uniteu tat s
Environmental Protection
Agency
&EPA Toxic Substances
Control Act
Compliance/Enforcement
Guidance Manual
Government Institutes, Inc.
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United States
Environmental Protection
Agency
&EPA Toxic Substances
Control Act
Compliance/Enforcement
Guidance Manual
Government Institutes, Inc
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PUBLISHER’S NOTE
This publication was prepared by the U.S. Environmental Protection Agency
for use within the agency. Government Institutes determined that it
contained information of interest to parties outside EPA so we undertook on
our own to reproduce this material in order to serve those interested.
This material was prepared by EPA’s Pesticides and Toxic Substances
Compliance Monitoring Staff and Office of Enforcement and Compliance
Monitoring.
This publication is designed to provide accurate and authoritative informa-
tion with regard to the subject matter covered. It is sold with the under-
standing that the publisher is not engaged in rendering legal, accounting or
other professional service. If legal advice or other expert assistance is
required, the services of a competent professional person should be sought—
From a Declaration of Principles jointly adopted by a Committee of the
American Bar Association and a Committee of Publishers.
Publication of this book does not signify that the contents necessarily reflect
the views or policies of Government Institutes, Inc.
August 1984
Published by
Government Institutes, Inc.
966 Hungerford Drive, #24
Rockvile, MD 20850
U.S.A.
ISBN: 0—86587—072—1
Printed and bound in the United States of America
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Table of Contents
Chapter One Overview
1 Purpose of the Manual 1—1
2 Overview of the Act 1—3
3 The Toxic Substances Control Act 1—11
4 Regulatory Elements 1—57
5 Glossary 1—67
Chapter Two General Operating Procedures
Chapter Three Compliance Monitoring Procedures
1 Introduction 3—1
2 Inspections 3—3
2a Records and Establishment Inspections 3—7
2b TSCA Notification Letters 3—11
2c Warrants 3—13
3 Subpoenas 3—23
Chapter Four Documentation of Evidence
I Introduction 4—1
2 Inspection File Review 43
3 Review of Adequacy of Evidence 4—7
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Table of Contents
Chapter Five Determination of Appropriate
Enforcement Response
1 Introduction s—i
2 Level of Action Policy 5—3
Chapter Six Administrative Enforcement Actions:
Notices of Violation and Administrative Orders
1 Introduction 6—1
2 Administrative Enforcement Procedures 6—3
Chapter Seven Administrative Enforcement Actions:
Civil Penalty Proceedings
1 Introduction 7—i
2 Elements of a Violation: Administrative 7—3
3 Complaint Preparation and Filing 7—13
4 Prehearing Stage 7—29
5 Hearing Stage 7—47
6 Post—Hearing Stage 7—65
Chapter Eight Judicial Enforcement: Civil Actions
1 Introduction 8—i
2 Elements of a Violation: Civil 8—5
3 Procedures for Filing Actions 8—9
4 Injunctive Actions 8—21
5 In Rem (Seizure) Actions 8—37
6 Settlement Agreements 8—43
Chapter Nine Judicial Enforcement: Criminal Actions
Chapter Ten Post—Settlement Enforcement
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Table of Coiiteuts
Chapter Eleven Special Considerations
Appendices
1 Collection of Civil Penalty Assessments A—i
2 Expert Witnesses A—57
3 Enforcement Response Policies and Penalty Policies A—63
4 Settlement With Conditions A—123
5 Additional Sources of Compliance/Enforcement Information A—161
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Chapter One
Overview
Chapter Contents P ge
1 Purpose of the Manual 1—1
Reservation 1—1
The Update System 1.-i
Common Acronyms and Abbreviations Used in This Manual 1—2
2 Overview of the Act 1—3
Purpose and Scope 1—3
Authorities and Responsibilities 1—4
Synopsis of the Act 1—4
3 The Toxic Substances Control Act 1—11
4 TSCA Regulatory Elements 1—57
The Friable Asbestos—Containing Material in Schools Rule 1—57
The Fully Halogenated Chiorofluoroalkanes (CFCs) Rule 1—59
The Polychiorinated Biphenyls (PCBs) Rule 1—60
The Preinanufacture Notification (PMN) Rule 161
The Tetrachlorodibenzo—p—dioxin (TCDD) Rule 1—64
5 Glossary 1—67
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TWA Ccwliance/tforcennt - 1- u G,idaoce Manual 1984
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Chapter One
1 Purpose of the Manual
The purpose of this manual is to provide guidance to compliance/enforcement
personnel on the substantive and procedural requirements necessary for
ensuring compliance and preparing enforcement cases under the Toxic Sub-
stances Control Act (TSCA).
The manual describes the processes of case development and judicial pro-
ceedings including: analyzing evidence collected during a compliance
inspection to determine its sufficiency in documenting a suspected
violation; issuing an enforcement action; presenting evidence in an
adjudicatory hearing; and monitoring compliance with consent decrees.
Reservation _____ ____ ___________ __________
The policies and procedures set forth herein and the internal office proce-
dures adopted pursuant hereto are intended solely for the guidance of
United States Environmental Protection Agency personnel. These policies
and procedures are not intended to be relied upon to create a right or
benefit (substantive or procedural) enforceable at law by a party to liti-
gation with the United States Environmental Protection Agency. The Agency
reserves the right to take any action that is alleged to be at variance
with these policies and procedures or that is not in compliance with inter-
nal office procedures.
The Update System ___ __ ___ ___
As revised or additional material is developed for the manual, it will be
distributed to all manual holders. A transmittal form will accompany and
explain these changes. The revised or additional pages will be identical
to the original page, but with added identification at the bottom of the
page.
TSCA Coapliance/Faforce.eut Page aidance Manual (Tear)
Reviaed
- “ i& a iiia1 1984
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Chapter One Purpose of the ‘ ta 1
When revisions entail the addition of pages into the manual ( i.e. , when
three pages in the manual are replaced by five pages), the additional pages
will he numbered as follows:
Original numbering: 3—3, 3—4, 3—5, 3—6, etc.
Addition of pages: 3—3, 3—4, 3—5a, 3—5b, 3—Sc , 3—6, etc.
This system will allow updates to be made quickly and easily and will avoid
disruption of the chapters. New material will be numbered sequentially by
chapter.
Common Acronyms and Abbreviations Used in This Manual
CFC — — Chiorofluorocarbon (Fully Halogenated Chiorofluoroalkane)
C.F.R. —— Code of Federal Regulations
CROP — Consolidated Rules of Practice
EPA —— United States Environmental Protection Agency
FATES — — FIFRA and TSCA Enforcement System
FDA —— Food and Drug Administration
HQCDO — — Headquarters Case Development Officer
NON —-- Notice of Noncompliance
OECM —— Office of Enforcement and Compliance Monitoring
PCB —— Polychiorinated Biphenyl
PMN —— Premanufacture Notice
PTSCMS —— Pesticides and Toxic Substances Compliance Monitoring Staff
RCDO —- Regional Case Development Officer
TCDD — Dioxin (Tetrachlorodibenzo’-p—dioxin)
TSCA —— Toxic Substances Control Act
U.S.C. —— United States Code
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Chapter One
2 Overview of the Act
The Toxic Substances Control Act, Public Law 94—469, was passed by Congress
in 1976 to “regulate commerce and protect human health and the environment
by requiring testing and necessary use restrictions on certain chemical
substances.” The Act, referred to as “TSCA,” became effective on January
1, 1977, and is codified at 15 U.S.C. §2601 et !!3.• Regulations promul-
gated pursuant to the Act are found at 40 C.YR. Parts 702 through 775.
Purpose and Scope
TSCA was enacted to correct the lack of health and 8afety information that
had previously existed concerning chemical substances and mixtures and to
prevent unreasonable risk of injury to human health and the environment
from harmful chemicals. The Act, therefore, is designed to:
• Ensure that industrial data on the production, use, and resultant
health and environmental effects of chemical substances or mixtures
are obtained by EPA so that the degree of risk associated with such
substances or mixtures can reasonably be determined; and
• Provide (if this information shows that controls are warranted) the
means by which EPA may regulate the manufacture, processing, dis-
tribution in commerce, use, and disposal of chemical substances or
mixtures.
Excluded from the Act are:
• Pesticides (as defined in the Federal Insecticide, Fungicide, and
Rodenticide Act) when manufactured, processed, or distributed in
commerce for use as pesticides.
• Tobacco or tobacco products;
• Source material, special nuclear material, or byproduct material
(as such terms are defined in the Atomic Energy Act of 1954 and
regulations issued under such Act);
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Chapter One ______________ Overview of the Act
• Articles whose sale is subject to the tax imposed by Section 4181
of the Internal Revenue Code of 1954 (firearms and ameunition); and
• Food, food additives, drugs, cosmetics, or devices (as such terms
are defined in Section 201 of the Federal Food, Drug, and Cosmetic
Act) when manufactured, processed, or distributed in co erce for
use as food, food additives, drugs, cosmetics, or devices.
Authorities and Responsibilities
The Administrator of EPA is authorized to administer the Act in a reason-
able and prudent manner, often considering the economic, social, and envi-
ronmental costs and benefits of actions taken under TSCA. Within EPA,
several offices are responsible for providing national guidance for TSCA
compliance/enforcement activities. Chapter Two contains a discussion of
these offices and their responsibilities.
Synopsis of the Act
TSCA authorizes the Administrator to establish regulations that govern
testing of chemical substances and mixtures, premanufacture notification
for new chemical substances or significant new uses of existing substances,
chemical substances or mixtures that pose an iu inent hazard, and record—
keeping and reporting requirements. The Act also defines TSCA’s relation-
ship with other federal laws; authorizes research and development; and
provides specific authorities for Inspections, subpoenas, and injunctive
relief. In addition, TSCA provides for the protection of confidential
business information submitted to the Agency. These provisions of the Act
are briefly reviewed below (from a compliance/enforcement perspective).
Testing of Chemical Substances and Mixtures (Section 4 )
The Administrator may, by regulation, require the testing of new and exis-
ting chemical substances or mixtureg that may present an unreasonable risk
to human health or the environment if available data on such substances or
mixtures is inadequate to determine the risk. The testing of chemical sub-
stances or mixtures may consist of health and environmental effects such as
carcinogenesis, mutagenesis, teratogenesis, chronic toxicity, behavioral
disorders, cumulative effects or synergistic effects, or other effects that
may present an unreasonable risk of injury to human health or the environ-
ment. The Agency is to set and review the standards for the tests; manu-
facturers and processors of chemical substances or mixtures have the burden
of performing the required tests.
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Chapter One Overview of the Act
Manufacturing and Processing Notices (Section 5 )
Manufacturers of new chemical substances and manufacturers and processors
of existing chemical substances for significant new uses must notify EPA 90
days before manufacturing or processing such substances. The notification
should include the name, formula, uses, production volume, and other facts
that the Agency may require. Any chemical substance not listed in the TSCA
Chemical Substance Inventory Esee Section 8(b) of the ActJ is considered
“new” under this section. (Mixtures are not covered under thi8 require-
ment, and there are exemptions for small quantities of chemicals used for
research.) The Agency may limit the production or even prohibit the manu-
facture, processing, or distribution of a chemical substance that pre-
sents——or that, in the absence of sufficient information on which to base a
decision regarding environmental and human health effects, may present——an
unreasonable risk of injury to human health or the environment.
Regulation of Hazardous Chemical Substances and Mixtures (Section 6 )
Where there is a reasonable basis to conclude that a chemical substance or
mixture presents or will present an unreasonable risk of injury to human
health or the environment, the Administrator is empowered to take a wide
variety of regulatory actions that:
• Prohibit or limit the manufacturing, processing, or distributing in
commerce of such substance or mixture;
• Require, by labeling and other means, appropriate warnings and
instructions with respect to the use, distribution in commerce, or
disposal of the chemical substance or mixture;
• Require recordkeeping and testing of such substance or mixture;
• Regulate the manner of disposal of the substance or mixture;
o Direct manufacturers or processors of such substance or mixture to
give notice of the unreasonable risk or to replace or repurchase
the substance or mixture; or
• Impose quality control procedures.
Section 6 also regulates the use, distribution, manufacture, and processing
of polychiorinated biphenyls (PCBs). PCBs are the only chemical substances
that are specifically addressed in the Act.
Imminent Hazards (Section 7 )
The Administrator may commence an action in an appropriate district court
for the seizure and/or other immediate relief against an imminently hazar-
dous chemical substance or mixture (which is defined as one that “presents
an imminent and unreasonable risk of serious or widespread injury to health
or the environment”).
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Chapter One Overview of the Act
Reporting and Retention of information (Section 8 )
The Agency may require the submission end maintenance of records and
reports necessary for the effective implementation of TSCA. Under Section
8(b) of the Act, EPA is required to compile and maintain an inventory of
each chemical substance manufactured or processed in the United States.
The initial TSCA Chemical Substance Inventory was published on June 1,
1979.
Section 8(c) requires any person who manufactures, processes, or distri-
butes in commerce a chemical substance or mixture to maintain records of
significant adverse reactions to human health or the environmant alleged to
have been caused by the substance or mixture. Section 8(e) requires imme-
diate reporting of any information that reasonably supports the conclusion
that a chemical substance or mixture presents a substantial risk of injury
to human health or the environment.
Relationship to Other Federal Laws (Section 9 )
If a chemical substance or mixture presents or may present an unreasonable
risk of injury to human health or the environment and such risk may be pre-
vented or reduced to a sufficient extent by an action taken under a federal
law not administered by EPA, EPA may refer the matter to the agency that
would administer that particular law. Actions taken by EPA under TSCA are
to be coordinated with the other federal laws administered by the Agency.
EPA is also required to coordinate with other federal agencies for purposes
of TSCA enforcement.
Research and Development (Section 10 )
EPA may, in consultation with other agencies, conduct or support research,
development, and iw,nitoring activities to carry out the purposes of the
Act.
inspections and Subpoenas (Section 11 )
The Act authorizes, upon presentation of proper credentials and notice, the
inspection of establishments, facilities, and other premises where chemical
substances or mixtures are manufactured, processed, stored, held, or con-
veyed. The inspection may extend to all things within the premises or con-
veyance that bear on whether the requirements of the Act are complied
with. Financial, sales, pricing, personnel, or research data may not be
inspected unless specified in the notice of inspection. In carrying out
the Act, the Administrator has the authority to subpoena witnesses and
documents.
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Chapter One Overview of the Act
Exports and Imports (Sections 12 and 13 )
TSCA authorizes the regulation of exported chemical substances or mixtures
and articles containing chemical substances or mixtures if it can be shown
that the substances, mixtures, or articles present an unreasonable risk of
injury to health within the United States or the environi nt of the United
States. EPA may also require the testing of any exported chemical sub-
stance or mixture to determine whether such a risk exists. Any person who
exports, or intends to export, a chemical substance or mixture for which
the submission of testing or premarket data is required mist notify the
Agency of such exportation or intent to export. Notification is also re-
quired if the exported substance or mixture is subject to a regulatory
order or action. The Agency is responsible for notifying the governments
of importing countries of any regulatory restrictions. The recordkeeping
and reporting requirements of Section 8 apply to exports.
Imported chemical substances or mixtures and articles containing chemical
substances or mixtures are subject to all the requirements of TSCA. The
United States Treasury Department (U.S. Customs Service) is responsible for
establishing, in cooperation with EPA, procedures to ensure compliance with
the Act.
Disclosure of Data (Section 14 )
This section of the Act provides for the protection from disclosure of any
confidential business information, such as trade secrets and privileged
financial data. Any health and safety studies that have been submitted
under the Act may be subject to disclosure. EPA employees are subject to
criminal penalties for the willful disclosure of confidential business
info rmat ion.
Prohibited Acts (Section 15 )
It is unlawful for any person to:
• Fail or refuse to comply with any rule promulgated or order issued
under Section 4, 5, or 6 of the Act, or any requirement prescribed
by Section 5 or 6;
• Use for commercial purposes a chemical substance or mixture that
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 an action
brought under Section 5 or 7;
• Fail or refuse to establish or maintain records; submit reports,
notices, or other information; or permit access to or copying of
records, as required by the Act or a rule promulgated thereunder;
or
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Chapter One Overview of the Act
• Fail or ref use to permit entry or inspection as required by Section
11.
Penalties (Section 16 )
Any person who violates a provision of Section 15 is subject to a civil
penalty of up to $25,000 for each violation. Each day such a violation
continues constitutes a separate violation of Section 15.
Any person who knowingly or willfully violates any provision of Section 15
may, in addition to or in lieu of any civil penalty, be subject, upon con-
viction, 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.
Specific Enforcement and Seizure (Section 17 )
The district courts of the United States have jurisdiction over civil
actions for the following purposes:
• To restrain any violation of Section 15;
• To restrain any person from taking any action prohibited by Sec-
tion 5 or 6 or by a rule or order issued under Section 5 or 6;
• To compel the taking of any action required by or under TSCA; and
• To 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 issued under Section 5 or 6 and distributed in com-
merce to give notice of such fact to distributors, to give public
notice of such risk of injury, and to either replace or repurchase
such substance or mixture.
The Agency may also proceed against, by process of libel for seizure and
condemnation, any chemical substance or mixture that was manufactured, pro-
cessed, or distributed in coi erce in violation of TSCA or any rule promul-
gated or order issued under the Act or any article containing such a sub-
stance or mixture. Such an action may be brought in any district court of
the United States in which such substance, mixture, or article is found.
Pre—emption (Section 18 )
A state, or political subdivision of a state, is pre—einpted from regulating
toxic substances in two circumstances. First, no state may establish or
retais any requirement for testing chemical substances or mixtures that is
similar to a requirement promulgated under Section 4 of TSCA. Second, no
state may establish or retain a rule regulating chemical substances or
mixtures that are subject to a Section 5 or 6 rule or order [ other than a
rule under Section 6(a)(6)J unless the State or local law (1) is identical
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Chapter One Overview of the Act
to the requirement prescribed by the Administrator, (2) is adopted pursuant
to another federal law, or (3) prohibits the end use of such substances or
mixtures on that state or political subdivision.
Section 8(b) establishes a procedure in which a state, or political sub-
division of a state, may petition the Administrator for an exemption from
those situations where pre—ernption would apply.
Judicial Review (Section 19 )
Not later that 60 days after the date of the promulgation of a rule under
Section 4(a), 5(a)(2), 5(b)(4), 6(a), 6(e), or 8, any person may file a
petition for judicial review of such rule with the United States Court of
Appeals for the District of Columbia Circuit or the circuit in which the
person resides or has his or her principal place of business.
Citizens’ Civil Actions (Section 20 )
Subject to certain limitations, any person may commence a civil action
against:
• Any person who is alleged to be in violation of TSCA or any rule
promulgated under Section 4, 5, or 6 or order issued under Section
5 to restrain such violation; or
• The Administrator to compel the Administrator to perform any non—
discretionary act or duty under TSCA.
Attorney’s fees and other court costs may be awarded if it is determined by
the court that such an award is appropriate.
Citizens’ Petitions (Section 21 )
This section of the Act contains the procedures by which a person may peti-
tion the Administrator to initiate a proceeding for the issuance, amend-
ment, or repeal of a rule under Section 4, 6, or 8 or an order under Sec-
tion 5(e) or 6(b)(2).
National Defense Waiver (Section 22 )
The Administrator must waive compliance with any provision of TSCA upon a
request and determination by the President that the requested waiver is
necessary in the interest of national defense.
State Programs (Section 28 )
For the purpose of complementing (but not reducing) the authority of, or
actions taken by, the Administrator under TSCA, the Administrator may make
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Chapter One Overview of the Act
grants to states for the establishment and operation of toxic substances
programs. Such programs are intended to prevent or eliminate unreasonable
risks to human health or the environment associated with a chemical
substance or mixture within the states.
!SC& CauipliancefEuforcement 1-10 Gmidance $ mi*1 1984
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Chapter One
3 Toxic Substances Control Act
THE TOXIC SUBSTANCES CONTROL ACT
(PL 94-469; Enacted by Congress September 28, 1976
and Signed by the President October 11, 1976; Amended
by PL 97-129, December 29, 1981)
Public Law 94 469
94th Congress
An Act
To regulate commerce and protect human health anti the eIIvirnnnI, Itt I y
requiring testing and necessary use restrictions on certain chemical substances.
and for other purposes.
Be it eiwcted by the Senate and l!ou. e of Repi .sentatives of the
United States of Arne , ’ie(, in Co’ng,esa as8embled,
SECTION 1. SHORT TITLE AND TABLE OF CONTENTS.
This may be cited m i the “Toxic Substances Control Act”.
TABLE OF CONTENTS
Sec. 1. Short title and table of contents.
Sec. 2. FindIngs, policy, and intent.
Sec. 3. DefInitions.
Sec. 4. Testing of chenneul substances and nitxtures.
Sec. 5. Manufacturing and processing notices.
See. 6. RegulatIon of hazartluu.s chemical uhstances and mixtures.
Sec. 7. Imminent hazards.
Sec. S. Reporting and retention of Information.
See. 9. Reiati ioihip to other Federal laws.
See. 141. Research, development, collection. dissemination, aud utilizatiwi if lant.
S* • 13. Inspections and subpoenas.
See. 12. Kxi’orts.
Sec. 13. Entry into customs territory of the United States.
Sec. 14. Disclosure of data.
Sec. 15. Prohibited acts.
Sec. 16. Penalties.
Sec. 17. SpecIfic enforcement and scizure.
Sec. 18. i’reemnption.
Sec. 19. Judkiul review.
Sec. 20. CitIzens’ civil actions.
Sec. 21. (‘itlzens’ petitions.
Sec. 22. National defense waiver.
Sec. 23. Employee protection.
Sec. 24. Employment effects.
Sec. 2 . Studies.
Sec. 26. AdministratIon of the Act.
5* c. 27. l velopment and evaluation of test methods.
Sec. 28. State programs.
Sec. 29. AuthorizatIon for appropriations.
Sec. 30. Annual report.
See. 31. Effective date.
SEC. 2. FINDINGS, POLICY. AND INTENT.
(a) FINDINCS.—TIIe Congress finds that—
(1) human beings and the environment are being expo eil ea m
year to a large number of chemical substances and miNt urt ” -:
(‘2) among the many chemical substances and rnixturcs vlii’li
are constantly being developed and produced. there rc soimme
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Chapter One
whose manufacture, processing, distribution in commerce, use, or
disposal may present an unreasonable risk of injury to health or
the environiiient; and
(3) the effective regulation of interstate commerce in such
chemical substances and mixtures also necessitates the regulation
of intrastate commerce in such chemical substances and mixtures.
(b) Por.icy.—It is the policy of the Uniied States that—
(1) adequate data should be developed with respect to the effect
of chemical substances and mixtures on health and the environ-
ment and that the development of such data should be the respon-
sibility of those who manufacture and those who process such
chemical substances and mixtures;
(2) adequate authority should exist to regulate chemical sub-
stances and mixtures which present an unreasonable risk of injury
to health or the environment, and to take action with respect to
chemical substances and mixtures which are imminent hazards;
and
(3) authority over chemical substances and mixtures should be
exercised in such a manner as not to impede unduly or create
unnecessary economic barriers to technological innovation while
fulfilling the primary purpose of this Act to assure that such inno-
vation and commerce in such chemical substances and mixtures
do not present an unreasonable risk of injmy to health or the
environment.
(c) INTENT OF CoNoaxss.—It is the intent of Congress that the
Administrator shall carry out this Act in a reasonable and prudent
manner, and that the Administrator shall consider the environmental,
economic, and social impact of any action the Administrator takes or
proposes to take under this Act..
SEC. 2. DEFINITIONS.
15 USC 2602. As used in this Act:
(1) the term “Administrator” means the Administrator of the
Environmental Protection Agency.
(2) (A) Except as provided in subparagraph (B), the term “chem-
ical substance” means any orpnic or inorganic substance of a particu-
lar molecular identity, including—
(i) any combination of such substances occurring in whole or
in part as a result of a chemical reaction or occurring in nature,
and
(ii) any element or uncombined radical.
(13) Such term does not include—
(i) any mixture,
(11) any pesticide (as defined in the Federal Insecticide, Fungi-
7 USC 136 note. dde, and Rodenticide Act) when manufactured, processed. or
distributed in commerce for use as a pesticide,
(iii) tobacco or any tobacco product.
(iv) any sout e material, special nuclear material, or byproduct
material (as such terms are defined in the Atomic Energy Act
42 USC 2011 of 1934 and regulations issued tinder such Act).
aoie. (v) any article the sale of which is subject to the tax imposed
26 USC 4181. by section 4181 of the Internal Revenue Code of 1954 ( leter-
mined without regard to any exemptions from such tax provided
26 USC 4182. by section 4182 or 4221 or any other provision of such (‘ode), and
4221. (vi) any food, food additive. (1mg, cosmetic, or device (as such
terms are defined in section 2()l of the Federal Food. Drug, and
21 USC 321. (‘osinetic Act) when numnufactured. processed. or distributed in
commerce for use as a food, food additive, drug. cosmetic, or
devi( ’e
The term “food” used n clause ( vi’ ) of this subpnrn raph includes
poultry and Poultry products (as defined in sections 4(e) and 4(f)
21 USC 453. of the Poultry Products Inspection Act). meat and meat food prod-
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Chapter One TSCA
nets (as defined in section 1(j) of the Federal Meat Inspection Act), 21 USC 601.
and eggs and egg products (as defined in section 4 of the Egg Prod-
ucts Insnection Act). 21 USC 1033.
(3) The term “commerce” means trade, traffic, transportation, or
other commerce (A) between a place in a State and any place outside
of such State, or (B) which affects trade, traffic, transportation, or
commerce described in clause (A).
(4) The terms “distribute in commerce” and “distribution in corn-
inerce” when used to describe an action taken with respect to a chem-
ical substance or mixture or article containing a substance or mixture
mean to sell, or the sale of, the substance, mixture, or article in com-
merce; to introduce or deliver for introduction into commerce, or the
introduction or delivery for introduction into commerce of, the sub
stance, mixture, or article; or to hold, or the holding of, the substance,
mixture, or article after its introduction into commerce.
(5) The term “environment” includes water, air, and land and the
interrelationship which exists among and between water, air, and land
and all living things.
(6) The term “health and safety study” inesns any study of any
effect of a chemical substance or mixture on health or the environ-
meat or on both, including underlying data and epidemiological
studies, studies of occupational exposure to a chemical substance or
mixture, toxicological, clinical, and ecological studies of a chemical
substance or mixture, and any test performed pursuant to this Act.
(7) The term “manufacture” means to import into the customs
territor of the United States (as defined in general headnote 2 of
the Tariff Schedules of the United States), produce, or manufacture. 19 USC 1202.
(8) The term “mixture” means any combination of two or more
chemical substances if the combination does not occur in nature and
is not, in whole or in part, the result of a chemical reaction; except
that such terni does include any combination which occurs, in whole
or in part, as a result of a chemical reaction if none of the chemical
substances comprising the combination is a new chemical substance
and if the combination could have been manufactured for commer-
cial purposes without a chsmical reaction at the time the chemical
substances comprising the combination were combined.
(9) The term “new chemical substance” means any chemical sul)-
stance which is not included in the chemical substance list compiled
and published under section 8(b).
(10) The term “process” means the preparation of a chemical sub-
tance or mixture, after its manufacture, for distribution in
coimnerce—
(A) in the same form or physical state as, or in a different
form or physical state from, that in which it was received by the
person so preparing such substance or mixture, or
(B) as part of an article containing the chemical substance
or mixture.
(11) The term ‘processor” means any person who processes a chemi-
cal substance or mixture.
(12) The term “standards for the development of test data” means
a prescription of—
(A) the—
(i) health and environmental effects. and
(ii) information relating to toxicity, persistence. and other
characteristics which affect health and the environment,
for which test data for a chemical substance or mixture are to
be developed and any analysis that is to be performed on such
data, and
(B) to the extent necessary to assure that data respecting such
ffeets and characteristics are reliable and adequate—
(i) the manner in which such data are to be developed,
TSCA Coapliance/Enforc nt 1 1 3 Guidance Manual 1984
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Chapter One TSC&
(ii) the specification of any teat protocol or methodology
to be employed in the development of such data, and
(iii) such other requirements as are necessary to provide
such assurance.
(13) The term “State” means any State of the United States, the
District of Columbia, the Commonwealth of Puerto Rico, the Virgin
Islands, Guam the Canal Zone, American Samoa, the Northern
Mariana Islands, or any other territory or possession of the United
States.
(14) The term “United Stata&’, when used in the geographic sense,
means all of the States.
SEC. 4. T T1NG OF CHEMICAL SUBSTANCES AND MIXTURES.
15 USC 2603. (a) TESTING REQUIREJiENT8.—If the Administrator finds that—
(1) (A) (i) the manufacture, distribution in commerce, proc-
essing, use, or disposal of a chemical substance or mixture, or that
any combination of such activities, may present an unreasonable
risk of injury to health or the environment,
(ii) there are insufficient data and experience upon which the
effects of such manufacture, distribution in commerce, processing,
use, or disposal of such substance or mixture or of any combina-
tion of such activities on health or the environment can reason-
ably be determined or predicted, and
(iii) testing of such substance or mixture with respect to such
effects is necessary to develop such data; or
(B) (i) a chemical substance or mixture is or will be produced
in substantial quantities, and (I) it enters or may reasonably be
anticipated to enter the environment in substantial quantities or
(II) there is or may be significant or substantial human exposure
to such substance or mixture,
(ii) there are insufficient data and experience upOli which the
effects of-the manufacture, distribution in commerce, processing,
use, or disposal of such substance or mixture or of any combina-
tion of such activities on health or the environment can reason-
ably be determined or predicted, and
(iii) testing of such substance or mixture with respect to such
effects is necessary to develop such data; and
(2) in the case of a mixture, the effects which the mixture’s
manufacture, distribution in commerce, processing, use, or dis-
po ai or any combination of such activities may have on health or
the environment may not be reasonably and more efficiently deter-
mined or predicted by testing the chemical substances which corn-
pr e the mixture;
Rides, the Aditinistrator shall by rule require that testing be conducted on
such substance or mixture to develop data with respect to the health
and eriv onmental effects for which there is an insufficiency of data
and xperience and which are relevant to a determination that the
manufacture, distribution in commerce, processing, use, or dtsl?osal
of such substance or :nixture, or that any combination of such activities,
does or does not present an unreasonable risk of injury to health or
the environment.
(b) (1) TESTING REQUIREMENT Rut .—A rule under subsection (a)
shall include—
(A) identification of the chemical substance or mixture for
which testing is required under the rule,
Stsadazds for (B) standards for the development of test data for such sub.
deve4op.e.t of stance or mixture, and
‘ - (C) with respect to chemical substances which are not new
chemical substances and to mixtures, a specification of the period
(which period may not be of unreasonable duration) within
winch the persons required to conduct the testing shall submit to
TSCA Co.p1iance/Enforce ent 1—14 Guidance Manual 1984
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Chapter One TSCA
the Administrator data developed in accordance with the stand-
ards referred to in subparagraph (B).
In determining the standards and period to be included, pursuant to
subparagraphs (B) and (C) in a rule under subsection (a). the
Administrator’s considerations shall include the relative costs of the
various test protocols and methodologies which may be required under
the rule and the reasonably foreseeable availability of the facilities
and personnel needed to perform the testing required under the rule.
Any such rule may require the submission to the Administrator of pre-
linunary data during the period prescribed under subparagraph (C).
(2) (A) The health and environmental effects for which standards
for the development of test data may be prescribed include carcino-
genesis, mutagenesis, teratogenesis, behavioral disorders, cumulative
or synergistic effects, and any other effect which may present an unrea-
sonable risk of injury to health or the environment. The characteristics
of chemical substances and mixtures for which such standards may
be prescribed include persistence, acute toxicity, subacute toxicity.
chronic toxicity, and any other characteristic which may present such
a risk. The methodologies that may be prescribed in such standards
include epidemiologic studies, serial or hierarchical tests, in vitro tests.
and whole animal tests, except that before prescribing epidemiologic
studies of employees, the Administrator shall consult with the Director
of the National Institute for Occupational Safety and Health.
(B) From time to time, but not less than once each 12 months, the Review of
Administrator shall review the adequacy of the standards for develop- standards.
inent of data prescribed in rules under subsection (a) and shall, if
necessary, institute proceedings to make appropriate revisions of such
standards.
(3) (A) A rule under subsection (a) respecting a chemical substance
or mixture shall require the persons described in subparagraph (B)
to conduct tests and submit data to the Administrator on such sub-
stance or mixture, except that the Administrator may permit two or
more of such persons to designate one such person or a qualified third
party to conduct such tests and submit such data on behalf of the per-
sons making the designation.
(B) The following persons shall be required to conduct tests and
submit data on a chemical substance or mixture subject to a rule under
subsection (a)
(i) Each person who manufactures or intends to manufacture
such substance or mixture if the Administrator makes a finding
described in subsection (a)(1) (A) (ii) or (a)(i)(B)(ii) with
respect to the manufacture of such substance or mixture.
(ii) Each person who processes or intends to process such sub-
stance or mixture if the Administrator makes a finding described
in subsection (a) (1) (A) (ii) or (a)(1) (B) (ii) with respect to
the processing of such substance or mixture.
(iii) Each person who manufactures or processes or intends to
manufacture or process such substance or mixture if the Adminis-
trator makes a finding described in subsection (a)(1)(A) (ii) or
(a) (1) (B) (ii) with respect to the distribution in commerce, use,
or disposal of such substance or mixture.
(4) Any rule under subsection (a) requiring the testing of and
submission of data for a particular chemical substance or mixture
shall expire at the end of the reimbursement period (as defined in sub-
section (c) (3) (B)) which is applicable to test data for such substance
or mixture unless the Administrator repeals the rule before such date:
and a rule under subsection (a) requiring the teatin of and submission
of data for a category of chemical substances or mixtures shall expire
with respect to a chemical substance or mixture included in the cate-
gory at the end of the reimbursement period (as so defined) which is
applicable to test data for such substance or mixture unless the Admin-
TSCA CoapllancefEnforceaent 1-15 Guidance Manual 1984
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Chapter One
istrator before such date repeals the application of the rule to such
substance or mixture or repeals the rule.
(5) Rules issued under subsection (a) (and any substantive amend-
inent thereto or repeal thereof) shall be promulgated pursuant to
Oral presentation section 553 of title 5, United States Code, except that (A) the Admin-
and wnUen istrator shall give interested persons an opportunity for the oral pres-
entation of data, views, or arguments, in addition to an opportunity to
Transcript, make written submissions; (B) a transcript shall be made of any oral
Pt&bbcaboa. presentation; and (C) the Administrator shall make and publish with
the rule the findings described in paragraph (1) (A) or (1) (B) of
subsection (a) and, in the case of a rule respecting a mixture, the
finding described in paragraph (2) of such subsection.
Application. (c) ExE i1 rroN.—(1) Any person required by a rule under subsec-
tion (a) to conduct tests and submit data on a chemical substance or
mixture may apply to the Administrator (in such form and manner
as the Administrator shall prescrib ) for an exemption from such
requirement.
(2) If, upon receipt of an application under paragraph (1), the
Administrator determines that—
(A) the chemical substance or mixture with respect to which
such application was submitted is equivalent to a chemical sub-
stance or mixture for which data has been submitted to the Admin-
istrator in accordance with a rule under subsection (a) or for
which data is being developed pursuant to such a rule, and
(B) submission of data by the applicant on such substance or
mixture would be duplicative of data which has been submitted
to the Administrator in accordance with such rule or which is
being developed pursuant to such rule,
the Administrator shall exempt, in accordance with paragraph (3)
(4), the applicant from conducting tests and submitting data on
such substance or mixture under the rule with respect to which such
ai)Plicflt iofl ‘.VaS submitted.
Fair and (3)(A) If the exemption under paragraph (2) of any person from
eqiutable the requirement to conduct tests and submit test data on a chemical
rmbt ent substance or mixture is granted on the basjs of the existence of previ-
ouslv submitted test data and if such exemption is granted during the
reimbursement period for such test data (as prescribed by subpara-
graph (B)), then (unless such person and the persons referred to in
clauses (i) and (ii) agree on the amount and method of reimburse-
ment) the Administrator shall order the person granted the exemption
to provide fair and equitable 7 eimbursement (in an amount deter-
mined under rules of the Administrator)—
(i) to the person who previously submitted such test data. for
a portion of the costs incurred by such person in complying with
the requirement to submit such data, and
(ii to any other person who ha,i been required under this sub-
paragraph to contribute with respect to such costs, for a portion
of the amount such person was required to contribute.
Rules. In promuisating rules for the determination of fair and equitable
reimbursement to the persons described in clauses (F) and (ii) for
costs incurred with respect to a chemical substance or mixture, the
Administrator shall, after consultation with the Attorney General
and the Federal Trade Commicaion, consider all relevant factors,
including, the effect on the competitive position of the person required
to provide reimbursement in relation to the person to be reimbursed
and the share of the market for such substance or mixture of the per-
son required to provide reimbursement in relation to the share of such
market of the persons to be reimbursed. An order under this sub-
paragraph shall, for purposes of judicial review, be considered final
agency action.
TSCA Co.pliancefEnforcersent 1-16 Guidance Manual 1984
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Chapter One rsc
(B) For purposes of subparagraph (A), the reimbursement period Reimbursement
for any test data for & chemical substance or mixture is a period— Pe Od
(i) beginning on the date such data is submitted in accordance
with a n ile promulgated under subsection (a), and
(ii) ending—
(I) five years after the date referred to in clause (i), or
(II) at the expiration of a period which begins on the date
referred to in clause (1) and which is equal to the period
which the Administrator determines was necessary to develop
such data,
whichever is later.
(4) (A) If the exemption under paragraph (2) of aity person from
the requirement to conduct tests and submit test data on a chemical
substance or mixture is granted on the basis of the fact that test data
is being developed by one or more persons pursuant to a rule proniul-
gated under subsection (a), then (unless such person and the persons
referred to in clauses (i) and (ii) agree on the amount and method
of reimbursement) the Administrator shall order the person granted
the exemption to provide fair and equitable reimbursement (in an
amount determined under rules of the Administrator)—
(i) to each such person who is developing such test data, for a
portion of the costs incurred by each such person in complying
with such rule, and
(ii) to any other person who has been required under this sub-
paragraph to contribute with respect to the costs of complying
with such rule. for a portion of the amount such person was
required to contribute.
In promulgating rules for the determination of fair and eiuitable
reimbursement to the persons described in clauses (i) and cii) for
costs• incurred with respect to a chemical substance or mixture, the
Administrator shall, after consultation with the Attorney General and
the Federal Trade Commission, consider the factors described in the
second sentence of paragraph (3) (A). An order under this subpara-
graph shall, for purposes of judicial review, be considered final agency
action.
(B) If any exemption is granted under paragraph (2) on the basis
of the fact that one or more persons are developing test data pursuant
to a rule promulgated under subsection (a) and if after such exemp-
tion is granted the Administrator determines that no such person has
(omplied ‘a;ith such nile, the Administrator shall (i) after providing
written notice to the person who holds such exemption and an oppor-
tunity for a hearing, by order terminate such exemption, and (u)
notify in writing such person of the requirements of the rule with
respect to which such exemption was granted.
(d) N0TICE.—Upon the receipt of any test data j:nirsuant to a rule Publication in
under subsection (a), the Administrator shall publish a notice of the Federal Register.
receipt of such data in the Federal Register within 15 days of its
receipt. Subject to section 14, each such notice shall (1) identify the
chemica’ substance or mixture for which data have been received;
(2 list the uses or intended uses of such substance or mixture and the
inforsijution required liv the applicable standards for the develol:mient
of t(’-.t data: and (3) describe the nature of the test data developed.
is otherwise provided in section 14, such data shall be made
a atlahk l iv the . dutinistrator for examination by any person.
( ) Pnionrry LIsT.—(1)(A) There is established a committee to Committee to
flLtLt it it,mnicndations to the Administrator respecting the chemical make
li tanet s and mixtures to which the Administrator should give recommendations
priority consideration for the promulgation of a rule under subsec- tO
r i. In making such a recommendation with respect to any chem- Administrator.
TSCA Compliance/Enforcement 1—17 GuIdance M 5 . p1 al 1984
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Chapter One TSCA
ial uI) aahtce or mixture, the committee shall consider all relevant
factors. including—
(i ) the quantities in which the substance or mixture i or
he. atamifactureti,
ii) the quantities in which the substance or mixt are enters or
vill cntet the environment,
(iii) the number of individuals who are or will be exposed to the
substance or mixture in their places of employment and the darn-
t 11)11 of such exposure.
(iv) the extent to which human beings are or will be exposed to
the iib tance or mixture.
v) the extent to which the substance or mixture is closely
ichtted to a chemical substance or mixture which is known to
prv ent an nnrea onable risk of injury to health or the environ-
ment,
(vi) the existence of data concerning the effect of the substance
or mixture on health or the environment,
(vii) the extent to which testing of the substance or mixture
may re—alt in the development of data upon which the effects of
the s il* tance or mixture on health or the environment can rea-
sonably be determined or predicted. and
viii) ii me reasoital 1y foreseeable a vi ii lability of facilities a ii< i
!)erS nhI(i for performing testing on the substance or mixture.
Koummenda. Thic’ ,* romimnwIulat inns of the cuuimimittee slia H in time form of a list
tHifl . li’i uI of iiu iiuea I Slll)Mtances and mixtures which shall be set forth. either hr
chem.-al imidiridna I sim1e tanee om. mixture or by groups of substances or mix—
‘ub,tsnces Lnd tart’s, in the order in which the comninittc ’e tlvtevimtines the Adnmiiiist ma-
mlxIur . tnt . -honld take action under subsection (a) with respect to lie
substmtee and umixtures. In establishing such list, the committee lm:ihl
‘ priority attention to those chemical substammees and mmii x iii mvs
u-li irhi ire kirowim to cause or contribute to or which are su 1 wcted ot
rmusiri or (o111 rihuflug to cancer, gene imitations, or birth (lCfc’ds. Tire
OIIII,I)ttI ’t ’ shall mjm ’ i nimte c))ernjcal substances and mixtures on the list
wit Ii respect to vhm icli the comurittee determii inc’s time Admnimi istrator
should, within 1 itrontlis uf the date on which such substances amid
ace tirst dc&igiuatcd. initiate a proceeding under subsection
(:i ) . TIme total numimber of chemical substances and mixtures mm time list
wh irhi cc designated murder time preceding sentence may not. at any
tiute. txt ’evtl mO.
Pubhcatim, in fl ) _ , ‘ inn as tu ret icalik hut nOt later tim n nine ttmoflt))5 :1 fter
Federal Register; time m’fft’rti i ’ ilate of this Act, the ennuimmittee shall publish in tIme Fed—
transmittal to ( rfll J (’!!iStei amid tramisuirit to the Adimmini—trator the list and desigi a-
Administrator. t ’i ta 1 h ( A together with the reasons for time
e mirjj ittec’’— m irhirsilm of v di cii m ’aJ snbsta re or’ mmiixturr on the list
At h ’Nt c crv x mumomjths after the date of t 1mm’ t rausnmission to the Ad—
itiiiiiSt ritom of time list pursuant to time prm ’t’t ’e(ling sentence, tire (‘Ohlililit -
tee shill tii.mke smn’hr revisions in the list as it tletermimines to 1w’ tiecessarV
and shall r;mnsnnt thenr to tire Admumistnator tnt.’ether with tin’ coin —
L;—i revision. im itt t”s ii ’:us ins for the revisions. Vpnn receipt of any such revision.
publication “ t ho Admiuin ist rat or slut) I publish in the Federal Register rlut ’ list with
lederal Register, stick revision, the reasons for such revision, and the designations uttade
tinder subparagi-aplm (A). The Administratot’ sludi provide reasonable
opportunity to any interested person to tile with the Atirninism VattOI
written coiuuuimeuts on the eomrmnmittoe’s list, any revision of such list
I Comn sit tec. : 111(1 dcsignatums inade by the connzmittee, and shall
itiake such comnients available to the public. Within the 12-ihomitli
Publication in i tttaL Is’gmimluirig out time (late of the first inclusion on the list’ of a
Iederal Register. cheiisieatl substance or in ixture designated by time. committee under sub-
paragraph (A) the Administrator shall wi h respect to such cheiumit’al
or mixture either initiate a rulemaking proceeding under
subsoet Ion (a) or if suidi a proceeding is not initiated within such
TSCA Co p1iance/Enforceent 1—18 Guidance Manual 1984
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Chapter One TSC&
period, publish in the Federal Register the Administrator’s reason for
not initiating Such a proceeding.
( ) ( A) 1’he coiiiiiiittve estal)llshed by paragraph (1) (A’) shall con- Membership.
sist of eight ineml*rs as follows:
1) One member appointed by the Administrator from the
Enviromnental l’rotection Agency.
(ii) One ineiiiber appointed by the Secretary of Labor from
officers or employees of the 1)epartment of Labor engaged in the
Secretary’s activities under the Occupational Safety and Health
Act of 19 ’t).
(iii) One member appointed by the Chairman of the (‘ouncil
on Environmental Quality from the Council or its officeis or
enhI)loYe es.
(iv) One member appointed by the Di rector of the Nat ioiui I
Institute for Occupational Safety and Health from officers or
employees of the Institute.
(v) One nieniber appointed by the Director of the National
Institute of Environmental Health Sciences from officers or
employees of the Institute.
(vi) One member appointed by the Director of the National
Cancer Institute from officers or employees of the Institute.
(vii) One member appointed by the Director of the National
Science Foundation from officers or employees of the Foundation.
(viii ’) One member appointed by the Secretary of Commerce
from officers or enmployet .s of the 1)epmirtment of Commerce.
B) i ) An appointed nu ’nil*r may designate an individwil to serve
on the cnmnmittee on the member’s behalf. Such a designation may be
made only with the approval of the applicable appointing authority
and only if the individual is from the entity from which the member
was appoilLte(l.
(ii) No individual mmiv serve as a member of the committee for more
than four vents in the aggregate. If any inenther of the committee
leaves the entity from which the member was appointed, such member
may not continue as a member of the committee. and the member’s
position shall be considered to be vacant. A vacancy in the committee
shall be filled in the same manner in which the original appointment
was made.
(iii ’) Initial appointments to the committee shall be made not later
than the &)th day after the effective date of this Act. Not later than
the 90th day after such date the members of the committee shall hold a
meeting for the selection of a chairperson from among their number.
(C) (i) No member of the committee, or designee of such member.
}mall accept employment or compensation from any person subject to
any re ’iuirement of this Act or of any rule promulgated or order issued
thereunder, for a period of at least 12 months after termination of
service on the committee.
(ii) No person, while serving as a member of the committee, or des-
ignee of such member, may own any stocks or bonds, or have any
pecuniary interest, of substantial value in any person engaged in the
manufacture, processing, or distribution in commerce of any chemical
substance or mixture subject to any requirement of this Act or of any
rule promulgated or order issued thereunder.
(iii) The Administrator, acting through attorneys of the Environ-
mental Protection Ageucy, or the Attorney General may bring an
action in the appropriate district court of the United States to restrain
any violation of this subparagraph.
(D) The Administrator shall provide the committee such admin-
istrative support services as may be necessary to enable the committee
to carry out its function under this subsection.
(0 REQUIRED AcTIoNs.—12 ’pon the receipt of—
(1) any test data required to be submitted under this Act. or
TSCA Co.pliancefEnforceaent 1-19 Guidance Manual 1984
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Chapter One TSC&
( ) any other information available to the Administrator,
which indicates to the Administrator that there may be a reasonable
basis to conclude that a chemical substance or mixture presents or wifl
present a significant risk of serious or widespread harm to human
beings from cancer, gene mutations, or birth defects, the Adniinistra-
toy shall, within the 180-day period beginning on the date of the receipt
of such data or information, initiate appropriate action under section
5. 6. or 7 to prevent or reduce to a sufficient extent such risk or publish
in the Federal Register a finding that such risk is not unreasonable. For
good cause shown the Administrator may extend such period for an
Publicatioo in additional period of not more than 90 days. The Administrator shall
Federal Re i,ter. publish in the Federal Register notice of any such extension and the
reasons therefor. A finding by the Administrator that a risk is not
unreasonable shall be considered agency action for purpoees of judicial
s usc ioi. review under chapter 7 of title 5, United States Code. This subsection
shall not take effect until two years after the effective date of this Act.
(g) PETITION FOR STANDAiwS FOR TUE DEVELorMENT OF Tasr DATA.—
A person intending to manufacture or priw ss a chemical substance
Ir fru. for which notice is required under section 5(a) and who is not required
under a rule under subsection (a) to conduct tests and submit data
on such substance may petition the Admiii strator to prescribe stand-
ards for the development of test t Iara or sue’ substance. The Adrnin-
i trator shall by order either grant or deny any siu’h petition within
fit) days of its receipt. If the petition is granted, the Administrator
shad) prescribe such standards for such substance within 75 days of
Pubhcanon , , the date the petition is granted. If the petition is denied, the Admin-
Federal Re astez. istrator shall publish. subject to section 14. in the Federal Register the
reasons for such denial.
SEC. 5. MANUFACTURING AND PROCESSING NOTICESI
15 usc 26O . (a) IN GEN a iL—(1) Except as provided in subsection (h). no
i erson may—
(A) manufacture a new chemical substance on or aifter the 30th
day after the date on which the Administrator first publishes the
list required by section 8(b), or
(B) manufacture or process any chemical substance for a use
which the Administrator has determined, in accordance with
paragraph (a). is a significant new use,
unless such person submits to the Administrator, at least 90 days before
such manufacture or processnig. a notice, in aecordanee with subsection
(d), of such person’s intention to manufacture or process such. sub-
stance and such person complies with any applicable requirement of
subsection (b).
(2) A determination by the Administrator that a use of a chemical
substance is a significant new use with respect to which notification
is required under paragraph (1) shall be made by a rule promulgated
after a zsidcrnri n of all relevant factors, including—
(.‘t) the j)rojected volume of manufacturing and processing of
a chemical substance,
(B) the extent to which a use changes the type or form of
exposure of human beings or the environment to a chemical
substance,
(C) the extent to which a use increases the magnitude and
duration of exposure of human beings or the environment to a
chemical substance, and
(D) the reasonably anticipated manner and methods of manu-
ftnturing. processing, distribution in commerce, and disposal of
ii chemical substance.
(b) SUBMISSION OF 1i sT DATA.—(1) (A) If (i) a person is required
by subsection (a) (1) to submit a notice to the Administrator before
beginning the niaiiufuctiive or processing of a chemical substance,
and (ii) such person is required to submit test data for such sub-
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Chapter One TSCA
stance pursuant to a rule promulgated under section 4 before the
submission of such notice, such person shall submit to the Adminis-
trator such data in accordance with such rule at the time notice is
submitted in accordance with subsection (a) (1).
