or 2) the environment. If concerns are
raised regarding potential adverse health or environmental effects,
Headquarters has not granted enforcement discretion to use existing
stocks. Therefore, the first-tier has not been cleared in order to move on
to the next tier.
If the chemical successfully "clears" the safety determination by OTS, we
may move on to the next tier.
«
•
b. The second test requires that the company provide written details
documenting any IMMEDIATE AND TANGIBLE ECONOMIC
HARM that will occur to the company (priorjto_the_expiration_of_
the PMN review period) if it is not allowed to use the existing
stocks of the chemical substance. A company should explain, in
detail, the following items:
i) The_steps_Jhe company took Jo minimize the violation once
it was discovered, i.e., efforts to quarantine the chemical
substance, amount in stock, how long to use the existing
stock, when manufacture ceased, efforts to notify
customers, etc.;
ii) The requested use of the chemical substance and the precise
economic loss which occurs if it does not market the
quarantined chemical substance (loss of jobs, danger of
plant closing, etc.);
Hi) The-nature and availability of substitutes for the chemical
substance; and
iv) The specific need of the customers for the chemical
substance.
A COMPANY CANNOT MEET ITS BURDEN OF PROOF OF ECONOMIC
HARM BY MERELY STATING THAT ITS PROFITS WILL BE REDUCED
OR THAT THE COMPANY WILL SUFFER A LOSS OF "PRESTIGE"
(REPUTATION) IN THE MARKETPLACE. Since the company has violated the
law, it should be compelled to bear the loss of any economic gain which it
received as a result of non-compliance.
c. If a company has successfully cleared the two tests, then
enforcement discretion may be granted. Once enforcement
discretion has been granted, the company should be required to
VI-2
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submit reports (weekly, monthly) which detail the following
information:
i) the amount of the substance used during a pre-set reporting
period;
ii) the customers to whom the chemical/product was shipped;
and
iii) amount of substance remaining in stock.
The company should also be informed that the granting of such discretion does
not, in any manner, alter any enforcement actions which may arise concerning the
substance.
Generally, once the enforcement discretion is granted, a company may begin to
use the existing stocks once it signs the Consent Agreement.
d. The alternative, when the economic harm is remote in nature, is
to deny enforcement discretion at that time and instead finalize the
use of existing stocks as one of the terms of the Consent
Agreement.
4. Format - to be added
Examples
Letter Describing Enforcement Discretion
Request for an Expedited Safety Review
Letter Granting the Right to Use Existing Stocks
Letter Denying the Right to Use Existing Stocks (at present) - Right to Use Stocks
to be Formalized as Part of Consent Agreement
VI-3
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VI
ENFORCEMENT DISCRETION
EXAMPLES
-------
VI. ENFORCEMENT DISCRETION
EXAMPLES
VI. Letter Describing Enforcement Discretion
Request for an Expedited Safety Review
Letter Granting the Right to Use Existing Stocks
Letter Denying the Right to Use Existing Stocks (at present) - Right to Use Stocks to be
Formalized as Part of Consent Agreement.
VIE-1
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
Hr.
Washinoton, n.C. 20005-2083
Per Products Inc.
This is in response to our telephone conversation on
Aoril 19, and your letter of Aoril 25, 1989, requestina the
grantim of .prosecutorial discretion for the continued commerical
use o* a chemical substance which nay have been manufactured in
violation of the Toxic Substances Control Act (TSCA). In the
conversation and letter, you voluntarily disclosed that
Products Inc. had imported a chemical substance
which was not listed on the TSCA
-------
.UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
-2-
Th*»r»for
-------
-3-
Please sign in the space provided belo» if you agree
and consent to the terns of this letter. After receiving the
letter with yoar signature, -I will consider granting
the authorisation for the use of the subject ehevical. Use
of the chemical »ay begin In accordance with the condition* set
forth above, only after I have signed the letter.granting the
authorisation.
Sincerely yoars,
Michael P. wood. Director
Compliance Division
Date
SEEN AHP KGUfFO TO:
Counsel
Products Inc.