(B) If—
(i) a person is required by subsection (a) (1) to submit a
notice to the Administrator, and
(ii) such person has been granted an exemption under section
4(c) from the requirements of a rule promulgated under section
4 before the submission of such notice,
such person may not, before the expiration of the 90 day period which
begins on the date of the submission in accordance with such rule of
the test data the submission or development of which was the basis
for the exemption, manufacture such substance if such person is
subject to subsection (a) (1) (A) or manufacture or process such
substance for a. significant new use if the person is subject to subsection
(a)(1)(B).
(2)(A) If a person—
(i) is required by subsection (a) (1) to submit a notice to the
Administrator before beginning the manufacture or processing
of a. chemical substance listed under paragraph (4), and
(ii) is not required by a rule promulgated under section 4
before the submission of such notice to submit test. data for such
substance,
such person shall submit to the Administrator data prescribed by
subparagraph (B) at the time notice is submitted in accordance with
subsection (a)(1).
(B) Data submitted pursuant to subparagraph (A) shall be data
which the person submitting the data believes show that—
(i) rn the ease of a substance with respect to which notice is
required under subsection (a) (1) (A). the manufacture, process-
ing, distribution in commerce, use. and disposal of the chemical
substance or any combination of such activities will not present
an unreasonable risk of injury to health or the environment, or
(ii) in the case of a chemical substance with respect to which
notice is required under subsection (a) (1)(B), the intended
significant new use of the chemical substance will not present an
unreasonable risk of injury to health or the environment.
(3) Data submitted under paragraph (1) or (2) shall be made
available, subject to section 14, for examination by interested persons.
(4) (A) (i) The Administrator may, b r rule, compile and keep
current a list of chemical substances with respect to which the
Administrator finds that the manufacture, processing, distribution in
commerce, use, or disposal, or any combination of such activities,
presents or may 1)L’esent an unreasonable risk of injury to health or
the env iroiiment.
(ii) In making a finding under clause (i) that the manufacture,
processing, distribution in commerce, use, or disposal of a chemical
substance or any combination of such activities presents or may present
an unreasonable risk of injury to health or the environment, the
Administrator shall consider all relevant factors, including—
(I) the effects of the chemical substance on health and the
magnitude of human exposure to such substance; and
(II) the effects of the chemical substance on the environment
and the magnitude of environmental exposure to such substance.
(B) The Administrator shall, in prescribing a rule under subpara-
graph (A) which lists any chemical substance, identify those uses,
if any, which the Administrator determines, by rule under subsection
(a) (2), would constitute a significant new use of such substance.
(C) Any rule under subparagraph (A), and any substantive
amendment or repeal of such a rule, shall be promulgated pursuant
TSCA Compliance/Enforceaent 1-21 Guidance Manual 1984
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Chapter One rsc
to the procedures specified in section 553 of title 5, United States
Oral Code, except that. (i) the Administrator shall giVe interested persons
presentation, an opportunity for the oral presentation of data, views, or arguments,
Transcript, in addition to an opportunity to make written submissions, (ii) a
Publicanon. transcript, shall be kept of any oral presentation, and (iii) the Admin-
istrator shall make and publish with the rule the finding described
in subparagraph (A).
(c) EXTENSION OF NOTICE Paiuoo.—The Administrator may for
good cause extend for additional periods (not to exceed in the aggre-
gate 90 days) the period, prescribed by subsection (a) or (b) before
which the manufacturing or processing of a chemical substance sub-
Publication in ject to such subsection may begin. Subject to section 14, such an
Federal Re i.ter. extension and the reasons therefor shall he published in the Federal
Re ister and shall constitute a final agency action subject to judicial
review.
(d) Cowit ’r OF NOTICE: PI BLICATZONS iN THE FEDEw. RWISTZI.—
(1) The notice required by subsection (a) shall include—
(A) insofar as known to the person submitting the notice or
insofar as reasonably ascertainable, the information described in
subparagraphs (A), (B), (C), (D), (F), and (0) of section
8(a) (2), and
(B) in such form and manner as the Administrator may pre-
scribe, any test data in the possession or control of the person
giving such notice woich are related to the effect of any manu-
facture, processing, distribution in commerce, use, or disposal of
such substance or any article containing such substance, or of any
combination of such activides, on health or the environment, and
(C) a description of any other data concerning the environ-
mental and health effects of such substance, insofar as known to
the person making the notice or insofar as reasonably ascertain-
able.
Such a notice shall be itiade available, subject to section 14. for exam-
ination by interested persons.
(2) Su’bject to section 14, not later than five days (excludinff Satur-
days, Sundays and legal holidays) after the date of the receipt of a
notice under subsection (a) or of data under subsection (b), the
Administrator shall publish in the Federal Register a notice which—
(A) identifies the chemical substance for which notice or data
has been received:
(B) lists the uses or intended uses of such substance; and
(C) in the case of the receipt. of data under subsection (b),
describes the nature of the tests performed on such substance and
any data which was developed pursuant to subsection (b) or a
rule under section 4.
A notice under this paragraph respecting a chemical substance shall
identify the chemical substance by generic class unless the Administra-
tor determines that more specific identification is required in the
public interest.
(3) At the be inuing of each month the Administrator shall pub-
lish a list ir the ’ederal Register of (A) each chemical substance for
which not1c has been received under subsection (a) and for which
the notificat iou period prescribed by subsection (a), (b), or (c) has not
expired, and (B) each chemical substance for which such notifica-
tion period has expired since the last publication in the Federal Regis-
ter of such list.
(e) RE0UL TION PENDING DE%tw’uixr or JNFORMATION—(l) (A)
If the Administrator determines that—
(i) the inforniation available to the Administrator is insuf-
ficient to permit a reasoned evaluation of the health and environ-
mental effects of a chemical substance with respect to which notice
is required by subsection (a.) ; and
p ance/Euforc 1—22 Guidance Manual 1984
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t..napter One T$C&
(ii) (I) in the absence of sufficient information to permit the
Administrator to make such an evaluation, the manufacture,
processing, distribution in commerce, use, or disposal of such
substance, or any combination of such activities, may present an
unreasonable risk of injury to health or the environment, or
(H) such substance is or will be produced in substantial quan-
tities, and such substance either enters or may reasonably be
anticipated to enter the environment in substantial quantities or
there is or may be significant or substantial human exposure to the
substance,
the Administrator may issue a proposed order, to take effect on the Proposed order.
expiration of the notii cation period applicable to the manufacturing
or processing of such substance under subsection (a), (b), or (c), to
prohibit or limit the manufacture, processing, distribution in com-
merce, use, or disposal of such substance or to prohibit or limit any
combination of such activities.
(B) A proposed order may not be issued under subparagraph (A)
respecting a chemical substance (i) later than 45 days before the
expiration of the notification period applicable to the manufacture or
processing of such substance under subsection (a), (b), or (c), and
(ii) unless the Administrator has, on or before the issuance of the
proposed order, notified, in writing, each manufacturer or processor,
as the case may be, of such substance of the determination which
underlies such order.
(C) If a manufacturer or processor of a chemical substance to be
subject to a proposed order issued under subparagraph (A) files with
the Administrator (within the 30-day period beginning on the date
such manufacturer or processor received the notice required by subpar-
agraph (B) (ii)) objections specifying with particularity the provi-
sions of the order deemed objectionable and stating the grounds
therefor, the proposed order shall not take effect.
(2) (A) (i) Except as provided in clause (ii), if with respect to a Injunction.
chemical substance with respect to which notice is required by subsec- application.
tion (a), the Administrator makes the determination described in
paragraph (1)(A) and if—
(I) the Administrator does not issue a proposed order under
paragraph (1) respecting such substance, or
(II) the Administrator issues such an order respecting such
substance but such order do€ .. not take effect because objections
were tiled under paragraph (1) (C) with respect to it,
the Administrator, through attorneys of the Environmental Protection
Agency, shall apply to the United States District Court for the Dis-
trict of Columbia or ti United States district court for the judicial
district in which the manufacturer or processor, as the case may be, of
such substance is found, resides, or transacts business for an injunction
to prohibit or limit the manufacture, processing, distribution in com-
merce, use, or disposal of such substance (or to prohibit ...r limit any
combination of such activities).
(ii) If the Administrator issues a proposed order under paragraph
(1) (.\.) respecting a chemical substance but such order does not take
effect because objections have been filed under paragraph (1) (C) with
respect to it, the Administrator is not required to apply for an injunc-
tion under clause (i) respecting such substance if the Administrator
determines, on the basis of such objections, that the determinations
under paragraph (1) (A) may not be made.
(B) A district court of the United States which receives an appli-
cation under subparagraph (A) (i) for an injunction respecting a
chemical substance shall issue such injunction if the court finds that—
(i) the inforniation available to the Administrator is insufficient
to permit a reasoned evaluation of the health and environmental
TSCA Co.pliancelKnforceaent 1-23 Guidance Manual 1984
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Chapter One TSC&
effects of a chemical substance with respect to which notice is
required by subsection (a) ; and
(ii) (I) in the absence of sufficient information to permit the
Aduiiiiist z-ator to make such an evaluation, the manufacture, proc.
es-in2 distribution in commerce, use, or disposal of -uch
uL .tutice. or any combination of such activities, may present ur
u;s reasonable risk of injury to health or the environment: ‘t
II) such substance is or will be produced in subst’ ntial iuln-
tities, and such substance either enters or may reasonably be
anticipated to enter the environment in subetantial quantities or
there is or may be significant or substantial human exposure to
the substance.
(C) Pending the completion of a proceeding for the issuance of an
injunction under subparagraph (B) respecting a chemical substance,
the court may, upon application of the Administrator made through
attorneys of the Environmental Protection Agency, issue a temporary
restraining order or a preliminary injunction to prohibit the manu-
facture, processing, distribution in commerce, use, or disposal of such
a substance (or any combination of such activities) if the court finds
that the notification period applicable under subsection (a), (b), or
(c) to the manufacturing or processing of such substance may expire
before such proceeding can be comp”eted.
(D) After the submission to the Administrator of test data sufficient
to ev*luate the health and environmental effects of a chemical sub-
stance subject to an injunction issued u;ider subparagraph (B) and
the evaluation of such data by the Administrator the district court
of the rnited States which issued such injunction siiall upon petition,
dissolve the injunction unless the Administrator has initiated a pro-
ceeding for the issuance of a rule under section 6(a) respecting the
substance. If such a proceeding has been initiated, such court shalicon-
tinue the injunction in effect until the effective date of the rule pro-
mulgated in such proceeding or, if such proceeding is terminated
without the promulgation of a rule, upon the termination of the pro-
ceeding, whichever occurs first.
(f) Piivr rios Aausrr UNRxASONABLE Rzsx&—(1) If the Admin-
istrator finds that there is a reasonable basis to conclude that the manu-
facture, processing, distribution in commerce, use, or disposal of a
chemical substance with respect to which notice is required by subsec-
tion (a), or that any combination of such activities, presents or will
present an unreasonable risk of injury to health or environment before
a rule. promulgated under section 8 can protect against such risk, the
Administrator shall, before the expiration of the notification period
applicable under subsection (a), (b), or (c) to the manufacturing or
processing of such substance, take the action authorized by paragraph
(2) or (3) to the extent necessary to protect againstsuch risk.
Proposed rule. ( ) The Administrator may issue a proposed rule under section
6(a) to apply to a chemical substance with respect to which a finding
was made under paragraph (1)—
(A) a requirement limiting the amount of such substance
which may be manufactured, processed. or distributed in
commerce.
(B) a requirement described in paragraph (2), (3), (4), (5),
(6).or (7) of section 6(a) ,or
(C) any combination of the requirements referred to in sub-
paragraph (B).
Pubbcatáon in Such a proposed rule shall be effective upon its publication in the Fed-
Federai Register. etal Re istcr. Section 6(d) (2) (B) shall apply with respect to such
rule.
(3) (A) The Administrator may—
Proposed order. (I) issue a proposed order to prohibit the manufacture, process-
ing. or distrihutmon in commeree of a substance with respect to
TSCA CospliancelEnforce.eiit 1-24 Guidance Manual 1984
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Chapter One TSCL
which a finding was made under paragraph (1), or
(ii) apply, through attorneys of the Environmental Protection lnjuncti n
Agency, to the Pn ted States District Court for the District of application.
Columbia or the Inited States district court for the judicial dis-
trict in which the manufacturer, or processor, as the case may be,
of such substance, is found, resides, or transacts business for an
in) unction to prohibit the manufacture, processing, or distribu-
tion in commerce of such substance.
A proposed order issued under clause (i) respecting a chemical
substance shall take effect on the expiration of the notification period
applicable under subsection (a), (b), or (c) to the manufacture or
processing of such substance.
(B) If the district court of the United States to which an applica-
tion has been made under subparagraph (A) (ii) finds that there is a
reasonable basis to conclude that the manufacture, processing,
distribution in commerce, use, or disposal of the chemical substance
with respect to which snch application was made, or that any combina-
tion of such activities, presents or will present an unreasonable risk
of injury to health or the environment before a rule promulgated
under section 6 can protect against such risk, the court shall issue
an injunction to prohibit the manufacture, processing, or distribution
in commerce of such substance or to prohibit any combination of such
activities.
(C) The provisions of subparagraphs (B) and (C) of subsection
(e) (1) shall apply with respect to an order issued under clause (i)
of subparagraph (A); and the provisions of subparagraph (C) of sub-
section (e) (2) shall apply with respect to an injunction issued under
subparagraph (B).
(D) If the Administrator issues an order pursuant to subparagraph
(A) (i) respecting a chemical substance and objections are filed in
accordance with subsection (e)(1) (C), the Administrator shnfl seek
an injunction under subparagraph (A) (ii) respecting such substance
unless the Administrator determines, on the basis of such objections,
that such substance does not or will not present an unreasonable risk
of injury to health or the environment.
(g) STATEMENT OF REASONs FOR NOT TAIUNO AcrIoN.—If the
Administrator has not initiated any action under this section or section
6 or T to prohibit or limit the manufacture, processing. d s ribution
in commerce, use, or disposal of a chemical substance, with respect to
which notification or data is required by subsection (a) (1) (B) or (b),
before the expiration of the notification period applicable to the manu-
facturing or processing of such substance, the Administrator shall
publish a statement of the Administrator’s reasons for not initiating
such action. Such a statement shall be published in the Federal Reg- Publication in
later before the expiration of such period. Publication of such state- Federal Register.
ment in accordance with the preceding sentence is not a prerequisite
to the manufacturing or processing of thesubstance with respect to
which the statement is to be published.
(h) Exr . PTIoNs.—(1) The Administrator may. upon application,
exempt any person from any requirement of subsection (a) or (b) to
permit such person to manufacture or process a chemical substance
for test marketing purposes—
(A) upon a showing by such person satisfactory to the Admin-
istrator that the manufacture, processing, distribution in
commerce, use, and disposal of such substance, and that any com-
bination of such activities, for such purposes will not present any
unreasonable risk of injury to health or the environment, and
(B) under such restrictions as the Administrator considers
appropriate.
(-.fl (A) The Administrator may, upon application, exempt aiiv per-
s m from the requirement of subsection (b) (2) to submit data’ for a
TSCA Co.pliancefEnforceaent - 1-25 - Cuidauce Manual 1984
-------
Chapter One TSCL
clwmieal substance. If. upon receipt of an application under the pre-
ceding sentence, the Administrator determines that—
(i) the chemical substance with respect to which such applica-
tion was submitted is equivalent to a chemical substance for which
data has been submitted to the Administrator as required by sub-
section (h)(2).and
(ii) submission of data by the applicant on such substance
would be duplicative of data which has been submitted to the
Administrator in accordance with such subeeetion,
the Administrator shall exempt the applicant from the requirement
to submit such data on such substance. No exemption which is granted
under this subparagraph with respect to the submission of data for a
chemical substance may take effect before the beginning of the reim-
hnrsement period applicable to such data.
Fair and (B) If the Administrator exempts any person, under subpara raph
equitable (A). from submitting data required under subsection (b’(2) for a
reimbursement. chemical substance because of the existence of previously submitted
data and if such exeiimtinn is granted durin r the reimbursement period
for such data. then (unless such person and the persons referred to in
clauses ( i ) and ( ii) agree on the amount and method of rentihurse—
ment) the . dministrator shall order the person granted the exemption
to provide fair anti ep;itabie reinibiursenient (in an amount determined
tinder rules of the .%. d iii ii ist rat or) —
(i ) to the person who previously submitted the data on which
the exemption was based. for a portion of the costs incurred by
neh person in complying with the requirement under subsection
h ) ) to sulintit such data, and
ii) to amtv of her person who has been required tunler this sub—
panigrapli to contribute with respect to such costs, for a portion
of the amount such person was required to contribute.
In proiiiiilgating rules for the determination of fair and equitable
retijihi, Ni nu ’flt to (In’ persons described in ( ‘Ittuses ( i ) and I ii) for
fl t iiirtirrt’d wit Ii re zt ’tt to a t’heiiiieal substance, the Atlittinistrator
shall. a ((cc ron iilt t ion with the .tttnrnev Geni’ni) and the Federal
Tratle ( itinmit is ’ ion. i ’tiii ’ jiit’t’ all relevant factors. including the effect
Oil the r.Onl) ( ’titi ‘ ‘ posit iott of the person required to liruvide reim—
I iu rst ’IiIr,ir iii it -Ia t ion to the persons to he reimbursed ;ind the share of
hit ’ inn rf t’t for —ip ’li stihista i ll-c of time person required to provide reimn—
hilt N( ’li ,t’itt in relation to t he share of such market of the persons to he
iI ’i!nb. ,lrspd. For iii e - of jiidiciztl review. an order under this
sni l )arngra ph shall I roimsitlereil final agency action.
Reimbursement ( ‘ ) For iairi , es of ; hi— im r.igraph. time ri -imimeseinent period for
period. ;umv pre -iouslv sulnuitred data for a chemical substance is a period-
‘) I ie rmnn in .r tam tIn ’ date of the termination of the prohibition.
JIii!Io ’e(l under thii sei ’t ion, on the manufacture or processing of
— Uel siihsrai,tp by time person vlio submitted such data to the
. (hitiitmi—trator, anl
II) t’fltli!mg—
1) ti vi’ vet rs a ftcr tin’ date referred to in clause ( i ), or
11) at the expiration of a period which begins on the
laU’ teferred in in clause ( i ) and is equal to the period which
t In’ ‘ * fin iii 1St rator deterini,ws was necessary to develop stich
(mt a,
wit sihiever i . later.
: ) ‘Flic ret 1 ii meilielti— of siih .ert ions ( a and ( h) do tint a plv vith
ri’spw( ’t to the zimaiimmfat-tiit’ittg or processing of any chemical sub-
a inc aft nit is it taut, fart ii red Or i)rOCt’Ssed, or proposed to be manti—
fart art-i I or lil t ’ etl. o,mlv in small quantities as defined by the
tint in m M iator I y iii Ic) —olelv for l)Iirpos s of—
( . , ) srtt ’iir I ft• I ’xln’rin)eIttat ion or analysis, or
TSCA Co.pliancelEnforceaent 1-26 Guidance Manual 1984
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Chapter One
(B) chemical research on. or analysis of such substance or
another substance, including such research or analysis for the
development of a product,
if all persons engaged in such experimentation, research, or analysis
for a manufacturer or processor are notified (in such form and manner
as the Administrator may prescribe) of any risk to health which the
manufacturer. processor. or the Administrator has reason to believe
may be associated with such chemical substance.
(4) The Administrator may. upon application and by rule, exempt
the manufacturer of any new chemical substance from all or part of
the requtrements of this section if the Administrator determines that
the manufacture, processing, distribution in commerce, use, or dis-
P 1 ? such chemical substance, or that any combination of such
activities, will not present an unreasonable risk of injury to health or
the environment. A rule promulgated under this paragraph (and any
substantive amendment to, or repeal of. such a rule) shall be promul-
gated in accordance with paragraphs (2) and (3) of section 6(c).
(5) The Administrator mimy. upon application, timake the require-
ments of subsections (a) an(L b) inapplicable with respect to the
manufacturing or processing of any chemical substance (A) which
exists temporarily as a result of a chemical reaction in the manufac-
turing or processing of a mixture or another chemical substance. and
B) to which there is no. and vill not be, hmnan or environmental
exposure.
I;) lntmnediately upon i’ Pipt of mi mqplieatirni under paragraph Publication in
(1 ‘ or (. ) time Admitinistrator shall Lml)lmsli in the Federal Register Federal Register.
notice of tIme rereipt of such aptliration. The Administrator shall give Comments.
iiitcreste(l pet ons tin Of)f)OrttIllltV to coimtincttt upon any such applica-
tion amid lu ill. vitlmiii 4.i days of its receipt. either approve or deny the
al)I)I tent iou. Tire Administrator slut II publish in the Federal Register Publication in
notice of th approval t r (k9ttal of such an application. Federal Register.
(1) Di:rix rrtox.—For purposes of this section, the terms ‘manufac-
ture and “i)I1)eesS mean manufacturing or processing for cwumereinl
1 1 r )fl 5( S.
SEC. 6. REGULATION OF HAZARDOUS CHEMICAL SUBSTANCES AND
MIXTURES.
a) OtI i)}’ R) OtL T1ii .—1 f the Atlumminist rator finds that there i 15 USC 2605.
a m asoima I ik 1 insis to romwl iii Le that t I te man i i fueture. prx’essi ng. dis—
trilmtion in ()nmulieree. muse. or kisposnl of a eluuimieai substance or
mixture. or that amy riuuliinntion of surli art uvitmes. presents or wi 1 i
an luflrvns imunhie risk of inj tmrv to ht’altli or the environuiient,
the Administrator Uall liv rub’ apply one or more of the following
requirements to siwli stmhstamiee or imiixtimre to the extent net’essarv to
I)rotert nileqimately against iicli risk using the least hurdensomiw
req ui reim tents
(1) A mequ I ri uimeiit ( A ) pi ilt Il ut lug t lie i i tanu furturing, l)I0( ’(’s——
ing. or ilistuibimtinn in rolililterre of such sulustance or mixture. or
B) liuiitimmg the alummimuit of si h substance or mixture which ma
1* m im n mm fuutim red. [ )rmxP se(l. or di 5 t rihuiti’d in commumerce.
( ) A rtlIliremIirnt—
. . ) P hihit i ng time imut tin fitetmire. processing. or d istribu -
t ion in cotuumimerre of .imrh stibstanre or mixture for ( i ) at
pat rt ir tim t• use or ii) a particular use in a concentration in
( ‘X(P 5 01 a lcvel sperified by the Atlimiinist.rator in the nile
imposing the requirement, or
(B) 1 uniting the amount of such substance or mixture
vJiirh may be manufactured. processed. or distributed iii
enmiunuerre for ( i ) a particular use or (ii) a particular use
iii a oIte(mIt.ration in excess of a level specified by the
Aduinnistrator in the rule imposing the requirement.
TSCA Cospliance/Enforcement 1—27 GuIdance Manual 1984
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Chapter Ome T$C&
(3) A re 9 uireiuent that SUCh substance or mixture or any
article contaniing such substance or mixture be marked with or
accompanied by clear and adequate warnings and instructions
with respect to its use, distribution in commerce, or disposal or
with re . .pect to any combination of such activities, The form and
content of such warnings and instructions shall be prescribed by
the Administrator.
(4) A requirement that manufacturers and processors of such
substance or mixture make and retain records of the processes
used to manufacture or process such substance or mixture and
monitor or conduct t.’sts which are reasonable and necessary to
assure compliance with the requirements of any rule applicable
under this subsection.
(3) A requirement prohibiting or otherwise regulating any
manner or method of commercial use of such substance or
mixture.
((i)(A) A requirement prohibiting or otherwise regulating any
maimer or method of disposal of such substance or mixture, or
of aimy art i de containing such substance or mixture, by its manu-
facturer or processor or by any other person who uses. or disposes
of, it. for commercial purpose ’.
(B) A requirement. under subparagraph (A) may not require
any person to take any uc ion which would be in violation of
any law or requirement of. or in effect for, a State or political
subdivision. aml shall require each person subject to it to notify
each Stntc and political subdivision in which a required disposal
univ OCCIII’ of nch disposal.
(7) A requirement . directing manufacturers or processors of
such substance or mixture (A) to give notice of such unreasonable
risk of injury to distributors in commerce of such substance or
mixture anti, to the extent reasonably ascertainable, to other per-
Sons in jx .se sion of such substance or mixture or exposed to such
substance or mixture, (B) to give public notice of such risk of
injurY. and (C) to replace or repurchase such substance or
mixture as elected by the i)1 Oi to which the requirement is
directed.
Any requireulent (or combination of requirements) imposed tinder
tl)iS subsection may be limited in application to specified geographic
areas.
(h) QUALITY (‘ xTuni..—Tf the Administrator has a reasonable
basis to conclude that a particular manufacturer or processor is manu-
fncniring or proces.siiig a chemuwal substance or mixture in a manner
which unintentionally causes the chemical substance or mixture to
present or which will cause it to present an unreasonable risk of
rnjurv to health or the enviro,unent—
(1) the Administrator may by order require such manufac-
tiirer or proces r to subniti a description of the relevant quality
control procedures followed in the manufacturing or proei .ssing
of such chemical substance or mixture; and
(2) if the Atlininistrittor tlet .erniines—
(A) that such quality control procedures are inadequate
to prevent the chemical substance or mixture from presenting
such risk of injurY, the Administrator may order the manit-
facturer or processor to revise such quality control procedures
to the extent necessary to remedy such inadequacy: or
(B) that the use of such quality control procedures has
resulted in the distribution in commerce of chemical substances
or mixtures which present an unrensonabie risk of injury to
health or the environment, the Administrator may order the
manufacturer or processor to (i) give notice of such risk to
processors or distributors in conimmuerce of any such sub-
TSCL Co.p11ance/Enforc ut 1—28 Guidance Ma’ ia1 1984
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Chapter One
stance or mixture, or to both. and, to the extent reasonably
ascertainable, to any other person in possession of or exposed
to any such substance, (ii) to give public notice of such risk,
and (iii) to provide such replacement or repurchase of any
such substance or mixture as is necessary to adequately pro-
tect health or the environment.
A determination under subparagraph (A) or (B) of paragraph (2) Hearing.
shall be made on the record after opportunity for hearing in accord-
ance with section 554 of title 5, United States Code. Any manufacturer
or processor subject to a requirement to replace or repurchase a chem-
ical substance or mixture may elect either to replace or repurchase
the substance or mixture and shall take either such action in the man-
ner prescribed by the Administrator.
(c) PRo tuwATIoN OF Suas c’rIoN (a) Ruiis.—(1) In promulgat- Statement,
ing any rule under subsection (a) with respect to a chemical substance publication.
or mixture, the Administrator shall consider and publish a statement
with respect to—
(A) the effects of such substance or mixture on health and the
magnitude of the exposure of human beings to such substance or
uiixture.
(B) the effects of such substance or mixture on the environment
and the magnitude of the exposure of the environment to such
substance or mixture,
(C) the benefits of such substance or mixture for various uses
and the availability of substitutes for such uses, and
(1)) the reasonably ascertainable economic consequences of the
rule, after consideration of the effect on the national economy.
sinai I busi miess, technological innovation, the environment, and
public health.
If the Administrator determines that a risk of injury to health or the
environment could be eliminated or retlmiced to it sufficient extent by
actions taken under another Federal law (or laws) administered in
whole or in part by the Administrator, the Administrator may not
promnnigmtte a rule under subsection (a) to protect against such risk
of injury unless the Administrator find .m , in the Administrator’s dis-
cretion. that it is in the public interest to protect against such risk
un(ler this Act. In making such a finding the Administrator shall con-
sider (i) all relevant aspects of the risk, as determined by the Adininis-
trator in the Administrator’s discretion, (ii) a comparison of the
estimated costs of complying with actions taken under this Act and
mmn(ler such law (or laws), and (iii) the relative efficiency of actions
under this Act and under Such law (or laws) to protect against such
risk of injury.
( ) When prescribing a rule under subsection (a) the Adminis-
trator shall proceed in accordance with section 3 of title , United
States Code (without regard to nmtv reference in such section to sec-
tions .5.31i and 5T of such title). and shall also (A) publish a notice of 5 USC 556. 557.
proposed muleinaking stating with particularity the reason for the
PrO! Sed rule ( B) allow interested persons to submit written data. publication.
vjp and arguimients. and make all such submissions publicly avail- Wrmtten data.
able: (C) provide an oppottunitv for an informal hearimu in accord-
amice with j)aragrn th (3) : (I)) promulgate, if appropriate, a final
rule based on the nmutter in the rulemaking record (as defined in section
19(a)), and ( E) make and publish with time rule the finding described Final rule.
in smibsect ion (a).
(:3) Informal hearings required l iv paragraph (2) (C) shall he comi- Informal
(lulcted by the Admnimtistrmttor in accordance with the following hearings
requirements:
-‘ ) Subject to smilipa ragra ph (13), an interested person is
cut it led—
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Chapter One TSCL
1) to present such person’s position orally or by docii—
iiientnrv submissions (or both’), and
(ii f the Administrator determines that there are dis-
puted issues of tunterial fact it is necessary to resolve, to
present such rebuttal submissions and to conduct (or have
conducted under subparagraph (B) (ii)) such croes—exarnina—
tion of persons as the Administrator determines (1) to be
appropriate, and (II) to be required for a full anti true dis-
closure with respect to such issues.
Rules. (B) The Administrator may prescribe such rules and make such
rulings concerning procedures in such hearings to avoid umwces-
sary costs or delay. Such rules or rulings may include (i) the
iin osition of reasonable time limits on each interested person’s
oral presentations, and (ii) requirements that any cross-examina-
tion to which a person ma ,’ be entitled under subparagraph (A)
l x ’ conducted by the Administrator on behalf of that person in such
manner as the Administrator determines (1) to be appropriate,
and (II) to be required for a full and true disclosure with respect
to disputed issues of material fact.
(C) (1) Except as provided in clause (ii). if a group of persons
each of whom under subparagraphs (A) and (B’) would be
entitled to conduct (or have conducted) cross-examination and
who are determined by the Administrator to have the same or
similar interests in the proceedhig cannot agree upon a single
representnti’ o of such interests for purposes of cross—exannnnt ion,
the Administrator may make rides and rulings (I) limiting the
representation of such interest for such purposes. and (H) gov-
erning the manner in which such cross-examination shall be
limited.
(ii) WThCIk any person who is a niembei’ of a group with respect
to which the Administrator has made a determination under
clause (1) is unable to agree upon group represeutat ion with the
other members of the group. then Such person shah not be denied
IIfl(let the autborit of clause (I’) the opportunity to conduct (or
have conducted) cross-examination as to issues affecting the per-
son’s particular interests if (I) the person satisfies the Admin-
istrator that the person has made a reasonable and good faith
effort to reach agreement upon group representation with the
other members of the group and (H) the Administrator deter-
mines that there are substantial and relevant issues which are not
atleijuntely presented liv the group representative.
Verbatim ( D) A vet-batini ti tnsei-ipt shall be taken of any oral pre en—
transcnpt. tation made, and cross-examination conducted in any informal
hearing tinder this subsection. Such transcript shall be available
to the public.
Cumpensanon. ( 4 (A) The Administrator may. pursuant to rules prescribed by the
Adm in ist iii toy. prov ide comnpensat inn for reasonable attorneys’ fees,
expert witness fees, and other costs of participating in a rulemaking
proceeding for the proniulgation of a rule under subsection (a) to
any person—
(i) who m-epresents an interest which would substantially eon-
tribute to a fair determination of the issues to be resolved in the
pm’oeeedtng, and
(ii) jf
(I) the economic interest of such person is small in corn-
parison to the costs of effective participation in the proceed-
ing by such person, or
(II) such person demonstrates to the satisfaction of the
Administrator that such person does not have sufficient
resources adequately to participate in the proceeding without
compensation under this subparagraph.
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Chapter Oae TSCL
In determining for purposes of clause (1) if an interest will subetan-
tiafly contribute to a fair determination of the issues to be resolved in
a proceeding, the Administrator shall take into account the number
and complexity of such issues and the extent to which representation
of such Interest will contribute to widespread public participation in
the proceeding and representation of a fair balance of interests for
the resolution of such issues.
(B) In determining whether compensation should be provided to
a person under subparagraph (A) and the amount of such compensa-
tion, the Administrator shall tnke into account the financial burden
which will be incurred by 8Uch person in participating in the rule-
making proceeding. The Administrator shall take such action as
may be necessary to ensure that the aggregate amount of compensa-
tion paid under this paragraph in any fiscal year to all persons who,
in rulemaking proceedings in which they receive compensation, are
persons who either—
(i) would be regulated by the proposed rule, or
(ii) represent persons who would be so regulated,
Iiiay not exceed 23 per centuzu of the aggregate amount paid as coin-
pensation under this paragraph to all persons in such fiscal year.
(5) Paragraph (1), (2), (3), and (4) of this subsection apply
to the promulgation of a rule repealing, or making a substantive
amendment to, a rule promulgated under subsection (a).
(d) EmcrIvE l)ATE.—(1) The Administrator shall specify in any
rule under subsection (a) the date on which it shall take effect, which
date shall he as soon as feasible.
) (A) The Administrator may declare a proposed rule under sub-
section (a) to be effective upon its publication in the Federal Register an
and until the effective date of final action taken, in accordance with Federak Register.
subparagraph (B), respecting such rule if—
(ii the Administrator determinee that—
(I) the manufacture, processing, distribution in com-
merce, use, or disposal of the chemical substance or mixture
subject to such proposed rule or any combination of such
activities is likely to result in an unreasonable risk of serious
or widespread injury to health or the environment before
such effective date; and
(II) making such proposed rule so effective is necessary to
protect the public interest; and
(n) in the case of a proposed rule to prohibit the manufacture,
processing, or distribution of a chemical substance or mixture
because of the risk determined under clause (i) (I), a court has
in an action under section 7 granted relief with respect to such
risk associated with such substance or mixture.
Such a proposed rule which is made so effective shall not, for pur-
poses of judicial review, be considered final agency action.
(B) If the Administrator makes a proposed nile effective upon its Notice.
publication in the Federal Register. the Administrator shall, as expe-
ditiouslv as possible, give interested persons prompt notice of such
action, provide reasonable opportunity, in accordance with paragraphs
(-2) and (3) of subsection (e), for a hearing on such rule, and either
pronnilgate such rule (as proposed or with modifications) or i-evoke
it: and if such a hearing is requested. the Administrator shall corn-
nience the hearing within five days front the date such request is made
unless the Administrator and the person making the request agree
upon a later date for the hearing to begin. and after the hearing is
concluded the Administrator shall, within ten days of the conclusion
of the hearing, either promulgate such rule (as proposed or with
niodifications) or revoke it.
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Chapter One TSCA
Rules. (e) P0LYCHL0RLX. TED 13uILENYLS.—(1) Within six months after
the e’ective date of this Act the Administrator shall promulgate
rules to—
(A) prescribe methods for the disposal of polychiorinated
biphenyls, and
13) require polychlorutated hiphenyls to be marked with clear
and adequate warnings, tuid instructions with respect to their
processing, distribution j m.e. or disposal or with
respect to iuiv cotubinat ion of such activities.
Requirements prescribed b rules under this paragraph shall be con—
.Istt’tit with the requirements of j)arngraj)hS (2) and (3).
2) ( A l:X Ppt its l)rovided tinder subj)a ragruph (B), effective one
after the etjeetive date of this Art no iwrson mar manufacture,
lre ss. or distribute in commerce or use ILflV l)olycliIoriILated biphenyl
in any manner other than in a totally enclosed manner.
(13) The Admi ilmistrator tinty by rule authorize the manufacture,
proees. nkg, distribution ut tonunercc or use (or any conibinution of
such activities) of any po lyclilorinated biphenyl in a maimer other than
in a totally enclosed manner if t he Administrator finds that such nmanu—
facture. processing, distribution in commerce, or use (or combination
of such activities) will not present an unreasonable risk of injury to
health or the environment.
Totally enclosed ((‘) For the ui’ xses of this paragraph, the term totafly enclosed
innniwr’ nwans any maimer which will ensure that any e posurv of
human t ’ings or the envin)nment to a polydilorinated biphenyl will
I in ignihrant as deermined by the Adininistratot by rule.
(3 ) ( A ) Except as PrO%ided in subpa ragra ilis (13) and (( ‘) —
i ) no jwrsoii ma mnaitufacriare any polyrhlorinnted hipln•iiyl
after two rears after the effective date of this Act, and
ii) no persoti may process or distribute in coimimnerce ally poly-
chlorinated biphienvi after two and one—half ye:ims after such date.
Petition for B) A tiv person mmmv petition the Administrator for an exempt ion
exempt ion. from thr requirements of subparagraph (A), and the Administrator
liIny grant liv rule such an exemption if the Administrator finds
that—
I) aim i imctsomiahle risk of injury to health or environment
would not result, and
(ii) good faith efforts have been annie to develop a chemical
.uhstanee which does not present an unreasonable risk of injury
to health or the environment and which may be substituted for
such I)olychmlorinated biphienyl.
Terms and Au exemption granted uniter this subparagraph shall be stub ect to
conditions. such terms and tonibtions aS the Administrator may prescribe and
shall be in e&rt for such period but not more than one year from
r lie date it is granted) as tlui’ Administrator may mre cribe.
Suhparagraph (A) shall not apply to the distribution in coma-
nwrce of any I)0 1 Yc 1 i lorijmated hiphenvi if such polychlorinated
hiphenvi was sold for i urpn s other thaut resale before two and one
half rears after the date of ennetnient of this Act.
4 An rule under paragraph (1), (2) (B). or (3) (B) shall lw
iron i ulgan .t I in aecorulanee with paragraphs (2), (3), and (4) (if suli-
section (r)
(5) This subsection does not limit the authority of the Admmis-
i rat ou. uumdeu any other provision of this Act or any other Federal law.
to take action respecting any polychiorinated biphenyl.
SEC. 7. IMMINENT HAZARDS.
dctson. (a) ACTIONs ALtIIURIZKD . xn REQLIxIo).—( I) The Aduiiinistrator
15 UsC 2oO . nn y romnhmmunce a ivil actiOn iii LLfl appropriate district court of the
I nited States—
A ) for ‘cilmu’ of aim imminently hnzn rdous chemical sub—
TSCA Co.pliance/Enforceent 1—32 Guidance Manuel 1984
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Chapter One TSCA
stance 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 iiixture or any article containing such a subetance or iiiix-
ture, or
(C) for both such seizure and relief.
A civil act.ion may be commenced under this paragraph notwith-
standing the existence of a rule under section 4, 5, or 6 or an order
under section 5, and notwithstanding the pendency of any adminis.
trative or judicial proceeding under any provision of this Act.
(2) If the Administrator has not made a rule under section 6(a)
iiiiniediately effective (as authorized by subsection 6(d) (2) (A) (i))
with respect to an imminently hazardous chemical substance or mix-
tiire, the Administrator shall commence in a district court of the United
States with respect to such substance or mixture or article containin
such substance or mixture a civil action described in subparagrap
(A), (B),or (C) of paragraph (1).
(b) HELIEF AuTiIoRIzzn.—( I) The district court of the United Jurisdiction.
States in which an action un(Ier 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 sub-
stance or mixture, the relief authorized by paragraph (1) may include
the issuance of a mandatory order requiring (A) in the case of pur-
chasers of such substance, mixture, or article known to the defendant,
notification to such purchasers of the risk associated with it ; (B) pub-
lie notice of such risk; (C) recall; (D) the replacement or repurchase
of such substance, mixture, or article; or (E) any combination of the
actions described in the preceding clauses.
(3) In the case of an action under subsection (a) against a chemi-
cal substance, mixture, or article, such substance, mixture, or article
ma be proceeded against by process of libel for its seizure and con-
demnation. Proceedings in such an action shall conform as nearly as
possible to proceedings in rem in admiralty.
(c) VENUE AND C0N50UDATI0N.—(1) (A) An action under subsec-
tion (a) against a person who manufactures, processes. or distributes a
chemical substance or mixture or an article containing a chemical sub-
stance 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 the defendants is found, resides, or t runsacts 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 sub-
section (a) against a chemical substance. mixture. or article may be
brought in any United States district court within the jurisdiction of
which the substanee, 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 inure than one judicial district, the Administrator shall
take iit() account lie convenience of the pa rties.
C) tibpeoiias requiring attendance of witnesses in an action
brought umnkr subsection (a) may be served in any judicial district.
(2) \Vlwnever proceedings under subsection (a) involving identi-
cal ehieimiical ubstnnees. mixtures. or articles are pending iii courts in
two or Iliole j 1141 irial districts. they shall be comisol hiated for trial b
TSCA Co.pl1ance/Enforce ent 1-33 Guidance Manual 1984
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Chapter One
oi(1 1• of any such court U 1 )Ofl application FeaSOflftl)ly made by any
party in interest. II )OI1 notwe to nil parties in interest.
((1’) ACTION tNlwr S :tTIoN 6.—Where appropriate. concurrently
with the filing of an aetion under subsection (a) or as soon therea fttr
as jiniv he prueticable. the Administrator shall initinte a proceeditig
for the prounilgation of a rule under section 8(a).
(e RrI it ENr. rIox.—Notwithstanding any other provision of law,
in any aet ion under suhs etrnn (a). the Administrator univ dwect
attorney. of the Environmental Protection Agency to appear and
repre .ent the . diuinistiator in such an Uction.
f) T),:rixrriox.—For the purposes of subsection (a), the term
“imminent l v hazardous chemical substance or mixture” means a cheini-
cal iihstaiue or mi xture which lwesents an imminent and unreason—
ahic risk of .eriims or widespread injury to health or the enviroim,,n nt.
such a risk to health or the environment shall 1* eonsklcied imminent
if it s show mm that the mnnmumfactume. processing. distribution in corn—
muerte. use, or tli .posal of the chemical substance or mixture, or that any
(‘OhlilHhtatiOhl Of sUch activities. is likely to result in such injury to
health or the environment before a final rule under section 6 van
1 aga in t ‘ueh risk.
SEC. 8. REPORTING AND RETENTION OF INFORMATION.
(a) Ri:roirrs.—( 1) The Athainistrator shall promulgate rules
15 USC 2607. muider which—
(A I cant i ’ ou (other rhaut a small manufacturer or proc—
es or’l who urninifactures or processes or proposes to manufacture
or pm siss chitmic ’ail suhstamwi’ (other thaim a chemical substance
(lerrihed in subparagraph (B) ( ii)) shall maintain such rec-
ords. and shall 5 ubmit to time Administrator such reports, as the
. dnuini .trator may reasonably require. and
(B) eadi person (other thaii a small manufacturer or proc.
es .orl who nmnufaeturcs or processes or proposes to manufacture
or process—-—
(i) t iILiXtUt(’. Or
ii a chemical substance in small quantities (as deflne(i
liv the . drninir.tnmtor by rule) solely for purposes of scientific
t’xpernit ’uul titioui or analysis or chemical rese reh on. or
analysis of. such substance or another substance. including
any sudi research or analysis for the developuient. of a
prod net.
shall ma inta in ireunls and submit to thu Admnuiistratom- reports
but only to tia extent time Ailrnini trator determines the main-
tenance of rerords or submission of reports or both. is necessary
for the cth’etive enforcement of this Act.
The Adnijuistrator may not require in a rule promulgated under this
paragraph the maintenance of records or the submission of reports
with respect to changes in the proportions of the components of a
mixture unless the Administrator finds that the maintenance of such
records or the submission of sUt h reports. or both. is necessary for
the effective enforcement of this Act. For purposes of the compilation
of the list of chemical substances required under subsection (b), the
Administrator shall promulgate rules pursuant to this subsection not
later than 180 days after the effective date of this Act.
( 2) The Administrator may require under paragraph (13 mainte-
nance of records and reporting with respect to the foilowmg insofar
as known to the person making the report or insofar as reasonably
ascertainable:
(A) The common or trade name, the chemical identity, and the
mo!ecular structure of each chemical substance or mixture for
which such a report is required.
TSCL Co.p1iancefEnforca ent 1-34 Guidance ) iwiaa1 1984
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Chapter One TSCA
(B) The categories or proposed categories of use of each such
substance or mixture.
(C) The total amount of each such substance and mixture
manufactured or processed, reasonable estimates of the total
amount to be manufactured or processed, the amount manufac-
tured or processed for each of its categories of use, and reasonable
estimates of the amount to be manufactured or processed for each
of its categories of use or proposed categories of use.
(D) A description of the byproducts resulting from the manu-
facture, processing, use, or disposal of each such substance or
mi xt tire.
(E) All existing data concerning the environmental and health
effects of such substance or mixture.
(F) The number of individuals exposed, and reasonable esti-
mates of the number who will be exposed, to such substance or
mixture in their places of employment and the duration of such
exposure.
(G) In the initial report under paragraph (1) on such substance
or mixture, the manner or method of its disposal, and in any
subsequent report on such substance or mixture, any change in
such manner or method.
To the extent feasible, the Administrator shall not require under
paragraph (1), any reporting which is unnecessary or duplicative.
(3) (A) (1) The Administrator may by rule require a small manu-
facturer or processor of a chemical substance to submit to the Admin-
istrator such information respecting the chemical substance as the
Administrator ma r require for publication of the first list of chemi-
cal substances required by subsection (b).
(u) The Administrator may by rule require a small manufacturer
or processor of a chemical substance or mixture—
(I) subject to a rule proposed or promulgated under section 4,
5(b (4), or6, or an order in effect under section 5(e), or
(II) with respect to which relief has been granted pursuant to
a civil action brought under section 5 or 7,
to maintain auch records on such substance or mixture, and to submit
to the Administrator such reports on such substance or mixture, as
the Administrator may reasonably require. A rule under this clause
requiring reporting may require reporting with respect to the matters
referred to in paragraph (2).
(13) The Administrator, after consultation with the Administrator Standards.
of the Small Business Administration, shall by rule prescribe stand-
ards for determining the manufacturers and processors which qualif
as small manufacturers and processors for purposes of this paragrap
and paragraph (1).
(b) INvENroRY.—( 1) The Administrator shall compile, keep cur-
rent., and publish a list of each chemical substance which is manufac-
tured or processed in the United States. Such list shall at least mclude
each chemical substance which any person reports, under section 5 or
subsection (a) of this section, is manufactured or processed in the
United States. Such list may not include any chemical substance
which was not manufactured or processed in the United States within
three years before the effective date of the rules promulgated pur-
suant to the last sentence of subsection (a) (1). In the case of a chemi-
cal substance for which a notice is submitted in accordance with
section 5. such chemical substance shall be included in such list as of
the earliest date (as determined by the Administrator) on which such
substance was manufactured or processed in the United States. The
Administrator shall first publish such a list not later than 315 (lays
after the effective date of this Act. The Administrator shall not include
in such list any chemical substance which is manufactured or processed
only in small quantities (as defined by the Administrator by rule)
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Chapter One TSCA
soh ly for purposes of scientific experimentation or analysis or chemi-
cal ie earch On. or analysis of, such substance or another substance.
including ueh research or analysis for the development of a product.
( ) To the extent consistent with the purposes of this Act, the
Administrator may. in lieu of listing, pursuant to paragraph (1), a
chemical substance individually, list a category of chemical substances
in which such substance is included.
(c) REcoiws.—Any person who manufactures, processes, or distrib-
utes in conmierce any chemical substance or mixture shall maintain
records of significant adverse reactions to health or the environment,
as determined by the Administrator by rule, alleged to have been
caused by the substance or mixture. Records of such adverse reactions
to the health of employees shall be retained for a period of 30 years
from the (late such reactions were first reported to or known by the
l)e o maintaining such records. Any other record of such adverse
reactions shall be retained for a period of fIve years from the date
he information contained in the record was first reported to or known
by the person iwiintaining the record. Records required to be main-
taineil under this subsection shall include records of consumer aflega-
tions of personal injury or harm to health, reports of occupational
disease or injury, antI reports or complatnts of injury to the environ-
ment submitted to the manufacturer, proee sor, or distributor in coin-
iiieree from any source. rpon request of any duly designated
representative o the Administrator, each person who is required to
maintain records under this subsection shall permit the inspection of
such records and shall submit copies of such records.
Rules. (d) HEALTiI NI) S. trv STvuits.—The Administrator shall pro-
taitilgute rules under which the Administrator shall require any person
who manufactures. processes, or distributes in commerce or who pro-
poses to manufacture, process, or distribute in commerce any chemical
‘ ..ubstnnce or mixture (or with respect to paragraph (2), any person
has possession of a study) to submit to the Administrator—
(1) lists of health and safety studies (A) conducted or initiated
by or for such person with respect to such substance or mixture
at any time. (B) known to such person, or (C) reasonably ascer-
tainable by such person, except that the Admmistrator may exclude
certain types or categories of studies from the requirements of this
subsection if the Administrator finds that submission of lists of
such studies are unnecessary to carry out the purposes of this Act;
and
( ) copies of an study contained on a list submitted pursuant
to paragraph ( ) or otherwise known by such person.
(e) NoTic To ADM1NISTR.tTOR OF SUBsTANTiAL Ris s.—Any person
who manufactures, processes, or distributes in commerce a chemical
substance or mixture and who obtains information which reasonably
supports the conclusion that such substance or mixture presents a.
substantial risk of injury to health or the environment shall imme
‘liutel inform the Administrator of such mnfonnation unless such
person hn actual knowledge that the Administrator has been ade-
juate] v informed of such information.
(f) t) n xirio s.—For purposes of this section, the terms “manufac-
rurc and process ” mean :mnmfneture or process for commnezt’ial
purposes.
SEC. 9. RELATIONSRIP TO OTHER FEDERAL LAWS.
IS USC 2608. (ii L ws > iT ADMINIST) ’.REJ) 1tY TIlE AI)MIXnrrR ThL—(I) If
the . dniinistrator has reasonable basis to conclude that the manufac-
tire. prnee .ing. c i 1st ri bution in commerce, use, or disposal of a chemical
Ist;mnr ’ or mixture, or that any combination of such activities, pre-
t ’nts or will present an unreasonable risk of injury to health or the
dflviroIflIU’11t and determines, in the Administrator’s discretion, that
-tuch risk niny be prevented or reduced to a sufficient extent by action
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Chapter One TSC
taken tinder a Federal law not administered by the Administrator,
the Administrator shall submit to the agency which administers such Report.
law a report which describes such risk and includes in such description
a pecificntrnn of the activity or combination of activities which the
. dniinistrator has reason to believe so presents such risk. Such report
hafl also request such agency—
(A’) (i) to determine if the risk described in such report may
be J)revented or reduced to a sufficient extent by action taken under
such law. and
(ii) if the agency determines that such risk may be so prevented
or reduced. to issue an order declaring whether or not the activity
or combination of activities specified in the description of such
risk presents such risk; and
B) to respond to the Administrator with respect to the matters
described in subparagraph (A).
Any report of the Administrator shall include a detailed statement of Publication in
rhe information on which it is based and shall be published in the Federal Regieter.
Federal Register. The agency ceiving a request under such a report
thalI make the requested determination, issue the requested order,
and make the requested response within such time as the Administrator
sp rih s in the request. but such time specified may not he less than
90 clays from the (late the request was made. The response of an agency
shall be accompanied by a detailed statement of the findings and
onclnsions of the agency and shall be pnl)llshed in the Federal Regis-
ter.
) If the Administrator makes a report under paragraph (1) with
respect to a chemical substance or mixture and the agency to which
such report was made either—
(A) issues an order declaring that the activity or combination
of activities specified in the description of the risk described in
the report does not present the risk described in the report. or
(13) initiates, within 90 days of the publication in the Federal
Register of the response of the agency under paragraph (1 ). action
under the Jaw (or laws) administered by such agency to protect
against such risk associated with such activity or combination of
activities.
the Administrator may not take any action under section or 7 with
respect to such risk.
(3) If the Administrator has initiated action under section 4 or 7
with respect to a risk associated with a chemical substance or mixture
which was the snb eet of a report made to an agency under paragraph
(1), such agency shall before taking action under the law (or laws)
administered by it to protect against such risk consult with the Admin-
istrator for the purpose of avoiding duplication of Federal action
against such risk.
(b) L ws ADMiNIsTt.Ju o BY THE ADMINthTRATOR.—The Adininistra-
tor 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 wth a diemical 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 Adniin-
istrator determines, in the . miisttator’s discretion, that it is in the
public interest to protect agaizi r such risk by actions taken under
this Act. l’his subsection shall not be construed to relieve the Admin-
istrator of any requirement imposed on the Administrator by such
other Federal laws.
(c) Oucuv. T1oN \L S. t rv . NI) 1-{E. I.rn.—In exercising any author-
ity under this Act, the Adnijuistrator shall not, for purposes of section
4(b) (1) of the Occupational Safety amid Health Act of 1970, be 29 USC 51 note
TSCA Co p11ancefEnforce ent — 1-37 GuIdance Manual 1984
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Chapter One TSC_L
deemed to be ex ’icising Statutory authority to prescribe or enforce
StahI(lftFdS or rt’gulations affecting occupational safety and health.
(d l CooRuiN. TtoN.—Tn administeung this Act, the Adnunistrator
shall consult and coordinate with the Secretary of Health. Education.
and Welfare and the heads of any other appropriate Federal execu-
tive department or agency, any relevant independent regulatory
agency, and any other appropriate inst ruinentalIty of the Federal Gov-
ernment for the purpose of achieving the maximum enforcement of this
.‘tet ‘iiile imposing the least burdens of duplicative requirements on
those subject to the Act and for other purposes. The Administrator
shall, in the report required by section 30. report annually to the
Congress on actions taken to coordinate with such other Federal
departments. agencies, or instrumentalities, and on actions taken to
coordinate the authority under this Art with the authority granted
under other Acts referred to in subsection (b).
SEC. 10. RESEARCH. DEVELOPMENT. COLLECTION. DISSEMINATION,
AND UTILIZATION OF DATA.
IS USC 2609. (a i AuTIuIIUTY.—The ;tdministrtnr shall, in consultation and
cooperation with the Secretary of Health, Education. and Welfare
and with other heads of appropriate departments and agencies, con-
duct such research. development, and monitoring as is nece ar ’ to
carry out the purposes of this Act. The Administrator may enter into
contracts anti may make grants for research. development, and moni-
toring uial ’r thuis -.ubsection. Contruets may be entered into under this
subsection without regard to sections 3648 and 3709 of the Revised
Statutes (31 U.S.C. 5 i). 14 U.S.C. 5).
(b) DATA Svsittts.—(1) The Administrator shall establish. a(imifl-
ister, anti be responsible for the continuing activities of an interagency
committee which shall design, establish, anti coordinate an efficient and
effective system, within the Environmental Protection Agency, for
the c4lle ction, dissemination to other Federal departments and agen-
cies. and use of data submitted to the Administrator under this Act.
(2) (A) The Administrator shall. in consultation and cooperation
with the Secretary of Health, Education. and ‘Welfare and other heads
of appropriate departments and agencies design. establish, and coordi-
nate an efficient anti effective system for the retrieval of toxicological
and other scientific data which could be useful to the Administrator in
carrying out the purposes of this Act. Systematized retrieval shall be
developed for use by all Federal and other departments and agencies
with responsibilities in the area of regulation or study of chemical
substances and mixtures and their effect on health or the environment.
(B) The Administrator, in consultatiofl and cooporation with the
Secretary of Health, Education, and Welfare, may make grants and
enter into contracts for the’ development of a data retrieval system
described in subparagraph (A). Contracts may be entered into under
this subparagraph without regard to sections 3648 and 3709 of the
Revised Statti es (31 U.S.C. 9.41 U.S.C. 5).
(C) Scn ixix; TEcil xIQrrs.—llic Administrator shall coordinate,
with the . s istiunt Secretary for health of the l)epartinent of Health,
1:41 tica i ion. am I Welfare. reseii rch unilerta ken by the Administrator
Ii icticil to va rd the development of rapid, reliable, and economical
screening techniques for carcinogenic, mutagenic. teratogenic. and
c4olo ilea I effects of chieiiiicn I substances and mixtures.
ti ) M4 iX IT4mlNI;.—T14C Administrator shall. in consultation and
iou wit I i the Secretary of Health. Education. and WTelfare,
hI 1511 :uuu I be resi Iflh lSi ble for research a lined at the development, jit
operation with tncnl. State, and Federal a rencies. of monitoring
c c l a iqites and ins? ri umviit whu icli ninv be used in the detection of toxic
chemical snh ’ tances and mixtures amiti which arc reliable, economical,
anil r;ipnbh . of b”ing implemented under a wide variety of conditions.
TSCA Co.pitance/Enforceaent 1-38 Guidance Mami*1 1984
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Chapter One TSCL
(e) B szc RESE. RCH.—The Administrator shall, in consultation and
cooperation with the Secretary of Health. Education, and Welfare,
establish research programs to develop the fundamental scientific baths
of the screening and monitoring techniques described in subsections
(c) and (d), the bounds of the reliability of such techniques, and the
opportunities for their improvement.
(f) T1L4INING.—The Administrator shall establish and promote
programs and workshops to train or facilitate the training of Federal
laboratory and technical personnel in existing or newly developed
screening and monitoring techniques.
(g) EXCHANGE OF RE5E. RcH ND DEVELOPMENT RESULm.—The
Administrator shall, in consultation with the Secretary of Health,
Education, and Welfare and other heads of appropriate departments
and agencies. establish and coordinate a system for exchange alliong
Federal, State, and local authorities of research and developuwut
results respecting toxic chemical substances and mixtures, including
a system to facilitate and proiiio e the development of standard data
format and analysis and consistent testing procedures.
SEC. 11. INSPECTIONS AND SUBPOENAS.
(a) IN GENERAL—For purposes of administering this Act, the 15 USC 2610.
Administrator, and any duly designated representative of the Admin-
istrator, may inspect any establishment, facility, or other premises in
which chemical substances or mixtures are man ii fact u red, processe( 1,
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 commerc e. Such .iii
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 notice
shall be given for each such inspection. but a notice liahl not be
required for each entry made during the period covered by the inspec-
tion. Each such inspection shall be commenced and coiiipleted with
reasonable proinptni ’ss and shall be conducted at reasonable times.
within reasonable limits, and in a reasonable manner.
(Ii) SeorE.—(1) Except as provided in paragraph (2), an inspec-
tion conducted tinder subsection (a) shall extend to all thin zs wit Ii ii
the premises or conveyance inspected (including records. files, papers.
processes, controls, and facilities) bearing on whether the reqiiirenn ’nts
of this Act applicable to the chemical substances or mixtures within
such premises or conveyance have been complied with.
( ) No inspection under subsection (a) shall extend to—
(A) financial data,
(B) sales data (other than shipment data),
(C) 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 tbe written notice required by subsection (a) for such
inspection.
e ) 5 (’IiI’oI;N s—jn carrying out this . ct, the Administrator nhziv
l)v subpoena require the attendance and testimony of witnesses and
h ’ f)rOdiICt ion of reports, papers, documents, answers to questions.
and other information that the Administrator deems necessary. Wit-
nesses shall be paid the same fees and mileage that are paid witnesses
iii the cutlets of the United States. In the event of contumacy, failure.
‘u 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 con-
tPni 1 ,t thereof.
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Chapter One TSC
SEC i2. EXPORTS.
15 Usc 2611. (a) 1w GENEIUL.—(l) Except as provided in paragraph (2) and
subsection (b), this Act (other than section 8) shall not apply to any
dkemical substance, mixture, or to an article containing a chemical
substance or mixture, if—
(A) it can be shown that such substance, mixture, or article is
being manufactured, procesaed, or distiibiited in commerce for
export from the United States, unless such substance, mixture, or
article was, in fact, manufactured, processed, or distributed in
commerce, for use in the United States, and
(B) such substance, mixture, or article (when distributed in
commerce), or any container in which it is enclosed (when so dis-
tributed), bears a stamp or label stating that such substance, mix-
ture, or article is intended for export.
(2) l’arngraph (1) shall not apply to any chemical substance, mix-
ture. or article if the Administrator finds that the substance, mixture,
or art wle will present an unreasonable risk of injury to health within
the l’ nited States or to the environment of the Luited States. The
Administrator may require, under section 4, testing of any chemical
s ibstnnce or mixture exempted from this Act by paragraph (1) for
the purpose of determining whether or not such substance or mixture
presents an unreasonable risk ot injury to health within the United
States or to the environment, of the United States.
(b) No-rie —(1) If any person exports or intends to export to a
foreign country a chemical substance or mixture for which the submis-
sion of data is required under section 4 or )(b), such person shall
notify the Administrator of such exportation or intent to export and
the Administrator shall furnish to the government of such country
notice of the availability of the data submitted to the Administrator
under such section for such substance or mixture.
(2’ If any person exports or intends to export to a foreign country
a chemical substance or mixture for which an order has been issued
under sect ion or a rule has been pI -Opose(l or promulgated under sec—
ion or . or wit Ii respect to which an act ion is pending. or relief has
been raiited under section 5 or 7, such person shall notify the Admin-
istrator of such exportation or intent to export and the Administrator
lia II furnish to the government of such country notice of such rule,
order, action, or relief.
SEC. 13. ENTRY INTO CUSTOMS TERRITORY OF THE UNITED STATES.
5 Usc 2612. a l x (;ExKn. I..—t 1) Ihe Secretary of tin. Treais ii• • shall efuse
tilt I V 11110 t lie enstohils territo of the I nited States (as defined in
9 Usc 1202. general licadjiote to tlu Tariff Schi’dtiles of the Uniti.d States) of
a ii htiia ical substance, iulixture. or art wIt’ cofltuiHuh1 a cheinica I sub—
I lItte t)i Jill X l Ii’( ()tkl ’e(I for such tqktrv if—
. ,) it fails to coniplv with any rule in effect under this Act, or
R) it s offered for entry in violation of section ‘ . or 6. a rule or
oialer under section or 6, or an order issued in a civil action
under .ec ion or 7.
(2) If a cheittical substance. mixture, or article is refused entry
I I aitlel’ pa ragi’aph 1). the Secret .ai’v of the Treasury shall notify the
tatIisigia ’e of uch eiit lv refusal, shall not, release it to the cOnsignee,
;i inl shall cause its disposal ot- storage (under such rules as the Secre-
tary of the l’reasui’y iIIay i 1escri1 ’) if it has nut been exported by the
t onsigIwe wit bin 90 days froni the (Late of receipt of notice of such
refii .al. except that the Secretary of the Treasury may. pending a
revie v 1 iv the Administrator of tin’ entry refusal. release to the
‘.ignee asch —IJl)staha( ’e. iaiixture, or article on ex.cntiofl of l nd for the
araiount of the full invoice of such substance, riiixture. or article (as
iuh value is set forth in the customs entry). together with the duty
thereon. On fai In it’ to return such substance. mixture. or article for
TSCA Cosp1iance/Enforce ent 1-40 Guidance Manu*1 1984
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Chapter One
any cause to the custody of the Secretary of the Treasury when
demanded, such consignee shall be liable to the United States for liqui-
dated damages equal to the full amount of such bond. All charges for
storage. cartage. and labor on and for disposal of substances. mixtures,
or articles which are refused entry or release under this section shall
be paid by the owner or consignee. and in default of such payment
shall constitute a lien against any future entry made by such owner or
consignee.
(b) Ruu s.—The Secretary of the Treasury, after consultation with
the Administrator, shall issue rules for the adniinist ration of subsec-
tion (a) of this section.
SEC. 14. DISCLOSURE OF DATA.
(a) IN GENERAL.—EXCQpt as provided by subsection (b). any 15 Usc 2613.
information reported to. or otherwise obtained by, the Administrator
(or any representative of the Administrator) under this Act. which is
exempt from disclosure pursuant to subsection (a) of section 552 of
title 5. United States Code, by reason of subsection (U) (4) of such
se.ction. shall, notwithstanding the provisions of any other section of
this Act. not he disclosed by the Administrator or by any officer or
employee of the United States except that such information—
(1) shall he disclosed to any o cer or employee of the United
States—
(A) in connection with the o cial duties of such officer
or employee under any law for the protection of health or
the environment, or
(B) for specific law enforcement purposes;
(2) shall be disclosed to contractors with the United States and
employees of such contractors if in the opinion of the Adnuinistra
tor such disclosure is necessary for the satisfactory performance
by the contractor of a contract with the United states entered into
on or after the date of enactment of this Act for the performance
of work in connection with this Act and tinder such conditions
as the Administrator may specify;
(3) shall be disclosed if the Adn&inistrator d.termines it neces-
sary to protect health or the enviromnent against an unreasonable
risk of injury to health or the environment; or
(4) may be disclosed when relevant in any proceeding tinder
this Act. except that disclosure in such a proceeding shall be
made in such manner as to preserve confidentiality to the extent
iracticahle without . impairing the proceeding.
ru any proceeding under section 5 5 -2(a) of title 5. United States Code,
to obtain information the disclosure of which has been denied because
of the provisions of this subsection, the Administrator may not rely on
section 552(1;) (: ) of such title to sustain the. Administrator’s action.
(b) 1). T.t Fno i hEALTH AXD S.tFETY S’rrmEs.—(l) Subsection (a)
does not prohibit the disclosure of—
A) any health and safety study which is submitted undcr this
Act with respect t-
(i) any chemical substance or mixture which, on the date
on which such study is to be disclosed has been offered for
commercial distribution, or
(ii) any chemical substance or mixture for which testing is
required under section 4 or for which notification is required
under section 5, and
B) an ’ data reported to. or otherwise obtained by. the Adinin-
istrator from a health and safety study which rel’ates to a ehemimical
substance or mu ixt ore described in cia use (i) or (ii) of suhpa ra-
graph (A).
This paragraph does not authorize the release of any data which dis-
closes processes used in the manufacturing or processing of a chemical
TSCA Co pliance/Enforceisent 1—41 Guidance Manual 1984
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Chapter One TSCL
substance or mixture or. in the case of a mixture, the release of data
disclosing the portion of the mixture comprised by any of the chemical
substances in the mixture.
(2) If a request IS made to the Administrator under subsection (a)
of section of title a. ‘tTnited States Code. for information which is
eseribed in the first sentence of paragraph (1) and which is not
information described in the second sentence of such paragraph 1 the
Administrator may not deny such request on the basis of subsection
(b) (4) of such section.
(c) I )I:su;N .vrItlx . xi> Rm.E. sK or (‘ xrmi: cri. i. I ).vr. .— (I) In ,nb-
mitt lug data iuier tlii .. . ct, a manufacturer. processor. or distributor
in coli luiercc iii,iv ( . ) designate the data vliirh such person believes
i, entitled to cipnhdpnt jail treatment under subsection (a). and ( B)
‘—tilaiiiit such ilesignata’tl data separately from ot ht•r data sIIl)fl)Itted
aimler tlu— t. A designation aimler this paragraph shall be made an
writ ug and iii aaeI manner as the Administrator nuiy l)r serII .
( ) (A) Except as provided by subparagraph (B), if the Adminis-
rator proposes to release for inspect ion data which has been h’sig—
nated nuder paragraph (1) (A’). the Administrator shall notify. in
wriIiiig and li i’ertahed mail, the manufacturer. processor. or distrib—
nina romanereI who sul,mittetl such data of the intent to release such
1:a t a. If the n’ lease of such data is to l made pu rsua ut to at request
iiiade under section a . (a ) of tithe , United States (‘ode, such notice
“halt be given inuuawdiatt ’ly upon approval of such request by the
. luiaiuu istrator. That’ Adzninhtt rator univ not release such data until
the expiration of 30 days after the manufacturer, processor, or distrib-
utor in commerce submitting such data has received the notice required
by this subparagraph.
(13) (1) Subparagraph (A) shall not apply to the release of infor-
mnation umnkr paragraph (1), (2), (3), or (4) of subsection (a), except
that the Administrator may not release data under paragraph (3) of
subsection (a) unless the dministrator has notified each inanufac-
urer. ,nm ’t ’—sot ’, and distributor in commerce vho submitted such data
of -ui(h release. iwh notice shall be made in writing by certified mail
at least l ihivs before the release of such data, except that if the
. alministrnioi ulelernuines that the release of such data is necessary
Ii) l) 10(4 . ’Ct aga I ui ’ .t an inuninent, unreasonable risk of injury to health
ir tin’ emavi rtiutnuent, such notice atiny be made by such amieans as the
Aduuiuuimstrntnr determines will provide notice at least ?4 hours before
such release is aiaade.
ii ) Subparagraph (A) shall not apply to the release of information
described in ‘ubst’rtion (b) (I) other than information described in
the SeCond sentence of such subsection.
ph ) ( ‘IcIMiX. I. I’EN. LTY Foil VKOXGFtL I)Isez.osvRI .—( I ) Any
01 t’uiiyuIO t ’ nf flue tnittMl Atates or fornier officer or enm 1 ub ivtt’
of the United States. who by virtue of such employment or offi’ia I
u ‘sit ion has obtained pos. ession of, or has access to, material the dis-
h n i -u’ of w l ida is prohibited by subsection (a). and who knowing
that disel smuu-e of such material is prohibited by such subsection. will-
fully discloses tIme utmaterini in any manner to any person not entitled to
a’eccive it. shall be guilty of a maursulcumeanor and Rued not more than
or unprisoned for not more than one year, or both. Section
1905 of title 18, United States Code, does not app 1 y with respect to
the publishing, divulging, disclosure, or making known of, or making
available, information reported or otherwise obtaIned under this Act.
(2) For the purposes of paragraph (1), any contractor with the
United States who is furnished information as authorized by subsec-
tion (a.) (2), and any employee of any such contractor, shall be con-
sidered to be an employee of the United States.
(e) cr . .ss ar (‘tiN ;maEss.—Xotwith istanding any limitation con-
tained in this section or any other provision of law, nil information
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Chapter One TSCL
reported to or otherwise obtained by the Administrator (or any repre-
sentative of the Administrator) under this Act shall be made available,
upon written request of any duly authorized committee of the Con-
gress, to such committee.
SEC. 15. PROHIBITED ACTS.
It shall be unlawful for any person to— 15 USC 2614.
(1) fail or refuse to comply with (A) any rule promulgated or
order issued under section 4, (B) any requirement prescribed by
section 5 or 6, or (C) any rule promulgated or order issued under
section 5 or 6;
(2) use for commercial purposes a chemical substance or mix-
ture which such person knew or had reason to know was manufac-
tured, processed, or distributed in commerce in violation of section
S or 6. a rule or order under section 5 or 6, or an order issued in
action brought under section 5 or 7;
(3) fail or refuse to (A) establish or 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 there-
under; or
(4) fail or refuse to permit entry or inspection as required by
section 11.
SEC. it PENALTIES.
(a) Crvn..—(1) Any person who violates a provision of section 15 is usc 2615.
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 viola-
tion continues shall, for purposes of this subsection, constitute a sepa-
rate violation of section .5.
(2) (A) A civil penalty for a violation of section 15 shall be assessed Hearing.
by the Administrator by an order made on the record after oppor-
tunity (provided in accordance with this subparagraph) for a hearing
in accordance with section 554 of title 5, United States Code. Before
issuing such an order, the Administrator shall give written notice to
the person to be assessed a civil penalty under sucT order of the Admnin-
istra tors proposal to issue such order and provide such person an
opportunity to request, within 15 days of the date the notice is received
by suchperson , such a hearing on the order.
(B) In determining the amount of a civil penalty, the Admninistra-
tor 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 busiiies.s, any historv
f p ’ ,r such v iohtt ions, the degree of cu I 1 )abi 1 ity. am 1 s w i ot iwi
matters as justice may require.
(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 ITnited States to the person charged.
(3) Any person who requested in accordance with paragraph ( 2) Petition for
(A) a hearing respecting the assessment of a civil penalty and who is judicial review.
aggrieved by an order assessing a civil penalty may file a petition for
judicial review of such order with the Lnited States Court of Appeals
for the I)istrict of columbia Circuit or for any other circuit in which
.imch person resides or transacts business. Such a petition may only be
tiled within the :30-day period beginning on the date the order making
,ucli assessumient 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 and if such person does not file a petition for judicial review
of the order in accordance with paragraph (3),or
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Chapter One TSCA
(B) after a court in an action brought under paragraph (3)
has entered a fiiial judgment 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
pidgiiient. as the case may be) in an action brought in any appropriate
district court of the 1 nited States. In such an action, the validity,
amount, and appropriateness of such penalty shall not he subject to
review.
b) (‘R1Mix. L—Anv person who knowingly or willfully violates
any provision of section 1 i shall, in addition to or in lieu of any civil
pena’ty 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.
SEC. 17. SPECIFIC ENFORCEMENT AND SEIZURE.
15 Usc 2616. (a) SPECIFIc ENroRcEME r.—(1) The district courts of the United
States shall have jurisdiction over civil actions to.—
(A) restrain any violation of section 15,
(B) restrain any person fror taking any action prohibited by
section 5 or 6 or by a rule or order under section 5 or 6,
(C) compel the tainr.g of any action required by or under this
Act, or
(D) direct any manufacturer or processor of a chemical sub-
stance or mixture manufactured or processed in violation of sec-
tion 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 reason-
ably a eertaiiiable. to other persons in possession of such sub-
stance 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 aetioii described in paragraph (1) may he brought—
(A) in the ease of a civil action described in subparagraph (A)
of such paragraph, in the United States (listrict court for the judi-
cial 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 tlu case of any other cicil action described in such para-
graph, in the United States district court for the judicial district
wherein the defendant is found or trazisacts 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: Sub-
poenas requiring attendance of witnesses in any such action may be
served in any judicial district.
(b) SEmzt ’Rr.—. AnY chemical substance or mimixture which was nianu-
facti,red. processed, or distributed in conimmierce in violation of this Act
or any rule jro’nulgated or order issued under this Act or any article
contahmuhig such a substance or mixture shall be liable to be proceeded
:LgiiiuSt. by process of libel for the seizure and condemnation of such
IIlNtammc ’e, mixture, or article, in any district court of the United States
within the jurisdiction of which such substance, mixture, or article is
found. &hu’h proceedings shall conform as nearly as possible to proceed-
ings in rem in ulmiraltv.
SEC. IS. PREEMPTION.
15 1 S€ 2617. (a) EFFECT ON STATE LAw.—(1) Except as provided in paragraph
(2). nothing in this Act shall affect the authority of any State or politi-
cal subdivision of a State to establish or continue in effect regulation
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Chapter One rsc
of any chemical substance, mixture, or article containing a chemical
substance or mixture.
(2) Except as provided in subsection (b)—
(A) if the Administrator requires by a rule promulgated under
section 4 the testing of a chemical substance or mixture, no State or
political subdivision may, after the effective date of such rule,
establish or continue in effect a requirement for the testing of such
substance or mixture for purposes similar to those for which test-
ing is required under such rule; and
(B) if the Administrator prescribes a rule or order under sec-
tion 5 or 6 (other than a rule imposing a requirement described
in subsection (a) (6) of section 6) which is applicable to a chemical
substance or mixture, and which is designed to protect against a
risk of injury to health or the environment associated with such
substance or mixture, no State or political subdivision of a State
may, after the effective date of such requirement, establish or
continue in effect, any requirement which is applicable to such sub-
stance or mixture, or an article containing such substance or mix-
tuze, and which is designed to protect against such risk unless such
requIrement (i) is identical to the requirement prescribed by the
Administrator, (ii) is adopted under the authority of the Clean
Air Act or any other Federal law, or (iii) prohibits the use of such
substance or mixture in such State or political subdivision (other
than its use in the manufacture or processing of other substances
or mixtures).
(b) ExEMI rIoN—Upon application of a State or political stibdivi- Application.
sion of a State the Administrator may by rule exempt from subsection
(a) (2), under such conditions as may be prescribed in such rule, a
requirement of such State or political subdivision designed to protect
against a risk of injury to health or the environment associated with
a chemical substance, mixture, or article containing a chemical sub-
stance or mixture if—
(1) compliance with the requirement would not cause the
manufacturing, processing, distribution in commerce, or use of the
substance, mixture, or article to be in violation of the applicable
requirement under this Act described in subsection (a) (2), and
(2) the State or political subdivision requirement (A) provides
a significantly higher degree of protection from such risk than time
requirement under this Act described in subsection (a) 2) and
(B) does not, through difficulties iii marketing, distribution, or
other factors, unduly burden interstate commerce.
SEC. is. JUDiCIAL REVIEW.
(a) IN (; NER. I ..—( 1) ( A) Not later than O days after the date Petition.
of the prom ulgation of a rule under section 4(a). 5(a) (2). 5 ( h) (4), 15 Usc 2618.
(a), l(e), or S. any person may file a petition for judicial review of
such rule with the United States Court of Appeals for the l)istrict of
Columbia Circuit or for the circuit in which such person resides or in
such person’s principal place of business is loented. ( ‘otmits
of appeals of the United states shall have exclusive jurisdiction of
any action to obtain judicial review (other than in an enforcement
proceeding) of such a rule if any district court of the United States
would have had jurisdiction of such action but for this .suhpnragrmtplm.
B) Courts of appeals of the 1’ nited States shall ht e exclusive Jurisdiction.
jurisdiction of an action to obtain judicial review oilier titan iii an
enforcement pr(wecding) of an order issued under subparagraph A)
or (B) of section ( b) (1) if any district court of the United States Petition co ies
would have had jurisdiction of such action but for this suhparagraplm. transmitt& 0
) Copies of on pet it ion tile I !III(ler paragraph (1) ( —‘ ) shall Administrator
transttIitte(I forthwith to the Administrator and to the Attorncv (cfl and Attorney
email by the elcrf of t 1w (olIrt with which such petition was filed. Tue General.
TSCA Co pl1ancefEnforcemaent 1-45 GuIdance Manual 1984
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provisions of section 2112 of title 28, United States Code. Shall app1 ’
to the filing of the rulemaking record of proceedings on which the
Administrator based the ruk being reviewed under this section and to
the transfer of proceedings between United States courts of appeals.
Rukrnaking (3) For purposes of this section, the term “rulemaking record”
means—
(A) the rule being reviewed under this section;
(13) in the case of a rule under section 4(a), the finding required
by such section. in the case of a rule wider section 5(b) (4). the
finding required by such section, in the case of a rule under section
6(s) the finding required by section 5(f) or 6(a), as the case may
be. in the case of a rule under section 6(a). the statement required
by section 6(c) (1), and in the case of a rule under section 6(e),
the findings required by paragraph (2) (13) or (3) (B) of such
section, as the case may be;
(C) any transcript required to be made of oral presentations
made in proceedings for the promulgation of such rule;
(D) any written submission of interested parties reapecting the
promulgation of such rule; and
Notice. (E) any other information which the Administrator considers
publication to be rele ant to such rule and which the Administrator identified.
Federal Register. on or before the date of the promulgation of such rule. in a notice
published in the Federal Register.
( I ,) ADorrioN. L tBMIS$IONS ND PRESPNTATIONS Mornpic&iiows.—
If in an act.on under this section to review a rule the petitioner or the
Administrator applies to the court for leave to make additional oral
submissions or written presentations respecting such rule and shows
to the satisfaction of the court that such submissions and presentations
would he material and that there were reasonable grounds for the sub-
missions and failure to make such submissions and presentations in
the proceeding before the Administrator, the court may order the
Administrator to provide additional opportunity to make such sub-
missions and presentations. The Administrator may modify or set
aside the rule being reviewed or make a new rule by reason of the
additional sul ini . . ions and presentations and shall file such modified
or new rule with the return of such submissions and presentations.
Rev*ew. The court shall thereafter review such new or modified rule.
(c) STAND. Rfl or REvIEw.—(1) (A) Upon the filing of a petition
under suhscrtjon (a) (1) for judicial review ( f a rule. the court shall
have jurisdiction (i) tO grant appropriate relief, including interim
relief, as provided in chapter 7 of title 5, United States Code, and
(ii) except as otherwise provided in subparagraph (B), to review
such rule in accordance with chapter 7 of title 5, tnited States Code.
(B) sect ion O of title 5. United States Code, shall apply to review
of a rtie under (his section, except that—
(1) in the case of review of a rule under section 4(a), 5(b) (4).
t tn). or f(t .). the standard for review prescribed by paragraph
( ) (E) of such section TOfi shall not apply and the court shall
hod i,nlitwfiil and set aside such rule if the court finds that the
rule is not Supported by substantial evidence in the rulemaking
record t as defined iii subsectiQn (a) (3)) taken as a whole;
(ii) in the case of review of a rule under section 6(a), the court
shall hold uii lawful and set aside such rule if it finds that—
(1) a determination by the Administrator under eection
f (c) (;fl that the petmtioler seeking review of such rule is not
entitled to conduct (or have conducted) cross-examination or
to present rebuttal submissions, or
11) a rule of. or ruling by. the Administrator tinder sec-
tion 6(c) ( ) limiting such petitioner’s cross-examination or
oral presentations.
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has precluded disclosure of disputed material facts which was
necessary to a fair determination by the Administrator of the
rulemaking proceeding taken as a whole; and section 706(2) (1))
shall not apply with reepect to a determination, rule, or ruling
referred to in subclanse (I) or (II); and
(iii) the court may not review the contents and adequacy of—
(I) any statement required to be made pursuant to seetion
6(c) ( 1). or
(II) any statement of basis and purpose required by sec-
tion 553(c) of title 5, United States Code, to be incorporated
in the rule
except as part of a review of the rulemaking record taken as a
whole.
The term. “evidence” as used in clause (1) means any matter in the “Evidence.”
rulemaking record.
(C) A determination, rule, or ruling of the Administrator described
in subparagraph (B)(ii) may be reviewed only in an action under
this section and only in accordance with such subparagraph.
(2) The judgment of the court affirming or setting aside, in whole
or in part, any rule reviewed in accordance with this section shall be
final, subject to review by the Supreme Court of the United States
upon certioriu i or certification, as provided in section 1254 of title 28.
United States Code.
(d) FEES 1 tND cosm.—The decision of the court in an action coin-
inenced under subsection (a), or of the Supreme Court of the United
States oii review of such a decision, may include an award of costs of
suit and reasonable fees for attorneys and expert witnesses if the court
determines that such an award is appropriate.
(e) (>ru n EEMED1ES.—The remedies as provided in this section shall
be in addition to and not in lieu of any other remedies provided by law.
SEC 20. CITIZENS’ CIVIL ACTIONS.
(a) IN GEN UAL.—EXcept as provided in subsection (b), any person 15 USC 2619.
may commence a civil action—
(1) against any person (including (A) the United States, and
(B) any other governmental instrumentality or agency to the
extent permitted by the eleventh amendment to the Constitution)
who is alleged to be in violation of this Act or any rule promul-
gated under section 4, 5, or 6 or order issued under section 5
to restrain such violation, or
(2) against the Administrator to compel the Administrator
to perforni any act or duty under this Act which is not discre-
tiona;y.
Any civil action under paragraph (1) shall be brought in the United
States district court for the district in which the alleged violation
occurred or in which the defendant resides or in which the defendant’s
principal place of b isiuess is located. Any action brought under para-
graph ( ) shall be brought in the United States District Court for
the District of Columbia, or the United States district court for the
judicial district in which the plaintiff is domiciled. The district courts Jurisdiction.
of the ETnited States shall have jurisdiction over suits brought under
this section. without regard to the amount in controversy or the citizen-
ship of the parties. In any civil action under this subsection process
may be served on a defendant in any judicial district in which the
defendant. resides or may be found and subpoenas for witnesses may
be served in any judicial district.
(Ii) LIMITAT ION.—NO civil action may be commenced—
(1) under subsection (a) (1) to restrain a violation of this Act
or rule or order under this Act-V—-
(A) before the expiration of 60 days after the plaintiff Notice.
has given notice of such violation (i) to the Administrator,
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Chapter One TSCA
and (ii) to the person who is alleged to have committed such
violation, or
(B) if the Administrator has commenced and is diligently
prosecuting a proceeding for the issuance of an order under
section 16(a) (2) to require compliance with this Act or with
such rule or order or if the Attorney General has commenced
and is diligently prosecuting a civil action in a court of the
United States to require compliance with this Act or with
such rule or order, but if such proceeding or civil action is
commenced after the giving of notice, any person giving such
notice may intervene as a matter of right in such proceeding
ora.ction:or
Notice. (2) under subsection (a) (2) before the expiration of 60 days
after the plaintiff has given notice to the Administrator of the
alleged failure of the Adrnimstrator to perform an act or duty
which is the. basis for such action or, in the case of an action under
such subsection for the failure of the Administrator to file an
action under section 7, before the expiration of ten days after
such notification.
Ruk. Notice under this subsection shall be given in such manner as the
.tdmnnstrator shall prescribe by rule.
(c) Grxiu. i..—( 1) In any action under this section, the Adnums—
trator. if not a party. nmv intervene as it matter of right.
(2) Tln court, in issuing any finni order in any action brought pur-
suant to subsection (a). may award costs of suit and reasonable fees
for attorneys and expert witnes.ses if the court determines that such
an award is appropriate. Any court. in issuing its decision in an action
l ronght to re -Iew such an order, may award costs of suit and reason-
able fees for attorneys if the court determines that such an award
is ii pprnprmt(’.
(: ) Nothing n this section shaH restrict any right which any ‘r on
(or class of persons’t may have under any statute or comnion law to
seek eiiforccuwnt of this Act. or any rn e or order under this Act
or to seek any other relief.
(il) Coxsoi.in i -inx.—Whe two or more civil actions brought nuder
subsection (a) involving the same defendant and the sante issues or
vjnlntinns are ienihng in two or more jn(bcial distric.ts. uehi pending
act inns, upon application of such dt .fendants to such actions which is
made to a court in which any such action is brought, may, if such court
n it S discretion so decides. l* consolidated for trial by order (issued
after giving all parties reasnnahk notice and opportunity to he heard)
of such court and tried in—
(1) any district which is selected by such defendant and in
which one of such actions is pending.
(2) a district which is agreed upon by stipulation between nfl
the parties to such actions and in which one of such actions is
pending. or
(3) a district which is selected hr the court and in which one
of such actions is pending.
The court issuinz such an order shall give prompt notification of the
order to the other courts in which the civil actions consolidated under
the order are pending.
SEC. 21. CiTIZENS’ PETiTiONS.
15 USC 2620. (a) I x GEN& R. k ..—Xny pet-son may petition the Administrator to
initiate i ;rocceding for the issuance. amendment, or repeal of a rule
under section 4. (, ot or an order under section (e) or (6)(b) (2).
(b) Pru ’cEDunEs.— .1) Such petition shall be filed in the principal
office of the Administrator and shall set forth the facts which it is
claimed eetabhish that it is necessary to issue, amend, or repeal a rule
under section 4. , or or an order under section 5(e), 6(b) (1) (A),
or 6(b)(l)(J3).
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(2) The Administrator may hold a public hearing or may conduct Public hearing.
such investigation or proceeding as the Admimstrator deems appro-
priate in order to determine whether or not such petition should be
granted.
(3) Within 90 days after filing of a petition described in paragraph
(1), the Administrator shall either grant or deny the petition. If the
Administrator grants such petition, the Administrator shall promptly
commence an appropriate proceeding in accordance with section 4,
5,6, or 8. If the Adznlni8trator denies such petition, the Administrator Publication in
shall publish in the Federal Register the Administrator’s reasons Federal Register.
for such denial.
(4) (A) If the Administrator denies a petition filed under this Clvii action.
section (or if the Administrator fails to grant or deny such petition
within the 90-day period) the petitioner may commence a civil action
in a district court of the United States to compel the Administrator
to initiate a rulemakino’ proceeding as requested in the petition. Any
such action shall be flied within 60 days after the Administrator’s
denial of the petition or, if the Administrator fails to grant or deny
the petition within 90 days after filing the petition, within 60 days
after the expiration of the 90-day period.
(B) In an action under subparagraph (A) respecting a petition
to initiate a proceeding to issue a rule under section 4, 6. or 8 or an
order under section 5(e) or 6(b) (2), the petitioner shall be provided
an opportunity to have such petition considered by the court in a
de novo proceeding. If the petitioner demonstrates to the satisfaction
of the court by a preponderance of the evidence that—
(i) in the case of a petition to initiate a proceeding for the
issuance of a rule under section 4 or an order under section 5(e)—
(I) information available to the Administrator is insuffi-
cient. to permit a reasoned evaluation of the health and
environmental effects of the chemical substance to be subject
to such rule or order; and
(II) in the absence of such information, the substance may
present an unreasonable risk to health or the environment,
or the substance is or will be produced in substantial quan-
tities and it enters or may reasonably be anticipated to enter
the environment in substantial quantities or there is or may
be significant or substantial human exposure to it; or
ii) in the case of a petition to initiate a proceeding for the
issuance of a rule under section 6 or 8 or an order under section
6(b) (2), there is a reasonable basis to conclude that the issuance
of such a rule or order is necessary to protect health or the
environment against an unreasonable risk of injury to health or
the envirotunent.
the court shall order the Administrator to initiate the action requested
by thc petitioner. If the court finds that the extent of the risk to
health or the environment alleged by the petitioner is less than the
extent of risks to health or the environment with respect to which
the : dniitiistrator is taking action under this Act and there are
insufficient resources available to the Administrator to take the action
requested by the 1n ’t it loner, the court niav pernut the Adutinist rater
to defer initiating the action requested by the petitioner until such time
as the court prescribes.
(C) The court in issuing any final order in any action brought pur-
suant to subparagraph (A) may award costs of suit and reasonable
fees for attorneys and expert witnesses if the court determines that
such an award is appropriate. Any court, in issuing its decision in an
action broii&it to review such an order, may award costs of suit and
reasonable fees for attorneys if the court determines that such an
aw-ard is appropriate.
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Chapter One TSCA
( . ) The remedies under this section shall be in addition to, and not
in lieu of, other remedies provided by law.
SEC. 22. NATIONAL DEFENSE WAIVER.
15 USC 2621. The Administrator shall waive compliance with any provision of
this Act upon a request and determination by the PresidTent that the
requested waiver is necessary in the interest of national defense. The
Administrator shall maintain a written record of the• basis upon
which such waiver was granted and make such record available for in
camera examination when relevant in a judicial proceeding under
Publicatioe in this Act. Upon the issuance of such a waiver, the Administrator shall
Federal Re i.ter. publish in the Federal Register a notice that the waiver was granted
Notice o for national defense purposes, unless, upon the request of the Presi-
co uioaal dent, the Administrator determines to omit such publication because
the publication itself would be contrary to the interests of national
defense, in which event the Administrator shall submit notice thereof
to the Armed Services Committees of the Senate and the House of
Representatives.
SEC. 23. EMPLOYEE PROTECTION.
is usc 2622. (a) IN GENERAL—NO employer may discharge any employee or
otherwise discriminate against any employee with respect to the
employee’s compensation, terms, conditions, or privileges of employ-
ment becs use the employee (or any person acting pursuant to a request
of the employee) has—
(I) commenced, caused to be commenced, or is about to com-
mence or cause to be commenced a proceeding under this Act;
(2) testified or is about to testify in any such proceeding; or
(3) assisted or participated or is about to assist or participate
in any manner in such a proceeding or in any other action to
carry out the purposes of this Act.
(b) REMEDY.—(1) Any employee who believes that the employee
has been discharged or ot ierwtse discriminated against by any person
in violation of subsection (a) of this section may, within 30 days after
such all 9 zed violation occurs, file (or have any person file on the
employees behalf’) a complaint with the Secretary of Labor (here-
inafter in this section referred to as the “Secretary”) alleging such
Nobfication. discharge or discrimination. Upon receipt of such a coinj ’Iaint, the
Secretary shall notify the person named in the complaint of the filing
of the complaint.
Investigat ion. (2)(A) tTpon receipt of a complaint filed under paragraph (1), the
Secretary shall conduct an investigation of the violation alleged in the
Notification, complaint. Witnin 30 days of the receipt of such complaint, the Secre-
tary shah complete such investigation and shall notify in writing the
complainant (and any person acting on behalf of the complainant)
and the person allegea to have committed such violation of the results
of the investigation conducted pursuant to this paragraph. Within
ninety days of the receipt of such complaint the Secretary shall, unless
the proceeding on the complaint is terminated by the Secretary on the
basis of a settlement entered into by the Secretary and the person
alleged to have committed such violation, issue an order either pro-
viding the relief prescribed by subparagraph (B) or denying the
Notice. heanng. complaint. An order of the Secretary shall be made on the record after
notice and opportunity for agency hearing. The Secretary may not
enter into a settlement terminating a proceeding on a complaint with-
out the participation and consent of the complainant.
(B) If in response to a complaint filed under paragraph (I) the
Secretary determines that a violation of suiweetion (a) of this section
has occnrre(l. the Secretary shall order (i) the t*rson who cornmittid
such violation to take affirmative action to abate the violation. (11)
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Chapter One TSCA
such person to reinstate the complainant to the complainant’s former
position together with the compensation (including back pay), terms,
conditions, and privileges of the complainant’s employment, (iii) com-
pensatory damages, and (iv) where appropriate, exemplary damages.
If such an order issued, the Secretary, at the request of the complain-
ant, shall assess against the person against whom the order is issued a
sum equal to the aggregate amount of all costs and expenses (including
attorney’s fees) reasonably incurred as determined by the Secretary,
by the complainant for, or in connection with, the bringing of the com-
plaint upon which the order was issued.
(c) REVIEw.—(1) Any employee or employer adversely affected or
aggrieved byan order issued under subsection (b) may obtain review
of the order in the United States Court of Appeals for the circuit in
which the violation, with respect to which the order was issued,
allegedly occurred. The petition for review must be filed within sixty
days from the issuance of the Secretary’s order. Review shafl conform
to chapter 7 of title 5 of the United States Code.
(2) An order of the Secretary, with respect to which review could
have been obtained under paragraph (1), shall not be subject to
judicial review in any criminal or other civil proceeding.
(d) ExFoncEMxwr.—Whenever a person has failed to comply with Civil action.
an order issued under subsection (b) (2), the Secretary shall file a civil
action in the United States dstrict court for the district in which the
violation was found to occur to enforce such order. In actions brought Jurisdiction.
under this subsection, the district courts shall have jurisdiction to
grant all appropriate relief, including injunctive relief and compensa ..
tory and exemplary damages. Civil actions brought under this sub-
section shall be heard and decided expeditiously.
(e) Exci .rjsToN.—Subsection (a) of this section shall not apply with
respect to any employee who, acting without direction from the
employee’s employer (or any agent of the employer), deliberately
causes a violation of any requirement. of this Act.
SEC. 24. EMPLOYMENT EFFWTS.
(a) IN GENERAL.—TIIe Administrator shall evaluate on a continuing Evaluation.
basis the potential effects on employment (including reductions in is usc 2623.
employment or loss of employment from threatened plant closures)
(1) the issuance of a rule or order under section 4, 5, or 6, or
(2) a requirement of section 5 or 6.
(b) (1) rNvE8TIOATI0NS.—Any employee (or any representative of
an employee) may request the Administrator to make an investigation
of—
(A) a discharge or layoff or threatened discharge or layoff of
the employee, or
(B) adverse or threatened adverse effects on the employee’s
employment,
allegedly resulting from a rule or order under section 4, 5. or 6 or a
requirement of section 5 or 6. Any such request shall be made in writ-
ing. shall set forth with reasonable particularity the grounds for the
request, and shall be signed by the employee, or representative of such
employee, making the request.
(2) (A) Upon receipt of a request made in accordance with para- Public hearings.
graph (1) the Administrator shall (i) conduct the investigation
requested, and (ii) if requested by any interested person, hold public
hearings on any matter involved in the investigation unless the Admin-
istrator. by order issued within 45 days of the date such hearings are
requested, denies the request for the hearings because the Adininis-
trator determines there are no reasonable grounds for holding such
hearings. If the Administrator makes such & determination, the Notification.
Administrator shall notify in writing the person requesting the hear-
ing of the determination and the reasons therefor and shall publish the
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Chapter One TSC&
Pubticatioa rn determination and the reasons therefor in the Federal Register.
Federal Register. (B) If public hearings are to be held on any matter involved in an
investigation conducted under this subsection—
(i) at least five days’ notice shall be provided the person mak-
ing the request for the investigation and any person identified in
such request.
(ii) such hearings shall be held in accordance with section
6(c) (3), and
(iii) each employee who made or for whom was made a request
for such hearings and the employer of such employee shail be
required to present information respecting the applicable matter
referred to in paragraph (1)(A) or (1)(B) together with the
basis for such information.
Reco ms da (3) Upon completion of an investigation under paragraph (2), the
tioss. Administrator shall make findings of fact, shall make such recom-
mendations as the Administrator deems appropriate, and shall make
available to the public such findings and recommendations.
(4) This section shall not be construed to require the Administrator
to amend or repeal any rule or order in effect under this Act.
SEC 25. STUDIES.
15 USC 2624. (a) INDUtNtpTcATION S’rvvy.—The Administrator shall conduct a
study of all Federa’ 1aw administered by the Administrator for the
purpose of determining whether and under what conditions, if any,
indemnification should be accorded any person as a result of any action
taken by the Administrator under any such law. The study shall—
(1) inciude an estimate of the probable cost of any indeinnifica-
tion programs which may be recommended;
(2) include an examination of all viable means of financing the
cost of any recommended indemnification; and
S b.nittsl to (3) be completed and submitted to Congress within two years
Coagre... from the effective date of enactment of this Act.
GAO re, e -w. The General Accounting Office shall review the adequacy of the study
submitted to Congress pursuant to paragraph (3) and shall report the
results of its review to the Congress within six months of the date
such study is submitted to Congress.
Coasuhetion. (b) CLASSIFICATION. SmL nE , ANt) RETRIEVAL Sruny.—The Council
on Environmental Quality, in consultation with the Administrator.
the Secretary of Health. Education, and Welfare, the Secretary of
Commerce. and the heads of other appropriate Federal departments or
agencies. shall coordinate a study of the feasibility of establishing (1)
a. standard classifknt ion system for chemical substances and related
substances, and (2) a standard means for storing and for obtaining
Report to rapid access to information respecting such substances. A report on
Congress. sod’ s.ady shall be completed and submitted to Congress not later than
18 months after the effective date of enactment of this Act.
SEC. 2$. ADMINTSTRATTON OF THE ACT.
15 USC 2625. (a) CoorEni r1oN OF FEDERAL Aozxcm s.—Upon request by the
Administrator, each Federal department and agency is authorized—
(1) to make its services, personnel, and facilities available
(with or without reimbursement) to the Administrator to assist
the Administrator in the administration of this Act; and
(2) to furnish to the Administrator such information, data,
riniates. and statistics, and to allow the Administrator access to
a4 1 information in its possession a.s the Administrator may reason-
ahlv deterii,ine to he neee sarv for the administration of this Act.
h) F’ris—-— (1) The Administrator may. Iw rule, require the pay-
)iieflt of a reasonable fee from any person required to submit data
under -eet ion 4 or to defray the cost of administering this Act. Such
rule’.. . .hall not ;rovi le for any fee in PNCeSS of $2,500 or. in the case of
a .uIIRII hn ’ mc -” . u .’ rn. any f ’e n of $100. In setting a fee
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Chapter One
under this paragraph. the Administrator shall take into account the
ability to pay of the person required to submit the data and the cost
to the Administrator of reviewing such data. Such rules may provide
for sharing such a fee in any case in which the expenses of testing are
shared under sect ion 4 or .
( ) The Administrator, after consultation with the Administrator Con8ultatioa.
of the Small Business Administration, shall by rule prescribe stand- Rule.
ards for determining the persons which qualify as small business
concerns for purposes of paragraph (1).
(c) ACTION Wmi R sI’Ecr TO ( .vrEGflRIKs.—( 1) Any action author-
ized or required to be taken by the Administrator under aiiy provision
of this Act with respect to a chemical substance or mixture may be
taken by the Administrator in accordance with that provision with
respect to a category of chemical substances or mixtures. Whenever
the Administrator takes action under a provision of this Act with
respect to a category of chemical substances or mixtures, any reference
in this Act to a chemical substance or mixture (insofar as it relates
to such action) shall be deemed to be a reference to each chemical
substance or mixture in such category.
(2) For purposes of paragraph (1) : Definiuons.
(A) The term “category of chemical substances” means a group
of chemical substances the members of which are similar in molec-
ular structure, in physical. cheiiiical, or biological properties, in
use, or in mode of entrance into the human body or into the
environment, or the members of which are in some other way suit-
able for classi ticat ion as such for purposes of this Act, except that
such term does not mean a group of chemical substances which are
grouped together solely on the basis of their being new chemical
substances.
(B) Tht term “category of mixtures” means a group of mix-
tures the members of which are similar in molecular structure, in
physical, chemical, or biological properties, in use, or in the mode
of entrance into the human body or into the environment, or the
members of which are in some ot’her way suitable for classification
as such for purposes of this Act.
(d) ASSISTANCE OFFIcE.—The Administrator shall establish in thc Estsblishment.
Environmental Protection Agency an identifiable office to provide
technical and other nonfinancial assistance to manufacturers and
processors of chemical substances and mixtures respecting the require-
ments of this Act applicable to such manufacturers and processors. the
policy of the Agency respecting the application of such requirements
to such manufacturers and processors. and the means and methods by
which such manufacturers and processors may comply with such
requirements.