Date
VIE-5
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VI. EXAMPLE REQUEST FOR AN EXPEDITED SAFETY REVIEW
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
orricc or
PUTICIDBS AND TOXIC •UMSTANCI
MEMORANDUM
SUBJECT: Request for an Expedited Safety Review of a Chemical
Substance
FROM: Gerald B. Stubbs, Acting Chief
Case Support Branch
TO: Lawrence E. Cullen, Chief
New Chemicals Branch (TS-794)
On November 9, 1989, a company which self-confessed a
potential TSCA Section 5 violation, met with EPA to discuss it's
illegal manufacture of a new chemical substance. After the
meeting, the company applied for a Low Volume Exemption (LVE) for
this chemical and it was assigned the number L90-****. The issue
concerning whether the company will receive a LVE is presently
under review.
For this chemical, please provide a statement regarding the
results of the PMN safety review and inventory status. If there
are any further questions regarding this matter, please contact
Ms. Cindy Coldiron of my staff at 382-3081.
Printtd on R»cyd»d Ptptr
VIE-7
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UNITED STATES ENVIRONMENTAL PROTECTION
WASHINGTON, D.C. 20460
JUN 221990
*ashington, D. C. 20006
>ear Mr. McConnell:
This is in response to your request of June 14, 1990,
concerning the granting of prosecutorial discretion for the
:oimnercial use of a chemical substance which has been
manufactured (imported) in violation of the Toxic Substances
Control Act" (TSCA). You stated in this letter that the existing
inventory comprised approximately 3800 pounds of this substance.
Previously, on April 5, 1990, you notified (by telephone) a
member of my staff, Ms. Rose Burgess, that a potential TSCA
Section 5 violation had occurred.
Upon review of this matter, since the Office of Toxic
Substances (OTS) has determined that the chemical substance is
no^flfecpected to present an unreasonable risk of injury to human
heaBwi or to the environment, I am granting your request to
commercially use your existing quarantined stocks of the
illegally manufactured chemical substance. Please note that the
granting of this enforcement discretion dees not, in any manner,
alter any enforcement issues which may arise concerning this
chemical substance.
In addition, after the granting of the enforcement
discretion to use the existing stocks of the substance, you must
submit documentation (weekly) to EPA which verifies the following
information: the dates of the commercial use/shipment of the
substance; the company to which it was shipped; the amount of the
substance used/shipped; and the amount of the substance remaining
in stock. This documentation should be forwarded to Ms. Cindy
Coldiron.
If you have any questions concerning this matter, please
contact Ms. Coldiron at (202) 382-3081.
Sincerely yours,
Michael F. Woo
Compliance Division
cc: Vincent Giordano
Rose Burgess
Prinwd on tocydM Piper
VIE-9
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MATT.
RETURN RECEIPT
Ms. J.M. Smith
Chem Corporation
1010 Constitution Lane
North Elbow, TN 00543-1234
Dear Ms. Smith
Re: ChemCo
This is in response to your request of October 31, 1989, concerning the granting of
prosecutorial discretion for the commercial use of a chemical substance which has been
manufactured (imported) in violation of the Toxic Substances Control Act (TSCA). On July 27,
1989, a representative of ChemCo, Mark Jones, voluntarily disclosed that ChemCo had
manufactured (imported) for commercial purposes a chemical substance for which ChemCo had
not obtained a TSCA low-volume exemption.
As you are aware, EPA will initiate a proceeding for the assessment of a civil penalty
against ChemCo for violations of TSCA involving the manufacture (importation) of this chemical
'prior to the expiration of the pre-manufacture notice (PMN) review period or the application for
and receipt of a TSCA low-volume exemption. Upon review of this matter, it has been
determined that your requested authorization to use the existing stocks should be formalized as
part of the settlement agreement between EPA and ChemCo in the TSCA Section 5 case to be
issued by EPA. Until a settlement is reached, no existing inventories of the illegally
manufactured substance may be commercially used. EPA will proceed with this matter as
expeditiously as possible.
Thank you for your cooperation in this matter. If you have any questions, please contact
Ms. Cindy Coldiron. She may be reached at 202-382-0000.
Sincerely yours,
Michael F. Wood, Director
Compliance Division
cc: Jon Silberman
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