(e) FINANcr L DIscLosuuEs.—(1) Except as provided under para-
graph (s). each officer or emploYee of the Environimiental Protection
Agency and the Department of Health. Education. and Welfare who—
(A) performs any function or duty under this Act, and
(B) has any known financial interest (i) in any person simliject
to this Act or any rule or order in effect under this Act, or (ii) in
any person who applies for or receives any grant or contract under
this Act,
shall, on February 1, 1978, and on February 1 of each year thereafter,
file with the Administrator or the Secretary of Health, Education. and
‘Welfare (hereinafter in this subsection referred to as the ‘Secre-
tary”), as appropriate, a written statement concerning all such inter-
ests held by such officer or employee during the preceding calendar
year. Such statement shall be made available to the public.
(2) The Administrator and the Secret arv shall—
(A) act within 90 days of the effective date of this Act—
TSCA Compliance [ Enforcement 1-53 Guidance Manual 1984
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Chapter One TSCA
(i) to deftne the term “known financial interests for pur-
poses of paragraph (1),and
(ii) to establish the methods by which the requirement to
file written statements specified in paragraph (1) will be
monitored and enforced, including app ropriate OVZ82OflS for
review by the Administrator and the Secretary of such state-
ments; and
Report to (B) report to the Congress on June 1, 1978, and on June 1 of
Congress. each year thereafter with respect to such statements and the
actions taken in regard thereto during the preceding calendar
year.
(3) The Administrator nisy by rule identify specific positions with
the Environmental Protection Agency, and the Secretary ma by rule
identify specific positions with the Department of Health, Education,
and Welfare, which are of a nonregulatory or nonpolicymaking
nature, and the Administrator and the Secretary may by nile provide
thai; officers or employees occupying such positions shall be exempt
from the requirements of paragraph (1).
(4 ) This subsection does not supersede any requirement of chapter
11 of title 18, United States Code.
Penalty (5) Any officer or employee who is subject to, and knowingly vio-
lates. this subsectior, or any rule issued thereunder, shall be fined not
more than $2,500 or imprsoned riot more than one year, or both.
(f) STATEMENT 07 BASIS AND Puarosr..—Any final order issued
tinder this Act shall be accompanied by a statement of its basis and
purpose. The contents and adequacy of any i t uch statement shall not
be subject to judicial review in any respect.
Appointment. (g) ASSISTANT ADMINI8TZ .&roL—(1) The President, by and with
the advice and consent of the Senate, shall appoint an Assistant
Administrator for Toxic Substances of the Environmental Protection
Agency. Such Assistant Administrator shall be a qualified individual
who is, by reason of background and experience, especially qualified
to direct a program concerning the effects of chemicals on human
health and the environment. Such Assistant Administrator shall be
responsible for (A) the collection of data, (B) the preparation of
tttdies, (L ) the making of recommendations to the Administrator for
regulatory and oher actions to carry out the purposes and to facili-
tate the adutimiistratiori of this Act, and (D) such other functions as
the Xdministrato. may assign or delegate.
(2) The Assistant Administrator to be appointed under paragraph
(1) shall (A) be in addition to the Assistant Administrators of the
Environmental Protection Agency authorized by section 1(d) of Reor-
S USC app. II. ganization Plan No. 3 of 1970, and (B) be compensated at the rate of
P 5 Y authorized for such Assistant Administrators.
SEC. 27. DEVELOPMENT AND EVALUATION OF TEST METHODS.
ConsuIt.ation. TN GI:Nm:u.\1..—The Secretary of Health, Education, and Welfare,
15 USC 262ô. in N tnsiIltntinn wit it the Administrator and acting through the Assist—
muit St’cretar for Health, may eon(luet, and imiake grants to public and
nonprofit private entities and enter into contracts with public and
private entities for, l)tn]ects for the development and evaluation of
mnexpemisi ye and efficient methods (1) for determining and evaluating
the health and environmental effects of chemical substances and mix-
tures, anr their toxicity, persistence, and other characteristics which
atfvet hen Itt , antI he t’nv 1 ronn tent, and (2) which may he used for the
ilevelop iment of test data to meet the requirements of rules promulgated
tinder section 1. The Administrator shall consider such methods in
prescribing ‘imider Section 4 standards for the development of test data.
Grants or (h) APPflUV.tL SEcmr. nY.—No grant may be made or contract
contracts. entered into under subsection (a) unless an application therefor has
application. Feen siibrntued to and approved by the Secretary. Such an application
TSCA Co.pliance/Enforce msent 1-54 Guidance Namial 1984
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Chapter One TSCA
. ita Ii be subuiitted in such foii and manner aiid contain such inforrna—
tion as the Sc retary may re(luire. The Secretary may apply such
condit ions to grunts alit I rout ructs under sub eetion (a) as the Secre-
tary leteriiiiia .s are necessary to carry out the l)Itrl)OseS of such subsec-
tion. (.‘ontracts may be entered into under such subsection without
i. gartl to seetiolis 3G48 and 3709 of the Revised Statutes (31 U.S.C.
529; 41 U.S.C. 5).
(c) AN tL RKron’rs.—(1) The Secretary shall prepare and sub- Report to
mit to the P esident. and the Congress on or before January 1 of each President and
year a report of the number of grants made and contracts entered into Congress.
under this sect ion and the results of such grants and contracts.
) The Secretary shall periodically publish in the Federal Register Publication in
po describing the progress and results of any contract entered Federal Regtster.
into or grant made under this section.
IEC. 2$. STATE PROGRAMS.
(a) Is (iExER. i ...—For the purpose of cot pleient ug (but not reduc- 15 Usc 2627.
ing) the authority of, or actions taken by, the Administrator under
this Act, the Adiiiimstrator may make grants to States for the estab-
lislumient and operation of progriuns to prevent or eliminate unreason-
able risks vit.hin the States to health or the environment which are asso-
ciated with a dietiticat substance or mixture and with respect to which
the Administrator is unable or is not likely to take action under this
Act for their prevention or elimination. The amount of a grant under
this subsection shall be (letermined by the Administrator, except that
no grant for any State program may exceed 75 per centum of the
cstubtishiiiteiit and operation costs (as determined by the Admin-
istrator) of such prograni during the ieriod for which the grant is
made.
(b) AI’rRUV.tL Br ADXINISTRATOR.—(1) No grant may be made under Grants.
subsection (a) tin Lest .i tut application therefor is subutitted to and application.
approved by the Administrator. Such an application shall be sub-
muitted in such form and manner as the Administrator may require and
shall—
A ) Set forth the need of the applicant f01 a grant under sub ec-
11011 I it I,
U) uldntif’J the agency or agencies of the State which hiah1
t,St ahi i hi or operate, or both, the program for which the appi ica—
t 1011 is uhniitretL.
C) describe the actions Proposed to 1* taken un(ler such pro-
gin iii.
(I)) contain or be supported by assurances satisfactory to the
. dutinistrator that such program shafl. to the extent fca ibhe.
Ia ’ integrated with other programs of the applicant for c ’nvi ton—
fllt’iltn 1 md 1 )tlhhiC h tith protection,
E ) provide for the making of such reports and eva1iiation .
as I a’ A1 mmii ri istrator may require. and
(F) contain such other information as the Administrator ittay
resrribe.
( I Ti a’ .\ Iii ii iii t I ’fltOl ii mar approve an application subrn jttc’d in Application
accn,dance tvitii )fltaglttphI t 1) oiilv if the appi want has ( ‘Stfll)1i 1led to approval.
lit ,nt I’. t’nct iOu ‘it t lit’ . t1m jut st rator a prioritY need. s ih’terii,i ned
ii unler utuie of ti t 4 Adnu in istrator, for tite grant for wit ieli the a pp1 i—
tat ion itmt been sulimittc ’tl. Such rub’s shall take into onsitlernt ion the
serioui utc ’ss of thr health etTeets in a State which are asso’iatetl with
i’heuui 1:11 snbstancc or ni i xtiures. inch tiding cancer. bi rtii clefetr . and
gene iii utat nn . tiit’ extent of the exposmi cc in a State of liutina ii
intl time etivitonittint to ritcuuuital suib taiutes and imiixtimrt’s,tini the
extent tO wit nit ihiuutiral suui tances anti inixtuires arc’ manufactured.
proeeas ’d. used. amid iiislu) e(l of in a State
•) A xxi i. flm.:I’miI r .—Xot later thmni .ix nmoitthts a frc flit’ enil of Report to
tacit of thit fi .ia1 Vt ’aN luf), anti I9 ’l. tite .\.(1?tliIli ’.tlat(tl ‘ititli Congre .
TSCA Co.plianee/Enforceaent 1-55 Guidance Manual 1984
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Chapter One
— iibnnt to the ( nn rt ’— a flrt H.ftn g the progranis ;ISSist9l 1w
gm nts a ,nh’r i il . ‘rt iOit a in tin’ p re( d fig h W l Vi’ 11t and the extent
to vhieli t lit’ . ttl, aiistr:itor hn ihisseininuted infomumi ion respecting
—nehi ju grn )iu.
(d) AUTHORIZATION.—For the purpose of making grams under subeec-
tion (a) there are authorized to be appropriated $1,500,000 for each of the
fiscal years 1982 and 1983. Sums appropriated under this subsection shall re-
main available until expended.
SEC. 29. AUThORIZATION FOR APPROPRIATIONS.
There are authorized to be appropriated to the Administrator for purposes
of carrying out this Act (other than sections 27 and 28 and subsections (a) and
(C) through (g) of section 10 thereof) $58,646,000 for the fiscal year 1982 and
15 USC 2628. S62000,000 for the fiscal year 1983. No part of the funds appropriated under
this section may be used to constnict any research laboratories.
SEC. 30. ANNUAL REPORT.
Report tO ‘1 ’1 e Administrator shall prepare and uhniit to the I’iDsident and
President and C•es on or before 1. 197S. anti on or before .Ttuiuarr I
Coma. of eneb sti eeding v ar ft (‘OInpEe’heflsive rCPOrt on the administration
5 LS . 262 of tillS Act tiuring the ‘ece(hing fiscal year. Sueb report ..hiall inilude—
(I) a list of the hsting ret 1 nire (l under setttoii 4 during the year
for which the report is nwde and an estimate of the costs incurred
(luring such yen 1 by the persons required to Perfo n Such tests;
(2 the ni iii us’ r of not i e rc ’ ei ted chit i’jng such year under
section 5. the nnin}wr of snrh not ni ’s received t luriiig such year
under surh ectioti for chemical sulistanees subject to a section 4
rule. awl a summary of any action taken during such year nuder
section 5(g):
(3) a list of rules issued during such year unitlet- section 6:
(4) a hi t, with a brief statement of the issues, of completed or
pending judicial actions under this Act and adiuini r*tive actions
under section 16 during such year;
(5) a sunimary of major problems encountered in the adminis-
tration of this Act; and
Recommends- (6) such recommendations for ndditinnah legislation as the
Administnttou ulecuts iwee ary t carry out the purpoM’s of this
Act.
SEC. 31. EFFECTIVE DATE.
15 USC 2601 Except as provided in section 4(f). this Act shall take effect on
.Januarv 1. 19 ’7.
Approved October 11, 1976.
LEGISLATIVE HISTORY :
HOUSE REPORTS: No. 94-.1341 accompanying H.R. 14032 (Comm. on Interstate and
Foreign Commevce) and No. 94—1679 (Comm. of Conference)
SENATE REPORTS: No. 94-698 tCumm. on Commerce) and No. 94—1302 (Comm. of
Conference).
CONGRESSIONAL RECORD. Vol. 122 ( 1Q76):
Mit. 26. considered and passed Senate.
Aug. 23. considered and pissed House. amended, in lieu of H.R. 14032.
Sept. 28. Senate and House agreed to conference report.
WEEKI.’)’ COMPILATION OF’ PRESIDENTIAL IX)CUME1 ’4TS. Vol. 12. No. 42:
Ott. 12. Presidential statement.
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Chapter One
4 TSCA Regulatory Elements
The following section discusses the primary regulatory provisions that have
been enacted and that pertain to TSCA’S enforcement/compliance program.
These regulatory elements of the Act are:
• The Friable Asbestos—Containing Material in Schools Rule;
• The Fully Halogenated Chiorofluoroalkanes (CFCs) Rule;
• The Polychlorinated Biphenyls (PCBs) Rule;
• The Premanufacture Notification (PMN) Rule; and
• The Tetrachlorodibenzo—p—dioxin (TCDD) Rule.
The Friable Asbestos—Containing Material in Schools Rule
Overview
The purpose of the Asbestos in Schools Rule (40 C.F.R. § 763.1OO through
763.119) is to protect users of school buildings from exposure to concen-
trations of airborne asbestos that occur when friable asbestos—containing
materials are damaged or disturbed. Inhaled asbestos can cause severe
human health effects. Compliance with the rule will both ensure that these
materials are identified and that school users are notified of the
materials’ presence. The rule was needed because many school districts had
not responded adequately to EPA ’s effort under the voluntary Technical
Assistance Program (TAP) to encourage schools to identify these materials
and notify employees of their presence.
of Rule
The Asbestos in Schools Rule is directed at local education agencies, which
are defined as:
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Chapter One TSCA Regulatory Ele.ents
• Any local education agency as defined in Section 198(a)(1O) of the
Elementary and Secondary Education Act of 1965; and
• The governing authority of any nonprofit elementary or secondary
school.
The rule consists of the following elements:
• Identification . Inspecting all school buildings for friable
materials;
• Sampling . Collecting samples of the friable materials;
• Analysis . Analyzing the samples to determine whether they contain
asbestos;
• Notification . Informing the Parent—Teachers Association (or
parents), faculty, and other building users of the presence of
asbestos; posting the notice to school employees; and distributing
“A Guide for Reducing Asbestos Exposure” to custodial and main-
tenance personnel;
• Recordkeeping . Maintaining records that describe the actions taken
to comply with the rule. This includes a statement signed by the
person responsible for compliance with the rule that the regulatory
requirements have been satisfied; and
• Exemptions .
— — Schools that were built after December 31, 1978, are exempt from
all requirements of the rule.
— — Schools that can document that no friable asbestos—containing
materials were used in building or renovating the school buil-
dings are exempt from all requirements of the rule. Certifica-
tion, as required by the rule, must be in the school’s records.
—— Schools that completed specific requirements of the rule as part
of the voluntary Technical Assistance Program (see “Compliance
Assistance Guidelines”) need not repeat these activities. If no
asbestos was discovered by the TAP, the appropriate certifica-
tion must be in the school’s records.
Schools that have satisfactorily abated (see “Compliance Assis-
tance Guidelines”) asbestos—containing materials before June 28,
1983, are exempt from all requirements of the rule.
—— Schools that certify for the record that all friable materials
will be treated as asbestos—containing materialsfor the pur-
poses of this rule are exempt only from the inspection, sam-
pling, and analysis requirements of the rule. This certifica-
tion must be in the school’s records.
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Chapter One TSCA Regulatory Eleaenta
The Fully Halogenated Chlorofluoroalkanes (CFCs) Rule
Overview
On March 17, 1978, EPA published a rule that prohibits almost all manufac-
turing and processing of fully halogenated chiorofluoroalkanes (also
referred to as chiorofluorocarbons or CFCs) for aerosol propellant uses
subject to TSCA.
The intent of the EPA rule is to reduce the emission of CFCs into the
atmosphere. Such emission of CFCs causes depletion of the ozone layer,
which shields the Earth’s surface from harmful ultraviolet radiation. This
depletion poses a serious risk to human health arid the environment.
In a related rule [ 43 Fed. Reg. 11,301 (1978)1, the United States Food and
Drug Administration has banned the use of CFCs as aerosol propellants in
most food, drug, and cosmetic products.
Summary of Rule
CFC manufacturers, processors, importers, and exporters may be subject to
this rule. Prohibitions and specific requirements include:
• Prohibitions . The EPA rule lists prohibition on the manufacture
and processing of CFCs for aerosol propellant use, unless specifi—
cally exempted by EPA. CFCs cannot be:
—— Manufactured for any aerosol propellant use,
—— Imported for any aerosol propellant use,
— — Processed into any aerosol propellant article (including an
article intended for export), or
—— Distributed in commerce for processing into any aerosol propel-
lant article;
• Exemptions . CFCs may be (1) manufactured or imported for aerosol
propellant use, (2) processed or processed for export into an aero-
sol propellant article, or (3) distributed In commerce for proces-
sing into any aerosol propellant article only in the following
cases:
—— For use in an article that is a food additive, drug, cosmetic,
or device exempted under 15 U.S.C. §2602,
—— For those essential uses listed in 40 C.F.R. §762.58, and
—— For special uses listed in 40 C.F.R. §762.59;
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Chapter One TSCA Regulatory Eleaents
• Certification . Manufacturers of CFCs must obtain a signed state-
ment from each person who purcha8es CFCs. Such statement must
specify whether the CPCs are being purchased for aerosol or other
uses; and
• Reporting . Manufacturers and processors of CFCs are required to
file annual reports with EPA on March 31, 1980, 1981, and 1982.
The Polychiorinated Biphenyls (PCBs) Rule
Overview
Polychiorinated biphenyls (PCBa) are wIdely used in transformers, capaci-
tors) hydraulic systems, and heat transfer systems. Although PCBs have
long been known to be extremely toxic) only in recent years have they been
found in significant concentrations in waterways and sediments throughout
the world.
PCBs have been linked with various health effects including the formation
of malignant and benign tumors, fetal deaths, reproductive abnormalities,
and mutations.
The PCB rule is found at 40 C.F.R. Part 761.
Summary of Rule
TSCA requires that the processing, distribution in commerce, use, and dis-
posal of PCBs be regulated and that PCBs be marked with clear and adequate
warnings. Under the Interim Measures Program, owners of certain PCB units
must visually inspect the units, record all leaks, and begin repair of any
moderate leaks within two days of discovery. These inspections must take
place once every three months, except where the unit poses an exposure risk
to food and feed products, in which case it must be inspected at least once
a week.
• Prohibitions . The following activities are prohibited:
— Processing or distributing in co nerce PCBa or PCB items without
an authorization or exemption;
—- Manufacturing PCBs without an exemption;
—— Using PCBs or PCB items without an exemption; and
—— Servicing PCB transformers that require removal of the trans—
former coil.
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Chapter One _______ TSCA Regulatory Kle ents
• Recordkeepirig Requirements . Facilities that keep PCB transformers
or capacitors must maintain annual records showing the weights of
PCBs in containers and transformers, number of transformers and
capacitors, dates of transfer of PCBs, and quantities of certain
PCBs and PCB items remaining in service. In addition, PCB disposal
and storage faciiitie8 must keep annual records of PCBs and PCB
items that are received, stored, transferred, or dispo8ed of.
• Marking Requirements . PCBs and PCB items that contain more than 50
ppm of PCBs (except PCB—containinated transformers) and transport
vehicles carrying more than 45 kilograms of PCB liquids over 50 ppm
or carrying one or more PCB transformers must all be marked as con-
taining PCBs.
• Storage Requirements . PCB articles and PCB containers stored for
disposal must be stored in accordance with the PCB regulation.
Specifications for storage facilities include adequate roof and
walls, floor and continuous 6—inch curbing of impervious material,
and a location above the 100—year flood level. Other requirements
include specifications for containers and time periods for tempor—
ary storage.
• Disposal Requirements . PCB liquids and PCB items containing
liquids above 500 ppm PCBs must be disposed in either an EPA—
approved incinerator or any other disposal method approved by the
Regional Administrator. PCB liquids and PCB items containing bet-
ween 50 and 500 ppm PCBs must be disposed in an EPA—approved land-
fill, an EPA—approved high—efficiency boiler, an EPA—approved
incinerator, or any other methods approved by the Regional Adminis-
trator.
The Premanutacture Notification I PMNY Rule ________ ______________--
Overview
Under Section 5 of TSCA, EPA must be notified at least 90 days before a new
chemical substance is manufactured or imported for commercial purposes
(40 C.F.R. Part 720). A “new chemical substance” is defined as a substance
not listed on the TSCA Chemical Substance Inventory (published on June 1,
1979). The loventory is updated periodically with the addition of new
chemical substances that have undergone Section 5 review and have entered
commercial production. On May 13, 1983, EPA published a final rule cover-
ing the applicability of SectIon 5 requirements; the general procedure for
submitting notices; information requirements, including a mandatory notice
form; and EPA ’s procedures for processing information contained in the
notices, Including confidential business information. On September 13,
[ 983 (in response to industry petitions of the May 13, 1983, rule), EPA
stayed indefinitely the effective date8 of:
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Chapter One TSCA Regulatory Ilemants
• Sections 720.36 and 720.78——Requirements concerning new chemical
substances manufactured under Section 5(h)(3) research and develop-
ment exemption;
• Section 720.3(y)——The definition of “possession or control”; and
• Section 720.50(c)——Data requirements on related chemicals.
Except for the sections that were stayed, the final rule went into effect
on October 26, 1983. All PUNs, therefore, must be submitted to EPA on the
PMN form, and notice submitters are required to comply with those provi-
sions of the rule that are currently in effect.
Summary of Rule
In conducting its review of a new chemical substance, EPA assesses the
risks associated with all phases of the life cycle of the substance,
including its manufacture, import, processing, distribution in commerce,
use, and disposal. The review is based on information provided by the sub-
mitter in the notice as well as information obtained through other
sources. EPA also considers several different factors in conducting its
review, including the potential toxicity to humans and the environment and
the nonrisk factors such as the possible economic benefits and the avail-
ability of substitutes.
Notice Review Process . The notice review process has six major phases:
• Prenotice Communication . EPA provides guidance to submitters on
such topics as the scope of TSCA and the PMN rule, the contents of
the TSCA Chemical Substance Inventory, the notice form, Section 5
exemptions, premanufacture testing, confidentiality and generic
name development, and notice review procedures.
• Process Start—up . Process start—up begins when EPA receives a
notice; the 90—day review period begins on this date.
• Initial Review . During the initial (90—day) review period, EPA
identifies, those chemical substances that require more detailed
review and that are candidates for possible regulatory action. The
initial review period ends when EPA has determined whether avail-
able data warrant a more detailed review of the substance.
• Detailed Review . The detailed review period allows EPA to assess
the data gathered during the initial review period, to analyze pos-
sible regulatory or other control measures, and, if necessary, to
extend the (90—day) notice review period.
• Regulatory Response . After completion of the detailed review, EPA
may decide to regulate the substance during the review period in
several ways:
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Chapter One TSCA Regulatory Kle.euts
—— Issue an order under Section 5(e) if it is found that the sub-
stance may present an unreasonable risk to human health or the
environment or that it may be produced in substantial quantities
(pending development of additional data);
—— Control the substance under Section 5(f) if it is found that the
substance will present an unreasonable risk; or
—— Identify the substance as a candidate for regulation under Sec-
tion 5(a)(2), 5(b)(4), or 8.
• Process Closeout and Entry on the Inventory . If EPA does not take
action to regulate a substance during the review period, the sub-
mitter may manufacture or import the new chemical substance without
restriction once the notice review period expires. When manufac-
ture or import begins, the submitter must notify EPA of the iden-
tity of the chemical substance, its preinanufacture notice number,
and the date on which manufacture or import began.
Research and Development Exemptions . Manufacturers and importers of small
quantities of a new chemical substance are exempt from the PMN rule if the
substance is to be used solely for research and development purposes. The
manufacturer or importer is required to:
• Notify all persons who come into contact with the new substance
of any risk to health that may be a8sociated with the substance;
• Label conspicuously all areas in which exposure may occur;
• Evaluate any information or test data to determine whether there is
any risk to health associated with the substance;
• Evaluate any information concerning any significant adverse reac-
tion by persons exposed to the substance that may reasonably be
associated with such exposure;
• Evaluate any information provided by a supplier or any other person
concerning a health risk believed to be associated with the sub-
stance; and
• Determine whether the substance is subject to any rule or order
proposed or promulgated under Section 4, 5, 6, or 8(e) of the Act
and whether EPA has found, under Section 5(h)(3), that any risk to
health may be associated with the substance.
Test—Marketing Exemptions . Manufacturers and importers may apply for
exemption from Section 5(a) or 5(b) reporting requirements for test—
marketing purposes. The applicant must show that the test—marketing activ-
ities will not present any unreasonable risk to human health or the envi—
ronment. Manufacture or import cannot begin, however, until EPA grants the
exemption.
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Chapter One TSC& Regulatory El —”nts
Confidentiality Claims . Section 14 allows the submitter to claim confiden-
tiality for any information submitted to EPA under the Act. However, the
Act also makes clear that the public interest in chemical regulation must
also be considered and, in certain cases, outweighs the protection of con-
fidential business information. Thus, Section 14 also provides that health
and safety studies may be revealed if necessary to protect human health or
the environment from an unreasonable risk of injury.
The Tetrachlorodibenzo—p—dioxin (TCDD) Rule
Overview
TCDD (2,3,7,8—tetrachlorodibenzo—p—dioxin) is an undesirable contaminant
formed during the manufacture of certain substances. TCDD, commonly
referred to as dioxin, i8 highly toxic and is found to be carcinogenic In
laboratory animals; it has other significant adverse health effects as
well.
On May 12, 1980, EPA promulgated a rule under Section 6 of TSCA prohibiting
Vertac Chemical Company from disposing of certain of it8 wastes containing
TCDD stored at the company’8 Jacksonville, Arkansas, facility. The rule
also requires that all other persons planning to dispose of TCDD—containing
wastes notify the Agency 60 days prior to intended disposal.
Summary of the Rule
Requirements Applicable to Vertac Chemical Company . The TCDD rule prohi-
bits the removal for disposal of certain wastes containing TCDD fr the
Vertac Chemical Company’s facility at Jacksonville, Arkansas. Vertac is
required to post notices at the facility that state that contaminated
wastes are being stored on—site and that removal of the wastes for disposal
is prohibited. In addition, Vertac must test all waste materials for TCDD
contamination and dispose of the TCDD—containing wastes in accordance with
EPA’s guidelines for waste disposal.
General Disposal Notification Requirements . Any person who disposes of
chemical substances or mixtures for commercial purposes and who wishes to
dispose of wastes containing TCDD must notify the Assistant Administrator
for Pesticides and Toxic Substances 60 days prior to the disposal of such
wastes. The notification is to be made by certified letter to the Assis-
tant Administrator with a copy to the EPA Regional Administrator for the
Region in which the wastes are currently stored. The notification must
include, at a minimum, the following information:
• The name of the firm involved and the address of both the corporate
headquarters and the specific disposal site;
• The name and telephone number of a company contact person;
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Chapter One TSC egu1atory E1e ent8
• The concentration of TCDD in the waste materials and the method of
detection;
• The total quantity of waste material and the number of containers
involved;
• A brief description of the proposed disposal including the method
of disposal and the name of any disposal firm(s) involved; and
• A st mary of the present status of the waste including the method
of containment and the presence or absence of:
—— (i) An impermeable pad,
—— (ii) Curbing,
—— (iii) Dikes,
—— (iv) Roof structure, and
—— (v) Accessibility of unauthorized persons.
The Assistant Administrator has the authority to prohibit the intended dis-
posal by notification of the concerned party(ies) by registered mail if it
is determined that:
• The proposed disposal will present an unreasonable risk; or
• There is insufficient information on which to base a finding that
such an unreasonable risk is absent.
Exclusions . The TCDD rule does not apply to persons who dispose of TCDD-
containing wastes at facilities permitted for disposal of TCDD under Sec-
tion 3005(c) of the Resource Conservation and Recovery Act, 42 U.S.C.
§6925(c).
TSCA Coapliance/Enforceaent 1-65 Guidance Manual 1984
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Chapter One TSCA kegulatory E1 nt.
TSCA Coapliance Enforce.ent 1—66 Guidance Manual 1984
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Chapter One
5 Glossary
ACT —— When used in this manual, the term “Act” means the Toxic Substances
Control Act (TSCA), 15 U.S.C. §2601 etseq.
ADMINISTRATIVE LAW JUDGE An Administrative Law Judge appointed pursuant
to 5 U.S.C. §3105 ( see also , 5 C.F.R. Part 930, as amended by 37 Fed.
Reg. 16,789).
ADMLNLSTRAT0 —— The Administrator of the United States Environmental Pro—
tection Agency, any employee or authorized representative of the Agency
to whom the Administrator has delegated the authority to carry out his or
her functions, or any other person who shall by operation of law be
authorized to carry out such functions.
AFFIDAVIT —— A written statement made on oath before a notary public or
other person authorized to administer oaths.
AGENCY -— The United States Environmental Protection Agency (EPA).
ARTICLE —- A manufactured item that (1) is formed to a specific shape or
design during manufacture, (2) has end—use function(s) dependent in whole
or in part upon its shape or design during end use, and (3) has either no
change of chemical composition during its end use or only those changes
of composition that have no commercial purpose separate from that of the
article and that result from a chemical reaction occurring upon end use
of other chemical substances, mixtures, or articles. Fluids and par-
ticles are not considered articles regardless of shape or design [ 40
C.F.R. § 704.95].
ASBESTOS —— The asbestt{otm varieties of chrysotile (serpentine), crocido—
lite (riebeckite), amosite (cuinmingtonite—grunerite), anthophyllite, tre—
molite, and actinolite [ 40 C.F.R. §763.103(b)J.
BYPRODUCT — — A chemical substance produced without separate commercial
intent during the manufacture, processing, use, or disposal of another
chemical substance(s) or mixture(s) [ 40 C.F.R. §704.951.
CATEGORY OF C}{EMICAL SUBSTANCES —— A group of chemical substances the mem-
bers of which are similar in molecular structure; in physical, chemical,
or biological properties; in use; or in mode of entrance into the human
TSCL CoMI1iaI e Enforceeut 1-67 Guidance Manual 1984
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Chapter One Glossary
body or into the environment, or the members of which are in
some other way suitable for classification as such for purposes of TSCA,
except that such term does not mean a group of chemical substances that
are grouped together solely on the basis of their being new chemical
substances [ TSCA §26(c)(2)(A)].
CATEGORY OF MIXTURES —— A group of mixtures the members of which are simi-
lar in molecular structure; in physical, chemical, or biological proper-
ties; in use; or in the mode of entrance into the human body or into the
environment, or the members of which are in some other way suitable for
classification as such for purposes of TSCA [ TSCA 426(c)(2)(B)J.
CFC(s) —— Fully halogenated chlorofluoroalkanes (also known as chioro—
fluorocarbons) are a family of chemical compounds that were once widely
used as aerosol propellants but are now suspected of depleting the
stratospheric ozone layer.
CHEMICAL SUBSTANCES —— Any organic or inorganic substances of a particular
molecular identity, including any combination of such substances occur-
ring in whole or in part as a result of a chemical reaction or occurring
in nature, and any chemical element or uncombthed radical, except that
“chemical substance” does not include:
— - Any mixture;
—- Any pesticide as defined in the Federal Insecticide, Fungicide, and
Rodenticide Act when manufactured, processed, or distributed in corn—
merce for use as a pesticide;
—— Tobacco or any tobacco product;
—— Any source material, special nuclear material, or byproduct material
(as such terms are defined in the Atomic Energy Act of 1954 and
regulations issued under such Act);
—— Any article the sale of which is subject to the tax imposed by Sec—
tion 4181 of the Internal Revenue Code of 1954 (determined without
regard to any exemptions from such tax provided by Section 4182 or
4221 or any other provision of such code); and
—— Any food, food additive, drug, cosmetic, or device (a8 such terms
are defined 1 Section 201 of the Federal Food, Drug, and Cosmetic
Act) when manufactured, processed, or distributed in commerce for
use as a food, food additive, drug, cosmetic, or device [ TSCA
§3(2)(A)J.
CIVIL COMPLAINT —- A written communication alleging one or more violations
of specific provisions of TSCA or regulations promulgated thereunder [ 40
C.F.R. §22.031. Each complaint must include:
—— Reference to the provisions of the Act alleged to have been
violated;
CA Coi , ltancefEaforce t 1-68 Guldce Manual 1984
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Chapter One Glos8ary
—— A concise factual statement of the violation;
—— The amount of the proposed penalty;
—— A statement of the appropriateness of the penalty;
—— Notice of the respondent’s right to an adjudicatory hearing; and
—— A statement reciting the section(s) of the Act authorizing the issu-
ance of the complaint [ 40 C.F.R. §22.14].
COMKERCE —— Trade, traffic, transportation, or other commerce (1) between a
place in a state and any place outside of such state, or (2) that
affects trade, traffic, transportation, or commerce between a place in a
state and any place outside of such state [ TSCA §3(3)].
COMPLAINANT —— Any person authorized to issue a complaint on behalf of the
Agency to persons alleged to be in violation of the Act [ 40 C.F.R.
§22.03].
CONSENT AGREEMENT —— Any written document containing stipulations of fact;
conclusions regarding material issues of law, fact, or discretion; and a
specified proposed penalty acceptable to both complainant and respondent
that re8ults from any settlement conference [ 40 C.F.R. §22.18].
CONSENT ORDER —— An order of the Regional Administrator that assesses a
civil penalty and disposes of the civil penalty proceeding.
DEFAULT ORDER —— An order issued pursuant to 40 C.F.R. §22.17 disposing of
a matter of controversy between respondent and the Agency upon (1) the
failure of respondent to file a timely answer to the complaint, (2) the
failure of one of the parties to comply with a prehearing or hearing
order of the Presiding Officer, or (3) the failure of one of the parties
to appear at a conference or hearing without good cause being shown.
DISTRIBUTE IN COMMERCE (DISTRIBUTION IN COMMERCE) — When used to describe
an action taken with respect to a chemical substance or mixture or an
article containing a substance or mixture, means to sell, or the sale
of, the substance, mixture, or article in commerce; to introduce or
deliver for introduction the substance, mixture, or article in commerce;
or to hold, or the holding of, the substance, mixture, or article after
its Introduction into commerce [ TSCA §3(4)].
DISTRICT COURT —— A United States district court, the District Court of
Guam, the District Court of the Virgin Islands, and the highest court of
American Samoa.
DUPLICATE SAMPLE —— A sample taken at the request of a facility official
that is in every respect the same as the official sample taken by the
inspector.
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Chapter One Glossary
ENVIRONMENT —— Includes water, air, and land and the interrelationship that
exists among and between water, air, land, and all living things [ TSCA
§3(5)].
EPA —— The United States Environmental Protection Agency.
EXPORTER —— The person who, as the principal party in interest in the
export transaction, has the power and responsibility for determining and
controlling the sending of the chemical substance or mixture to a des-
tination out of the customs territory of the United States [ 40 C.F.R.
§707.631.
FACILITY —— Any establishment, site, or other premises subject to TSCA
enforcement activity.
FINAL ORDER —— An order issued by the Administrator after an appeal of an
initial decision, accelerated decision, decision to dismiss, or default
order disposing of a matter in controversy between the parties or an
initial decision under 40 C.F.R. §22.27(c).
HEALTH AND SAFETY STUDY — — Any study of any effect of a chemical substance
or mixture on human health or the environment or on both, including
underlying data and epidemiological studies; studies of occupational
exposure to a chemical substance or mixture; toxicological, clinical,
and ecological studies of a chemical substance or mixture; and any test
performed pursuant to TSCA [ TSCA S3(6)J.
HEALTH EFFECTS — Terms referring to the health effects of chemical sub-
stances are defined as follows:
—— Behavioral Disorder Is a disturbance of personal function resulting
from exposure to a toxic substance.
— Carcinq genesis is the property of a substance that causes cancer.
— Cumulative Effect is the accumulation of a substance within a
living organism and the increasingly pronounced effects with each
exposure.
— MutageTlesis is the property of a substance that causes changes in
the genetic structure of subsequent generations.
—— Synergistic Effect is the property of a substance that causes mal-
formations or serious deviations from the norm in embryos and
fetuses.
HEARING —— A hearing open to the public provided in Section 16(a)(2)(A) of
the Act and conducted pursuant to the provisions of Chapter 5, Sub-
chapter II of Title 5 of the United States Code, and the rules of prac-
tice found at 40 C.F.R. Part 22.
TSCA Compliance/Enforcement 1-70 Guidance Manual 1984
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Chapter One Glossary
HEARING CLERK —— The Hearing Clerk, United States Environmental Protection
Agency, Washington, D.C. 20460.
IMPORTER —— Any person who imports any chemical substance or any chemical
substance as part of a mixture or article into the customs territory of
the United States and includes (1) the person primarily liable for the
payment of any duties on the merchandise, or (2) an authorized agent
acting on his or her behalf [ 40 C.F.R. §710.21.
IMPORT IN BULK FORN —— To import a chemical substance (other than as part
of a mixture or article) in any quantity, in cans, bottles, drums, bar-
rels, packages, tanks, bags, or other containers, if the chemical sub-
stance is intended to be removed from the container and the substance
has an end use or commercial purpose separate from the container [ 40
C.F.R. §704.95(c)(5)).
IMPURITY — A chemical substance that is unintentionally present with
another chemical substance.
INITIAL DECISION —— The decision issued by the A.dministrative Law Judge
based upon the record of the hearing out of which the decision arises or
upon the rendering of an accelerated decision. An initial decision is
supported by findings of fact and conclusions regarding all material
issues of law, fact, or discretion. This decision will become the final
decision and order of the Administrator without further proceedings
unless the decision is appealed or the Administrator orders a review of
the case.
INJUNCTION —— A court order forbidding or commanding a person to perform a
particular act.
INSPECTOR —— A duly designated representative of the Administrator author-
ized to conduct inspections, make investigations, collect documents and
samples, and otherwise monitor compliance with TSCA.
INTERMEDIATE —— Any chemical substance that is consumed in whole or in part
in a chemical reaction(s) used for the intentional manufacture of
another chemical substance [ 40 C.F.R. §723.175(9)].
JUDICIAL OFFICER — — An officer or employee of the Agency designated as a
judicial officer who shall meet the qualifications and perform functions
provided for in 40 C.F.R. §22.04.
KNOWN TO OR REASONABLY ASCERTAINABLE —— All information in a person’s pos-
session or control, plus all information that a reasonable person simi-
larly situated might be expected to possess, control, or know, or could
obtain without unreasonable burden or cost [ 40 C.F.R. §723.175(10)].
MANUFACTURE —— To produce or manufacture in the United States or to import
into the customs territory of the United States.
TSCA Co.pliance [ Enforce.ent 1-71 Guidance ManuAl 1984
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Chapter One G3O8Sary
MIXTURE —— Arty combination of two or more chemical substances if the com-
bination does not occur in nature and is not, in whole or in part, the
result of a chemical reaction; except that such term does include any
combination that occurs, in whole or in part, as a result of a chemical
reactton if none of the chemical substances comprising the combination
is a new chemical substance and if the combination c)uld have been manu-
factured for commercial purposes without a chemical reaction at the time
the chemical substances comprising the combination w re combined.
NEW CHEMICAL SUBSTANCE —— Any chemical substance that is not included in
the inventory compiled and published under Section 8(b) of TSCA.
PARTY — Any person, group, organization, agency, or department that parti-
cipates in a hearing as complainant, respondent, or intervenor.
PCB(s) —— Any chemical substance that is limited to the biphenyl molecule
and has been chlorinated to varying degrees, or any combination of sub-
stances that contains polychlorinated biphenyls.
PERSON —— Any natural or juridical person including any individual, firm,
company, corporation, joint venture, partnership, sole proprietorship,
association, or any other business entity; any state or political sub-
division thereof; any municipality; any interstate body; and any depart-
ment, agency, or instrumentality of the federal government.
- ‘ETITIONER -— Any person adversely affected by a notice of the Administra-
tor and who requests a public hearing.
PHYSICAL SAMPLE — A sample that is representative of a chemical substance
as drawn from a container or as contained in a medium such as soil or
solvent and is used to confirm the presence and concentration of a chem-
ical substance.
PRESIDING OFFICER —— The Administrative Law Judge designated by the Chief
Adittintstrative Law Judge to serve as the Presiding Officer of an
adniinistrat ve hearing arising out of the Act.
PROCESS —— The preparation of a chemical substance or mixture, after its
manufacture, for distribution in commerce:
—— In the same form or physical state as, or in a different form or
physical state from, that in which it was received by the person so
preparing such substance or mixture; or
—— As part of an article containing the chemical substance or mixture
LTSCA 43(10)1.
PROCESS FOR COMMERCIAL PURPOSES —— To process (I) for distribution in com-
merce 1 including for test—marketing purposes, or (2) for use as an
intermediate.
TSC& CompliancefEnforcement 1-72 Guidance Manuel 1984
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Chapter One Glossary
PROCESSOR —— Any person who processes a chemical substance or mixture [ TSCA
§3(11)].
PROGRAMMED INSPECTION —— An inspection requiring the selection of a sped—
fic program activity that is subject to routine compliance monitoring
and that results from an enforcement strategy based upon objective
selection criteria.
REGIONAL ADMINISTRATOR —— The Administrator of a Regional Office of the
Agency or his or her delegatee.
REGIONAL HEARING CLERK —— An individual duly authorized by the Regional
Administrator to serve as hearing clerk for a given Region. Correspon-
dence may he addressed to the Regional Hearing Clerk, United States
Environmental Protection Agency (address of Regional Office.)
REGIONAL JUDICIAL OFFICER —— An Officer or employee of the Agency duly
authorized by the Regional Administrator to serve as the Judicial
Officer for the Region as provided in the Consolidated Rules of Practice
(CROP).
RESPONDENT -— Any person proceeded against in a complaint.
SEIZURE —— The initial step in a condemnation proceeding consisting of the
taking of any substance, mixture, or article manufactured, processed, or
distributed in commerce in violation of TSCA.
STANDARDS FOR THE DEVELOPMENT OF TEST DATA —— A prescription of (1) the
health and environmental effects and (2) the information relating to
toxicity, persistence, and other characteristics that affect health and
the environment, for which test data for a chenical substance or mixture
are to be developed and any analysis that is to be performed on such
data. These data also include, to the extent necessary to assure that
data respecting such effects and characteristics are reliable and
adequate:
—— The manner in which such data are to be developed;
—— The specification of any test protocol or methodology to be employed
in the development of such data; and
—- Such other requirements as are necessary to provide such assurance.
STATE —— Any state of the United States, the District of Columbia, the
Commonwealth of Puerto Rico, the Virgin Islands, Guam, the Canal Zone,
American Samoa, the Northern Mariana Islands, or any other territory or
possession of the United States.
iox ici —— The property of a chemical substance or ‘mixture to cause any
adverse physiological effects.
UNITED STATES —— When used in the geographic sense, means all of the
states.
TSCA Coapliance/Enforceaent 1-73 Guidance Manual 1984
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Chapter One Glossary
UNPROCRAMMED INSPECTION (“FOR CAUSE” INSPECTION) —— An inspection in which
probable violations of the Act are observed or brought to the attention
of the Agency through, for example, an employee’s complaint or a com-
petitor’s tip.
TSCA Compliance f nf orceent 1-74 Guidance Manual 1984
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Chapter Two
General Operating Procedures
Chapter Contents Page
Primary Office ResponsIbilities 2—1
Concurrence Procedures 2—4
State and Federal Interagency Cooperation 2—5
Organizational Charts 2—7
Exhibit 2—1 : TSCA Administrative/Civil Case Flow 2—19
TSCA Co liance/Enforceent 2-i Qildance Manual 1984
-------
Contents
Chapter Two
TSC& Co.p1t.nceIEnforc flt 2-li iidaoce 1 nu.1 1984
-------
Chapter Two
General Operating Procedures
Primary Office Responsibilities
The basic framework setting forth the responsibilities of each EPA office
participating in enforcement activities was established by the Administra-
tor’s memorandum of July 6, 1982, entitled “General Operating Procedures
for the Civil Enforcement Program” (GOP), and Memorandum of October 27,
1982, entitled “General Operating Procedures for the Criminal Enforcement
Program.” (See EPA’s General Enforcement Policy Compendium. ) This chapter
describes the respective roles and relationships of the various EPA offices
that are involved with TSCA administrative/civil enforcement. For proce-
dures relating to criminal enforcement, consult Chapter Nine.
EPA’s administrative/civil enforcement program includes both compliance—
orieoted and legal—oriented activities. The compliance—oriented activities
are primarily the responsibility of EPA’s program offices, and the legal—
oriented activities are principally charged to OECM and the Regional
Counsel’s office. Because many enforcement activities involve several
aspects, these activities cannot be defined as strictly “compliance” or
“legal.” [ See, e.g. , TSCA Case Flow Diagram (Exhibit 2—1), which illus-
trates the various enforcement components involved in TSCA case develop-
ment.] Where both elements are present, the EPA attorney must be especial-
ly diligent in coordinating the legal aspects with the functions of the
other participating offices. The basic relationship between the attorney
and the program office is that of attorney—client.
The basic administrative/civil enforcement functions are divided among the
participating offices as follows:
Regional Administrator
Program Office
• Identifies instances of noncompliance;
• Establishes priorities for handling instances of noncompliance;
TSCA Co p1iance/Enforcement 2-1 Qiidance Manual 1984
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Chapter Two General Operating Procedures
• Evaluates the technical sufficiency of actions designed to remedy
violations;
• Identifies for formal action those cases that cannot be resolved
less formally;
• Provides technical support necessary for developing cases and con-
ducting litigation;
• Issues written notices of noncompliance;
• Issues routine civil administrative complaints;*
• Evaluates the appropriateness of civil penalties;
• Negotiates and prepares consent agreements memorializing settle-
ments between the Agency and respondents prior to the alleged vio-
lator’s filing of an answer or failing to file an answer to a corn—
p1aint;* and
• Monitors those conditions in consent decrees that require further
reporting, compliance, etc.
Regional Counsel
• Acts as attorney for “client” program offices;
• Assists program office in drafting or reviewing notices of non-
compliance, administrative orders, or administrative complaints;
• Ensures consistency of action with OECM guidance;
• Attends negotiations whenever outside parties are represented by
counsel;
• Serves as lead attorney for the Agency in administrative proceed-
ings originating in the Region; and
• Refers requests for equitable relief through the Regional Adtnlnis—
trator to Headquarters for review and further referral to the
Department of Justice and the appropriate United States Attorneys
Off ice.*
* Consultation with other offices is required.
TSC& Compliance/Enforcement 2-2 Qildance ) Iannal 1984
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Chapter Two General Operating Proceduree
Headquarters
Pro&ram Off lce——PTSCMS
• Manages national program matters;
• Establishes national enforcement compliance priorities;
• Provides overall direction to and accountability measures for the
enforcement compliance program;
• Provides technical support (including support for litigation
activities);
• Takes lead role in preparing guidance and policy decisions on
enforcement compliance issues;
• Takes lead in issuing administrative orders regarding new programs
such as Section 5(a) PMN cases, asbestos cases, etc.;
• Consults with the Regions, on enforcement actions at the earlIest
possible stage in the case development process for the following
actions:
—— “Non—routine” cases of first impression or those of national
significance,
—— Injunctions, and
—— Seizures;
• Consults with the Regions on enforcement actions if proposed civil
penalty settlements Involve monetary reductions of greater than 40
percent; and
• Works with OECM in preparing joint guidance for areas in which corn—
pliance and legal issues overlap.
Office of Toxic Substances
• Has lead responsibility for rule development under TSCA;
• Determines status of whether or not a TSCA chemical is on the PMN
inventory; and
• Provides technical advice as appropriate.
OECM
• Provides legal advice regarding enforcement matters to the Assis-
tant Administrator for Pesticides and Toxic Substances;
• Acts as lead counsel on cases of national significance;
TSCA ompliance/Enforcement - 2-3 G idance Manual 1984
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Chapter Two - General Operating Procedures
• Develops legal and enforcement policies and guidance;
• Confers with the Department of Justice on the potenttal impact of
enforcement policy on litigation matters;
• Evaluates and analyzes strategies and program accomplistuents as
national manager of EPA ’s enforcement and compliance monitoring
functions;
• Cooperates with the Assistant Administrator for Pesticides and
Toxic Substances in the development of enforcement policies invol-
ving both enforcement compliance and enforcement legal activities;
and
• Assists and supports the Regional Counsel lead attorneys and Depar-
tment of Justice attorneys by coordinating legal activity and con-
tributing case information to the development process.
Office of General Counsel
• Provides legal interpretation of applicable statutes and regula-
tions to support the TSCA enforcement programs; and
• Has lead responsibility, in consultation with OECI , for defensive
litigation arising out of enforcement actions federal court
challenges to EPA’s civil penalty proceedings).
National Enforcement Investigations Center (NEIC )
NEIC is located in Denver, Colorado, and functions as a national technical
resource and investigative unit. NEIC’s expertise in investigation and
evidence discovery can assist case development and provide litigation sup-
port. The OECM establishes NEIC’s priorities and its availability.
Regional Administrators and the Assistant Administrator for Pesticides and
Toxic Substances are requested to involve NEIC on a priority basis in cases
that have precedential implications, national significance, or are multi—
regional in nature.
Concurrence Procedures _____________
Generally, Headquarters has waived concurrences in routine administrative
civil cases. However, consultation is required in the following instances:
• Cases of first impression;
• Cases of unusual national significance;
• Requests for reduction of civil penalties greater than 40 percent;
Y liancefInforceent 2-4 O idance Manu*1 19M
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Chapter Two CeDera1 Operating Procedures
• Requests for equitable relief (e.g., seizures and injunctions); and
• Civil penalty appeals to the Administrator.
The consultation procedures relating to each of the above actions are dis-
cussed in the section of the manual pertaining to the individual subject
matter.
State and Federal Interagency Cooperation
TSCA charges EPA with the responsibility of protecting public health and
the environment from the risks associated with exposure to chemical sub—
stances or mixtures. In order to fulfill this responsibility, EPA seeks
cooperation with appropriate state and federal agencies.
TSCA Pilot Enforcement Grants
Section 28 of TSCA authorizes EPA to enter into grants with states for
purposes of complementing (but not reducing) the authority of the
Administrator under the Act. In July of 1981, a Pilot State TSCA
Enforcement Grant Program, involving five states, was initiated. The five
states (California, Connecticut, Maryland, Michigan, and Ohio) conduct
compliance monitoring activities related to the asbestos and PCB programs.
Federal Interagency Cooperation
United States Department of Justice (DOJ) . EPA ’s working relationship with
the Department of Justice and the United States Attorneys Office continues
to be governed by the June 1977 Memorandum of Understanding between the DOJ
and EPA. All criminal cases, collection and seizure actions, and warrants
for inspections under TSCA must be filed by the DOJ or the United States
Attorneys Office. EPA kIeadquarters and regional components are expected to
use their best efforts to ensure that a constructive working relationship
is maintained with DOJ and to provide assistance to DOJ in the preparation
of those actions. (For the procedures for referring actions involving
criminal cases, collection, seizure, or warrants, see the individual topics
in this manual.)
Food and Drug Administration (FDA) . Under the terms of an Interagency
Agreement, EPA and FDA cooperate closely on a laboratory inspection/data
audit program. As part of the Interagency Agreement, FDA investigators may
inspect laboratories that conduct tests pursuant t TSCA:
• To determine compliance with the Good Laboratory Practice
Standards;
• To ensure that the tests were conducted in accordance with accepted
protocols; and
TSCA Co p1iance/Enforcement - 2-5 Guidance Nanual 1984
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Chapter Two Geswral Operating Procedurea
• To ensure that final study reports fully and accurately reflect the
test results.
These FDA inspections are conducted at the request of EPA.
TSCA Conpliance/Enforce.ent 2-6 iidance Manual 1984
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Chapter Two
U.S. 9W1 1I 1SIM. I JT8JHJI ? Jt
Organizatiotial Charts
LS L5Wl1
i15 I*S 1 F
, 1xv l v
LlC l S
I
4 s *c
I ui’
4 Ju Lm
M
orn u
O NLS1 TB1I lv
TSCA Coi p1iance/Enforce sent
2— 7
Guidance Manual 1984
-------
Chapter Two
Organiz.tion 1 arts
OFFI OF PESTICIOCS Mm TOXIC S4JSSTMCES
OFFIcE OF TW ASS!ST*T a$NINISTRATOI
OFFICE OF PESTICIDES
MID TOXIC SUOSTMICES
ASSISTANT ADMINISTRATOR
TSC& Cn.pllance/Knforceent
2—8
Gutd.nce i nüa1 1984
-------
Chapter Tio
Organizatioaal ( arts
OFFICE OF
I NTERGOYERNMENTAL
LIAISON
ADMINISTRATIVE
SERVICES DIVISION
EEO OFFICER OFFICE OF
PESTICIDES AND
TOXIC SUBSTANCES
PERSONNEL
BRANCH
ION I REPORTS 10
HQ OFFICE OF LEGAL AND
ENFORCEMENT COUNSEL
____________ A
REGIONAL ADMINISTRATOR REGIONA L1
Ljtvuil 4 (advisory to) COUNSEL
REGIONAL ADMINISTRATOR
F
I ITECHNICAL SUPPORT
BRANCH
OFFICE OF
AFFAIRS
AIR MANAGEMENT
DIVISION
WASTE MANAGEMENT
DIVISION
WATER MANAGEMENT
DIVISION
DEPUTY DTRECTOR
ENY IRONNENTAL
SERVICES DIVISION
STATE WASTE
PROGRAMS BRANCH
OFFICE OF
PROGRAM SUPPORT
WASTE RESPONSE
AND COPPL LANCE
BRANCH
PLANNING AND
EVALUATION
BRANCH
STATE AIR
PROGRAMS BRANCH
TECHNICAL SUPPORT
BRANCH
MUNICIPAL
FACILITIES
BRANCH
GRANTS AWl. AND
FINANCE BRANCH
SURVEILLANCE
BRANCH
WATER SUPPLY
BRANCH
WATER QUALITY
BRANCH
TSC4 Co.p1iancelEnforce ent
2-9
Guidance Hanual 1984
-------
Chapter Two
Organizatiana.1 art.
PERSONNEL & OAG*NIZATION
BRANCH
INFORMATION SYSTEMS
r POLICY & P GRAM
INTEGRATION
AIR AWl) WASTE
MANAGEMENT
DIVISION
DEPUTY DIRECTOR
[ AIR PROGRAMS
—4 BRANCH
PESTICIDES BRA 1
SOLID WASTE
BRANCH
FACILITIES £ ADMINISTRATIVE
MANAGEMENT IRMIC1I
GRANTS ADMINISTRATION
BRANCH
MEGIUN II
CONGRESSIONAL AND
I INTERGOVERNMENTA l. LIAISON
OFFICE OF
PUBLIC AFFAIRS
WATER MANAGEMENT
DIVISION
YORK WAT i7
PROGRAMS BRANCH
IWATER FACILITIES
1 BRANCH
I ENVIRONMENTAl.
SERVICES DIVISION
SURVEILLANCE &
_ IL*HIITORING BRANCH
[ MONITORING
MANAGEMENT BRANCH
‘TECHNICAL SUPPORT
BRANCH
{i GInNAL ADMINISTRATOR
DEPUTY REGIONAL
ADMINISTRATOR
REPORTS TO
HQ OFFICE OF LEGAL AND
ENFORCEMENT COUNSEL
_____ A ______
f REGIONAL COUNSEL
(ed 1sory to)
ASSISTANT REGIONAL
ADMINI STRATOR
FOR POLICY AND
MANAGEMENT
DEPUTY DIRECTOR
L.__ LEO OFFICER
FINANCIAL MANAGEMENT
BRANCH
I CARIBBEAN
— FIELD OFFICE
ENVIRONMENTAL INFACTS
BRANCH
PERNITS ADMINISTRATION
BRANCH
I
I
PLANNING I EVALUATION
BRANCH
DEPUTY DIRECTOR
N.J/CARIBBEAN
WATER PROGRAMS
BRANCH
L DEPUTY DIRECTOR
TECHNICAL
RESOURCES
BRANCH
HAZARDOUS WASTE
SITES BRANCH
[ IR rAcILITIES 1
BRANCH
RADIAl i Ow
. - REPRESENTATI ]
EMERGENCY
RESPONSE & HAZAR-
DOtJS MATERIALS
INSPECTiON BRANCH
WATER SUPPLY
BRANCH
I MARINE & WETIANDS1
1 ROTECTION BRANCH]
TSC& C”.pliancelEnforce.ent
2—10
Guidance Manual 1984
-------
Chapter Two Orgaui ationa1 tharts
GIOU III REPORTS TO
HQ OFFICE OF LEGAL AND
ENFORCE1 NTA COUNSEL
[ REG IOWAE1
REGIONAL ADMINISTRATOR COUNSEL j
(adv1sory to)
DEPUTY
REGIONAL ADMINISTRATOR
OFFICE OF
ASSISTANT REGIONAL
ADMI Ni STRATOR
CONGRESSIONAL AND
FOR POLICY AND
I NTERGOVERI4MENTA&.
LIAISON
CEO OFFICER OFFICE OF
PUBLIC AFFAIRS
MANAGEMENT
ADMINISTRATION
BRANCH
CO TROLLER
PERSONNEL
MANAGEMENT ____________________________________________
BRANCH ____________ _________ _______________________ ______________________
AIR AND WASTE WATER PROGRAM ENVIRONMENTAL
ESTATE 1 MANAGEMENT DIVISION DIVISION SERViCES DIViSION
14 PROGRAMS
I [ _ _J L DEPUTY DIRECTOR L DEPUTY DIRECTOR DEPUTY DIRECTOR
I NV7 NTAII ] AIR PROGRAMS AND WATER PROGRAM II WESTERN REGIONAL
ENERGY BRANCH MANAGEMENT & LABORATORY AND
U IMPACT SUPPORT BRANCH
L_ R H - N ENVIRONMENTAL
C ENTER
AIR AND WASTE MD/DE/VA/DC L_WHEELING. WV
CO* L lANCE BRANCH
CENTRAL REGIONAL
LABORATORY
WASTE PA/WV
MANAGEMENT BRANCH
BRANCH
WATER SUPPLY ENVIRONMENTAL
BRANCH EMERGENCY
BRANCH
WATER PERMITS
BRANCH
AIR QUALITY
MONITORING BRANCH
WATER QUALITY
MONITORING STAFF
TSCA. CoapliancefEnforce.ent Guidance Manual 1984
-------
ChaDter Two
Organizatio ia1 ø arts
ASSISTANT REGIONAL
ADMINI STRATOR
FOR POLICY AND
MANAGEMENT
WATER MANAGEMENT
DIVISION
ME ION IV
REPORTS TO
HQ OFFICE OF LEGAt. AND
ENFORCEMENT COUNSEL
A
REGIONAL 1
REGIONAL ADMINISTRATOR COUNSEL
4(advlsory to)
DEPUTY
REGIONAL ADMINISTRATOR
RESIDUALS
MANAGEMENT
BRANCH
EEO OFFICER
OFFICE OF
CONGRESSIONAL AND
EXTERNAL AFFAIRS
ENV I RO*UTAL
ASSESSMENT
BRANCH
PERSONNEL AND
ORGAN IZATION
BRANCH
POLICY AND
PROGRAM
EVALUATION BRANCH
MANAGEMENT
BRANCH
BUDGET
OFFICE
AIR AND WASTE
MANAGEMENT
OIYISION
DEPUTY
DIRECTOR
ENVIRONMENTAL
SERVICES
DIVISION
DEPUTY DIRECTOR
FACILITIES
PERFORMANCE
BRANCH
DEPUTY DIRECTOR
EMERGENCY AND
REMEDIAL RESPONSE
BRANCH
FACIL. ITIES
CONSTRUCTION
BRANCH
ANALYTICAL
SUPPORT
BRANCH
WATER
SUPPLY
BRANCH
ECOLOGICAL
SUPPORT
BRANCH
PESTICIDES AND
lOX ICS
BRANCH
ENGINEERING
SUPPORT
BRANCH
AIR MANAGEMENT
BRANCH
TSC& Ca 1iance/Inforce*ent
2—12
Guidance 1 nua1 1984
-------
Chapter Two
Organizational Charts
PLANNING ANI)
MANAGEMENT
DIV I SI ON
lox IC
SUB STANCES
BRANCH
IE&ION V
REPORTS TO
NQ OFFICE OF LEGAL AND
ENFORCEMENT COUNSEL
A
REGIONAL
I COUNSEL
‘4(adv sory to) L _
OFFICE OF
CONGRESSIONAL AND
I NTERGOVERNNEWTAL.
LIAISON
DEPUTY DIRECTOR
WATER
QUALITY
BRANCH
REGIONAL ADMINISTRATOR
F
utilujy
REGIONAL ADMINI STRATOR
OFFICE OF
PUBLIC AFFAIRS
GREAT LAKES
NATIONAL PROGRAM
AIR MANAGEMENT
DIVISION
WASTE
MANAGEMENT
DIVISION
DEPUTY DIRECTOR
I I
WATER
MANAGEMENT
DIVISION
ENY IRON$ENTAI.
REVIEW
BRANCH
j
OFFICE OF
RAD IAT I ON
PROGRAMS
ENV I RONMENTAL
SERVICES
DIVISION
OEPUTY DIRECTOR
WASTE
MANAGEMENT
BRANCH
I OFFICE OF
IINSPECTOR GENERAL
NORTHERN DIVISION
EQUAL
E LOYMENT
OFF ICER
DEPUTY DIRECTOR
AIR
CO$’L lANCE
BRANCH
QUALITY
ASSURANCE
OFFICE
REMEDIAL
RESPONSE
BRANCH
FINANCIAL
MANAGEMENT
BRANCH
MUNICIPAL
FACIL I TIES
BRANCH
AIR
PROGRAMS
BRANCH
EHY IRONMENTAL
MONITORING
BRANCH
PERSONNEL
BRANCH
DRINKING WATER
/GROUND WATER
PROTECTION
BRANCH
CENTRAL
RE IUOt4AL
LABORATORY
MANAGEMENT
SERVICES
BRANCH
CENTRAL
DISTRICT
OFFICE
PLANNING AND
ANALYSIS
BRANCH
EASTERN
DISTRICT
OFFICE. OHIO
MICHIGAN FIELD
INVESTIGATIONS
SECTION
TSCA Co.pl1ance/ nforceaent
2—13
Guidance Manual 1984
-------
Chapter Two Org nl zatiooal Qiart.
E ION VI
REPORTS TO
HQ OFFICE OF LEGAL AND
ENFORCE NT COUNSEL
A
_____ _____— - I REGIONAL
I REGIONAL ADMINISTRATOR I cow sa
_________— 4(advisory to) L-__
DEPUTY
REGIONAL ADMINISTRATOR
ASSISTANT REGIONAL
ADMINISTRATOR — — ____________________
FOR MANAGEMENT I OFFICE OF
I CONGRESSIONAL AND
DEPUTY DIRECTOR INTERGOVERNMENTAL
—— LIAISON
IEEO OFFICER I REGIONAL
COMPTROLLER
PERSONNEL GRANTS ADMINISTRATION1
[ SERVICES BRANCH BRANCH j
MANAGEMENT SERVICES ____ [ C IRS
RESOURCES MANAGEMENT
BRANCH
-
AIR AND WASTE WATER ENVIRONMENTAL
MANAGEMENT MANAGEMENT SERVICES
DIVISION DIVISION DIVISION
DEPUTY DIRECTOR DEPUTY DIRECTOR DEPUTY DIRECTOR
T 1 CONSTRUCTION EMERGENCY
AIR BRANCH GRANTS RESPONSE
BRANCH BRANCH
HAZARDOUS ENFORCEMENT 7 FEDERAL
MATER ALS BRANCH ACTIVITIES
BRANCH BRANCH
PESTICIDES & PERMITS SURVEILLANCE
lOX ICS BRANCH BRANCH
BRANCH
WATER QUALITY — HOUSTON
MANAGEMENT BRANCH
BRANCH
WATER 1 ADA
SUPPLY BRANCH
L BRANCH
OFFICE OF
QUALITY
ASSURANCE
TSC& Cospliance [ Kuforceaent 2-14 Guidance t nua1 1984
-------
Chapter Two Organizational C iarta
REGION VII
REPORTS TO
NQ OFFICE OF LEGAL AND
ENFORCEMEN COUNSEL
REGIONAL I
REGIONAL ADMINISTRATOR COUNSEL
—_1 (adv sory to)
DEPUTY
REGIONAL ADMINISTRATOR
ASSISTANT REGIONAL
ADMINISTRATOR --
FOR POLICY AND I CUN(iRESSIONAL AND
MANAGEMENT ___ INTERGOVERNMENTAL
REGIONAL CO TROLLER PERSONNEL AND [ OFFICEOF1
BRANCH ORGANIZATION BRANCH __- [ PUBLIC AFFAIRS
[ ADMINISTRATIVE 7 ENVIRONMENTAL REVIEW
L CES BRANCH J BRANCH
OFFICE OF
PUBLIC AFFAIRS
AIR AND WASTE WATER ENVIRONMENTAL
MANAGEMENT MANAGEMENT SERVICES
DIVISION DIVISION DIVISION
DEPUTY DIRECTOR r DEPUTY DIRECTOR
AIR AND WASTE CONSTRUCTION - R&D
CO#QL lANCE GRANTS COORDINATION
BRANCH BRANCH
T WASTE DRINKING WATER QA
4 MANAGEMENT BRANCH OFFICER
{ BRANCH
AIR WATER LABORATORY
4 BRANCH COMPLIANCE BRANCH
BRANCH
FIELD —
INVESTIGATION
BRANCH
EMERGENCY
PLANNING &
RESPONSE BRANCH
TSCA Co.pllance/Enforceaent 2-15 Guidance ?fanual 1984
-------
Chapter Two
Organizational arta
- AIR AND WASTE
MANAGEMENT
DIVISION
GU* VU!
REPORTS TO
HQ OFFICE OF LEGAL AND
EHFORCEMEN fOUNSEL
I REGIONAL
I REGIONAL ADMINISTRATOR -J I COUNSEL
I— — _ 44(advlsory to) I -
DEPUTY I
REGIONAL ADMINISTRAT J
JASSISTANT REGIONAL
I ADMINISTRATOR
I FOR POLICY AND
NWGEMENT
CONGRESSIONAL AND
INTERGOYERM NTAL
RELATIONS
EED OFFICER
PERSONNEL AM)
ORGANIZATION BRANCH
ADMINISTRATIVE -
SERY ICES BRANCH
COPPUTER SYSTEMS
BRANCH
GRANTS a FINANCIAL
NNIIAGEMENT BRANCH
ENVIRONMENTAL
ASSESSMENT BRANCH
MANAGEMENT SYSTEMS
AND ANALYSIS
RESOURCE PUNNING
AND MANAGEMENT
MONTANA
OPERATIONS
OFFICE
OFFICE OF
PUBLIC AFFAIRS
I
F-
WATER
MANAGEMENT
DIVISION
AIR PROGRAMS
BRANCH
ENVIRONI EWTAL
SERVICES
DIVISION
COPPL lANCE
BRANCH
lOX IC
SUBSTANCES
BRANCH
FIELD
OPERATIONS
BRANCH
MUNICIPAL
FACILITIES
BRAN N
WASTE
MANAGEMENT
BRANCH
ANALYTICAL
SUPPORT BRANCH
(LABORATORY
WATER
PROGRAMS
BRANCH
OFFICE OF
RADIATION
PROGRAMS
EMERGENCY
RESPONSE
BRANCH
DRINNING WATER
BRANCH
DATA
ANALYSIS
BRANCH
TSC& coáljthàe(En(aree.ent
2—16
idance I nual 1984
-------
Chapter Two
lEGION I X
Orzauiuttouaj a*rte
I OFFICE OF POLICY
AND RESOURCES
[ MANAGEMENT
COMPTROLLER
[ NAGEMENT SYSTEMS
4 EvALUAT ION BRANCHJ
REGIONAL ADMINI STRATOR
DEPUTY
REGIONAL ADMINISTRATOR
1 — —
ADMINISTRATIVE AIR
SERVICES DIVISION MANAGEMENT
DIVISION
DEP%JT’f DIREC’TOR
REPORTS TO
HO OFFICE OF LEGAL AND
ENFORCEMEW COUNSEL
I COUNSEL
(edvisory to) I- ——--i
OFFICE OF
CONGRESSIONAL A1ID
INTERGOVERNMENTAL
LIAISON
OFFICE Of
PUBLIC AFFAIRS
OFFICE OF
TERRITORIAL
PROGRAMS
PROGRAM SUPPORT
BRANCH
1
EEO OFFICER
lOX ICS AND WASTE
MANAGEMENT
DIVISION
WATER MANAGEMENT
DIVISION
DEP YT’f DIRECTOR
DEPIIT’f DiRECTOR
AIR OPERATIONS
BRANCH
HEALTH AND SAFETY
OFFICER
PROGRAMS
BRANCH
AIR PROGRAMS
BRANCH
FOl COORDINATOR
COMPLIANCE AND
RESPONSE BRANCH
PERSONNEL AND
ORGANIZATION
BRANCH
GRANTS AND PERMITS
ADMINISTRATION
BRANCH
CALIFORNIA
BRANCH
ARIZONA, NEVADA
AND HAWAII
BRANCH
TECHNICAL.
3UPPORT
BRANCH
SUPPORT SERVICES
BRANCH
TSC& Co-çliancel*nforceaent
2 —1 7
CaidáiàiNa T àiial 1984
-------
Chapter Two
O g.nisaticna1 Oiarts
I ALASKAOFFICE I..
£GIOU N
REPORTS TO
HQ OFFiCE OF LEGAL AND
ENFORCE 9 T COUNSEL
I REGIC)NAL1
I REGIONAL ADMINISTRATOR 1 I COUNSEL
I— ..u (adv1 ory to) I —
DEPUTY
REGIONAL ADMINISTRATOR
I I I I
MANAGEMENT AIR AND WASTE
DIVISION MANAGEMENT
DIVISION
FINANCE
OFFICER
SUPERFUNO
BRANCH
L
I
OREGON OFFICE
F
IDAHO OFFICE
. [ wasHn Tow OFFICE F
CONGRESSIONAL AND
INTERGOVER*€NTAL
-HRELAI IONS ONS
[ _PUBLIC_AFFAIRS]
WATER
DIVISION
EtO OFFICER
AIR BRANCH
ENYIRONPENTAL
SERVICES DIVISION
COI %. lANCE
BRANCH
TECHNICAL
SUPPORT
BRANCH
PERSONNEL
CONSTRUCTION
GRANTS BRANCH
RCRA BRANCH
FIELD OPERATIONS
BRANCH
(LABORATORY)
ADMINISTRATIVE
SERY ICES
BRANCH
WATER QUALITY
BRANCH
RADIATION BRANCH
EMERGENCY
RESPONSE
COORDINATOR
GRANTS AND
ADMINISTRATION
BRANCH
DRI*ING
WATER
BRANCH
TSC& 1ias ce/Infore nt
2—18
Guidance I nua1 19 4
-------
C)
(D
I .
N*t .s.
AU
cZD ‘NO Lssd m* * y C c.g,si c.
a odtyft.sd ____
I ] Co ss.k -
-
— . ..,.Ny ‘hi. , .I$ut”I ‘ps .I
- i ’ honhI sip ’ h&IM U iSl
OflIS
-------
Chapter Three
Compliance Monitoring Procedures
Chapter Content a - Page
I introduction 3—1
2 inspections 3—3
Confidentiality 3’4
2a Records and Establishment Inspections 3—7
Authority 3—7
Scope 3—8
Purpose 3—8
Elements of an Inspection 3—8
2b TSCA Notification Letters 3—11
Purpose 3—11
Exhibit 3 —I: Model TSCA Notification Letter 3—12
2c Warrants 3—13
Policy 3—13
Securing and Serving an Administrative Warrant 3—14
Exhibit 3—2: Model Application for an Administrative
Warrant 3—17
Exhibit 3—3: Model Mfidavit En Support of
Application for an Mminlstrative Warrant 3—18
Exhibit 3—4: Model Administrative Warrant 3—20
TSC& Co.pliance/Eraforce.ent 3-i Q&idauce M*iiual 1984
-------
Chapter Three Contents
3 Subpoenas 3—23
?wthnrlty 3—2 1
‘olicy 3—23
Service of Subpoenas 3—24
Exhibit 3—5: Sample Subpoena Duces Tecum 3—25
Exhibit 3—6: Sample Cover Letter 3—28
Exhibit 3—7: Model Affidavit of Service 3—29
TSCA Coi.pltance/Enforce.ent 3-il. Guidance Manual 1984
-------
Chapter Three
1 Introduction
Compliance monitoring is a term used to describe the means by which EPA
verifies conformance with statutory and regulatory requirements. In the
context of TSCA, this includes inspections and subpoenas.
In the event that an owner or operator of a regulated facility denies an
inspector entry to perform an in8pection, an administrative warrant can be
used to gain entry Into the facility. Furthermore, Section 11(c) of TSCA
authorizes the Administrator to Issue subpoenas requiring the attendance
and testimony of witnesses and the production of reports, papers, docu-
ments, answers to questions, and other Information that the Administrator
deems necessary in carrying out the Act.
This chapter briefly outlines the procedures associated with TSCA com-
pliance monitoring activities. For detailed procedures concerning TSCA
inspections, refer to the TSCA Inspection Manual .
TSCA Cospliance/Inforcement 3—I Guidance Manual 1984
-------
Chapter Three Introduction
TSCA Coapliance/Enforcetent 3-2 Guidance Manual 1984
-------
Chapter Three
2 Inspections
A compliance inspection is the primary enforcement mechanism used to detect
and verify violations of TSCA. Facilities are selected for an inspection
under a neutral administrative inspection scheme or “for cause.” (See
definition of an unprogranmied inspection in the Glossary.) Selection may
be made, depending on the circumstances, by Headquarters or the Regional
Offices.
Evidence obtained during an inspection may result in the Agency taking any
of the following actions:
• Issuance of a proposed order to limit or prohibit the manufacture,
processing, distribution in comerce, use, or disposal of chemical
substances or mixtures found to pose an in inent danger;
• Assessment of an administrative civil penalty;
• Institution of a civil court (injunctive or seizure) action; or
• Institution of a criminal court investigation*.
Compliance inspections conducted by EPA personnel under the authority of
TSCA generally will not involve the need to warn individuals of their
rights under the fifth amendment of the United States Constitution. The
fifth amendment provides that •No person * * * shall be compelled in any
criminal case to be a witness against himself.” Issues concerning this
right arise whenever a person is taken into custody or otherwise has his or
her freedom restricted by law enforcement officers. Because inspections
under TSCA are generally not conducted by law enforcement officers and do
not involve custodial situations, fifth amendment rightsare not
implicated.
All individuals who conduct inspections should be aware of what constitutes
a custodial situation. When an individual is under arrest, he or she is
* See Agency guidelines, entitled “The Use of Administrative Discovery
Devices in the Development of Potential Criminal Cases,” which may be
obtained from the Criminal Enforcement Division.
fSCACpTfii e7 iforcement - 3-3 Qddance Jd.miisl 1984
-------
Chapter Three Inapectione
clearly in custody. However, a custodial situation may also be created
when, as a result of the demeanor and authority of the questioner and the
physical situation, a reasonable person would not feel free to leave.
These types of situations should be avoided during an administrative
inspection.
Statements made to an inspector during a noncustodial administrative
inspection should be given voluntarily. The term voluntary, as used in the
judicial sense, relates to the circum8tances surrounding the investigation
and the taking of statements. Such diverse factors as the following are
considered:
• Coercion or threats by the interviewer;
• Overhearing will of the interviewer;
• Promises of benefit by persons in authority;
• Deceit by the interviewer during the interrogation;
• The accused’s age, experience, and level of education; and
• The accused’s knowledge of his or her constitutional rights.
confidentiality _______________________________________________
ikiring the course of TSCA inspections, inspectors may encounter information
that is entitled to confidential treatment under Section 14 of TSCA and the
EPA regulations at 40 C.F.R. Part 2. This section of the statute and the
regulations are designed to protect confidential business information
(CBI)* from unauthorized disclosure. Material that is CEl includes infor-
mation considered to be trade secrets that could damage a company’s com-
petitive position if it became publicly known.
Because of the sensitivity of CBI material, very stringent procedures for
handling this ir tormation have been established. These procedures are con-
tained in the TSCA Confidential Business Information Security Manual , which
governs access to and control of CBI documents by EPA personnel. (See
Chapter Eleven for a further discussion on confidentiality.)
Because TSCA inspections may involve CBI, special inspection procedures
have been developed that are designed to provide adequate notification to
companies of their right to declare inspection data confidential and to
ensure secure handling of this information at each stage of the
* TSCA CBl material does not in any manner refer to classified National
Security Information as defined in Executive Order 12065.
TSC& CoapliancefEnforcement 3-4 Ouida Manual 1984
-------
Chapter Three
Inspection. These procedures are briefly outitned In the appropriate ec
tions of this chapter. For detailed infornation, conault the TSCA Inspec—
tion Manual .
TSCA Co.p1iance/ aforce.ent 3-5 Guidance Manual 1984
-------
Chapter Three Inspections
TSCA Co p1iance/Enforce.ent 3-6 Guidance Manual 1984
-------
Chapter Three
2a Records and Establishment
Inspections
Authority __________ ___________________
Section 11 a) authorizes any duly designated representative of the Mminis—
trator to 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 coimnerce and any conveyance
being used to transport chemical substances, mixtures, or such articles in
connection with distribution in commerce.”
Inspections must be conducted in a prescribed manner including:
• Presentation of appropriate credentials to the owner, operator, or
agent in charge of the premi9es or conveyance to be inspected;
• Presentation of a written Notice of tnspection* detailing the sus-
pected violation or purpose of the inspection;
• Entry of the facility at a reasonable time and prompt completion of
the inspection;
• Presentation of a TSCA Inspection Confidentiality Notice*;
• Completion of a Declaration of Confidential Business Information*;
and
• Issuance of a Receipt for Samples and D0cvnents*.
The TSCA Inspection Confidentiality Notice is used to inform facility
officials of their right to claim inspection data as CBI. All documents,
samples, and related data taken during an inspection that have been claimed
as CBI must be listed on the Declaration of Confidential Business informa-
tion. For detailed guidance on the use of these CRIforias, refer to the
TSCA Inspection Manual .
* Examples of these forms may be found in Chapter Four.
TSCA o 14 ‘ice/Iinforce.eut 3-7 ddknce Manual 1984
-------
Chapter Three Records and EatabUsbaent Inspections
Scope
The scope of a TSCA inspection, according to TSCA Section ll(b)(l), extends
to all things within the premises or conveyance inspected (including
records, files, papers, processes, controls, and facilities) that have a
bearing on whether the requirements of the Act applicable to the chemical
substances or mixtures located within such premises or conveyance have been
complied with. However, pursuant to Section ll(b)(2) of TSCA, certain
types of data can only be inspected if the nature and extent of such data
are described with reasonable specificity in the written Notice of Inspec-
tion. These types of data include:
• Financial data;
• Sales data (other than shipment data);
• Pricing data;
• Personnel data; and
• Research data (other than research data required by the provisions
of TSCA).
Purpose
The purpose of an inspection is to ensure compliance with TSCA and with the
rules promulgated under the Act. In summary, the inspector’s role is:
• To inform the regulated industry of the requirements of the law;
and
• To document suspected violations.
Elements of an Inspection
The elements of a TSCA inspection can be grouped into the following cate-
gories: (1) pre—inspection preparation; (2) entry; (3) opening conference;
(4) sampling and documentation; (5) closing conference; and (6) report
preparation. These elements are common to all inspections, but the empha-
sis given to the separate elements will vary with the needs of the indivi-
dual Inspection.
TSCA CGpliancelRnforce.ent 3-8 Guidance Manual 1984
-------
Chapter Three Records and Rstablimh.ent Inspections
Pre—Inspection Preparation
To ensure effective use of the inspector’s time, the following procedures
are undertaken before beginning an inspection:
• Establishing inspection objectives and preparing an inapect on
plan;
• Establishing the scope of the inspection;
• Conducting a review of Agency records;
• Preparing necessary documents; and
• Preparing sampling equipment and safety equipment.
Entry
Entry procedures are followed to obtain actual physical entry into the
premises. Entry involves the following steps:
• Introduction;
• Presentation of official credentials;
• Presentation of the Notice of Inspection; and
• Management of denial of entry when necessary (see Chapter Three of
the TSCA Inspection Manual for entry/denial procedures and Section
2c of this chapter).
Opening Conference
After entry, the inspector conducts an opening conference with the
facility’s management. T iring the opening conference, the inspector is
responsible for the following activities:
• Discussing the objectives and scope of the inspection;
• Presenting the TSCA Inspection Confidentiality Notice;
• Advising of the availability of duplicate samples;
• Providing information on TSCA and its rules; and
• Planning meetings with personnel.
Sampling and Documentation
Reviewing facility records, taking samples, and preparing documentation are
the basic inspection activities. TEt ts these activities that provide the
TSCA Co.plianceliaforce.ent 3-9 i midsnce Hernial 1984
-------
Chapter Three Records and Establisl.nt Inspections
evidentiary support that the Agency uses in enforcement actions. The
inspector’s responsibilities include:
• Targeting and locating facility records;
• Inspecting facility records;
• Preparing documentation of all inspection activities;
• Inspecting conditions and taking photographs, if necessary;
• Taking necessary samples, sealing samples, and establishing
•chain of custody”; and
• Operating in a safe and efficient mariner.
Closing Conference
The closing conference with facility officials enables the inspector to
prepare receipts, answer questions, and provide information about TSCA. At
the closing conference, the inspector “wraps up” the inspection by:
• Writing necessary receipts;
• Preparing the Declaration of Confidential Business Information;
• Advising that results of analysis of samples will be furnished if
and when analysis is made; and
• Discussing inspection findings.
Report Preparation
All evidence must be organized and coordinated in a comprehensive,
relevant, and accurate report including:
• Inspection report forms;
• Narrative report; and
• Other documentary support.
Suspected violations are to be documented in the above reports. Compliance
enforcement personnel will review the report file to determine the adequacy
of the evidence. Any information needing clarification should be reviewed
with the inspector.
In preparing the inspection report, CBI material preferably should be
referenced in a nonconfidential manner. (As an alternative, the report
could include the confidential information; however, the entire inspection
report must then be treated as a confidential document.)
TSCA Co.pliancejReforce.ent 3-10 C zidance Pknual 1984
-------
Chapter Three
2b TSCA Notification Letters
Purpose
TSCA notification letters may be used for the following purposes:
• To obtain information when a full—scale, on—site inspection is not
cost effective;
• To facilitate the effectiveness of an inspection; or
• To eliminate the need for an inspection.
Notification letters are generally used when deliberate noncompliance is
not suspected and the likelihood of a response is good. Typical
information requested by a notification letter may include the following:
• Raw materials, products, byproducts, and production levels;
• Facility layout maps identifying process areas, discharge and
emission points, and waste disposal sites;
• Flow diagrams for processes and waste control, treatment and dis-
posal systems showing where wastewater, air emissions, and solid
waste sources originate;
• Description and design of pollution control and treatment systems
and normal operating parameters;
• Recent self—monitoring reports and inventories for discharges and
emissions;
• Self—monitoring equipment in use, normal operating levels, and
available data; and
• Files of required records.
Exhibit 3—1 is a model TSCA notification letter that is intended to facili-
tate the effectiveness of an upcoming scheduled inspection.
TSC& co 1iance/Ecforce.eut 3-11 Guidance ) lasnn*1 1984
-------
Cpter Three ____ ____— Exhibit 3—1
Model TSCA Nottfication Letter
UNITED STATES
ENVIRONMENTAL PROTECT [ ON AGENCY
Region I
John F. Kennedy Federal Building
Boston, MA 02203
Dear Mr./Ma._____ _______________
The Environmental Protection Agency (EPA) will conduct an inspec-
tion of your facility’s premises/conveyance under the authority of Sec-
tion 11 of the Toxic Substances Control Act (15 U.S.C. 52610) on _______
The purpose of the inspection is to determine compliance with the
requirements of this Act applicable to the chemical substances or
mixtures within your facility’s premises/conveyance. The inspectors
will review records, files, and papers that are either required to be
maintained by this Act or are applicable to the chemical substances or
mixtures within your facility’s premises/conveyance; observe process
operations; evaluate monitoring practices, equipment, and sites; and col—
lect samples that may include regulated chemical substances, air, water,
waste, or soil samples, or any combination thereof. In addition, the
inspectors may wish to take photographs of selected subjects.
Prior to arrival, the inspectors wilL require certain information;
we recognize that some of this material may have been submitted to EPA
in the past. If such is the case and that material is the most current
information, please simply refer to the title, date, and specific
recipient of such documents in your response to this request.
Please provide copies of the following information to EPA within
twenty (20) days of receipt of this letter:
(List information requested.)
Pursuant to regulations appearing at 40 C.F.R. Part 2, Subpart B
and specifically Section 2.306, you are entitled to claim any or all the
information provided to EPA or collected by EPA during the inspection as
confidential business information. Such information can be disclosed by
EPA only in accordance with the procedures set forth in the regulations
(cited above). Any such claim for confidentiality must conform to the
requirements set forth in 40 C.F.R. Section 2.203(b).
If you have any questions, please contact ______
Thank you for your assistance in this matter.
Sincerely,
TSC& Co.pliance/Euforce.ent 3-12 Guidance Manual 1984
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Chapter Three
2c Warrants
An administrative warrant can be used to gain entry into an establishment
when facility officials have denied entry to an inspector or have withdrawn
their consent to inspect during an inspection. In certain circumstances,
it may be necessary to obtain a warrant prior to an inspection. A warrant
is a judicial authorization for an appropriate official (EPA inspector,
U.S. Marshal, or other authorized officer) to enter a specifically
described location and perform clearly defined inspection functions.
Policy — - _______________
It is the policy of EPA to obtain a warrant when all other efforts to gain
lawful entry have been exhausted and the inspector has carefully followed
established entry/denial of entry procedures. This policy, of course, does
not apply to pre—inspection warrants, which may be obtained under circum-
stances described later in this subchapter.
Marshall v. Barlow’s, Inc .
In Marshall v. Barlow’s, Inc. , 436 U.S. 307 (1978), the Supreme Court
addressed the need for an administrative warrant when an Occupational
Health and Safety Administration inspector sought entry into a workplace
where consent for the inspection was not voluntarily given by the owner.
The Court concluded that an administrative warrant was required to conduct
such regulatory inspections unless the industry is one with a history of
extensive regulation, such as liquor or firearms.
As a matter of policy, the Agency will apply the requirements of the
Barlow’s decision to all TSCA inspections.
According to Barlow’s , a warrant may be obtained where there is a specific
reason to think that a violation has been co itted ( i.e. , where there is
probable cause, such as an employee’s complaint or a competitor’s tip). A
warrant may also be issued if the Agency can show that the establishment to
be Inspected has been selected pursuant to a neutral inspection scheme.
TSC Co.pliance/&*forceaent 3-13 Qiidance ManuAl 1984
-------
Chapter Three Warrants
Seeking a Warrant Before Inspection
In certain circumstances, a warrant may be obtained before an inspector
begins an inspection. Such a pre—inspection warrant may be sought at the
discretion of the Regional Office if:
• A violation is suspected and could be covered up within the time
ri eded to secure a warrant;
• Prior correspondence or other contact with the facility to be
inspected provides reason to believe that entry will be denied when
the inspector arrives; or
• The facility is unusually remote from a magistrate or a district
court, and thus obtaining a warrant would require excessive travel
time.
Civil Versus Criminal Warrants
If the purpose of the inspection is to di8cover and correct, through civil
procedures, noncompliance with regulatory requirements, a civil warrant
should be secured if entry is refused.
If the primary purpose of the inspection is to gather evidence for a
criminal prosecution and there is sufficient evidence available to estab—
lish probable cause for a criminal warrant, then a civil warrant should not
he used to gain entry. Rather, a criminal search warrant must be obtained
pursuant to Rule 41 of the Federal Rules of Criminal Procedure (Fed. R.
Crim. P.). (See Agency guidelines, entitled “The Use of Administrative
Discovery Devices in the Development of Potential Criminal Cages.”)
Evidence obtained during a valid civil inspection is generally admissible
in criminal proceedings.
curing and Servin g an Administrative Warrant — - —
The tollowing procedures for obtaining and serving an administrative war-
rant have been developed in accordance with the Barlow’ s decision.
Important Procedural Considerations
• The application for a warrant should be made as soon as possible
after the denial of entry or withdrawal of consent.
• In order to satisfy the requirements of the Barlow’s decision, the
affidavit in support of the warrant must include a description of
the reasons why the establishment has been chosen for inspection.
The only acceptable reasons are specific probable cause or
TSC& Coi,p1Laace/ aforce.ent — 3-14 Guidance Manual 1984
-------
Chapter Three Warrants
selection of the establishment for inspection pursuant to a neutral
administrative inspection scheme.
• A warrant must be served without undue delay and within the number
of days stated on the document (usually 10 days). The warrant will
usually direct that it be served during daylight hours.
• Because the Inspection is limited by the terms of the warrant, it
is very important to specify to the greatest extent possible the
areas intended for inspection, records to be inspected, samples to
be taken, etc. A vague, overly broad warrant, probably will not be
signed by the magistrate.
• if the owner refuses entry to an inspector holding a warrant but
not accompanied by a U.S. Marshal, the inspector should leave the
establishment and inform the U.S. Attorney.
Procedures for Obtaining a Warrant
I. Contact the Regional Counsel’s Office . The inspector should dis-
cuss with the Regional Counsels Office the facts regarding the
denial or withdrawal of consent or the circumstances that give
rise to the need for a pre—inspection warrant. A joint determina-
tion will then be made as to whether or not to seek a warrant.
2. Contact Headquarters Pesticides and Toxic Substances Program
Office . The Regional Office should notify Headquarters PTSCMS
prior to obtaining a warrant.
3. Contact the United States Attorneys Office . After a decision has
been made to obtain a warrant, the designated regional official
should contact the U.S. Attorney for the district in which the
property is located. The Agency should assist the United States
Attorneys Office in the preparation of the warrant and affidavit.
4. Apply for the Warrant . The application for a warrant should
identify the statutes and regulations under which the Agency is
seeking the warrant. The name and location of the site or
establishment to he inspected should be clearly identified, and,
if possible, the owner and/or operator should be named. The
application can be a one- or two—page document If all factual
requirements for seeking the warrant are stated in the affidavit,
and the application so states. The application is to be signed by
the U.S. Attorney. (See Exhibit 3—2.)
5. Prepare the Affidavit . The affidavit in support of the warrant
application is a crucial document. It is a statement reduced to
writing, and sworn to or affirmed before a notary public, that
describes in consecutively numbered paragraphs all of the facts in
support of warrant issuance; and it should be prepared by a person
with firsthand knowledge ot those facts, moat likely the
inspector. (See Exhibit 3—3.)
TSCA Caup1iaaee/Eaforc nt 3-15 Guidance Manual 1984
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Chapter Three Warrants
6. Prepare the Warrant for Signature . A proposed warrant should be
prepared for the magistrate’s signature. Once signed, the warrant
is an enforceable document. The warrant should contain a “return
of service” or “certificate of service” that will indicate upon
whom the warrant was served. This part of the warrant is to he
dated and signed by the inspector after the warrant is 8erved.
(See Exhibit 3—4.)
7. Serve the Warrant . The warrant is served on the facility owner or
the agent in charge and the inspection will normally commence or
continue. Where there is probability that entry will still be
refused, or where there are threats of violence, the inspector
should be accompanied by a U.S. Marshal. In this case, the U.S.
MarshaL is principally charged with executing the warrant, and the
inspector should abide by the U.S. Marshal’s decisions.
8. Perform the Inspection . The inspection should be conducted
strictly in accordance with the warrant. If sampling is autho—
rized, all, procedures must be followed carefully, including
presentation of receipts for all samples taken. If records or
other property is authorized to be taken, the inspector must issue
a receipt for the property and maintain an inventory of anything
removed from the premises. This inventory will be examined by the
magistrate to ensure that the warrant’s authority has not been
exceeded.
9. Return the Warrant . After the inspection baa been completed, the
warrant must be returned to the magistrate. Whoever executes the
warrant ( i.e. , the U.S. Marshal or whoever performs the irispec—
tion) must sign the return of service form indicating to whom the
warrant was served and the date of service. The executed warrant
is then returned to the U.S. Attorney who will formally return it
to the issuing magistrate or judge. If anything has been physi-
cally taken from the premises, such as records or samples, an
inventory of such items must be submitted to the court, and the
inspector must be present to certify that the inventory is accu-
rate and complete.
TSCA Co iTaoce/Faforceaent 3-16 ( iidance Man 1 1984
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Chapter Three R b4 bit 3-2
Model Application for M 1nistrative Warrant
UNITED STATES DISTRICT COURT
DISTRICT OF________
IN THE M&TTER OF: ) Docket No. ___________________
)
) Case No. ______________________
)
)
)
) Application for an
) Administrative Warrant
)
)
)
)
)
NOW COMES a duly designated representative of the Administrator of
the United States Environmental Protection Agency, by and through
( name) , United States Attorney for the ______ District of
_______ and applies for an administrative warrant of entry, inspection,
reproduction of records, photography, and sampling to determine
compliance with the Toxic Substances Control Act, 15 U.S.C. §2601 et
seq. , and as authorized by Section 11 of the Act, 15 U.S.C. §2610, of
the premises at ( description of the premises ) in the possession,
custody, or control of the ( name of company or owner) . In support of
this application, the duly designated representative of the
Administrator respectfully submits an affidavit and a proposed warrant.
Respectfully submitted,
(Signature of U.S. Attorney)
United States Attorney for the
_________ District of __________
(Dste)
TSC& Qi.plia e/Inforce.ent 3—17 Gzidance Manual 1984
-------
Chapter Three R M bit 3—3
Model Affidavit in Support of
Application for an Administrative Warrant
UNITED STATES DISTRICT COURT
DISTRICT OF’
IN THE MATTER OF: ) Docket No. ______________________
)
) Case No. _____________________
)
)
)
) Affidavit in Support of
) Application for an
) Administrative Warrant
)
)
)
)
State of ______________________
County of____________________
( Name of Affiant) , being duly sworn upon
his(her) oath, according to law, deposes and says:
1. 1 am compliance/enforcement officer with the ( division )
United States Environmental Protection Agency, Region _________, and a
duly designated representative of the Administrator of the United States
Environmental Protection Agency for the purpose of conducting inspections
pursuant to Section 11 of the Toxic Substances Control Act, 15 U.S.C.
§2601 et . I hereby apply for an administrative warrant of entry,
inspection, reproduction of records, photography, and sampling of the
premises in the possession, custody, or control of the ( name of company
or owner) .
2. ( Name of establishment, premises, or conveyance ) is a
( describe business ) that the undersigned compliance officer of the United
States Environmental Protection Agency has reason to believe is in
violation of the Toxic Substances Control Act. This belief is based upon
the following facts and information: ( Describe with particularity the
reasons why a violation is suspected and the specific facts that give
rise to probable cause or summarize the neutral administrative inspec-
tion scheme used to select the premises for inspection. )
TSCA Compliance/Enforcement 318 Guidance Manual 1984
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Chapter Three _________ ___________________— bit 33
3. The entry, inspection, reproduction of records, photography, and
sampling will be carried out with reasonable promptness, and a copy of
the results of analyses performed on any samples or material collected
will be furnished to the owner or operator of the subject premises.
4. The compliance/enforcement officer may be accompanied by one or
more compliance officers of the United States Environmental
Protection Agency.
5. A return wiLl be made to the court at the completion of the
inspection, reproduction of records, photography, and sampling.
( Signature of Affiant) —
( Title ______
( Division )
Region ( )
United States Environmental
Protection Agency
Before me, a notary public of the State of __________________
County of ____________________, on this _________ day of _____________
19 , personally appeared __________________, and upon oath stated
that the facts set forth in this applicatton are true to his(her)
knowledge and beLief.
( Signature of Notary ) ___ ____-
A Notary Public of ________________-
My Co*ission Expires _______— —
TSC& Coi.ç liance/Fnforc nt 3—19 Guidance Manual 1984
-------
Chapter Three h4 bit 3—4
Pixiel Ad.lnistrative Warrant
UNITED STATES DISTRICT COURT
__________DISTRICT OF
IN THE MATTER OF: ) Docket No. ___________________
)
) Case No. _____________________
)
)
)
) Warrant of Entry, Inspection,
) Reproduction of Records,
) Photography, and Sampling
)
)
)
)
To ( name) , ( title) , United States
Environmental Protection Agency, Region _____, and any other duly desig-
nated representatives of the Administrator of the United States
Environmental Protection Agency:
Application having been made by the United States Attorney on behalf
of the United States Environmental Protection Agency (EPA) for a warrant
of entry, inspection, reproduction of records, photography, and sampling
to determine compliance with regulations under the Toxic Substances
Control Act, 15 U.S.C. §2601 et!. .; and, the court being satisfied
that there has been a sufficient showing that reasonable legislative or
administrative standards for conducting an inspection and investigation
have been satisfied;
IT IS HEREBY ORDERED that EPA through its duly designated represen-
tatives ( names of representatives ) is hereby entitled
and authorized to have entry upon the following described premises:
(Describe premises.)
IT IS FURTHER ORDERED that entry, inspection, reproduction of
records, photography, and sampling shall be conducted during regular
working hours or at other reasonable times, within reasonable limits, and
in a reasonable manner.
TSCA Co.tpliance/Euforce.ent 3-20 Cuidance Manual 1984
-------
Chapter Three m hfl)jt 3—4
IT IS FURTHER ORDERED that the warrant shall be for the purpose of
conducting an entry, inspection, reproduction of records, photography,
and sampling pursuant to 15 U.S.C. 12610 consisting of the following
activities:
(Describe specific activities. For example:
(. Entry to, upon, or through the above—described
premises including all buildings, structures,
equipment, machines, devices, materials, and sites to
inspect, sample, monitor, and investigate the said
premises.
(. Access to and reproduction of all records
pertaining to or relating to the use, storage,
handling, and disposal of polychlorinated
biphenyls (PCBs).
(. Inspection, including photographing, of any
equipment, methods, or sites used to store,
or dispose of PCBs at the facility.)
IT IS FURTHER ORDERED that, if any property is seized, the duly
designated representative or representatives shall leave a receipt for
the property taken and prepare a written inventory of the property
seized and return this warrant with the written Inventory before me
within 10 days from the date of the inspection.
IT IS FURTHER ORDERED that this warrant shall be valid for a period
of 10 days from the date of this warrant.
IT IS FURTHER ORDERED that the United States Marshal is hereby
authorized and directed to assist the representatives of the United
Stateø Environmental Protection Agency in such manner as may be rea8on—
able, necessary, and required.
( Signature of Magistrate )
(Date)
TSCA Q.pliance/ *force.ent 3-21 Guidance Manual 1984
-------
Chapter Three RzMbit 3—4
RETURN OF SERVICE
I hereby certify that a copy of the within warrant was served by presen-
ting a copy of same to ( faciliçy owner or agent ) on ( date ) at
(location of establiahment or place)
( Signature of person mak.tn service)
( Official title)
RETURN
Inspection of the establishment described in this warrant was completed
on ( date)
( Signature of person conducting the inspection )
TSCA Copliance/Enforce.ent 3-22 Guidance Manual 1984
-------
Chapter Three
3 Subpoenas
Authority
SectIon 11(c) of TSUA authorizes the Administrator, in carrying out the
Act, to issue subpoenas requiring the attendance and testimony of witnesses
and the production of reports, papers, documents, anawers to questions, and
other information that the Administrator deems necegeary.*
Policy _________ _________________-______________
As a general rule, subpoenas can be used whenever the information sought
will assist the Administrator in implementing TSCA. Subpoenas are particu—
larly useful in two situations. First, data may often be sought from per-
sons who are not directly subject to the provisions of the Act. Although
such persons cannot he rompelled to keep records or to submit information
under Section 4, 5, b, 8, 12, or 13 of the Act, data can nonetheless be
obtained through the issuance of a Section 11 subpoena if such data is
relevant to any lawful purpose of TSCA.
The second situation in which subpoenas may be useful is to facilitate the
effectiveness of an inspection or to eliminate the need for an inspection.
For example, where the EPA is interested in reviewing a large volume of
material at the Agency rather than onsite, a subpoena may be utilized as a
means of collecting and organizing relevant material so that an inspector
is not faced with this task at the facility Itself.
* Generally two types of subpoenas are used. A subpoena that requests the
appearance of a witness to testify [ s referred to as a “Subpoena Ad
Testificandum. ” A subpoena that requests a witness to produce documents
or papers under his or her control Is reterred to as a “Subpoena Duces
Tecum. ” Exhibit 3—5 is a sample of the latter subpoena. Exhibit 3—6 is
a sample cover let tt r that usually accompanies such a subpoena.
TSC& Coup1iafEuforc nt - 3-23 Qaidance Manual 1984
-------
Chapter Three - Subpoenae
The primary difeerence between subpoenas and TSCA notification letters is
that compliance with a notification letter 18 voluntary, whereas compliance
with a subpoena is mandatory ( I.e. , judicially enforceable).
Service of Subpoenas
Service of subpoenas should be made, where possible, by registered mail,
return receipt requested, or by hand delivery to the person named therein
(see Exhibit 3—7 for a model affidavit of service). The person making ser-
vice should attempt to serve an appropriate corporate officer. (Note: The
corporate general counsel is usually not an officer, unless this title
reflects a dual role, such as “Vice President and General Counsel.”) In
addition, a Return of Service form should be attached to the subpoena.
TSCA Cop1tance/Enfo ceMent 324 Guidance Manual 1984
-------
Chapter Three Exhibit 3—5
Sa le Subpoena Duces Teci
SUBPOENA DUCES TECUM
UNITED STATES OF AMERICA
U.S. ENVIRONMENTAL PROTECTION AGENCY
Mr. T. K. H. Firetog, Jr.
President
Firetog Industries, Inc.
36 Sunshine Drive
Clark, MA 02856
To further the Environmental Protection Agency’s investigation of your
company’s compliance with Section 8(e) of the Toxic Substances Control
Act (TSCA), 7 U.S.C. 52607(e), you are hereby required to appear before
the Assistant Administrator for Pesticides and Toxic Substances in room
— , 401 H St., S.W., Washington, D.C., on __________, at ___, and
to bring with you the reports, papers, documents, answers to questions,
and other information requested in the attached Specifications.
If you so desire, you may have your representative produce, at the
time and place aforesaid, the items or information requested in the
Specifications.
If you consider any of the documents or other information that you
submit in response to this subpoena to be confidential business
information, please mark each page containing such confidential business
information. The mark may be the word confidential,” or the phrase
proprietary information,” or other similar marking. If you wish to make
a claim of confidentiality for this information, you must do so at this
time. 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).
issued under the authority of 15 U.S.C. S2610(c), this _____ day of
_____ 19
United States Environmental
Protection Agency, by
John A. Doe
Assistant Administrator for
Pesticides and Toxic Substances
Enc Insure
TSCA Co.pliance/Enforceent 3-25 Guidance Manual 1984
-------
Chapter Three Exhibit 3—S
SPECIFICATIONS
1. Instructions
1. This subpoena covers all documents described below in the posses-
sion of Firetog Industrie6, Inc., and subject to its control or cu8tody.
2. For the purpose of complying with this subpoena, the word “docu-
ment” 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, rk sheet, minutes, test
result, laboratory note or memorandum, analysis or other transcription
of information, whether written, typed, printed, recorded on tape, micro-
film, or other device, regardless of whether circulated within the com-
pany 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.
3. Each document submitted shall be clearly and precisely identif led
as to its title, author, date of preparation, and subject matter.
4. If neither the original nor a copy of any requested document is
currently in the possession or control of your company for any reason,
identify the document by date, title, subject matter, the name of indivi-
duals who prepared and received it and the name and address of the person
who currently has possession or control of that document. If the docu-
ment no longer exists, explain why. If the document has been destroyed,
identify the name of the Individual who ordered it destroyed, when the
order was issued, and why.
5. The authority under which this subpoena is issued, 15 U.S.C.
§2610(c), authorizes the Administrator to require answers to questions
as well as the submittal of documents. Answer all questions completely.
Where necessary, documents may be submitted to answer all or part of any
questions asked in these Specifications.
II. Information and Documents Requested
1. With respect to Exhibits A, B, C, D, and E, atate:
a) When each of the reports was received by Firetog
Industries, Inc.;
b) The individual (or individuals) within Firetog
Industries, Inc., who reviewed each of the reports;
c) The title and primary responsibilities of the
individuala listed in 1(b) as of the date when
they reviewed the reports;
TSC& Co.pliance/Enforce.ent 326 idance Manual 1984
-------
Chapter Three RvbI bit 3—5
d) The current title and primary responsibilities of the
individuals listed in 1(b); and
e) The dates when those individuals listed in 1(b) reviewed
each of the exhibits.
2. Submit any documents prepared or received by Firetog Industries,
Inc., concerning Exhibits A, B, C, D, and E, or the subject
matter of those reports.
TSC& ,up1Laoce/Entorceeut 3-27 Guidaice Manual 1984
-------
Chapter Three KyhIbit 3—6
Sample Cover Letter
UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY
Office of Pesticides and Toxic Substances
Washington, D.C. 20460
Mr. T. K. H. Firetog, Jr.
President
Firetog Industries, Inc.
36 SunshIne Drive
Clark, MA 02856
Dear Mr. Firetog:
An FYI submission filed by Firetog Industries, Inc. (dated October 31,
1982) to EPA concerning toxicity data on your product, Heathergard LF—1,
raises a number of questions regarding Firetog Industries’ compliance
with Section 8(e) of the Toxic Substances Control Act (TSCA). To aid in
our investigation, we have enclosed a subpoena duces tecun with this
letter. This subpoena requires submitting certain documents and
answerthg a number of questions concerning whether Firetog Industries,
Inc., has complied with Section 8(e) of TSCA.
The enclosed subpoena does not require your attendance at this time,
provided that the documents, and other information requested, are pro-
duced at or before the date required by the subpoena.
Sincerely,
Joe A. Doe
Assistant Administrator for
Pesticides and Toxic Substances
Enclosure
TSC& Compliance/Enforcement 3-28 Guidance Manual 1984
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Chapter Three Rzhlbjt 3-7
Model Affidavit of Service
AFFIDAVIT OF SERVICE
UNITED STATES OF AMERICA
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
1 hereby certify that being a person over 18 years of age, I served a
copy of the within subpoena:
(check one) ( ) in person
( ) by registered mall, return receipt reque8ted
( ) by leaving the copy at principal place of business,
which is
( ) ( write in other *ethod, such as leaving it at dwelling,
serving registered agent of corporation, etc. )
on the person naaed in the subpoena on ( aonth, day, and year) .
(Signature of person maklo g service)
(Name of
person
making
service)
(Title,
if any)
TSCA Q liance/Enforceent 3-29 sidaae Manual 1984
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Chapter Four
Documentation of Evidence
Chapter Contents Page
1 Introduction 4—1
2 Inspection File Review 4—3
Substantiation of Each Violation 4—3
Controlled Identification of Samples and Documents 4—3
3 Review of Adequacy of Evidence 4—7
initial Review of Inspection File 4—7
Further Processing of the Inspection File——
Enforcement Case Review 4—10
Additional Sources of Documentation 4—11
Exhibit 4—1: Receipt for Samples and Documents 4—12
Exhibit 4—2: Declaration of Confidential Business
InformatIon 4—13
Exhibit 4—3: Custody Seal 4—14
Exhibit 4—4: Chain of Custody Record 4—15
Exhibit 4—5: Investigation Summary 4—16
Exhibit 4—6: Investigation Request 4—17
Exhibit 4—7: Notice of Inspection 4—18
Exhibit 4—8: TSCA Inspection Confidentiality Notice 4—19
TSCA Co.pliance/Enforceaent 4—i zidance Manual 1984
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Chapter Four
1 Introduction
Upon completion of a TSCA inspection, enforcement inspectors are required
to organize the documentary evidence that they have collected into an
inspection file. An inspection file may actually consist of two separate
files—-a nonconfidential file and a confidential business information (CBI)
file.
Information gathered during a TSCA inspection that has not been declared
TSCA CR1 is organized by the inspector into a package referred to as the
noncortfidenttal inspectton file. This file contains the inspector’s report
and all forms and nonconfidential evidence secured by the inspector that
relates to the TSCA inspection. Once compiled, the file is sent to the
Regional Case Development Officer (RCDO), who is responsible for reviewing
the inspection results for possible enforcement action.
Information gathered during a TSCA inspection that has been declared TSCA
CR1 is organized by the inspector into a package referred to as the CR1
inspection file. When an inspector returns from an inspection with infor-
mation that has been declared confidential, the information is immediately
given to the Document Control Officer (DCO), who then assigns a document
control number to the confidential material. In addition, the inspector
also informs the DCO of any physical samples that were declared coaf idea—
tial. Physical samples are also assigned a document control number by the
D O who, in turn, notifies the laboratory of this number. (The document
control number is used by laboratory personnel in completing the sample
chain of custody and laboratory analysis forms.) Once CR1 material has
been logged in by the DCO, review of the information by the RCDO must be in
accordance with the procedures detailed in the TSCA Confidential Business
Information Secu ritjr Manual.
TSC& Compliance/Enforcement 4-1 Guidance Manual 1984
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Chapter Four Introduction
TSCA Coapi lance / Knforceaent 4-2 Guidance Manual 1984
-------
Chapter Four
2 Inspection File Review
To ensure the validity and qualtty of documentary evidence for an adminis-
trative or judicial enforcement proceeding, the RCDO must review the
inspection file (nonconfidential and CEI*) for objectivity, adequacy, and
proper. identification. In some instances, the RCDO will need to forward
the files to Headquarters for an enforcement case review. In all cases,
the RCDO must verify that all procedural safeguards were implemented so as
not to prejudice a possible enforcement action.
Substantiation of Each Violation
In most cages, a violation will be substantiated through a combination of
evidential sources. The RCDO’s review must seek to substantiate each pos-
sible violation from the evidence supplied by the inspector. Whenever
necessary, the RCDO should obtain from the inspector additional evidence or
clarification of existing evidence.
Controlled Identification of Samples and Documents
An important aspect of any review by the RCDO is the determination that the
samples and documents were properly collected and accurately and completely
identified.
Whenever samples of chemical substances or mixtures or documents are
collected, the inspector prepares a Receipt for Samples and Documents (see
xh1bit 4—1). Information required on the receipt includes:
• Inspector’s name and EPA office address;
• Firm’s name and address;
* To review the CBI inspection file, the RCDO must have the appropriate
clearance.
TSCA Compliance/Enforcement — 4-3 sidance Manual 1984
-------
Chapter Four Inspection Pile Review
• Name and title of individual who is given the receipt;
• Date of collection;
• Duplicate samples (if provided);
• Description of samples with 8ample numbers; and
• Description of documents by title.
If the samples or documents are claimed to be confidential, a Declaration
of Confidential Business Information (see Exhibit 4—2) must be completed
and the materials must be handled in accordance with the TSCA Confidential
Business Information Security Manual procedures. Information contained on
the declaration includes:
• EPA Regional Office address;
• Date of declaration;
• Name, title, and address of firm and individual making the
declaration;
• List, by title or description, of all information claimed as CBI;
and
• Name and title of inspector.
Samples that are to be used as evidence muSt be sealed with EPA seals,
which are placed on sample containers by the inspector (see Exhibit 4—3).
In addition, an accurate written record muSt be maintained to trace the
possession of each sample from the moment of collection through its intro-
duction as evidence. Therefore, transfer of all samples from the inspector
to other authorized persons must be recorded on an EPA Chain of Custody
Record, which contains the following information (see Exhibit 4—4):
• Site location;
• Station location;
• Date and time of collection;
• Sample analysis required;
• Samplers’ names;
• Remarks; and
• Accepting/relinquishing samples.
TSCA Co plianceI nforce.ent 4-4 Guidance Manual 1984
-------
Cha pter Four Inspection Pile Review
Once the inspection is completed, the inspector fills out the Investigation
Summary (see Exhibit 4—5), which provides sample information for the FIFRA
and TSCA Enforcement System (FATES) computer system and serves as a brief
summary of the sample collection process.
TSC& Co.pliamce!Eaforce.ent 4—5 — Guidance Manual 1984
-------
Chapter Four Inspection File Review
TSCL CowpliancefEnforce.ent 4 -6 Guidance Manual 1984
-------
Chapter Four
3 Review of Adequacy of Evidence
Initial Review of the Inspection File ________ ____ _____
Once the RCDO has received the inspection file, its contents must be
reviewed in the context of the following considerations:
• Adequacy of the documentation (see below);
• Significance of the violation (see Chapter Five for level of action
policy); and
• Violative history of the firm (see Chapter Five for level of action
policy). Violative history may be obtained I roa FATES.
Adequacy of the Documentation
The initial phase of the review should focus on two aspects of the
documentation:
• That all necessary documents and samples have been provided; and
• That the documentation is adequate to provide the substance of the
violation as indicated by the results of the .nspection.
The purpose of the review is to develop a recommendation for action on the
violation; either to proceed with an enforcement action or to dismiss the
violation as not worthy of prosecution.
In some instances, review will indicate possible violations not documented
by the inspection. In these cases, the RCDO should seek to secure the
additional documentation for the new violation. This may require further
consultation with the inspector or forwarding the file to Headquarters for
an enforcement case review. When a violation is discovered that is unre-
lated to the initial suspected violation, the new violation should be pur-
sued as a new action.
ACoaD1mceJEnfOrceaent - tan 984
-------
Chapter Four Review of Adequacy, of Evidence
Contents of an Inspection File
An inspection file should normally contain the following items.
Investigation Request (if issued) . If Headquarters had requested the
inspection, it may have done so by the issuance of an Investigation Request
to the Regional Office. If issued, a copy of the document should be
included in the inspection file. (See Exhibit 4—6.)
Notice of Inspection . Pursuant to the requirements of Section 11(a) of
TSCA, the inspection file must contain evidence that a written notice of
inspection was presented. The RCDO should ensure that the inspection
adherred to the terms specified in the notice. (See Exhibit 4—7.)
Verification of Credentials . Section 11(a) of TSCA also requires that an
inspector present appropriate credentials to the owner, operator, or agent
in charge of the inspected premises. Therefore, the inspection file should
contain evidence that proper credentials were presented.
Project Plan . The plan should be reviewed to determine that it accurately
reflected objectives, scope, logistics, and schedules. Inspectors should
be prepared to explain inspection rationale and any deviations from the
proposed plan.
Inspection Report . The report should be reviewed for factual information,
professional judgments, objectivity, and comprehensiveness.
TSCA Inspection Confidentiality Notice . The RCDO should verify that facil-
ity officials were informed of their right to claim inspection data as
CB [ . The notice should be reviewed for proper signatures and dates, as
well as completeness. (See Exhibit 4—8.)
Receipt for Samples and Documents . A receipt must be issued for all sam-
ples and documents collected during a TSCA inspection. (See Exhibit 4—i.)
Investigation Summary . The purpose of the Investigation Summary is to pro-
vide sample Information for the FATES computer system and to serve as a
brief summary of the sample collection process. (See Exhibit 4—5.)
Custo4y Records . There should exist a complete inventory of sample tags!
seals (see Exhibit 4—3), chain of custody records (see Exhibit 4—4), and
related material that demonstrates the traceability and proper identifica-
tion of all samples taken during an inspection.
Laboratory Analyses . Test results from any laboratory analyses made in
connection with the inspection should be included in the inspection file.
Review for custody, methods, quality control, and proper identification.
Subpoena (if issued) . The RCDO should review the subpoena to ensure that
it was issued properly and that there was compliance with the requirements
of the document.
TSCA Coiitpliance/Enforceaeut 4-8 Guidance Manual 1984
-------
Chapter Four - Review of Adequacy of Evidence
Declaration of Confidential_Rusiness_Information.* The declaration should
be reviewed for signatures, dates, and a complete listing of all documents
and samples for which CR1 was claimed. (See Exhibit 4—2.)
TSCA_Confidentiality Clearance References.* The RCDO should ensure that
all individuals who handled or will handle TSCA CR1 have had the appro-
priate clearance.
Other_Evidential Documentation . The following items may also be included
1-i the inspection file:
• Affidavits. Affidavits are sworn statements taken by the inspector
that relate to personal first hand knowledge of a potential viola-
tion. Affidavits may be used to substantiate a violation or to set
the circumstances surrounding a violation. Careful review of an
affidavit should be made for evidence in support of an enforcement
action. The person making the affidavit must sign it and be able
to personally verify the facts contained in the statement.
The objective of an affidavit is to obtain a clear and concise
written record of factual information relating to a suspected vio-
lation. The oath taken by the person making the affidavit serves
to substantiate the truth of the statement. Affidavits may be used
to verify the dates obtained from a facility’s records ( e.g. , the
date of shipment). Review should emphasize the admissibility of
the affidavit in court. This includes determining whether the
affidavit was properly executed and whether it contributes valid
evidence to any contemplated proceeding. The affidavit itself
should contain the following:
—— Identity of the affiant ( i.e. , the person providing the sworn
statement);
— The reason why the affidavit was taken;
—— The pertinent facts in a simple narrative style, arranged in
chronological order; and
—— A concluding paragraph indicating that the affiant read and
understood the statement.
In addition, any corrections made to the final copy must be ini-
tialed by the aff [ ant.
• Statements. Statements are similar in most respects to affidavits
except that statements are not taken under oath and, therefore, do
not have as much evidentiary weight as do affLdavits. Statements
* The Declaration of Confidential Business Information and the TSCA Conf i
dentiality Clearance References are contained in the inspection file
when materials have been claimed as confidential.
T fEnf ctce.ent 4-9 - C.jdance ilanual 1984
-------
Chapter Four ____ ____ - Reviev of Adequacy of Evidence
can ‘be used to verify data collected during an inspection. For
example, a statement may be obtained from a facility representative
that indicates a date of shipment. Review should verify the per-
son’s identity and the truth of the statement through a signature
or some other written or verbal acknowledgment.
• Brochures, literature, labels, and other printed
matter may provide important information regarding a firm’s condi-
tions and operations. These materials may be collected as documen-
tation, if in the inspector’s judgment they are relevant. All
printed matter should be identified with the date, the inspector’s
initials, and related sample numbers.
• The documentary value of photographs ranks high as
admissible evidence. Clear photographs of a relevant subject,
taken in proper light and at proper lens setting, provides an
objective record of conditions at the time of inspection. Review
must ensure that the photographs are clear, objective, and properly
identified. The photographs should be identified by location, pur-
pose, date, time, inspector’s initials, and related sample number.
This information should be recorded on the photographs, or in the
inspector’s field notebook, or both.
• Drawi andMap . Schematic drawings, maps, charts, and other
graphic records can be useful in supporting violation documenta-
tion. They can provide graphic clarification of site location
relative to height and size of objects, and other information that,
in combination with samples, photographs, and other documentation,
can produce an accurate, complete evidence package. Review should
ensure that drawings and maps are simple and free of extraneous
details. Basic measurements and compass points should be included
to provide a scale for interpretation.
• MechanicaiRecordings. Records produced by an electronic or
mechanical apparatus can be entered as evidence. Review of charts,
graphs, and other “hard copy” should ensure relevance and iden-
tity. The data collected should be identified by date of collec-
tion, inspector’s initials, and related sample number.
Further Process_in of _tj 1 e_ n c jon_File--Enforcement Case Review
Once the investigative fiLe has been initially reviewed, further case
development may be necessary at Headquarters. If so, the file should be
sent to the appropriate Headquarters Case Development Officer (HQCDO).*
Aspects of the further case review may include:
* The TSCA Confidential Business Information Security Manual should be
consulted for the proper procedures on transmitting CBI materials.
?s A, iir i . - Gui dan iianui1 1984
-------
Chapter Four Review of Adequacy of Kvidence
• Compliance with TSCA Section 4 testing rules and submission of test
data;
• Premanufacturing notice requirements for all new chemical sub-
stances or mixtures or significant new uses;
• Manufacturing or distributing chemicals or mixtures in violation of
TSCA Section 6 or 7 regulations;
• Failure to comply with TSCA recordkeeping and reporting require-
ments;
• Compliance with import and export rules;
• Scientific review to determine the significance of any discrepancy
in chemical composition, toxicity, or risk assessment;
• Relationship of suspected TSCA violation to other federal laws;
• New program elements for which policy interpretations must be
established; and
• New or existing programs in which information is normally kept on
file at Headquarters.
Additional Sources of Documentation
Frequently, additional information will be needed in order to complete the
review of the inspection file. In some cases, this information will be
provided by subsequent reports. If not, the RCDO should seek to obtain the
additional information or elaboration from the most knowledgeable source.
Additional sources of documentation Include:
• Inspector’s Narrative Report; and
• Inspector’s Field Notebook.
TSC& ompl1am’ e1Enforceaent 4—il Guidance Manual 1984
-------
Chapter Four
R 1 h4 bit 4 —1
Raceipt for Saaplee and Docunts
uS INVI ONMS)4TAL P O1IC?ION AQINCY
WAIHINSTON. DC 20110 Ii .,,.’ Aapr.wd
I—i” TOXC IUUSTAI lalililPiOl. ACT
U RECEIPT FOR SAAIPLM tç DOCUMENTS I
1. INVESTIGATiON CINTiPICATION
ATE £N ECTOR NO. 1 DAILY 0. NO.
L wwcCT AODn I. P
Thi documan wd umples O IIfl110I S bNSN.... and/Or AiEMEWSS duu lbsd bxiow re ooUsc d In connection with the
.dm,nistr.uon and of tiw Toxic Conbn_I t.
OP T 11 OO JMIN?* NID S SA I.I* OCSD HSR1$Y *Ios .LjmsIc
NO.
OSIC$IPTION
OPTIONAL:
OUPLICATC on SPLIT CAMPLU: neouseTSD AND pnovsDlD 0 NOT lOUllTID 0
NIPICTOx $IONArUnl .IIEIPISNT BIONATUIU
AMI
TITLE DATI EIUNtU
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EPA 17 .i I1 10I
1 SCA Cói.pliancefEnforceent
4—12
(u.tdance Manual 19 4
-------
chapter Four
Declaration of Qrnfldentiaj usineae Infor etion
Ri h4bjt 4—2
uNOUATIC OW4MATID AS C0P 510 5,d?IAI. SUS*NS .MOWMA?IOW
NO.
DS S *TS0N
‘ I
Thu - l U C...ü4l(.I$ sIuIuialU.iunlUSisdsu 14(c) of thu
Ts t CsuI Thu . ur J fwsr — ‘- s#thsu Uul is muhu i fur hsr this.
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*s tuuu i, , (I) Thu hus huu . . is p, ct .4 ( -uJI’y nf .efs,mscisn and 1 month to
is * (2) Thu UlU U Is,. ad his - wIthl t thu £1 .,.Jj$ co nt Dy othur
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— .- - -;‘ ; (3) Ths _ tisamus U nut padSU L41 u ad (4) O.... _ . it th lUs1lUs1 uuId cisis adutiJ
is thu c. u s s,utism .
.Nrsc?on a,GsA?UuS CLAIM IIT ssONAtu e
.IAMF
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WASNthSTO•*. DC auto
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4—13
Guidance Manual 1984
-------
Chapter Four wh1bit 4-3
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TSCA Co pUancef Enforcement 4-14 Guidance Manual 1984
-------
Chapter Four
RI!h4 bit 4—4
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Guidance Manual 19W.
-------
Chapter Four
hIbjt 4—5
Investigation Sn ry
.* £NvI oN B4rAi. P O1ICrIOHAGINCY
wA’sHsNG DI. DC 36560
0 TOXIC 1U$TANCU CONTROL ACT
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4— 16
Guidance Manual 1984
-------
Ghapter Four R h4bit 4 -4
Tn’westigatton leq at
L ENVI NYAI . FWUTh T M NCY
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PIDINAL CUC P rG e 1. AND
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mCL 1iancef itorceent 4-17 idance P nua1 L9 4
-------
Chapter Four
Rzhlbjt 4—7
Notice of Inspection
Undlr the authority of Section II of the Toxic Subatancas Control Act
For th purpose of inspecting (including telling samples, pl oto spfls. statements. and oth inspection actIvities) an establish-
merit, facility, or other premises in which chemical substances or mixture, or article cOntaining same are manufactured, proc-
eased or stored, or held bs*or* or eftus their distribution in commerce (including records, fIle,, papers, procuses, controls, md
facilitilel and any conveyance being ud to tranSport chemical substances. mixtursi. or articles containing sam, in connection
with their distribution in commerce (including reCords. files. papers. processes. controls, and facilities) bearing on whether the
r.guir.m.nti of the Act applicabl, to the chemical substances. mixtures, or srtlclee within or associated with such premises or
conveyance have ben consplild with.
In addition, this inspection eXtends to (Check app’opnare blocks);
o A. Financial data
0 8. Sale, data
O D. P,,sonn,l date
0 E. Research data
Pricingdata
The netura end extant of inspection of such data tpecifid in A through E above is as foIl s:
1NSPECTOS’ SiGNATI , C
ECIPiEN1’ S1ONATUnE
NAME
TITLE DATE S1GNEO
TiTLE DATE
.
EPA Penn 7740.3 T12- l
iN lC1 ’ION PILE
0
AGINCY
ssAasi istQl’ON , DC 20510
TOXSp aIUSTA cus CONTROL ACT
REASON FOR INSPECTION
TSCA Coapi lance/ Enforc ent
4 1 8
Gui&anàe Manual 1984
-------
Chapter Four Mbit 4—8
TSCA Inspection Confidentiality NDt ice
us INVSRONMSPITAI. Pto01ICflO AQINCY
WAININQTON. DC 20 110 WOim
otoa zs. tOt .20O?
TOXIC isWA C i .C.JThOL ACT JA10’S toPIto 431-li
T A INECT ON CONFIOENTIALrTY NOTiCE I
IOIN1IFICAT)ON 2. FIRM NAME
NO. J OAI%.Y $ 50. NO.
4. FIRM ADORRU
S. I4tEF EXIWTIV 1 NA
7. TITLE
TO *0T A CONPICINT1AI . $5 . — INOOSMATIOII .AIM
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. . . . . .J to .001.._ U. Of Ito ... _.... . .* 11Sf by of h I(o.ito Stoto 1001.1 11011
(P01*1. 5 (SC $01; EPA ? ofw .A._ .._i d IS JL. .L of to W I I IIIOI11U to
toll to. TaM s 14& Com.,. to -P . MluN -
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INto 01. A*ILJ10UMr of II. 3. TN. LJS...00 I sto 0 10000y
CISINS Lt_.....I.... .000 to
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TSCA Co 1iancef forc nt 4-19 Guidance i nua1 1984
-------
Chapter Five
Determination of Appropriate
Enforcement Response
Chapter Contents Page
1 introduction 5 —1
2 Level of Action Policy 5—3
Notices of Noncompliance 5—3
Settlements With Conditions 5—4
Notices of DetentIon 54
CivIl Administrative Penalties 5—5
Injunctions 5—5
Seizures 5—u
Criminal Pror& edings 5—12
‘TSCA Coapflance/Euforcement - 5-i Guidance Manual 1984
-------
Chapter Five
1 Introduction
Once the documentation of a violation is complete and EPA personnel have
determined that a i enforcement action is warranted, EPA must decide upon
the appropriate & vel of action that is justified by the severity of the
violation. EPA authorizes two categories of action——administrative and
judicial. Generally, the Agency uses administrative actions for violations
of a lesser nature or for first—time violators. The Agency reserves judi—
clal actions for use En violations of an especially egregious nature, which
result in serious harm to human health or the environment, and for willful
or repeated violations.
Administrative levels of action include the following:
• Notices of noncompliance;
• Settlements with conditions;
• Notices of detention under Section 13;* and
• Civil adrnini trative penalties.
The criteria for using each of the above actions are discussed later in
this chapter. SpecifIc procedures for preparing and issuing these actions
are found in Chapter Six, “Administrative Enforcement Actions: Notices of
Violation and Administrative Orders,” and Chapter Seven, “Administrative
Enforcement Actions: Civil Penalty Proceedings.”
Judicial actions may involve either civil or criminal proceedings. The
criteria for the use of judicial actions are also discussed later in this
chapter. Clvii proceedings include:
• injunctions under Sections (e), 5(f), 7, and 17(a); and
• Seizures under Sections 7 and 17(h).
* Notices of detention are issued by the United States Customs Service
under the authority of Section 13 of TSCA.
TSCk Co.pliance/Xnforce eit 5-1 Qaidance Manual 1984
-------
Chapter Five Introduction
Criminal proceedings are authorized under SectIon 16(b). Chapter Eight,
“Judicial Enforcement: Civil Actions,” and Chapter Nine, “Judicial Enforce-
ment: Criminal Actions,” discuss procedures for civil and criminal judicial
proceedings.
In addition, spectfic level of action guidances, which relate to
regulation—specific requirements, are contained in Appendix 3.
TSCA Coiipliance/Enforcement 5—2 Guidance Manual 1984
-------
Chapter Five
2 Level of Action Policy
Notices of Noncompliance _________
A notice of noncompitance (NON) is a letter issued by EPA lo advise a com-
pany that a violation of TSCA has been detected. An NON can be used, for
example, to notify a violator that the Agency is keeping track of the corn—
pany’s actions with respect to correcting the violation or as an Initial
step in making Agency contact with a violator if negotiations will be
necessary for achieving compliance.
Although issuance of an NON Is not specifically authorized by TSCA, the
notice Is an important enforcement tool and should be considered in the
following circumstances:
• The violation involves only a minor technical deviation from the
statutory or regulatory requirement;
• The violation does not pose a significant threat t human health or
the environment;
• The respondent has not previously violated TSCA;
• The violation is not the result of willful conduct;
• The violation is not one that would hamper EPA ’s ability to detect
other violations at the facility;
• An NON would be sufficient to bring about compliance; or
• Other regulation—specific policy considerations would apply (see
Appendix 3).
Generally, an NON should not be issued when other enforceme it responses are
warranted. For example, If a situation merits both issuance of an NON and
an administrative civil penalty action, only the civil penalty action
should be pursued. Furthermore, if an NON is issued, but the violation
continues unabated, then the Agency should consider either n administra-
tive civil penalty action or an appropriate judicial procee iing.
TSC& Co.pliancefEnforce.ent 5—3 *idance Manual 1984
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Chapter Five ______ ____— Level of Mtiou Policy
Settlements With Conditions ____________ ____ ___
The term “settlement with conditions” (SWC) refers to the settlement of an
administrative civil penalty action under conditions that commit the res-
pondent to perform specified acts in exchange for the remittance of all or
a portion of an administratively assessed penalty. Remittance, with or
without conditions, of an assessed civil penalty is permitted by Section
16(a)(2)(C) of TSCA.
kn SWC should be considered if the following criteria are met:
• The violation warrants the assessment of a civil penalty;
• The violation is not the result of wanton, knowing, or willful
conduct;
• The violation is of a c tc nuThg (for more than 30 days) or recur-
ring nature,
• To . ome Into compliance, the respondent needs to undertake a
detailed design, engineering, or monitoring program that would
require numerous, complex steps over time;
• The respondent has exhibited a good—faith attitude toward abating
the violation and has no history of noncompliance;
• The use of art SWC would provide clear public benefits; and
• An SWC that would he acceptable to EPA can be negotiated.
An SWC, howeve . should he employed with some restraint. It should not he
used in a manner that will encourage an industry to violate TSCA in the
hope that, when the violation is discovered, the company may offer to cor-
rect its action and thereby receive a remitted penalty.
Notices of Detention ____ ______ _______
Pursuant to Section 13 )f TSCA and 48 Fed. Reg. 34,734 (1983), the United
States Customs Service may detain, by issuing a notice of detention, any
shipment 1 chemical. substances or mixtures that is imported into the
United States and that is not in compliance with TSCA. notice of deten-
tion may be issued at the port of arrival by a district director of the
Customs Servicc when:
• A shipment contains any chemical substance or mixture that has been
banned from the customs territory of the United States by a rule or
order issued under Section 5 or 6 of TSCA;
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Chapter Five ____ Level of Action Policy
• A shipment contains a chemical substance or mixture or arttcle that
has been ordered seized under Section 7 (imminent hazard) of TSCA;
• Whenever the Administrator of EPA has reasonable grounds to believe
that the shipment is not in compliance with TSCA, and the Adminis-
trator notifies the district director to detain such shipment;
• Whenever the district director of the Customs Service has reason-
able grounds to believe that the shipment is not in compliance with
TSCA; or
• Whenever the importer fails to certify compliance with TSCA.
Civil Administrative Penalties
A civil penalty, as authorized by Section 16(a) of TSCA, is the remedy of
choice for most violations. A civil penalty should he proposed where a
violation:
• Presents a real (but not an extreme or imminent) risk to human
health or the environment;
• Is likely to be an isolated occurrence; and
• Is apparently the result of ordinary negligence, inadvertence, or
mistake.
Additionally, a civil penalty action should be considered where a notice of
noncompliance had been issued, but the person to whom it was issued dis-
regards the notice or fails to abate the violation.
Injunctions ________--____________________________ ________ ______
Injunctive actions may be initiated under the authority of Section 5(e),
5(f), 7, or 17(a) of TSCA.
Section 5(e) Injunctions
Criteria for Use . Injunctive relief authorized by Section 5(e) of TSCA
should be considered when:
• The information available to the Administrator under Section 5 of
the Act is insufficient to permit a reasoned evaluation of the
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Chapter_Five Level of Action Policy
human health and environmental effects of a chemical substance that
is subject to the notice requirement of Section 5(a) and either:
—_ In the absence of such information, the manufacture, proces-
sing, distribution in commerce, use, or disposal of such sub-
stance may present an unreasonable risk of injury to human
health or the environment, or
The chemical substance is or will be produced in substantial
quantities, and such substance either enters or may reasonably
be anticipated to enter the environment in substantial quanti-
ties or there is or may be significant or substantial human
exposure to the substance; and
• The Administrator has not issued a proposed order under Section
5(e) with respect to the chemical substance, or the Administrator
has Issued such an order, howevar, the order does not take effect
because objections were filed pursuant to Section 5(e)(1)(C).
Use of Section 5(e) Ifljunctive Actions . Pursuant to Section 5(a) of TSCA,
any person w 1 o manufactures a new chemical substance or who manufactures or
processes a chemical substance for a signiticant new use must submit a pre—
manufacture notice (PMN) to EPA. The PMM is to contain specific informa-
tion regarding the effects of the new chemical or the effects concerning
the significant new use for an existing chemical.
The Agency will, review the submitted information to determine whether a
reasoned evaLuation may be made of the effects of the chemical or the
significant new use. The Act provides a 90—day review period following
submission oi the PMN, although the period may be extended for a maximum of
90 additional days if good cause is shown.
Upon reviewing the information, the Administrator may issue a proposed
order prohibit:ig o; limiting the manufacture, processing, distribution in
commerce, use, or disposaL of the chemical substance if there is insuffi-
cient lnformati.jn to permit a reasoned evaluation of the human health and
environmental effects of the substance and either:
• in tue u e ce of sufficient information, the manufacture, proces—
,ir , di ,,tr outton in commerce, use, or disposal of such substance
may present an unreasonable risk of injury to human health or the
envirortmiiit; or
• The suh tarice ts or wilt he produced in substantial quantities and
may:
— Ener or reasonably be anticipated to enter, the environment
in substantial quantities, or
—— Result in significant or substantial human exposure to the
subs Lance.
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Chapter Five ________________ — Level of Actiou Policy
The proposed order must be issued no later than 45 days before the expira—
tion of the review period, and the order will, become effective upon the
expiration of that period.
however, an affected firm may challenge the proposed order, thus delaying
the effective date of the order. Therefore, unless the Administrator
immediately sustains the objection (i.e., finds that there is sufficient
information to permit a reasoned evaluation of the human health and envi—
ronmental effects of the substance), the Agency must seek an injunction to
rohibLt or limit the manufacture, processing, distribution in commerce,
use, or disposal of the PMN chemical substance. Additionally, the Adtninis-
trator is required to seek an injunction if it is found that there is
insufficient information concerning the new chemical substance or signifi-
cant new use but a proposed order has not yet been issued in that particu-
lar matter. This latter circumstance might occur if the review period
expires before the Administrator can is8ue the proposed order.
Section 5(f) InJunctions
Criteria for Use . Injunctive relief authorized by Section 5(f) of TSCA
should be considered when there Is a reasonable basis to conclude that the
manufacture, processing, distribution in coerce, use, or disposal of a
chemical substance subject to premanufacture review presents or will
present an unreasonable risk of injury to human health or the environment
before a rule promulgated under Section 6 can protect against such risk.
Use of Section 5(1) Injunctive Actions . Pursuant to Section 5(f) of TSCA,
if the Administrator determines that there is a reasonable basis to con-
clude that the manufacture, processing, distribution in commerce, use, or
disposal of a chemical substance subject to preinanufacture review presents
or will present an unreasonable risk of injury to human health or the
environment before a Section 6 rule can be promulgated, the Administrator
may (before the expiration of the PMN review period):
• Prohibit the manufacture, processing, or distribution in commerce
of the chemical substance by:
-— Proposing a rule under Section 6(a),
—— Issuing a proposed order under Section 5(f)(3)(A)(i) that, if
challenged, must be followed by the initiation of a Section
5(f)(3)(A)(ii) injunction, or
—— Seeking a Section 5(f)(3)(A)(ii) injunction; or
• Limit the amount of the chemical substance that may be maniifac—
tured. proeessed, or distributed in commerce by proposing a Section
6(a) rule.. Section 5(f)(2) states that such a proposed rule would
become effective upon publication.
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Chapter Five Level of Action Policy
It is important to note that Sections 5(f)(3)(A)(i) and f)(3)(A)(ii)
allow the Administrator to immediately implement a prohibition on the manu-
facture, processing, or distribution in commerce of a chemical substance
that is subject to premanufacture review and that has been specified in a
proposed Section 6(a) rule. These sections of the Act are necessary
because proposed Section 6(a) rules are generally not immediately effec-
tive. Section 6(d) does permit a Section 6(a) rule to become immediately
effective if there is a showing of an “imminent unreasonable risk of
serious or widespread injury.” However, Sections 5(f)(3)(A)(i) and
5(f)(3)(A)(ii) permit the Administrator to implement inmtediately a prohibi-
tion on the manufacture, processing, or distribution in commerce of a PMN
chemical substance by showing an “unreasonable risk of injury,” not the
more stringent “serious or widespread injury” requirement of Section
b d).* If, on the other hand, the Administrator wishes only to limit the
amount of a chemical substance that is subject to premanufacture review,
the Administrator may do so under Section 5 f)(2). Under Section 5(f)(2),
a proposed Section 6(a) rule (limiting the amount of the chemical substance
chat may be manufactured, nrocessed, uc distributed in commerce) becomes
effective upon publication.
Section 7 injunct Ions
Criteria for Use . Injunctive relief authorized by Section 7 of TSCA should
be considered when a chemical substance or mixture, or article containing
such a substance or mixture, poses an imminent hazard to human health or
the environment.
Use of Section 7 Ln ucictive Actions . Section 7(a)(1)(B) of TSCA authorizes
the Administrator to seek injunctive relief, through EPA or Department of
Justice attorneys, against any person who manufactures, processes, distri-
butes in commerce, uses, or disposes of an imminently hazardous chemical
substance or mixture or any article containing such a substance or mixture.
Section 7(i) de ines an imminently hazardous chemical substance or mixture
as one that pesents an imminent and unreasonable risk of serious or wide-
spread injury o human health or the environment. An unreasonable risk is
consider!ci n inent it it can be shown that the manufacture, processing,
distribution corn ncr’:e, use, or disposal of the chemical substance or
mixtur- is 1i eIy to result in such injury before a final rule under Sec-
tion 6 of the Act can protect against such risk.
* Ilk additIon, Section 6(d) requires that in order for a Section 6 rule
(which pr hibits the manufacture, processing, or distribution in com-
merce of a chemical substance or mixture that is likely to result in an
unreasonable risk of serious or widespread injury) to become iimnediately
effective, a court must first have granted relief under Section 7 of the
Act.
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Chapter Five - level of Action Policy
If an imminent hazard exists and the Administrator has not issued an
immediately effective rule under Section 6(d)(2)(A)(i) against the immi-
nently hazardous chemical substance or mixture, then according to Section
7(a)(2), the Administrator must commence an appropriate Section 7 action
(i.e., a seizure or injunctive action). Agency policy, however, permits
the Administrator to initiate an immediately effective rule under Section 6
in lieu of seeking a Section 7 civil actton.*
A Section 7 injunctive action may seek 8uch temporary or permanent relief
as may be necessary to protect human health or the environment from the
unreasonable risk associated with the chemical substance, mixture, or
article involved in the action. if the injunctive action is brought
against a person who manufactures, processes, or distributes in commerce an
imminently hazardous chemical substance or mixture or an article containing
such a substance or mixture, the action may include the issuance of a man—
datury order requiring:
• In the case of purchasers of such a substance, mixture, or article
known to the defendant, notification to such purchasers of the risk
assochited with it;
• Public notice of such risk;
• Recall;
• Replacement or repurchase of such a substance, mixture, or article;
or
• Any combination of the above actions.
Concurrent with the filing of a Section 7 civil action or soon thereafter
as may be appropriate and where practicable, the Administrator must ini-
tiate a Section 6(a) rulemaking proceeding.
Section 7 civil actions may be commenced notwithstanding the existence of a
rule under Section 4, 5, or 6 or an order under Section 5, and notwithstan-
ding the pendency of any TSCA administrative or judicial proceeding.
* This policy, however, would not apply to a Section 6 rule that seeks to
prohibit the manufacture, processing, or distribution in commerce of an
imminently hazardous substance, since Section 6(d)(2)(A)(ii) requires
that, in order for such a rule to become immediately effective, a court
must first have granted relief under Section 7 of the Act. The policy
does apply to the other forms of relief (i.e., other than a complete
prohibition) available under Section 7.
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Chapter Five - — ________ Level of Action Policy
Section 17(a) inJunctions
Criteria for Use. Injunctive relief authorized by Section 17(a) of TSCA,
which is the most common form of judicial relief sought, should be con—
sidered when there is a need to:
• Restrain any violation of Section 15 of the Act. The violations
specified by Section 15 include:
Failure or refusal to comply with any rule promulgated or order
issued under Section 4, any requirement prescribed by Section 5
or 6 of TSCA, or any rule promulgated or order issued under
Section 5 or 6,
Use, for commercial purposes, of a chemical substance or mix-
ture that such person knew or had reason to know was manufac—
tured, processed, or distrthuted in commerce in violation of
Section 5 or 6 ot TSCA, a rule or order under Section 5 or 6,
or an order issued in afl action brought under Section 5 or 7,
—- Failure or refusal to establish or maintain records; to submit
reports, notices, or other information; or to permit access to
or copying of records, as required by TSCA or its rules, and
— Failure or refusal to permit entry or inspection as required by
Section 11 of TSCA;
• Restrain any person from taking any action that is prohibited by
Section 5 or 6 of TSCA or by a rule or order issued under those
sections;
• Co p’ l the taking of any action required by or under the Act; or
• Direct any i ianuracturer or processor of a chemical substance or
mixture manufactured or processed in violation of Section 5 or 6 or
a rule ur order under Section 5 or 6 and di8tributed in commerce
to:
-- - no:tce c.f such fact to distributors in commerce and (to
-tent that they can be reasonably ascertained) other per—
s ; ; who possess or may be exposed to the chemical substance or
mixture
—— Gi - public nctice of such risk of injury, and
Either replace a repurchase the chemical substance or mixture.
Use of Section 17(a) j nctlve Actions . Injunctive relief authorized by
Section 17(a) will generaiJy be sought in those instances where civil
penalty proceedings are (or will be) ineffective because of the nature of
the violation or the nature of the violator. Specifically, a permanent
injunction should he considered when:
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Chapter Five Level of Action Policy
• The Agency’s adaiinistrative or other judicial enforcement remedies
would he in .idequate either at restraining the violation or at pre-
venting unreasonable risk to humans or the environment;
• The Agency has, in fact, already diligently exercised all appro—
priate administrative remedies, yet the violation continues
unabated; and
• Irreparable Injury, loss, or damage will result if relief is not
granted. Irreparable” means that the damage cannot be undone once
it takes place.
A preliminary injunction or temporary restraining order should be consider—
ed when the following additional elements are present:
• Immediate and irreparable injury, loss, or damage will result if
relief is Oot granted. Immediate” is self—explanatory and is in-
terpreted strictly; and
• There is likelihood of success at trial based on facts before the
court ( i.e. , more than a 50—percent chance of winning at a trial
based on facts before the court at the time of application).
The above considerations relating to permanent injunctions, preliminary
injunctions, or temporary restraining orders may occur when:
• The violator is recalcitrant and has demonstrated a history of non-
compliance with administrative orders and, therefore, should he
made subject to the contempt powers of a district court;
• The nature of the violation is such that it cannot be remedied
effectively by Agency proceedings. (Because injunctive proceedings
are equitable in nature, they permit the court to fashion the
necessary relief); or
• The violation is very serious and meets the technical criteria for
a finding of “imminent hazard” under Section 7 of TSCA but the
Agency does not wish to initiate a Section 6(a) rulemaking pro-
ceeding.
Seizures
Seizure actions may he initiated under the authority of Section 7 or 17(b)
of ISCA.
Section 7 Seizures
Criteria for Use . Section 7(a)(I)(A) of TSCA permits thd Administrator to
commence a civil action in an appropriate district court for the seizure of
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Chapter Five Level of Action Policy
an imminently hazardous chemical substance or mixture or any article con-
taining such a substance or mixture.
Use of Section 7 Seizure Actions . A Section 7 seizure action should be
used in a situation in which a chemical substance or mixture presents an
imminent and unreasonable risk of serious or widespread injury to human
health or the environment. Such risk is considered imminent if it is shown
that the manufacture, processing, distribution in commerce, use, or
disposal of the substance or mixture is likely to result in such injury
before a final rule under Section 6 can protect against such risk. Whether
or not a chemical substance or mixture presents an imminent hazard will
have to be determined on a case—by—case basis. However, it is expected
that the standard would apply to those cases where a chemical substance or
mixture poses an acute risk of harm to human health or the environment or
is being used by large numbers of people in many areas of the country and
the substance, mixture, or article must be seized to prevent that risk. A
seizure action under Section 7(a) may be used in conjunction with any other
relief authorized by that section (incLuding injunctive actions). It may
also be used notwithstanding the existence of a rule under Section 4, 5, or
6 or an order under Section 5 of the Act, and notwithstanding the pendency
of any administrative or judicial proceeding under any provision of TSCA.
SectIon 17(b) Seizures
Criteria for Use . Section 17(b) of TSCA authorizes the seizure of any
chemical substance or mixture that was manufactured, processed, or distri-
buted in commerce in violation of the Act or any rule promulgated or order
issued under TSCA or any article containing such substance or mixture.
Use of Section 17(b) Seizure Actions . An in rem action authorized by Sec-
tion 17(b) should be considered when a chemical substance or mixture
presents an unreasonable risk of injury to human health or the environment
but does not nstitute an imminent hazard under Section 7. Note that a
Section 7 seizure action may be used in instances where there is no viola-
tion of TSCA, whereas a Section 17(b) in rem action requires that the chem-
ical substance or mixture has been manufactured, processed, or distributed
in commerce in violation of the Act.
Criminal Proceedings __________ ____ __________________ ________
Criminal proceedings are authorized by Section 16(b) of TSCA, which states
that:
*** y person wh knowingly or willfully violates any
pro iision 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
SCA Co.plii nforcer*ent 5-12 Qiidance Manual 1984
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Chapter Five — Level of Action Policy
$25,000 for each day of violation, or to imprisonment
for not more than one year, or both.
Section 15 of TSCA enumerates those acts considered unlawful under TSCA
(see Chapter Seven for a complete listing).
The Agency may initiate criminal proceedings in every case in which EPA can
meet the 8trtngent requirements of evidence and proof leading to a convic—
tton. However, Agency policy, as well as pragmatic resource considera-
tions, argues against the use of criminal sanctions in any but the most
serious instances of environmental misconduct, as determined by the nature
of the violation, the history of compliance on the part of the responsible
person, or the seriousness of the environmental consequences.
Considerations
The Agency must carefully consider several specific factors before proceed-
ing with a criminal prosecution. (Chapter Nine, “Judicial Enforcement:
Criminal Actions,” addresses these considerations in much greater detail.)
Knowledge . The Agency must determine that the violator in question know-
ingly or willfully violated the statute. That is, there must be evidence
of intent in the commission of the violative act, rather than it merely
being the result of accident or mistake.
Seriousness . Criminal actions should be considered for the most serious
types of environmentaI misconduct. This consideration will be judged by
reviewing the extent of environmental harm or human health hazard that
resulted from or was threatened by the prohibited conduct. Factors such as
the duration of the conduct and the toxicity of the pollutants are con-
sidered. Also of significance in assessing the seriousness of the conduct
is the impact——real or potential——upon EPA’s regulatory function.
Deterrence . The Aguncy must consider the importance of and need for deter-
rence of criminal conduct, either on the part of a specific person, or on
the part of toe larger community. In the case of a serious and willful
violation, the interests of deterrence may well best be served by the
imposition of criminal sanctions.
Compliance History. The compliance history of the person who is the sub-
ject of possible crlintrial proceedings will enter into the Agency’s deliber-
ations. While a hictory of noncompliance is not requisite for pursuing
criminal sanctions, certainly criminal prosecution becomes more appropriate
when a history of noncompliance exists.
Simultaneous Actions . The Agency may consider whether there is a need for
criminal enforcement proceedings contemporaneous with a civil or adminis—
tr-itlve enforcement action, or whether one type of action alone will serve
the situation in question. While simultaneous proceedings are permissible,
and there may be very compelling reasons for pursuing both, the legal and
practical difficulties inherent in so doing argue against such an approach
except in the most extraordinary circumstances.
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Chapter Five Level of Action Policy
Use of Criminal Proceedings
The Agency has identified a number of specific situations that may be
considered of such a serious nature that criminal prosecution is
particularly appropriate where the violation was the result of knowing or
willful couduct. To list these situations, however, should not be viewed
as precluding criminal prosecution in circumstances not included below:
• Violations of Section 4 testing rules or the Section 5(b)
Premanufacture Notification Program;
• Failure to report substantial risk information; and
• Violation of PCB or dioxin regulations.
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Chapter Six
Administrative Enforcement Actions:
Notices of Violation and Administrative
Orders
Chapter Contents Page
1 introduction 6—1
2 Administrative Enforcement Procedures 6—3
Notices of Noncompliance 6—3
Settlements With Conditions 6—4
Notices of Detention 6—4
1 xhibit 6—1: Sample Notice of Noncompliance 6—5
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Chapter Six
1 Introduction
This chapter outlines the specific procedures that EPA should follow in
initiating and processing administrative enforcement actions, once the
Agency has determined that an administrative enforcement response is appro-
priate for a detected violation. These actions include the following:
• Notices of noncompliance;
• Settlements with conditions, and
• Notices of detention under Section 13*.
Civil administrative penalties are not covered in this chapter; however,
civil administrative penalty procedures are outlined in detail in Chapter
Seven, “Administrative Enforcement Actions: Civil Penalty Proceedings.’
Appendix 3, “Enforcement Response Policies and Penalty Policies,” also con-
tains useful procedural information relating to administrative enforcement
actions. In addition, Chapter Five, “Determination of Appropriate Enforce-
ment Response,” discusses the criteria the Agency uses in deciding when and
what type of enforcement action to issue.
* Notices of detenL Lo are issued by the United States Customs Service
under the authority of Section 13 of TSCA.
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Chapter Six Introduction
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Chapter Six
2 Administrative Enforcement
Procedures
Notices of Noncompliance _____
A notice of noncompliance (NON) is a letter issued by EPA that advises a
company that a violation of TSCA has been detected. Although issuance of
an NON is not specifically authorized by TSCA, the notice is an important
enfor ement tool. it can be used, for example, to notify a violator that
the Agency is keeping track of the company’s actions with respect to
correcting the violation, or as an initial step in making Agency contact
with a violator if negotiations will be necessary for achieving compli-
ance. As was previously discussed in Chapter Five, an NON should be
considered in the following circumstances:
• The violation involves only a minor technical deviation from the
statutory or regulatory requirement;
• The violation does not pose a significant threat to human health or
the environment;
• The respondent has not previously violated TSCA;
• The violation is not the result of willful conduct;
• The violation is not one that would hamper EPA’s ability to detect
other violations at the facility;
• An NON would be sufficient to bring about compliance; or
• Other regulation—specific policy considerations would apply (see
Appendix 3).
Procedure for issuing an NON
An NON shouLd contain the following Information (see Exhibit 6—1):
• Identification, citation, and explanation of the violation;
• A paragraph indicating the expected response fram the recipient
(including a specific time frame for compliance), if any;
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Chapter Six A I 1niatrative Enforcement Procedures
• If necessary, a statement indicating that continued noncompliance
could result in further enforcement action by the Agency; and
• The name and telephone number of an EPA contact person.
The Agency should issue an NON by certified mail, return receipt reques-
ted. A copy of the NON should be placed in a case file, and the issuance
of the NON should be put on the computer docket, if applicable.
Settlements With Conditions
The term “settlement with conditions” (SWC) refers to the settlement of an
administrative civil penalty action under conditions that commit the res-
pondent to perform specified acts in eAchange for the remittance of all or
a portion of an administratively assessed penalty. Remittance, with or
without conditions, of an assessed civil penalty is permitted by Section
16(a)(2)(C) of TSCA. The procedures for entering into a SWC are set forth
in Appendix 4, “Settlement With Conditions.”
Notices of Detention
Pursuant to Section 13 of TSCA and 48 Fed. Reg. 34,734 (1983), the United
States Customs Service may detain any shipment of chemical substances or
mixtures that is imported into the United States and that is not in compli-
ance with TSCA. Such action is accomplished through the issuance of a
notice of detention at the port of arrival by a district director of the
Customs Service. A notice of detention may be issued when:
• A shipment contains any chemical substance or mixture that has been
hanne ) 1 rom the customS territory of the United States by a rule or
order Issued under Section 5 or 6 of TSCA;
• A shir’ nt contains a chemical substance or mixture or article that
h t e gi ordered seized under Section 7 (limninent hazard) of TSCA;
• The t ministratur ot EPA has reasonable grounds to believe that the
chipment Ls not in compliance with TSCA, and the Administrator
notifies the district director to detain such shipment;
• The district director of the Customs Service has reasonable grounds
to believe that the shipment is not in compliance with TSCA; or
• The importer tails to certify compliance with TSCA.
For details concerning the handling and release of a detained shipment,
refer to the ISCA Section 13 rule promulgated by the United States Depart-
ment of the Treasury at 48 Fed. Reg. 34,734 (1983).
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Chapter Six Kxbibit 6—1
Saiiple Notice of Noncompliance*
UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY
Region I
John F. Kennedy Federal Building
Boston, MA 02203
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
Mr. T. K. H. Firetog, Jr.
President
Firetog Industries, Inc.
36 Sunshine Drive
Clark, MA 02856
RE: Notice of Noncompliance
Firetog Industries, Inc.
Dear Mr. Firetog:
You are hereby given notice that Firetog Industries, Inc., is in viola-
tion of the regulations governing polychiorinated biphenyls (PCBs), 40
C.F.R. Part 761, promulgated pursuant to the Toxic Substances Control
Act (TSCA), 15 U.S.C. §2601 etseq.
On October 31, 1983, a duly designated representative of the United
States Environmental Protection Agency (EPA) conducted an inspection of
the Firetog Industries’ facility located at 36 Sunshine Drive, Clark,
Massachusetts. The inspection revealed the following violation of the
requirements governing polychiorinated biphenyls (PCBs):
Failure to mark properly PCB large high—voltage capacitors as
required by 40 C.F.R. §761.40(c)(2), which was promulgated pursuant
to Section 6 of TSCA, 15 U.S.C. §2614.
The above—noted violation must be corrected. Failure to do so within
30 days may result in further EPA action, including the possible inipo—
sition of civil penalties. Please keep us informed of your progress in
correcting the violation.
* Note: This is a general example of a notice of noncompliance. It
does not represent the only appropriate format. Additional or dif-
ferent paragraphs may be included as necessary to explain or describe
fully the violations and the response that the Agency expects from
the recipient.
TSCA Copliance/Enforceileflt 6-5 Guidance Manual 1984
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Chapter Six R M bit 6—1
We have enclosed a copy of the current regulations governing PCBs for
your information. If you have any questions, please do not hesitate to
contact Mr. Don Duff at (312) 989—9876.
Sincerely,
John Doe
Director, Enforcement Division
Enclosure
TSC& Q*pliance/Enforce.ent 6-6 Guidance Manual 1984
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Chapter Seven
Administrative Enforcement Actions:
Civil Penalty Proceedings
Chapter Contents Page
1 Introduction 7—1
Consolidated Rules of Practice (CROP) 7—1
2 Elements of a Violation: Administrative 7—3
3 Complaint Preparation and Filing 7—13
Civil Penalty Complaint Criteria 7—13
Delegated Authority 7—13
TSCA Penalty Assessment Considerations 7—15
Complaint Preparation 7—16
Elements of the Complaint 7—17
Service of the Complaint 7—19
Filing the Complaint 7—21
Exhibit 7—1: Sample Complaint 7—22
Exhibit 7—2: Sample Cover Letter 7—2b
Exhibit 3—3: Model Affidavit of Service 7—27
4 Prehearin Stage 7—29
Intervenors and Am.icus Curiae 7—29
Agency Files 7—30
Prohibition of Ex Parte Discussion 7—32
Answer to the Complaint 7—33
Prehearing Motions 7—35
Default Orders 737
Settlement 7—39
Prehearing Conference 7—41
Motion for Accelerated Decision and Dismissal 7—43
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Chapter Seven Contents
5 Hearing Stage 7—47
Notice of Hearing and Venue 7—47
Presentation of Evidence 7—48
Preponderance of Evidence 7—48
Default Orders and Accelerated Decisions 7—49
Hearing Rules of Evidence 7—49
Subpoenas and Sunmioning Witnesses 7—52
Objections and RulingB 7—53
Offers of Proof 7—54
Transcript ot Hearing 7—54
Proposed Findings, Conclusions, and Orders 7—55
Motion To Reopen Hearing 7—56
Appeals of Interlocutory Orders or Rulings 7—57
Exhibit 7—4: Sample Default Order 7—59
Exhibit 7—5: Model Consent Agreement and Final Order 7—62
6 Post—Hearing Stage 7—65
Appeal of initial Decision 7—65
Final Order 7—67
Payment of Penalty 7—68
fSCA Co p1iance1Enforce.ent 7-il Coidance Manual 1984
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Chapter Seven
1 Introduction
In most instances, the Regional Office determines which violations warrant
the imposition of an administrative civil penalty. Many violations fall
into this category. However, if the violation is sufficiently minor, a
notice of noncompliance may be appropriate (see Chapter Six,
“Administrative Enforcement Actions: Notices of Violation and
Administrative Orders”). Conversely, If the violation is committed
knowingly or willfully, criminal prosecution may be more appropriate (see
Chapter Nint , “Judicial E nforcement: Criminal Actions”). In addition,
Chapter Five contains a general discussion of appropriate enforcement
responses.
This chapter focuses on TSCA civil penalty actions and the procedures for
litigating administratively assessed penalties.
Consolidated Rules of Practice __________________________________
All adjudicatory proceedings for the assessment of administrative civil
penalties under TSCA are governed by the Consolidated Rules of Practice
(CROP, promulgated on April 9, 1980, 45 Fed. keg. 24,360, codified at 40
C.F.R. 22.01 eL .).
Regional Versus National Actions
The preappellate stage of most administrative proceedings generally occurs
at the regional level. Therefore, the CROP discuss these stages only in
the context of r gtona1 actions. However, if the violation is not Region—
specific, the entire administrative proceeding may take place at the
national level.
In order to apply t’ national actions, the CROP reqqire the following
substitutions of Agency officials:
TSCA Co.pliance/&iforceaent 7-1 Qildance Manual 1984
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Chapter Seven Introduction
Regional National
Regional Hearing Clerk Hearing Clerk
Regional Administrator Administrator
Regional Judicial Judicial Officer
Of fleer
Substitutions between regional and national officials may also occur if an
official is disqualified pursuant to the CROP. 22.04(d)* Certain filing
and service requirements specified by the CROP are also altered if the
actions are conducted at the national level. For example, the Regional
Hearing Clerk must forward a record of the proceeding to the Hearing Clerk
when an initial decision is issued in a regional proceeding. Such a
transfer is unnecessary if the proceeding was conducted at the national
level. 22.27(a)
* Note: Bold type citations in the text correspond to the sections of the
CROP found at Part 22 Title 40 of the Code of Federal Regulations.
TSCA p1iance1Enforce.ent 7-2 Guidance Manual 1984
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Chapter Seven
2 Elements of a Violation:
Administrative
Under Section 16(a) of TSCA, the Agency may issue administrative civil
complaints to persons who violate the provisions of Section 15 of the Act.
In order to establish a prima fade administrative case against a
respondent, the Agency must establish, by proper evidence, each element of
the violation charged. The following charts list each violation that may
occur under TSCA, the related elements of proof that are necessary to bring
the violation to court, and the means by zhich the element of proof is
established.
TSCA 1ian / f r 73 t iidance Manual 1984
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Chapter Seven
El nts of a Violation: Ad fnistrative
Section 15(l)(A)
It shall be unlawful for any person to fail or refuse to comply with any
rule promulgated or order issued under Section 4 of the Act.
ELEMENTS OF THE VIOLATION
ESTABLISHING THE VIOLATION
1. Respondent is a person who is
subject to a Section 4 rule or
order ( e.g. , respondent is a
manufacturer or processor of a
chemical substance or mixture
that falls within the purview
of a Section 4 rule or order).
2. Respondent failed or refused
to comply with that rule or
order ( e.g. , respondent failed
to submit the chemical
substance or mixture for
required testing or failed to
submit the results of such
test tog).
1. Review by appropriate regional
or program personnel of the
applicable Section 4 rule or
order and the inspection file
to determine whether respon-
dent is subject to such a rule
or order.
2. Appropriate regional or pro-
gram personnel review inspec-
tion documentation or respon-
dent’s submissions to
determine whether respondent
failed or refused to comply
with the Section 4 rule or
order that respondent Is sub-
ject to. For the significance
of the violation, see “Level
of Action Policy” (Chapter
Five) and for the penalty
amount, see Appendix 3.
TSCA Couipliance/Enforce.eut
7—4
Guidance Manual 1984
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Chapter Seven
Elements of a Violation: Ad 1i4stratj ve
Section 15(l)(B)
It shall be unlawful for any person
requirement prescribed by Section 5
to fail or refuse to comply with any
or 6 of the Act.
1. Respondent is a person who is
subject to a requirement
prescribed by Section 5 or 6
of the Act (e. ., respondent
is a manufacturer of a new
chemical substance as defined
by TSCA).
2. Respondent f. iIled or refused
to comply with that require-
ment respondent failed
to submit a Premanufacture
Notice for a new chemical
substance prior to commencing
its manufacture).
ESTABLISHING THE VIOLATION
1. Review by appropriate regional
or program personnel of
Sections 5 and 6 and the
inspection file to determine
whether respondent is
responsible for compliance
with any of the requirements
of those sections.
2. Appropriate regional or pro-
gram personnel review inspec-
tion documentation or respon-
dent’s submissions to
determine whether respondent
failed or refused to comply
with the Section 5 or 6
requirement that respondent is
subject to. For the signifi-
cance of the violation, see
“Level of Action Policy”
(Chapter Five) and for the
penalty amount, see Appendix
3.
ELEMENTS OF THE VIOLATION
TSCA Co p1iance/Enforce*eflt 75
Guidance Manual 1984
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Chapter Seven
Ele nta of a Violation: Adfnjstrative
Section 15(1)(C)
It shall he unlawful for any person to fall or refuse to comply with any
rule promulgated or order issued under Section 5 or 6 of the Act.
ELEMENTS OF THE VIOLATION
ESTABLISHING THE VIOLATION
1. Respondent is a person who is
subject to a rule promulgated
or order issued under Section
5 or 6 of the Act ( e.g. ,
respondent’s facility stores
PCB containers for disposal).
2. Respondent failed or refused
to :oinply with that rule or
or respondent failed
to i,a k properly a PCB
co. ai. i that is stored for
disposal).
1. Review by appropriate regional
or program personnel of
Sections 5 and 6 rules and
orders and the inspection file
to determine whether
respondent is subject to such
rules or orders. This may
involve the need for a
laboratory analysis of the
chemical substance or mixture
to determine whether such
substance or mixture is
requested under those sections
of the Act.
2. Appropriate regional or
program personnel review
inspection documentation to
determine whether respondent
failed or refused to comply
with the rule or order that
respondent is subject to. For
the significance of the
violation, see “Level of
Action Policy” (Chapter Five)
and for the penalty amount see
Appendix 3.
TSCA Coapl iance/Entorce.en t
7—6
iidance Manual 1984
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Chapter Seven
Ele.ents of a Violation: MRinistrative
1. The chemical substance or
mixture 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 an
action brought under Section
5 or 7 of the Act.
2. Respondent knew or had reason
to know that such substance
or mixture was manufactured,
processed, or distributed in
commerce in violation of
those sections, rules, or
orders.
3. Respondent used for commercial
purposes such a substance or
mixture.
1. Review by appropriate regional
or program personnel of
applicable sections, rules,
orders, and inspection file to
determine whether the chemical
substance or mixture was
manufactured, processed, or
distributed in commerce in
violation of those sections,
rules, or orders.
2. Appropriate regional or
program personnel determine
from inspection documentation
whether the respondent had
knowledge of or had reason to
know of the prohibition (e. g.,
knowlege from chemical
manufacturer’s notification
letter).
3. Appropriate regional or
program personnel determine
from inspection documentation
whether respondent used for
commercial purposes such a
substance or mixture
sales receipts or shipping
records). For the signifi-
cance of the violation, see
“Level of Action Policy”
(Chapter Five) and for the
penalty amount, see Appendix
3.
Section 15(2)
It shall be unlawful for any person to use for commercial purposes a
chemical substance or mixture that 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 an action brought under Section 5 or 7 of the Act.
ELEMENTS OF THE VIOLATION ESTABLISHING THE VIOLATION
TSCA Coapliance/Enforceae1lt
Guidance Manual 1984
7—7
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Chapter Seven
Z1 nt of a Violation: Mainistrative
1. Respondent failed or refused
to establish or maintain
records required by the Act
or rules thereunder ( e.g. ,
respondent failed to maintain
records tracking the disposal
of PCBs found on respondent’s
property) .**
1. Review by appropriate regional
or program personnel of
applicable regulations and
inspection documentation to
determine whether records were
required to be maintained by
the respondent and whether
such records were in fact
maintained. For the signif 1—
cance of the violation, see
“Level of Action Policy”
(Chapter Five) and for the
penalty amount, see Appendix
3.
Section 15(3)(A)
It shall be
unlawful
for any
person to fail or
refuse to establish
or
maintain
records as
required
by this Act or a
rule thereunder.*
ELEMENTS OF THE
VIOLATION
ESTABLISHING THE VIOLATION
* TSCA provides for an exemption fr.in Section 8(a) recordkeeping
requireaents if the respondent meets the criteria of a small
manufacturer or processor.
** Note an action alleging failure to establish or maintain records under
TSCA or its rules may also be 1ni iated under Section 15(1)(A).
TSCA Corapliance/Enforceseut
7—8
Guidance Manual 1984
-------
Chapter Seven
Elements of a Violation: Adinistrative
1. Respondent failed or refused
to submit reports, notices,
or other information as
required by the Act or a rule
thereunder ( e.g. , respondent
failed to submit a PCB annual
report).
Review by appropriate regional
or program personnel of
applicable øections and
regulations and inspection
documentation to determine
whether reports, notices, or
other information was required
to be submitted by the respon-
dent and whether such reports,
notices, or other information
was in fact submitted. For
the significance of the viola-
tion, see ‘Level of Action
Policy” (Chapter Five) and for
the penalty amount, see
Appendix 3.
Section 15(3)(B)
It shall be
unlawful for any
person to fail or refuse
to
submit
reports,
notices, or
other information
as required by this Act
or
a rule
thereunder.
ELEMENTS OF THE VIOLATION
ESTABLISHING
THE
VIOLATION
1.
TSCA Coapliance/ Enforcement
7—9
Guidance Manual 1984
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Chapter Seven
flementa of a Violation: M4nlatrative
Section lS(3)(C)
It shall be unlawful for any person to fail or refuse to permit access to
or copying of records, as required by the Act or a rule thereunder.
ELEMENTS OF THE VIOLATION
1. Respndent failed or refused
to p ’rmit access to or
copyiag of records (e.g.,
respondent, an agent in
charge of a TSCA—regulated
establishment, did not permit
the EPA inspector to copy or
exami’ e PC8 records).
2.
Access to or copying of such
records is required by the
Act or a rule thereunder.
TSCA Coapliance/Eaforceent
ESTABLISHING THE VIOLATION
1. Review by appropriate regional
or program personnel of
nspection docuinentat ion to
determine whether respondent
denied access to or copying
of records. Documentation
should include the name and
position of the person who
refused to allow access to or
copying of records, a summary
of the conversation or events,
and the date and time of the
denial.
2. Appropriate regional or pro-
gram personnel review
applicable sections of the
statute and regulations to
determine whether access to or
copying of such records is
required by the Act or a rule
thereunder. For the signif 1—
cance of the .riolation, see
Level of Actton Policy”
(Chapter Five) and for the
penalty amount, see Appendix
3.
7—10
Guidance P(a ual 1984
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4 p er Seven
Eleent8 of a Violation : Administrative
Section 15(4)
It shall be unlawful for any person to fail, or refuse to permit entry or
inspection of any establishment, facility, or other such 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.
ELEMENTS OF THE VIOLATION
1. Respondent failed or refused
to permit entry to or
inspection of an establish-
ment, facility, or other such
premises or conveyance
respondent, an agent in
charge of a TSCA—regulated
establishment, did not allow
the EPA inspector entry for
the purposes of conducting a
PCB inspection, although the
inspector followed proper
entry procedures).
2. Such establishment, facility,
or other premises is one in
which chemical substances or
mixtures are manufactured,
processed, stored, or held
before or after their
distribution in commerce; or
such conveyance is one that
is being used to transport
chemical substances,
mixtures, or such articles in
connection with distribution
in commerce.
ESTABLISHING THE VIOLATION
1. Review by appropriate regional
or program personnel of
inspection documentation to
determine whether respondent
failed or refused to permit
entry or inspection of an
establishment, facility, or
other such premises or
conveyance. Documentation
should include the name and
position of the person who
refused entry, a summary of
the conversation or events,
the date and time of denial,
and a description of the entry
procedures used by the
inspector (see Chapter Three).
2. Appropriate regional or
program personnel review
inspection documentation to
determine:
• Whether such establishment,
facility, or other premises
is one in which chemical
substances or mixtures are
manufactured, processed,
stored, or held before or
after their distribution in
commerce; or
TSCA Compliance/Enforcement 7—li Guidance Manual 1984
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Chapter Seven Ele.euta of a Violation: Ad.injstratj,e
ELEMENTS OF THE VIOLATION
ESTABLISHING THE VIOLATION
• Whether such conveyance is
one that is being used to
transport chemical
substances, mixtures, or
such articles in connection
with distribution in
co erce. For the
significance of the
violation, see “Level of
Action Policy” (Chapter
Five) and for the penalty
aaount, see Appendix 3.
TSCA Co p1iance/Enforce.ent 7-12 Guidance Manual 1984
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Chapter Seven
3 Complaint Preparation and Filing
Civil Penalty Complaint Criteria
As was previously discussed in Chapter Five, a civil penalty action is
warranted when a violation:
• Presents a real (but not an extreme or imminent) risk to
human health or the environment;
• is likely to be an isolated occurrence; and
• is apparently the result of ordinary negligence, inadvertence, or
mistake.
Issuance of a complaint initiates a TSCA Section 16(a) administrative
penalty action.
Delegated Authority __________________________________________________
Regional Administrator
The Regional Administrator is to exercise all powers and duties as
prescribed or delegated under the Act and the CROP. In addition the
Regional Mminlstrator* has been delegated the authority to:
* The Assistant Administrator for Pesticides and Toxic Substances may also
exercise these authorities In multi—regional cases or cases of national
significance. However, he or she must consult in advance with the
Assistant Administrator for OECM or his or her designee and must notify
any affected Regional Administrators or their designe s when exercising
any of the above authorities. These authorizations are redelegable to
the Division Director level.
1’SCA Co.p1iance/Enforce nt 7-13 Guidance Manual 1984
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Chapter Seven ________ — Co*plaint Preparation and Filing
• Issue administrative complaints;
• Evaluate the appropriateness of civil penalties; and
• Negotiate and sign consent agreements memorializing settlements
between the Agency and respondent prior to the alleged violator’s
filing of an answer or failure to file an answer to a complaint.
The Regional Administrator, however, must consult with the Regional
Counsel’s office before exercising any of the above authorities. In
addition, the Regional Administrator must consult with Headquarters PTSCMS
in the following instances:
• Premanufacture Notification cases (which are to be handled by
Headquarters);
• Exceptional cases of first impression or of unusual national
importance; and
• Settlement reductions of more than 40 percent of the penalty
amounts originally proposed.
In every proceeding, the Regional Administrator will rule on all motions
f lied or made before an answer to the complaint is filed. 2 2. 1 6(c)
Re& ai Judicial Officer
A Regional Administrator may delegate all or part of his or her authority
to act in a given proceeding to a Regional Judicial Officer. Any such
delegation is to be performed in accordance with the CROP.
A Regional Yctal Officer may exercise any authority delegated to him or
her by the Regional Administrator, or the Regional Judicial Officer may
refer any c ise or motion to the Regional Administrator when such referral
is appropriate. 22.04(b)(3)
Presidin Of lc
The Presiding Officer is to conduct a fair and impartial proceeding, ensure
that th. facts are fully elicited, adjudicate all issues, and avoid delay.
The Pres Jtng Officer has the authority, under 22.04(c), to:
• Conduct idministrativc hearings under these rules of practice;
• Rule upon motions, requests, and offers of proof; dispose of
procedural requests; and issue all necessary orders;
• Administer oaths and affirmations and take affidavits;
• Examine witnesses and receive documentary or other evidence;
- 7-14 Guidance aimal 1984
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Chapter Sev _ _ Co.plaint Preparation and Filing
• For good cause, upon motion by a party or sua ppnte (I.e., upon
his own motion), order a party or an officer or agent thereof to
produce testimony, documents, or other nonprivileged evidence and,
failing the production thereof without good cause being shown, draw
adverse inferences against that party;
• Admit or exclude evidence;
• Hear and decide questions of tacts, law, or discretion;
• Require parties to attend conferences for the settlement or
simplification of the issues, or the expedition or the proceedings;
• Issue subpoenas authorized by the Act; and
• Do all other acts and take all measures necessary for the
maintenance of order and for the efficient, fair and impartial
adjudication of issues arising in proceedings governed by the CROP.
TSCA Penalty Assessment Considerations
Guidelines for Determ n Penal y Amount
Section 16(a)(2)(B) of TSCA requires that the Agency consider the following
Factors in determining the size of the penalty amount:
• The nature, circumstances, extent, and gravity of the violation(s);
and
• The violator’s ability to pay, ability to continue to do business,
history of prior such violations, degree of culpability, and other
matters as justice may require.
Pursuant to the statutory requirements, EPA has established a general
penalty assessment system, “Guidelines for the Assessment of Civil
Penalties Under Section 16 of TSCA [ 45 Fed. Reg. 59,770 (1980)]. In some
Instances, section—specific penalty policy guidances have been developed.
(See Appendix 3 for the general penalty policy and those specific guidances
that have been developed.)
I 4 p ndent1j Assessib1e ChargeS
A separate civil penalty should be assessed for each violation of the Act
that results from an independent act (or failure to act) by the respondent
and that is substantially distinguishable from any other charge in the
complaint for which a civil penalty is to be assessed. A given charge is
independent of, and substantially distinguishable from, any other charge
when it requires an element of proof not needed by the others. (See
Section 2, “Elements of a Violation: Administrative,” of this chapter.)
TSCA Coapliance/Enforce.ent 7-15 Guidance Manual 1.984
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Chapter Seven Co plaint Preparation and Filing
Not every charge that appears in a complaint can be separately assessed.
Where a charge derives primarily from or merely restates another charge, a
separate assessment is not warranted. Charges that do not support a
separate assessment are to be indicated in the complaint as Hle8ser
included charges.”
Complaint Preparation
Since the complaint initiates an administrative civil penalty action and is
the focal point for all subsequent proceedings, it must be as complete as
possible. Failure to file a complaint that meets the standards and
procedures outlined in this chapter may:
• Cause a delay in the proceedings;
• Prevent the co t:dainai f t bctng granted a motion for default
under Section 22.17 of the CROP; and
• Make the complainant subject to adverse i otions by other parties to
the proceedings.
Checklist of Complaint Requirements 22.14(a)
The following elements are considered necessary to establish the legal
sufficiency of a civil penalty complaint:
1. Statement reciting the section(s) of the Act authorizing the
issuance of the complaint;
2. Concise statement of the factual basis for alleging the violation;
3. SpeciE Ic reter nce to each provision of the Act and to the
regulations that the respondent is alleged to have violated;
4. Stater. t explaining the proposed penalty;
5. Copy -.f the Agency’s “Guidelines for the Assessment of Civil
Penalties Under Section 16 of TSCA, 45 Fed. Reg. 59,770 (1980),
and a copy of the appropriate 8ection—specific penalty policy
guidance;
6. Proposed amount of civil penalty to be assessed;
* The numbers to the left of each of the following items correspond to
numbers in Exhibit 7—1, whicTi shows a sample complaint. The numbers in
the exhibit identify examples of each kind of information.
TSCA ORpliancef nforceaent 7-16 Guidance Manual 1984
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Chapter Seven Coaplaint Preparation and Filing
7. Notice ot 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;
8. Copy of the Consolidated Rules of Practice (CROP);
9. Notice of opportunity for an informal settlement conference; and
10. Date and signature with notation of title of a duly authorized
official of the Agency.
Elements of the Complaint _____________ _______
The discussion under each element of the complaint gives the purpose of the
element and in some cases the reason for its particular place in the
complaint.
Caption
• Identification of Respondents (A).* Respondents ( i.e. , those
against whom the complaint Is filed) are to be accurately and
individually identified on the left side of the caption.
• Docket Number and Subjects of the Complaint (B) . The docket number
and matters addressed in the complaint are to be properly
identified on the right side of the caption. Docket numbers are
assigned by the Regional Hearing Clerk. The docket number
designates the statute, the Region involved (in Roman numerals),
the year, and the case number ( e.g. , Docket Number: TSCA—VI—
83—9). The docket number must be accurately reflected in the
caption, because it is the identifying number for all subsequent
documents filed in the proceedings.
Jurisdictional Authority (C )
The complaint must contain a statement of jurisdictional authority that
informs the Presiding Officer and the respondent of the staLutory authority
under which the complaint is issued. This statement should be in the
beginning of the complaint and should be as specific and precise as
possi ble.
22. 14(a)(I)
* The letters in parentheses to the right of each e1em nt correspond to
the letters in Exhibit 7—1.
TSCA Coapliance/Enforce.ent 7-17 Coidanee Manual 1984
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Chapter Seven Cosplaint Preparation and Filing
Factual Allegations (D )
In this section of the complaint, the specific facts of a particular
violation are tied to the statute, rule, regulation, and/or order that
allegedly has been violated.
The goal of this section is to adequately Inform the Presiding Officer of
the alleged violations and to Inform the respondent of the charges so that
an adequate response can be prepared.
In the event that a complaint contains multiple violations, the discussion
of each separate count should contain an enumeration of the facts and
circumstances related to that violation. The proposed penalty assessment
should include an enumeration of the dollar amount proposed for each count
charged or an indication that a particular charge is “lesser Included” and
hears no penalty assessment. The factual allegations of the complaint,
including multIple ‘r’unts. should he . r.,rnted into paragraphs.
In making factual alle attons, nt ¼ v word is “concise.” •Conciseness”
means that all material f cta necessary to establish the factual basis for
each violation are specified, while extraneous or irrelevant information is
omitted. Although the purpose of this section is only to inform the
respondent and Presiding Officer of the facts that the alleged violation Is
based on, au relevant facts should be included rather than risk failure to
meet the requirements set forth In the CROP. For instance, even though the
respondent may have been present when certain facts were ascertained, those
facts must still be included to inform the respondent and the Presiding
Officer of their legal significance.
22. 14(a)(3)
Citation o: e al Requirements Violated (E )
The citatiofl of he tarticular provision of the statute, regulation, rule,
or order that l1egedly has been violated must be as specific as possible.
For example, t th complaint alleges that a violation of Section 15 of
TSCA has ‘ccLr:e4, the specific subsection under SectIon 15 that is the
nasis of t 1. tt. n and the requirement of the statute, regulation, or
order t i .iulaied must be cited [ e.g. , PMN violation of Sections
iS(l)(L;, 15(3 ( ), and 5(2)(l)J.
Amount ‘ Civil Penalty and Rationale (F, C )
This section of the complaint is intended to:
• Explain the reason for the proposed penalty (F) in a manner that
refl€.: . t e fact that the Agency has considered the penalty
assessmer t factors specified by Section 16(a)(2)(B) of TSCA. Every
detail of the A gency’s reasoning process need not be reflected;
however, the section should state that the TSCA criteria were
considered in assessing-the penalty. In order to help meet the
TSCA oapliance/Enforceent 7-18 Guidance Manual 1984
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Chapter Seven Complaint Preparation and Filing
statutory requirement without unnecessary elaboration, a copy of
the Agency’s policy in assessing TSCA civil penalties should be
attached to the complaint; and
22. 14(a)( 5)
• Specifically identify the proposed penalty amount (G).
22. 14(a)(4)
Right To Request a Hearing (H )
The respondent must he informed of the right to request a iteariug
concerning any material fact contained in the complaint or concerning the
appropriateness of the amount of the proposed penalty. The respondent
should be referred to a copy of the CROP, which is attached to the
complaint, for information concerning the request for a hearing and the
consequences of failing to request a hearing.
22. 14(a)(6)
Notice of Opportunity for an Informal Settlement Conference (I )
The Agency encourages all parties against whom a civil penalty proceeding
has been initiated to pursue the possibility of settlement through informal
conferences with the Agency. Therefore, the respondent should he informed
that, regardless of whether a hearing is requested, a request for informal
settlement conference may be made. The respondent should be cautioned,
however, that a request for an informal conference does not stay the
running of the 20—day time period for requesting a hearing and filing an
answer.
Signature Block (J )
The complaint must be dated and signed (with notation of title) by a duly
authorized official of the Agency.
Service of the Complaint
The respondent is served with a copy of the complaint in either of the
following manners:
22.05(b)
• Personal Service . The complaint and accompanying documents are
left with the respondent or an authorized representative; or
• Service by Certified Mail, Return Receipt Requested . The complaint
and accompanying documents are mailed to the respondent or an
authorized representative.
TSC& CoapliancelEnforce.ent 7-19 Guidance Manual 1984
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Chapter Seven Coiiplaiut Preparation and Filing
Personal Service
For personal service on an individual at a business address, the complaint
should he left with the respondent or a person who is in charge of the
office, such as an office manager, or a person who is responsible for the
respondent’s administrative affairs, such as a personal secretary.
For personal service on a corporation, company, or association, the
complaint should be left with an officer, partner, managing or general
agent, or any other person authorized by appointment or by Federal or State
law to receive service of process.
For personal service on a named individual at a residential address, the
complaint should be left with any person of suitable age and discretion who
resides there.
Service by Mail
If the complaint is addressed to an Individual person, it should be mailed
to the last known business address by certified mail, return receipt
requested.
If the complaint Is addressed to a corporation, company, or association, it
should be mailed, return receipt requested, to the last known address of an
officer, partner, managing or general agent, or any other person authorized
by appointment or by federal or state law to receive service of process.
The return receipt establishes that the complaint was received on a
particular date.
The receipt should be attached to the original complaint, which is retained
by the Agency. If no return receipt Is obtained, another letter should be
sent. If no receipt is again obtained, personal service may be necessary.
Service Upon J.S. Government Officials or Agencies
Service upon a” oiticer or agency of the United States must be made by
delivering a copy of the complaint to the officer or agency, or In the
manner prescribed by applicable regulations. If the agency is a
corporation, st rvIce may he either personal or by certified mail directed
to an otticer, partner, managing or general agent, or any other person
authorized by appointment or law to receive service of process.
22.O5(b)(1)(!ii)
Service on State o - Local Government Entities or Officials
Service upon a state or local unit of government, or a state or local
officer, agency, department, corporation, or other instrumentality must
TSC& (b.pliancefEnforceaent 7-20 Guidance Manual 1984
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Chapter Seven Coiplaint Preparation and Filing
either be made in the manner prescribed by state law or upon the chief
executive officer of the governmental unit or the state or local officer.
22.O5(b)( 1)(iv)
Certificates of Service
Proof of service must he made either by a properly executed affidavit of
service (Exhibit 7—3) for personal service, or by a properly executed
return receipt, for service by mail. A certificate of service must be
filed with the original complaint.
22.05(b)( 1)(v)
Filing the Complaint
The original and one copy of the complaint (with proof of service) must be
filed with the Regional Hearing Clerk.
22.O5(a)( I)
TSCA Coapliance/ nforceaent 7-21 Guidance Manual 1984
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Chapter Seven Exhibit 7—1
Sa.ple Co p1atnt
UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY
BEFORE THE ADMINISTRATOR
In re: (A) ) Docket No. TSCA—I—83 —18 (B)
)
)
Firetog Industries, inc. ) COMPLAINT
36 Sunshine Drive ) AND
Clark, MA 02856 ) NOTICE OF OPPORTUNITY
FOR HEARING
Respondent )
)
)
COMPLAINT
(C)
This civil penalty action is instituted pursuant to the authority
vested in the Administrator of the United States Environmental
Protection Agency by Section 16(a) of the Toxic Substances Control Act,
15 U.S.C. §2601 (hereinafter referred to as “the Act• or
TSCA). The complainant in this action is John Doe, Division
Director, Enforcement Division, Region I, United States Environmental
Protection Agency, who has been duly authorized to institute this
action. The respondent in this action is Firetog Industries, Inc.
2 Allegations or Counts (D)
This Is t ) : ottty you that there is reasoo to believe respondent has
violated r o’i 15 of TSCA by respondent’s failure to comply with the
re u!at on promulgated under Section 6(e) of the Act. The complainant
alleges that the violations occurred in the following manner:
Count I
1. On May 4, 1981, respondent’s facility, located at 36 Sunshine Drive,
Clark, Massachusetts, was thspected by duly designated representatives
of the U.S. Environmental Protection Agency.
2. Four hundred and six (406) high—voltage DC capacitors containing
PCBs, which were stored for disposal, were found at respondent’s
facility.
TSCA Copltance/Enforceent 7-22 Guidance Manual 1984
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Chapter Seven _____ ____ xh1bit 7—1
3. Neither the individual capacitors nor the storage room was properly
marked with PCB ML labels as required by 40 C.F.R. § 76l.4O(a)(1)
and 761 . 4 O(a)(l0), which were issued pursuant to Section €(e) of TSCA.
4. Failure or refusal to comply with any rule promulgated, or order
issued, under Section 6 of the Act constitutes an unlawful act under
Section 15(l)(C) of TSCA.
3. (E)
5. The conduct described in Paragraphs 2 and 3 above constitutes a
violation of Section 15(1)(C) of TSCA in that respondent failed to
mark PCB containers and PCB storage areas as required by a rule [ 40
C.F.R. §S761.40(a)(l) and 76 l. 4 O(a)( 1 O)j promulgated pursuant to
Section 6(e) of the Act.
Count 2
1. On May 4, 1981, respondent’s facility, located at 36 Sunshine Drive,
Clark, Massachusetts, was inspected by duly designated representatives
of the U.S. Environmental Protection Agency.
2. Four hundred and six (406) high—voltage DC capacitors containing
PCBs, which were stored for disposal, were found at respondent’s
facility.
3. The inspectors requested from respondent the records relating to
the storage of PCBs. Such records are required by 40 C.F.R.
§761.80(b), which was issued pursuant to Section 6(e) of TSCA.
4. Respondent admitted to the inspectors that the required records
had not been maintained.
5. Failure or refusal to comply with any rule promulgated or order
issued under Section 6 of the Act constitutes an unlawful act under
Section 15(1)(C) of TSCA. Failure or refusal to establish or
maintain records required by the Act or a rule thereunder constitutes
an unlawful act under Section 15(3)(A).
3. (E)
6. The conduct described in Paragraphs 2 and 4 above constitutes a
violation of Sections 15(1)(C) and 15(3)(A) of TSCA, in that
respondent failed to maintain PCB storage records as required by a
rule [ 40 C.F.R. §761.80(b) ] promulgated pursuant to Section ô(e) of
the Act.
4. Pro osed Civil Penalt 1 (F)
In arriving at the assessment of the penalty specified below, the U.S.
Environmental Protection Agency, as required by Section l6(a)(2)(B) of
TSCA Co.pliance/Enforce.ent 7-23 GuIdance Manual 1984
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Chapter Seven __ _ Exhibit 7-1
TSCA [ 15 U.S.C. §2615(a)(2)(bfl, ha8 taken into consideration the
following factors:
• The nature, circumstances, extent, and gravity of the
violations; and
• The respondent’s ability to pay, ability to continue to do
business, history of prior such violations, degree of
culpability, and other matters as justice may require.
S.
Agency policy with respect to assessment is governed by the U.S.
Environmental Protection Agency’s “Guidelines for the Assessment of
Civil Penalties Under Section 16 of TSCA; PCB Penalty Policy” [ 45 Fed.
Reg. 59,770 (1980)], a copy of which is attached to this complaint.
6. (C)
Based on the abov€ considerations, the U.S. Environmental Protection
Agency proposes to assess against Firetog Industries, Inc., the
followtng amount:
Count 1
Failure To Mark PCB
Containers and Storage Areas $1,500
Count 2
Failure To Maintain PCB
Storage Records 1,000
Total Penalty Assessment $2,500
7. NOTiCE OF OPPORTUNITY FOR HEARING (B)
This .idmtnistrat Eve clvtl penalty proceeding will he conducted pursuant
8. to the ConsolId t. d Rules of Practice (CROP) [ 40 C.F.R. §22.01 et
a copy of which accompanies this complaint. Pursuant to the
CROP, you have the right to request a hearing to contest any factual
allegation set forth in the complaint or the appropriateness of the
proposed penalty. In the event that you wish to request a hearing and
to avoid havi g the above penalty assessed without further proceedings,
you must file a written answer to this complaint with the Regional
Hearing Clerk, United States Environmental Protection Agency, Region 1,
John F. Kennedy Federal Building, Boston, Massachusetts 02203.
TSCA Co.p liance/En force. ent 7-24 Guidance Manual 1984
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Ch ter_Sev _ _ E iibit 7—1
if you do not request a hearing or file a written answer within twenty
(20) days of receipt of this complaint, the above penalty will be
assessed without further proceedings, and you will he so notified.
9. Settlement Conference (I)
The Environmental Protection Agency encourages all parties against whom
a civil penalty is proposed to pursue the possibility of settlement as
a result of informal conferences. Therefore, whether or not you
request a hearing, you may confer informally with the Agency concerning
(1) whether the alleged violation in fact occurred as set forth above,
or (2) the appropriateness of the proposed penalty in relation to the
size of your business, the gravity of the violation, and the effect of
the proposed penalty on your ability to continue in business. The
request for an informal conference does not stay the running of the
twenty (20) day time period for requesting a hearing and filing an
answer. To explore the possibility of settlement in this matter,
contact Ms. Kate Smith, Enforcement Division, United States
Environmental Protection Agency, Region 1, John F. Kennedy Federal
Building, Boston Massachusetts 02203, telephone (312) 9899876.
10. (J)
John Doe
Director, Enforcement Division
Date: At:
Enclosures: TSCA
Guidelines for the Assessment of Civil Penalties
Under Section 16 of TSCA; PCB Penalty Policy
Consolidated Rules of Practice (CROP)
TSCACo.pliance/Enforce*eflt 7-25 Guidance Manual 1984
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Chapter Seven ___________ ____ Exhibit 7-2
Saaple Cover Letter
UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY
Region I
John F. Kennedy Federal Building
Boston, MA 02203
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
G.B. Stubbs, Registered Agent
Firetog Industries, Inc.
36 Sunshine Drive
Clark, MA 02856
Dear Mr. Stubbs.
As the enclosed complaint and nottce of opportunity for hearing
indleates, the United States Environmental Protection Agency has
initiated an administrative civil penalty proceeding against Firetog
Industries, Inc., for violations of the Toxic Substances Control Act
(TSCA), 15 U.s.c. §2601 et
It is suggested that you carefully read and analyze the complaint and
the enclosed Consolidated Rules of Practice (40 C.F.R. §22.01 et seq. )
so that you are fully apprised of the alternatives offered to you in
considering the alleged violation, proposed penalty, and opportunity
for a hearing. You will note that you have only twenty (20) days from
your receipt of this notice within which to file an answer to the
enclosed c’mplaint with the Regional Hearing Clerk, United States
Environmen al r’rotect ton Agency, Region 1, John F. Kennedy Federal
Butldin , Boston, Massachusetts 02203. Failure to file a timely
answer, in - ting, _ wLiIlresult _ a fault order being entered
ainst y u for the full amount of the asses edp nal .
The A ’&c :r ges all parties against whom a civil penalty
pr t t dia; ha ‘ ,t it initiated to pursue the possibility of settlement
through 1ri ,’ rma1 conft ’rences with the Agency. Therefore, regardless of
whecher you r ’que t ht at ing, you are extended the opportunity to
requ ’st an informal settlement conference. To request a conference,
please write to Ms. Kate Smith, United States Environmental Protection
Agency, Region 1, John F. Kennedy Federal Building, Boston,
Massachusetts 02203, or telephone Ms. Smith at (312) 989—9876. Any
discussion you may have with Ms. Smith will not affect the time period
in which you are permitted to request a hearing or file an answer to
the complaint.
- Sincerely,
John Doe
Enclosure Director, Enforcement Division
TSCACo.pllance/Enforce.ent 7-26 Guidance Manual 1984
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Chapter Seven krhibjt 7—3
Model Affidavit of Service
AFFIDAVIT OF SERVICE
UNITED STATES OF AMERICA
UNiTED STATES ENVIRONMENTAL PROTECTION AGENCY
I hereby certify that being a person over 18 years of age, I served a
copy of the within complaint
(check one) ( ) in person
( ) by registered mail, return receipt requested
( ) by leaving the copy at principal place of business,
which is
( ) ( write in other method, such as leaving it at dwelling,
serving registered agent of corporation, etc. )
on the person named in the complaint on ( month, day, and year).
( Signature of person making service)
( Name of person making service)
( Title, if any )
TSCA CoapliancelEnforceent 7-27 Guidance Manual 1984
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Chapter Seven EThibits
TSCA Coi.pliancefEnforce.ent 7-28 Guidance Manual 1984
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Chapter Seven
4 Prehearing Stage
intervenors and Amicus Curiae
An individual may make a motion to become an intervenor in any proceeding
conducted under the CROP. To intervene, the individual’s motion must
reflect that:
• The individual has a certain interest in the proceeding that is not
adequately represented by the original parties;
• The individual’s presence will not unduly prolong or otherwise
prejudice the adjudication of original parties’ rights; and
• The individual will be affected adversely by a final order.
A motion to become an intervenor is ordinarily made before the first
prehearing conference. However, the motion may be made after that time if
good cause is shown for the failure to file in a timely manner. A party
objecting to the Intervention may make an answer to the motion to intervene
within 10 days following service of the motion. Once an individual is
permitted to intervene, that individual becomes a full party to the
proceeding.
22.11(a), 22.11(b), 22 .11(c), 22.03(a)
An individual may make a motion to file an amicus curiae brief. The motion
must identify the Interest of the applicant and the desirability of the
proposed amicus brief. If the motion is granted, the Agency official
granting the motion specifies the time for filing the brief. Once the
motion is granted, the individual, while not considered a full party, is
permitted to file amicus briefs in all subsequent briefings during the
proceeding and is served with copies of all documents relating to such
briefings.
22. 11(d)
TSCA Compliance/Enforcement 7-29 Guidance Manual 1984
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Chapter Seven ___________ ____ Prebearing Stage
Agency Files* _____ _____ ____ ____________
The Agency must maintain at least two files——one that is initiated by the
Regional Hearing Clerk and one that is Initiated by the Presiding Officer
upon assignment to a case. in addition, the enforcement official bringing
the action should maintain a separate file, which contains duplicates of
all documents relating to the enforcement proceeding.
22.05(a)(l), 22.05(a)(2)
Any file that contains TSCA confidential business information must be
maintained In accordance with the procedures set forth in the TSCA
Confidential Business Information Security Manual . (See discussion in
Chapter ii.)
Files of Regional Hearin Clerk and Presiding Officer
All documents served In the proceeding must be filed with the Regional
Hearing Clerk. The Reg ional Hearing Clerk initiates this file after
receiving tne original and one copy of the complaint and the accompanying
certificate of service. All original copies of filings and communications
from Agency officials, Including those from the Presiding Officer, are to
be maintained In the Regional Hearing Clerk’s file.
The documents that are tiled with the Regional Hearing Clerk include:
22. 05(a)
• Orig’naI and on copy of the complaint;
• Orl9inals and copies of certificates of service;
• Original filings of any Intervenors;
• OrigInal answer receIved from the respondent;
• F d one copy of rulings, orders, decisions, and other
i rt h;*t are issued by the Regional Administrator, Regional
1ud1c181 (‘tficer, or Presiding Officer;
22.06
• ii i ot direct correspondence from the Presiding Officer to
the rat tic&.
• Cop’t of di ’t. ct correspondence from the parties to the Presiding
i tficer
* t .otc: it the action is initiated at the national instead of the
regional level, certain terms should be substituted for the terms set
forth below. (see “Regional Versus National Actions’ in Section 1 of
this chapter.
TSCA Copliance/Enforce.ent 7-30 Guidance Manual 1984
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Chapter Seven Prehearing Stage
Copies of the above documents must be maintained in the Presiding Officer’s
file, except correspondence from the parties to the Presiding Officer. The
originals of such correspondence are kept by the Presiding Officer.
Regional Enforcement Case File
The Agency enforcement official initiating a complaint should maintain a
separate file containing duplicates of all documents filed in the
proceeding, as well as other enforcement documents relating to the case.
Documents In this file include:
• Copies of all documents filed with the Regional Hearing Clerk or
Presiding Officer;
• Any internal EPA documents used in generating the enforcement
action ( e.g. , concurrence documents, checklists, etc.);
• EPA investigative records such as l horatory reports and copies of
business records;
• Original Penalty Assessment Worksheet(s);
• All correspondence between the respondent and other EPA parties;
and
• All correspondence between EPA and other federal or state agencies
( e.&. , the Department of Justice).
This file should be retained for a minimum of five years in the Region
after termination of the case, after which time it should he transferred to
Records Control Center.
Filing Requirements
A document is considered sufficient for filing if:
• It contains, on the first page of the document, a caption that
identifies the respondent and the docket number assigned for the
proceeding:
22.05(c)(2)
• It bears the signature of the filing party, counsel, or other
representative (except for exhibits); and
22.05(c)( 3)
• It bears the name, address, and telephone number of the person
filing the document if it is the initial document filed by that
person . Any changes in this information must be sent to the
Hearing Clerk, Presiding Officer, and all other parties to the
TSCA Co.pliance/Enforce.eot 7-31 Cuidance Manual 1984
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Chapter Seven Preheariug Stage
proceeding. If a party fails to provide or, when appropriate,
amend this Information, the right to notice end service Is waived.
22.05(c)(4)
The Agency official with jurisdiction over the proceeding may prescribe
additional requirements for the form of documents.
22.O5(c)(l)
If the applicable requirements are not met, the Agency official receiving
the filing may refuse to accept it until it is properly amended. Permis-
sion to amend is granted only upon motion to the Administrator, Regional
Administrator, or Presiding Officer who refused to file the defective
document.
22.05(c)( 5)
Also, any party filing a document after tne complaint has been issued must
certify that copies of the document hs’ heen sent to other parties,
appropriate Agency of ficia!.s and ary amicus curiae . While the CROP do not
give expUcit sanction’ for failure to provide an appropriate certificate
of ervie, failure to serve copies of documents on individuals who have a
right to i’orice may delay the proceeding and, in some cases, may even
result in an otherwise entirely correct proceeding being dismissed by the
Presiding Officer or b ±ing overturned on appeal.
22.05(a)(2)
Public Access to Document8 Filed
Subject to any confidentiality requirements specified by law, the documents
filed In the proceeding must be made available by the Regional Rearing
Clerk for public inspection during business hours.
22.09(a)
Prohibition o x ? arte Discussion
After . i c i p’ r1r been Issued, certain Agency officials are prohibited
from di?cussing ex part ( i.e. , without notice to all parties) the merits
of the proceed - with ir uividuals or their representatives who have an
interest In th pr. r ding.
22.08
A1th ugh ex parte discussion about the merits of a proceeding is
prohibited, if such coinmur 1cation occurs, It is regarded as argument, and a
copy of the ex rte cnmmunication Is served on all other parties in the
proceeding. Those other parties are then afforded an opportunity to reply.
Failure to comply with these provisions of the CROP can taint an otherwise
entir€ly correct proceeding and may result in Its dismissal by the
Presiding Officer or in the action being overturned on appeal.
TSCA Co p1iancefEnforce.ent 7—32 Guidance Manual 1984
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Chapter Seven Prehearing Stage
The Agency officials subject to ex parte prohibitions are:
• Administrator;
• Regional Administrator;
• Judicial Officer;
• Regional Judicial Officer;
• Presiding Officer; and
• Any other person who is likely to advise these officials (e.g., the
Assistant Administrator for OECM and the Assistant Administrator
for Pesticides and Toxic Substances).
The Agency officials listed above are prohibited from participating in ex
parte discussions with the following individuals: —
• An Agency official who performs a prosecutorial or investigative
function in the proceeding or a factually related proceeding;
• Any person outside the Agency who has an interest in the
proceeding; and
• Any representative of the persons identified above.
Answer to the Complaint
The respondent must respond to the allegations in the complaint within 20
days after service of the complaint.* The response is in the form of an
answer. In the answer, the respondent must admit, deny, or explain each of
the factual allegations contained in the complaint. Where the respondent
has no knowledge of the allegations and makes a statement to that effect,
the allegations are considered denied. 22.15(b) Failure to admit, deny,
or explain any material factual allegation contained in the complaint
constitutes an admission of that allegation .
22. 15(d)
* Service of the complaint is complete when the return receipt Is signed
(if the complaint was mailed) or when personal service is effectuated.
TSCA Co p1iancefEnforceiaent 7-33 Guidance Manual 1984
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Chapter Seven Prebearing Stage
Procedural Considerations
Before the answer is filed, all motions are made to the Administrator or
Regional Administrator, or the Judicial Officer or Regional Judicial
Officer, as appropriate. After the answer is filed, a Presiding Officer is
designated, and all motions are made to that official.
22 • 16(c)
Filing a timely answer precludes the complainant from seeking a motion for
default hased on the failure to file a timely answer.
22.17(a)(t)
Filing a imely answer lessens complainant’s opportunity to amend because,
as a matter of right, the complainant may amend the complaint once before
the answer is filed. Otherwise, a motion must be made to and approved by
the Presiding Officer.
22.14(d)
The complainant may withdraw the cotnplain , all or in part, without
prejudice one time before the answer has been filed. After one withdrawal
before the filing of an answer or after the filing of an answer, the
complaint may be i I ira%Jn only apon motion granted by the Presiding
Officer or Regional Administrator.
22. 14(e)
Sufficiency of Answer
The answer must meet the following requirements:
• Filing the original of the answer with the Regional Hearing Clerk;
and
• Complying with the general filing, service, and content
requirements specified by the CROP.
22.05
The contents rjf the answer must include:
• .Ie t and airect admissions, denials, or explanations of each
tactt..ai 11e at1on contained in the complaint of which the
respondent h- any knowledge. If the respondent has no knowledge
t a particular factual allegation and makes a statement to that
effect, the allegations are considered denied. All allegations
should be addres8ed in some manner ;
• Grounds For di fense;
• Fact. that tne respondent will put in issue; and
• Any request for a hearing.
22 • 15(b)
TSC& CoRp1iancef force.ent 7-34 Cuidance Manual 1984
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Chapter Seven Prehearing St j
Evaluation of Answer
Upon receiving a copy of the answer, the complainant should immediately
review it for any deficiencies and also check with the Regional Hearing
Clerk to ensure that the requirements concerning timely filing and the
general filing requirements have been met. Review of the answer might also
indicate that a motion to amend the complaint is warranted ( i.e. , if
proposed penalties should be reduced or increased).
Consequences of an Unsufficient Answer
If the form requirements specified by Section 22.05(c) of the CROP are not
complied with, the Regional Hearing Clerk can refuse to file the answer.
22.05(c)( 5)
If the requirements specified by Section 22.15(b) of the CROP are not
complied with, the insufficient answer may be regarded as an admission of
the matter(s) not sufficiently discussed.
22.15(d)
If the answer is not filed within the time requirement (20 days), the
complainant can seek a default order.
22. 17(a)(l)
Assignment of a Presiding Officer
When an answer is filed, the Regional Hearing Clerk forwards the complaint,
the answer, and any other documents filed thus far in the proceeding to the
Chief Administrative Law Judge who assigns either himself (or herself) or
another Administrative Law Judge as Presiding Officer. The Presiding
Officer then obtains the case file from the Chief Administrative Law Judge
and notifies the parties of the assignment.
22 • 21(a)
Prehearing Motions
Motiona may be made by the parties before a hearing is convened. Some
motions must be made during the prehearing stage, but most may be made at
other stages of the proceeding as well. efore the filing of an answer,
motions are filed with the Regional Administrator. After the filing of an
answer, motions are filed with the Presiding Officer.
22. 16(c)
TSCA Coapliance/ nforce.ent 7—35 Cuidance Manual 1984
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Chapter Seven — — - Prebearing Stage
Written Motions
All motions made during the proceeding, except those made orally on the
record during a hearing, must:
22.05(a) (2), 22.05(b) (2), 22.16(a)
• Be in writing;
• Specifically state the grounds or basis for the motion;
• Specifically identify the action(s) that the motion seeks;
• Be accompanied by any evidence that is being relied upon by the
movent ( e.g. , affidavits and legal memoranda); and
• Be served upoo the partt.s.
A written motion must also comply with the general filing and service
provisions of Section 22.05 oi the CROF (i.e., it must be properly signed,
accompanied by appropriate certificates of service, and bear an appropriate
docket number).
Because i transcript is required only in a hearing (although a transcript
may be uscd in prehearing conferences at the discretion of the Presiding
fTlcer), most motions made before the hearing will probably have to be in
writing atid conform with the requirements specified by Section 22.16(a) of
the CROP.
22.19(c)
Reply to Motion
A party’s response to any written motion must be filed with the Regional
Hearing Clerk within 10 days after service of such motion, except in the
case of a motion tot a default order, which specifies a 20—day period for
replies. Like ii 1ocuments filed in the proceeding, replies to motions
must bear the docket number and comply with the filing and service
requiremeiit # c ified by Section 22.05 of the CROP.
22.16(b), 22.i,,ii
If a response i , not filed within the time specified by Section 22.07 of
the CROP, any objection to the motion is considered waived, and the motion
may be gr inted without further argument.
22.16(b)
The Administrator, Regional Administrator, and Presiding Officer, as
appropriate, may set a shorter time than 10 days for the response, and may
also permit oral argunent concerning motions.
22.16(b)
TSCA C apliaaceIKnforceaent - 7-36 i iidance Manual 1984
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Chapter Seven Prehearing Stage
Examples of Prehearing Motions
The following types of motions may be made during the prehearing stage of
the proceeding;
• Motion for default for failure to file a timely answer;
22. 17(a)( 1)
• Motion to intervene;
22. 11(a)
• Motion to file amicus curiae brief;
22. 11(d)
• Motion for default for failure to comply with a prehearing order of
the Presiding Officer;
22.17(a)(2)
• Motion for default for failure to appear at a conference or hearing
convened by the Presiding Officer pursuant to Section 22.19 of the
CROP;
22. 17(a)(3)
• Motion for consolidation or severance; and
22.12(a), 22.12(b)
• Motion for postponement of hearing.
22. 21(c)
Default Orders
Default orders may be issued under three circumstances:
• Against the respondent for failure to file a timely answer to the
complaint;
22.17(a)(1)
• Against a complainant er respondent for failure to obey a
prehearing or hearing order that has been issued by the. Presiding
Officer; and
22.17(a)(2)
• Against a complainant or respondent for failure to attend a
conference or hearing without good cause being shown.
22.1 7(a)(3)
Motions for default are made either to the Regional Administrator or
Regional Judicial Officer in the first circumstance, or to the Presiding
Officer in the second and third circumstances.
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Chapter Seven Prehearing Stage
A motion for default may be made by any person who is a party to the
proceeding [ as defined by Section 22.03(a) of the CROP] at the tima the
motion is made. (“Any person” apparently includes intervenors.) In
addition, the Presiding Officer is permitted to issue a default order sue
sponte in the latter two default circumstances.
22. 17(a)
Procedures
The party making a motion for default must include with the motion a
proposed default order (see Exhibit 7—4). The motion for default must be
served on all parties and otherwise conform with the filing and service
requirements specified by Section 22.05 of the CROP.
The alleged defaulting party has 20 days from service of the motion for
default to reply to the motion.
This time period is 10 days longer than that generally specified for
replies to motions (Section 22.16(b) of the CROP).
Default Order as Initial Decision
A default order constitutes an initial decision of the proceeding at the
time that the order is ts8ued by the Presiding Officer (Regional
Administrator or the Regional Judicial Officer, if a timely answer is not
filed). As such, It must:
22. 17(b)
• Contain tindings ot fact, conclusions regarding material issues of
or discretion, and the recommended penalty; and
22. 17(e)
• Be t..leo with the Regional Hearing Clerk.
22.17(b)
The Regional re. ing Clerk must serve copies of the initial decision on all
parites tc t e ptocceding and otherwise comply with Section 22.27 of the
CR01-, rtich a iàresse& transter ot the proceeding’s record to the Hearing
Clerk. The Ot ault order becomes the final order of the Administrator
within 4 d& ys aiter 1t8 Hervice upon the parties unless (1) the default
order is appealed or .Z) the Administrator elects, sue sponte , to review
the default order.
Appeal
A def3ult order may first be appealed by a motion to set aside the default
orQer. Such a motion is made to the Agency official who issued the order.
Any further appeal of the default order must be made directly to the
Administrator pursuant to Section 22.30 of the CROP.
22.17(d), 22.29(a)
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Chapter Seven Prehearing Stage
Consequences of Final Default Order
When the Administrator issues a final order upon default against the
respondent , respondent is subject to the following consequences:
• The respondent has essentially “admitted” to all facts alleged in
the complaint and the right to a hearing is waived; and
• The penalty proposed in the complaint will become due and payable
within 60 days after the final order is issued.
22. 17(a)
The admission of factual allegations and waiver of hearing applies only to
the immediate civil penalty proceeding and doe8 not affect any other
proceedings. In addition, the 60—day period for payment of the penalty
begins only after the Administrator has issued a final order upon default,
not after the Presiding Officer issues the initial default order.
When the Administrator issues a final order upon default against the
complainant , the complaint is dismissed with prejudice. This means that
the complainant cannot reinstitute a civil penalty proceeding that is based
on the allegations contained in the dismissed complaint.
Settlement
EPA encourages settlement of a civil penalty proceeding, if the settlement
is consistent with the provisions and objectives of TSCA and its applicable
regulations.
22. 18(a)
Procedures
A settlement conference can be requested at any time. The parties may
confer on settlement whether or not the respondent has requested a
hearing. Before an answer is filed and a Presiding Officer is appointed,
settlement conferences can he convened by consent of the parties. After a
Presiding Officer has been appointed, settlement conferences are subject to
the jurisdiction of the Presiding Officer who may order a prehearing
conference settlement. As an alternative, the parties may be directed to
correspond with the Presiding Officer concerning settlement.
22.18, 22.19
Consent Agreement and Proposed Consent Order
If a settlement is reached by the parties, they must forward a written
consent agreement (see ExhibIt 7—5) and a proposed consent order to the
Regional Administrator. In addition, they must serve copies of these
documents on the Presiding Officer if one has been appointed. The consent
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Chapter Seven Prebearing Stage
agreement must contain the following information before the Regional
Administrator can approve it
22.18(b)
• The signature of all parties or their representatives in the
proceeding ( e.g. , complainant, respondent, and any intervenors);
• A statement in which the respondent admits that the Agency has
jurisdictional authority to bring the complaint;
• A statement in which the respondent admits facts stipulated in the
consent agreement or neither admits nor denies facts alleged in the
complaint; and
• A statement in which the respondent consents to the assessment of
the stated civil penalty that is reflected in the consent agreement
and proposed consent order.
Also, the consent agreement mus: include any and all terms of the agreement
among the parties. Consequently, any terms to which the parties have
agreed in reaching a settlement must be reflected in the consent agreement
( e.g. , agreement not to pursue criminal penalties, agreement by intervenor
not to pursue private damage remedies, agreement by the respondent to take
actions that minimize the effect of the violation, etc.).
Partial settlement of the proceedings is permitted and, in many cases, is
likely. Settlement agreements and proposed consent orders must be very
carefully drawn and completely understood before signatures are obtained so
that the parties understand precisely what elements of the matter are not
disposed of by the consent agreement and consent order.
The consent agreement becomes final and binding on the parties only after
the Regionai Administrator has signed the consent order. The consent order
disposes of only those elements of the proceeding that are specifically
addressed by that order and the consent agreement.
The proposed consent order must be prepared for the Regional Administra-
tor’s signatore. It need not restate all the terms of the consent agree-
ment, hut it must a: least explicitly incorporate (by reference) the
consent agreement as being the basis for the consent order.
22.18(c)
The Regional Admlnistrator, in deciding whether to issue a final consent
order, may require parties to the settlement to appear in person to answer
questions relating to the proposed consent agreement or order.
Filing of Consent Agreement and Order
The consent agreemeent and the final consent order constitute important
documents that affect the substanttve and procedural rights of the
parties. Consequently, the originals of these documents must be placed in
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Chapter Seven Prebearing Stage
the Regional Hearing Clerk’s file, and copies must he 8erved as required by
Section 22.06 of the CROP.
Settlement With Conditions
In certain circumstances, a settlement in an administrative civil penalty
action may he reached that assesses a civil penalty but provides for the
respondent to undertake remedial performance as a means of remitting all or
part of the assessed penalty. Such a settlement is referred to as a
“settlement with conditions.” The criteria and procedures for using a
settlement with conditions are set forth in Appendix 4.
Prehearing Conference
When a hearing is ordered, the Presiding Officer also convenes a prehearing
conference, unless it appears unnecessary. Prehearing conferences are
intended to facilitate and expedite a hearing proceeding. These
conferences encourage informal, frank discussions among the parties on any
matter that could expedite the hearing. Any anticipated problems should be
discussed at this time. The prehearing conference may involve:
22.19(a)
• Settling the case;
• Attempting to simplify the proceeding through consolidation of
issues and stipulation by the parties;
• Amending the pleadings;
• Exchanging information concerning evidence to be presented ( e.g. ,
identities of expert witnesses and summaries of their testimony and
exchange of exhibits, documents, and prepared testimony);
• Limiting the number of witnesses;
• Setting a time and place for the hearing; and
• Attending to any matter that may expedite the disposition of the
proceeding.
Exchange of Information
The CROP generally require that the parties exchange witness lists, brief
descriptions of witness testimony, and copies of all documents and physical
materials that will be introduced into evidence. This requirement supports
the accepted manner of hearings——one that is forthright and avoids
surprise.
22. 19(b)
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Chapter Seven Prehearing Stage
Failure To Exchange Information
A party must request the permission of the Presiding Officer to introduce a
witness or a document during a hearing if that party did not exchange,
prior to the hearing, the witness lists and documents referred to in
Section 22.19(b) of the CROP. Additionally, if such permission is granted,
the Presiding Officer must first allow other parties a reasonable time to
review the newly introduced evidence.
Protection of Evidence Sources
Certain unusual circumstances may justify not following the policy of early
information exchange. One such example is a reasonable belief that
witnesses might be subject to physicai or economic intimidation. Another
circumstance is a reasonable be 2et that the nature of the documentary or
physical evidence would permit the respon.ient to intimidate witne8ses,
destroy evidence, or otherwtse imprQperly interfere with the enforcement
efforts of the Agency. in suctz situations, the Presiding Officer should be
fully informed of the reasofls for withholding evidence or the identity of a
particular wttueOz3.
Role of Discovery
The CROP state that evidence that is not subject to the mandatory exchange
of witr ess lists a i documents in the prehearing conference, shall be
subject to discovery only upon determination by the Presiding Officer.
This provision is pr mariiy intended to address discovery by deposition.
To obtain such discovery, a party must make a motion for discovery to the
Presiding : fice , which demonstrates that the:
22.19(f)
• Proceeding will not be unreasonably delayed by discovery;
• 1u orns ion ught cannot be obtained through alternative means;
and
• Lt;t,,;n .-; so’. ght is of significant probative value.
If the disc vety :v 1ves oral depositions, then a party must also show
that t. e evldenc .. w ii not be preserved for presentation by a witness.
22. 19(f)(2)
The difference betweEn evidence that is subject to mandatory exchange
requirements aod evidence that may be discovered most be carefully
underslood. It he evidence being sought should normally be exchanged
under Sectio i 22.lc(b) and for some reason is being withheld, then a motion
to the Pr i itng Officer to enforce the requirements of the CROP must be
made, not a motion for discovery.
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Chapter Seven Prehearing Stage
If an order for discovery issued by the Presiding Officer is not obeyed,
the inference may he drawn that revealing the withheld information would
adversely affect the party withholding it. Also, an order for default may
be issued based on a failure to comply with a prehearing or hearing order.
22.19(f)(4), 22.17(a)
An order for discovery is an important document that affects the procedural
rights of the parties. It must, therefore, be included in the Regional
Hearing Clerk’s file, and copies must be served in accordance with
requirements of Section 22.06 of the CROP.
Record of Prehearing Conference
The record of a prehearing conference generally consists of a summary
prepared by the Presiding Officer that incorporates all rulings or orders
containing directions to parties and any written stipulations or agreements
of the parties. Except for those portions of a prehearing conference that
relate to settlements, a transcript of the prehearing conference may be
made. The transcript is ordered by the Presiding Officer upon motion of a
party or sua sponte .
22.19(c)
Settlement conferences, however, are not recorded in order to ensure that
the parties are able to negotiate freely and compromise without fear that
such agreements will he subsequently revealed.
The transcript or written summary of the prehearing conference must be
filed with the Regional Hearing Clerk for inclusion in the Regional Hearing
Clerk’s file.
22.06
If a transcript is taken, motions made during the hearing may be oral.
However, if no transcript is taken, any motions made must he in writing and
must otherwise conform with the requirements of Section 22.16 of the CROP
and the filing, service, and content requirements specified by Section
22.05.
Motion for Accelerated Decision and Dismissal
Motion for Accelerated Decision
The Presid 4 ag Officer may issue an accelerated decision either sua sponte
or upon motion by the respondent or complainant. The accelerated decision
may involve a particular issue or the entire case and may be issued at any
time during the proceeding if the Presiding Officer finds that:
22.20
• No genuine issue of material fact exists between respondent and
complainant; and
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Chapter Seven Prebearing Stage
• The complainant or respondent is entitled to a judgment as a matter
of law.
“Entitled to a judgment as a matter of law” means that the movant has
established by undisputed or undisputahie (not reasonably challenged)
evidence that all technical and legal elements in a violation did occur and
that, consequently, the Presiding Officer must decide a particular issue or
the entire case in the movant’s favor at that time. Because there is
nothing to adjudicate, there is no need for a hearing.
A discussion of all of the relevant precedents and considerations that
apply to a motion for an accelerated decision is not feasible in the space
allowed. However, some general principles can be discussed.
Nature of Motion . A motion for an accelerated decision challenges the
essential position of the other party’s case. The motion asserts that,
under the facts and law of the case, h’- adverse party’s position is
entirely without merit. In this sense, it is not merely a technical
motion——that is, one which aeekB to establish that the manner or form of
the other party’s pleadings is technically insufficient to establish a
defense or a claim. It would not, [ or example, seek to establish that the
respondent’s defense pleadings lack discussion of an essential element of
the defense. Instead, the motion seeks to undermine the adverse party’s
pleadings by demonstrating that, irrespective of those pleadings, the facts
and law of the case require a judgment in favor of the moving party.
Facts . By requiring that no genuine material issue of fact exists between
the parties, the standard for an accelerated decision does not mean that
the parties must agree on all material facts. Instead, the material facts
may be either undisputed, or undisputable, that is, not reasonably
challenged.
Affirmative Defenses . The complainant mu8t demonstrate entitlement to a
judgment an a matter of law. The complainant is required not only to prove
the elements uf tr e violation by undisputed or undisputable evidence, but
also to address any affir native defenses raised by the respondent with
undisputed or undisputable evidence ( e. , an argument that the respondent
relied on A, e r-’ 3ivice in violating i iitcable regulations).
Evidence and Burden, the Presiding Officer will probably rely on
affidavtt8 ano countetaftidavits in reaching a decision on the motion for
an accelerated decision. However, the Presiding Officer may consider any
admissihiL! c viderce, including stipulations, admissions, expert witness
testimony, deposition testimony, and officially noticed evidence.
22. 20(a)
in deciding whether to grant the motion for an accelerated decision, the
Presiding Officer generally gives the party against whom the motion is made
every benefit of the doubt.
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Chapter Seven ____ ___ Prehearing Stage
Motion To Dismiss
In addition to a motion for an accelerated decision, the respondent can
make a motion to dismiss for:
• Failure of the complainant to establish a prima fade case; and
• Other grounds that show that the complainant has no right to
relief. 22.20(a)
To rind useful precedent and argument for these standards, the following
sources may be helpful:
• For the first standard, Rule 41(b) of the Federal Rules of Civil
Procedure (Fed. R. Civ. P.), Involuntary Dismissals , and any
Federal decisions on this rule; and
• For the second standard:
—— Agency decisions——In which TSCA standards for an accelerated
decision were applied——that relate to failure to state adequate
claim or in which the result was required by justice, and
—— Federal decisions [ involving Fed. R. Civ. P. 12(b), which
relates 10 motions to dismiss] that were based on lack of
jurisdiction, insufficient process, or failure to state a claim
upon which relief can be granted.
Partial Decision
A decision that grants a motion for an accelerated decision or a motion to
dismiss need not dispose of all issues in the proceeding. If such a
partial order Is Issued, the Presiding Officer must also determine which
issues remain in controversy between the parties. To do so, the Presiding
Officer must issue an interlocutory order that specifies the issues
disposed of by the accelerated decision or dismissal order and those issues
that remain in controversy.
22.20(b)(2)
Initial Decision
If an accelerated decision or dismissal order is issued that disposes of
all issues in the proceeding, such a decision or order Is treated as an
Initial decision and, therefore, may be appealed to the Administrator under
Sect ion 22.30 o t lie ROP.
22.20(b)(l)
If a partial decision is rendered, the objecting party, before appealing,
must await the Issuance of a final initial decision or obtain certification
to appeal an interlocutory decision.
22.20(b)(2), 22.29
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Chapter Seven Prehearing Stage
An initial decision must comply with the requirements o Section 22.27(a)
on content, filing, service, and transfer requirements.
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Chapter Seven
5 Hearing Stage
The Presiding Officer convenes a hearing on request by the respondent or,
if appropriate, sua sponte——if the matter has not yet been disposed of by a
default order, accelerated decision, dismissal order, or consent order.
The Chief Administrative Law Judge appoints a Presiding Officer as soon as
the respondent files an answer.
22.21
Notice of Hearing and Venue
If the respondent requests a hearing or if a hearing is ordered by the
Presiding Officer, the Presiding Officer must issue to all parties a notice
of hearing, which identifies the time, date, and place for the hearing.
Such notice must be issued at least 20 days before the date set for the
hearing. 22.21(b) The hearing may be held:
• in the county where the respondent resides or conducts the business
for which the hearing concerns;
• in the city in which the relevant EPA Regional Office is located;
or
• in Washington, D.C.
However, the Presiding Officer may determine that there is good cause to
hold the hearing either at another location In a Region or by telephone.
22.21(d), 22.19(d)
Any party may make a motion for postponement of the hearing but the moverit
must demonstrate good cause for the request.
22. 21(c)
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Chapter Seven Bearing Stage
Presentation of Evidence
As is true for all Agency administrative proceedings, the complainant is
the first to present evidence. The complainant must establish a prima
fade case; that is, the complainant must submit evidence that the events
alleged in the complaint did occur, that the events constitute a violation
of the Act, and that the proposed civil penalty is appropriate. After the
complainant has established a prima fade case, the respondent must then
present any defense to the allegations that are contained in the complaint
and any affirmative defenses that are raised by the answer.
22.24
“Burden of Presentation” and “Burden o: rersuaoion” art USed in the CROP to
describe the burden of proof that is placed on the parties ifl the hearing.
22.24 The definitions are as follows:
• Burden of Presentation buc of Going Forward With the
Evidence)—--.A party must introduce evidence on the claims or
defon6es raised tr the complaint or answer.
• Burden of Persuasion——Each party must convince the Presiding
Officer of the affirmative allegations in his or her pleading.
The complainant is alleging that a violation has in fact occurred and,
therefore, has the burden of presentation. The complainant also has the
burden of persuasion. Once the complainant has established a prima fade
case, the burden of presentation shifts to the respondent, who must then
introduce sufficient evidence to rebut or outweigh the evidence presented
by the compJ ..in nt. The burden of persuasion never shifts, but remains
with the cou .plainsnt throughout the proceeding; that is, the complainant
always has me obligation of convincing the Presiding Officer, by a
preponderance ot the evidence, of the allegations contained in the
complal nt.
The respondent tia the burden of persuasion with respect to any affirmative
detenses rd s” ir. the answer——for example, a reliance argument based
on Agency athrlce. Tht Burden of Presentation initially rests with the
respondt’iil out ifts, once the respondent has introduced sufficient
evidc . e ts) s ; urt a lavorahie finding.
Preponderance of Evidence
Each matter that is contested in the hearing and which must be adjudicated
to decide the case is determined by the Presiding Officer on the basis of a
preponderance of trie evidence. To prevail, a party must convince the
Presiding Officer that, on balance, his or her allegations appear more
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Chapter Seven Hearing Stage
likely or probable than the other party’s allegations. This standard, is
different from a criminal standard, which requires a decision based on
“evidence beyond a reasonable doubt” or “evidence excluding a reasonable
doubt.”
22.24
Default Orders and Accelerated Decisions
During the hearing, the complainant should keep in mind that a motion for
default order (except one based on failure to file a timely answer) or a
motion for an accelerated decision may be appropriate despite the advanced
stage of the proceeding.
Rearing Rules of Evidence
Under the CROP, the Presiding Officer must admit evidence unless it falls
in one of the following categories:
• Irrelevant;
• In naterial;
• Unduly repetitious;
• Unreliable; and
• Of little probative value.
22.2(a)
When in doubt, the Presiding Officer will most likely admit, not exclude,
evidence.
Confidential Information
The CROP state that, from the outset, confidential information can be
introduced as 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 arising out of that portion of the evidence that is confidential
or includes trade secrets.
22.22(a)
Unless otherwise permitted by the Presiding Officer, such a supplemental
decision, if issued before the final initial decision, is to be treated
like a partial decision and is not appealable until the final initial
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Chapter Seven Hearing Stage
decision is issued or certification to appeal an interlocutory decision is
obtained.
22. 29(a)
For confidential commercial information, the complainant should be aware
that 5 U.S.C. §1901 prohibits the disclosure of such information by a
government official. ( See also , Chapter Eleven.)
Materiality and Relevancy
Two standards described in the CROP concern materiality and relevancy.
Materiality and relevancy are legal terms of art, and previous cases should
he consulted to determine how these ‘erms have been treated by the Agency.
Federal case law should also be consulted.
22 .22(a)
• Materialiçy . Material icence is evidence that is pertinent to or
has a Iegitimar and effective bearing on the case. For example,
the evidence relating to the status of an officer within a
corporation may be material to proving that he or she knowingly
violated TSCA by manufacturing a certain chemical substance. The
officer’s status within the local church, however, is not likely to
be material.
• Relevancy . Evidence that is material may or may not be relevant.
Relevant evidence is evidence that has a tendency to make a fact in
138ue more probable or less probable. The emphasis here is on the
probative value of the evidence. The probative value of offered
evi i oce must be assessed in light of the facts in issue. For
exa le, to prove that a reporting violation has occurred, evidence
detnons rsting that a particular EPA report was prepared but not
se’ t would surely be relevant. In contrast, evidence that the firm
ge eri iy tailed to maintain good business records might still be
considered materLil hut is less likely to be considered relevant or
probative.
A1thou h it r1ali tv and relevancy have technical distinctions, in general,
both t. iJ rds c e viewed in terms of probative value of evidence. If
an tem ot v CnC ’: has probative value t’, the issue for which it is
Introduced (I.e., t ds to prove or disprove a particular proposition),
then both crI ’er1. a-e satisfied.
Evidence Relating to Settlement
Any evidence r. iat1ug to settlement that would be excluded under Rule 408
of the Federal Rt iec of Evidence (Fed. R. Evid.) is also excluded under
the CROP. Ru. e O8 of the Fed. R. Evid. generally excludes evidence of
settlement or attempted settlement when it is offered as proof of an
admission of liability. This evidence, however, may be admitted for
another purpose, such as proving bias of a witness or disproving a
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Chapter Seven Hearing Stage
contention of undue delay. When such evidence is offered for these
purposes, it may still be excluded if the Presiding Ofticer determines that
its probative value is outweighed by confusion of issues, undue delay, etc.
Testimony of Witnesses
Witnesses are generally examined orally upon oath or affirmation. The
Presiding Officer, however, may allow certain exceptions to this rule
( e.g. , an affidavit from a dying witness). Any witness appearing at the
hearing may be cross—examined if the cross—examination is not unduly
repetitious.
22.22(b), 22.22(d)
Verified Statements in Lieu of Direct Testimony
In lieu of direct testimony, a party may desire that a witness admit into
the record previously prepared statements of fact or opinion. Such a
request may be appropriate when the testimony is technical or academic and
does not lend itself to a clear, cohesive presentation through direct
questions. This type of evidence can be admitted only upon the approval of
the Presiding Officer.
A copy of the written statement must he submitted to the Presiding Officer,
reporter, and opposing counsel before it is delivered. The evidence
contained in the statement is subject to the same rules of testimonial
evidence that apply to oral testimony ( e.g. , the witness must swear to or
affirm the statement and is subject to oral cross—examination concerning
the statement).
22.22(c)
Affidavits in Lieu of Direct Testimony
When a witness is “unavailable,” as defined by Rule 804(a) of the Fed. R.
Evid., an affidavit may be admitted into evidence in lieu of oral
testimony. Under Rule 804(a), witnesses are deemed unavailable if they are
exempt by a court order, refuse to testify in spite of a court order, claim
lack of memory, ar dying or physically impaired, or are absent despite
efforts to secure their attendance.
22.22(d)
Exhibits and Physical Evidence
If exhibits are introduced, the original and one copy must be filed with
the Presiding Officer where practicable. A true copy of any exhibit may be
substituted for the original if submitting the original is not possible.
Copies must also be furnished to each party.
22.22(e)
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Chapter Seven Hearing Stage
Official Notice
The Presiding Officer may take official notice of any matter judicially
noticed in the federal courts, of matters permitted under Rule 201 of the
Fed. R. Evid., and of other facts that are within the specialized knowledge
and experience of the Agency. Official notice may be sua sponte or upon
motion by one of the parties.
22.22(f)
Official notice under Rule 201 of the Fed. R. Evid. is limited to adjudica-
tive facts that are not subject to reasonable dispute and that are:
• Generally known within the territorial jurisdiction of the
proceeding; or
• Capable of accurate and ready determination.
“Adjudicative facts’ dlrecrly concern the immediate parties in the
proceeding——who did what, when, whert, how, and with what motive or
intent. These facts relatt to the occurrence(s) alleged by the pleadings,
which must adjudicRted to decide the case.
The offital notice that the Presiding Officer may employ as a result of
the spec 11 expertise of the Agency is broader than that permitted by Rule
201 of the Fed. R. Evid. Consequently, official notice extends to all
matters about which the Agency is presumed expert. For example, the
experience and knowledge of the Agency in an environmental area might
justify official notice that, statistically, a physical event always occurs
under a certain set ot environmental circumstances.
Subpoenas anl Summoning Witnesses
issuance ot Suhpoeflas
The Fres t ‘ ff1cer may i8sUe a subpoena to require the attendance of
witness. s & i production of documentary evidence. The Presiding Officer
may al gi n1 a r€quest tot a subpoena upon a showing by the movent of:
• The groundt . nd necessity of the evidence or witness; and
• The materiality and relevancy of the evidence or witness 8ought.
22.33(b)( 1)
In addition, a request for the 9roduction of documents must describe the
evidence sought s specifically as practicable.
22. 3(b)( 1)
Subpoenas are served in accordance with Section 22.05(b)(1) of the CROP.
22.33(b)(2)
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ç p ter_Seven__ Hearing Stage
Witness Fees
Witnesses summoned by subpoena before the Presiding Officer are to be paid
the same fees and mileage that are paid witnesses in the courts of the
United States. The fees are to paid by the party who requested the
witness’s appearance. if, however, the witness appears pursuant to a
request initiated by the Presiding Officer, then the fees are to be paid by
the Agency.
22 .33(b) (3 )
ObJectlons and Rulfn s
Objections about the conduct of the hearing, such as videntiary and
proc. dural oh ect ions, may be stated orally or in writing. The form of the
objection depends on the circumstances. In general, however, if the
objection involves a relatively complicated argument and if time permits,
it should be written. It it is written, it must comply with the service,
filin:. , and content requirements specified by Section 22.05 of the CROP.
22.23(e)
Ru1in s and Exceptions to Rulings
The Presiding Officer must rule on all objections and provide reasons for
the rulings, which will become part of the record. Copies of the ruling
must he served on the parties by the Presiding Officer and the original
entered into the Regional Hearing Clerk’s file in accordance with Section
22.06 of the CROP. The CROP also state that to take specific exception to
each overruled objectIon is not necessary. The exception to an overruled
objection is automatic and i’ not waived by further participation in the
hearing.
22.23(a)
Appeal of Ruling
A ruling on an objection is not subject to an automatic interlocutory
appeal to the Administrator. A party wishing to appeal the ruling
immediately, must make a motion in writing within gix days of notice of the
ruling to the Presiding Officer to certify such a ruling to the
Administrator. (See also, “Appeals of Interlocutory Orders or Rulings” in
this section.)
unlike other sot ions m .ide during a hearing, a request for certification may
not he made or iI1v, but must be in writing.
22.29(a)
TSCA Co.pliance/Enforceaent 7-53 Guidance Manual 1984
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Chapter Seven Hearing Stage
Offers of Proof
If evidence i8 found to be immaterial, irrelevant, etc. and cannot be
introduced, the party seeking to introduce it may not only object to its
exclusion, but may also make an offer of proof. An offer of proof places
the evidence into the official record, and the Administrator on appeal can
use such evidence to reopen the hearing. This offer consists of:
• One copy of the documentary or physical evidence; or
• A brief written summary, If the evidence is testamentary.
Such offers of proof are not mandatory, and the right to appeal the
exclusion of evidence is preserved under Section 22.23(a). Nonetheless,
offers of proof should generally be m ’ whenever evidence Is excluded.
22.23(b)
Transcript of Hearlng
A hearing must be transcribed verbatim, and the reporter must send the
original and copies of the transcript to the Regional Hearing Clerk for
filing. A copy must also be sent to the Presiding Officer. The Regional
Hearing clerk must notify all parties of the availability of the transcript
and permit them to obtain a copy upon payment of a reproduction fee.
Payment may he waived if a party can show that the cost is unduly
burdensome. A certificate of service should accompany each copy of the
transcrIpt Persons not a party to the proceeding may receive a copy of
the transcrtp! (except for confidential portions of the transcript) upon
payment ; f a reproduction fee.
22.25
The transcript of the hearing is an important document because:
• M ,’.v ( jCCt1Ofl8 and motions made during the hearing are oral and
re thus reiiected ooly in the transcript; and
• PH’ rai1 :r pt is used by the parties to draft the proposed
[ ndi’ s of fact, conclusions of law, and orders, which are then
uhinItted to the Presiding Officer for consideration in issuing the
initial deciSIon.
TSC& 0.pliance/Enforce.ent 7-54 Guidance Manual 1984
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Chapter Seven Hearing Stage
Proposed Findings, Conclusions, and Orders
At the conclusion of the hearing, parties may submit proposed findings of
fact, conclusions of law, and orders to the Presiding Officer for
consideration in issuing the initial decision.
The purpose of the proposals and supporting briefs is to advocate positions
of the submitting party and to persuade the Presiding Officer to adopt that
party’s proposals.
Procedures
The proposed findings of fact, conclusions of law, and orders, together
with supporting briefs, may be submitted to the Presiding Officer for
consideration within 20 days of notice of the transcript’s availability.
The proposals and briefs must be served on the other parties. Although the
Presiding Officer must permit reply briefs, the timing of such briefs can
be specified. The proposals and all briefs must be in writing and must
contain adequate references to the record and authorities relied on.
22.26
Preparation
In preparing the proposals, the focus should he on issues that the
Presiding Officer must address in the initial decision.
The importance of the proposals and briefs cannot he overemphasized.
Through these materials, the position of the submitting party can be
detailed, and the Presiding Officer can view in depth the merits of the
party’s position.
Initial Decision
The Presiding Officer must issue an initial decision as soon as is
“practicable” after the period specified for filing reply briefs to the
proposed findings, conclusions of law, and orders.
The initial decision should contain the Presiding Officer’s:
• Findings of fact and conclusions for all material issues of law or
discretion;
• Reasons for those findings and conclusions;
• Recommended civil penalty; and
• Proposed final order.
TSCA Co p1iance/ nforceaent 7—55 Guidance Manual 1984
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Chapter Seven Hearing Stage
In determining the dot ar amoont of the recommended clvi I penalty asseRRed
lii thr’ liii t isi ilet ha Icti) • t hi ’ h’røs hhluM Oil hn mis ( . ii,ij4 r jt- hi
i the criteria II uied In Secttoii Ib(a)(2)t.ti) ut TSCA, any evidence of good
faith or lack thereof.
The Presiding Officer must also consider the guidelines for the assessment
of civil penalties under TSCA [ 45 Fed. Reg. 59,770 (1980)].
22.35(c)
Specific reasons must be set forth in the initial decision if the Presiding
Officer increases or decreases the amount of penalty from that originally
assessed in the complaint. The Presiding Officer, however, cannot increase
the amount of penalty from that which was recommended in the complaint if
the respondent has defaulted.
Challenge to Initial Decision
The initial decision h comis f r. l order within 45 days after it is
served unless:
• A ç’arty files a motion to reopen the hearing, which stops the
45—day period until the motion is denied or the reopened hearing Is
concluded; or
22.28
• A party makes an appeal to the Administrator, or the Administrator
determines sua sponte that a review of the initial decision is
appropriate.
22.27
Motion To Recp’ n a Heartn
If a party beLi ve that additional evidence should be introduced into the
record, that p.- rty may make a motion to reopen the hearing. Such a motion
must he made later than 2() days after service of the initial decision on
the partlec. The motion to reopen the hearing must state the specific
grounds upon relief is soight, state the nature and purpose of the
evide’tce to be add ed, and show that the evidence is not merely
cumulattv . The pa tv must also demonstrate why the evidence was not
introduced at the he r1ng. The motion muSt be written and must comply with
the requirements spe ified for such motions and the filing, service, and
content requirements for submitting documents.
22.28(a)
TSCA Co.pliance/Enforce.ent 7-56 CuidAnce Manual 1984
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Chapter Seven Hearing Stage
Replies from other parties must he made within 10 days after the motion is
served. The Presiding Officer must render a decision on the motion as soon
as is practicable after the filing of replies.
22.28(b)
Filing a motion to reopen a hearing shall automatically stay the running of
all time periods ( e.g. , appeals) until such time as the motion is denied or
the reopened hearing is concluded.
22.28(b)
Appeals of Interlocutory Orders or Rulings
Immediately Appealable Orders
The only orders or rulings that may be appealed to the Administrator as a
matter of right are:
• Accelerated decisions that decide the entire case;
22.20, 22.29
• Dismissal orders;
22.20, 22.29
• Default orders; and
22.17, 22.29
• Initial decisions rendered after an evidentiary hearing.
22.27, 22.29
All other orders or rulings issued by an Agency official during the
prehearirig and hearing proceedings are considered interlocutory. As such,
they must await the issuance of an initial decision before they can be
appealed, unless the Agency official issuing such orders or rulings
certifies them to the Administrator on appeal.
22.29
Procedurea and Standards for Interlocutory Orders
A motion for interlocutory appeal of an order or ruling must be filed in
writing within six days of notice of such ruling or order.
22.29
besides stating the grounds for appeal, the moving party must demonstrate,
to the appropriate Agency official, that:
• The order or ruling involves important legal or policy issues
concerning which there is substantial grounds for difference of
opinion; and
TSC& Cii plianceIEntorcewieot 7-57 Guidance Manual 1984
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Chapter Seven -- ___ - -
• Immediate nppeal wilL materially advance the proceeding or that
waiting for normal review will be ineffective or inadequate.
22. 29(b)
The motion must also comply with requirements for filing, service, and
content requirements specif ted in the CROP.
If the Presiding Officer does not certify the interlocutory appeal, a party
may make a motion to the Administrator within six days of service to
reverse that decision on the grounds that it is contrary to the public
interest. This motion must also comply with the requirements of Section
22.16 and 22.05 of the CROP, except that the appropriate Agency officials
receiving the motion are the Regional Hearing Clerk and the Administrator.
22. 29(c)
Actions by the Administrator
If the Presiding OttLcer certt:ies t interlocutory appeal, the
Administrator may:
22. 29(c)
• Deny the certification as improvidently granted;
• Take no action within 30 days and thereby dismiss the
certification; or
• Grant the certification, review the interlocutory appeal, and grant
or deny the appeal on its merits.
Ordinarily, the interlocutory appeal will be decided on the basis of the
submissiorta made by the Presiding Officer. The Administrator may, however,
allow turther briefs and oral argument.
22. 29(c)
Request for Stay
The t tton t nt r1ocutory appeal may include a request for stay of the
proceeiing peuding m c Administrator’s decision on the certification and
inN’r]r)cutor ppeaI. The request muSt demonstrate that extraordinary
circumstances exist to justity granting the stay. If the Presiding Officer
grants a request for stay of over 30 days, it must be separately approved
by the Administrator.
22.29(d)
TSCA Co*pliancelXnforce.ent 7—58 Cuid*nce Manual 1984
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Chapter Seven Exhibit 7-4
Saaple Default Order
UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY
REGION III
6TH AND WALNUT STREETS
PHILADELPHIA, PENNSYLVANIA 19106
In re: ) Docket No. TSCA—111H83-4
)
W. G. Neudecker and Sons )
1215 Madison Avenue, N.E. )
Washington, D.C. 20019 ) DEFAULT ORDER
)
Re spondent
Preliminary_Statement
This civil proceeding for the assessment of a penalty was initiated
pursuant to Section 1 6(a) of the Toxic Substances Control Act, 15 U.S.C.
§2601 et seq. (hereinafter referred to as TSCA). Respondent is charged
with violating Sections 15(l)(C) and 15(3)(A) of TSCA by respondent’s
failure to maintain PCB storage records as required by a rule 140 C.F.R.
§761.80(b)] promulgated pursuant to Section 6(e) of TSCA. It is hereby
determined that an appropriate default order shall be issued based on
the findings of fact and conclusions of law that are set forth below.
Findings of Fact
1. Respondent’s facility, located at 1215 Madison Avenue, N.E.,
Washington, D.C., contained 22 barrels of waste oil that were marked
with PCB ML labels and which were stored for disposal.
2. Respondent failed to maintain records relating to the storage of
those PCBs.
3. On July 16, 1983, the Enforcement Division, United States Environ-
mental Protection Agency, Region III (the complainant), issued a
complaint and notice of opportunity for hearing to respondent,
pursuant to Section 16(a) of TSCA. The complaint alleged that
respondent had violated Sections 15(1)(C) and 15(3)(A) of TSCA
by respondent’s failure to maintain PCB storage records as required
by 40 C.F.R. §761.80(b). (A copy of the complaint is enclosed as
Attachment A.)
4. In the complaint, a civil penalty of $1,000 was proposed against
respondent. The penalty was assessed based upon the factors
contained in Section 16(a)( 2 )(8) of TSCA and the “Guidelines for the
L
TSC& Co.pliancelEnforceaeut 7-59 Guidance Manual 1984
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p Seven - - -- Exhibit 7-4
Assessment of Civil Penalties Under Section 16 of TSCA; PCB Penalty
Policy” [ 45 Fed. Reg. 59,770 (1980)], a copy of which was attached
to the complaint.
5. The complaint in the instant case set forth respondent’s right to
request a hearing within twenty (20) days of receipt of the
complaint, the requirement of a written answer to the complaint,
and the consequences of failure to answer the complaint.
Furthermore, a copy of the Consolidated Rules of Practice (CROP),
40 C.F.R. §22.01 et seq., wag enclosed with the complaint.
6. Said complaint was mailed to respondent on July 16, 1983, via
certified mail. Receipt No. 202684 was returned to complainant,
stamped July 17, 1983, and bearing the signature “Betty Wilson” as
signer for the addressee. (Copy enclosed as Attachment B.)
7. As of this date, respondent has tHited either to respond to the
complaint, request a formal hearing, or file an answer ti the
complaint pursuant to the of.
Conclusions of Law
1. By reason of the facts as set out in the findings of fact,
respondent violated Sections 15(l)(C) and 15(3)(A) of TSCA by
respondent’s failure to maintain PCB storage records as required by
40 C.F.R. §76i.80(b), which was promulgated pursuant to Section 6(e)
of TSCA.
2. By fafting to file a timely answer to the complaint and to request a
formal hearing, respondent has admitted the facts alleged in the
corn?L IInt and has waived its right to a hearing. Accordingly,
re ,pondent is in default and the proposed civil penalty is therefore
due and payable. [ CROP, 40 C.P.R. §22.17]
3. it is further concluded that the amount of the proposed penalty is
appropriate pursuant to Section 16(a)(2)(B) of TSCA.
Order
Respondent bfl8il within atxty (60) days of receipt of this default order
pay by cashier’s or certified check a civil penalty in the amount of one
thousand dollars ( l,OO0) to the Treasurer, United States of America.
Such remittance may be sent by messenger or certified maiL to the
Hearing Clerk, U.S. Environmental Protection Agency, Region III, Curtis
Bul1d ng, 6th & Walnut Streets, Philadelphia, Pa. 19106. In the event of
failure 1r res 1 ondertt to make said payment within sixty (60) days of
receipt t this default order, the matter shall, be referred to the United
States Attoruey for the District of Columbia pursuant to Section 16(a)( 4 )
of TSCA [ 15 U.S.C. §2615(a)( 4 )] for recovery by appropriate action in
United States District Court.
TSCA Co.pliance/Enforceen t 7-60 Cu ida.nce Manual 1984
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Chapter Seven htbtt 7-
AND NOW, THIS DAY OF tober 4, 1983 the foregoing order is hereby
Issued under the authority of the Toxic Substances Control Act and the
Consolidated Rules of Practice adopted pursuant thereto.
Regional Administrator
TSCA Coapliance/Enforceaent 7—61 Guidance Manual 1984
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Chapter Seven R’ihlbjt 7—5
Model Consent Agreeaent and Final Order
UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY
REGION I
JOHN F. KENNEDY FEDERAL BUILDING
BOSTON, MASSACHUSETTS 02203
in re: )
) Docket No. TSCA—I--83--5
Firetog Industries, Inc. )
36 Sunshtne Drive ) CONSENT AGREEMENT
Clark, MA 02856 ) AND
) FINAL ORDER
Respondent )
Preliminary Statement
1. ThIs civil proceeding for the assessment of a penalty was initiated
pursua t to Section 16(a) of the Toxic Substances Control Act) 15 U.S.C.
2615 tt seq . (hereinafter TSCA). The action was instituted by a
complaint and notice of opportunity for hearing, filed upon
respondent pursuant to TSCA, charging violations of ( cite specific
sections of the Act)
2. Respondent filed an answer admitting the jurisdictional allegations
of the complaint, admits — — (facts admitted )
and explafn (neither admits nor denies) ( facts explained )
3. Respondent h rehy explicitly waives the right to request a hearing on
any issue consented tr) herein.
4. Respondent consents to the issuance of the order hereinafter recited,
with ttc s i ulattons and admission of facts and conclusions of law for
the pr ’ ;cs of this proceeding only. Respondent consents to the payment
of a civil ji ena1ty of the amount set out in the order.
Findings of Fact
(The “Findings ot Fact” section shall state with particularity all
findiflgs of fact with respect to each material allegation noted in the
complaint.
Conclusions of Law
By reason of the Eacts set forth in the “Findings of Fact,” it is
concluded that respondent has violated Section(s) ____ of TSCA.
TSCA Qipliance/&iforce.ent 7-62 Guidance Manual 1984
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Chapter Seven xh1bit 7—5
Respondent hereby consents to the is8uance of the following order. The
(title of the Regional Office) EPA Region ______ hereby recommends that
the Regional Mministrator issue the following order:
Order
Respondent shall, wi.thin sixty (60) days of receipt of this consent
agreement and final order, pay by cashier’s or certified check a civil
penalty in the amount of ( $ ) dollars, payable to the
Treasurer, United States of America. Such payment shall be remitted
to the Hearing Clerk, EPA Region ______, ( address) . Failure to
remit such payment will result in the referral of this matter to the
United States Attorneys Office for collection pursuant to Section
16(a)(4) of TSCA.
[ Alternative Order I
Based on a finding that the payment of any or all of the penalty herein—
before addressed would materially affect respondent’s ability to continue
in business, respondent, having duly stipulated to the violations as
charged, is excused from payment in accordance with the terms of Section
16(a)(2)(B) of TSCA.
( Signature of respondent)
( Signature of complainant )
Date: _____________At:______________
It is so ordered. This order shall become effective immediately.
( Signature of Regional Administrator )
Regional Administrator, EPA Region —
( Title )
EPA Region
Date: At:______________
TSCA Coapliance/Enforce.ent 7-63 Guidance Manual 1984
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Chapter Seven R h4bjt8
TSCA CouipliancefEnforce.ent 7-64 Guidance Manual 1984
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Chapter Seven
6 Post-Hearing Stage
Appeal of Initial Decision _____ __________
Jurisdiction of Administrator
The Administrator assumes full jurisdiction of the case immediately after
the Presiding Officer issues an initial decision. The Administrator
assumes jurisdiction regardless of whether or not a party appeals the
initial decision. If, however, a parry files a motion to reopen a hearing,
the Presiding Officer may rule on that motion.
22. 27 (c)
Once the initial decision is issued, the Regional Hearing Clerk’s file,
which now includes the original initial decision, is forwarded to the
Hear rig Clerk. Consequently, the appellant must send any notice of appeal
and iccompanyfng appellate brief to the Hearing Clerk. A motion to reopen
a he;iring, however, is to be filed with the Regional Hearing Clerk.
2 2.27(a), 22.30(a)
Not i. e of Appeal and Appellate grief
The notice of appeal and appellate brief must comply with the general
fiIiti ;, service, and form requirements of the CROP where appropriate. The
notice of appeal and the appellate brief must be filed with the Hearing
Clerk within 2U days after the Initial decision is served on the parties.
22. 30(a) ( 1)
The notice of appeal must address the disputed findings of fact and
conclusions of law contained in the initial decision. Specifically, it
must contain:
• Alternative findings of fact;
• Alternative conclusions regarding issues of law or discretion;
• A proposed order that reflects the conclusions and findings desired
by the appellant; and
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Chapter Seven PoBt—Hearing Stage
• Relevant references to the record and the initial decision.
22. 30(a) ( 1)
The appellate brief is intended to present the appellant’s arguments as to
why the appeal should be granted. As such, it must include:
• A statement of issues presented for review;
• A statement of the nature of the case;
• Identification of the facts that are relevant to the issues
presented for review;
• Specific arguments on the issues presented;
• A short conclusion that include8 the precise relief being sought;
an C
• Appropriate references to the record and the initial decision.
Party’s Reply
Any other party or amicus curiae may file a reply brief with the Hearing
Clerk within 1 days of service of a notice of appeal and appellate brief.
The repl brief is specifically intended to address only the appellate
brief and should be so limited. Therefore, it should respond to the
argument raised by t1i appellant, together with references to the relevant
portions of the record, initial decision, or appellate brief. The reply
brief oust also comply with service, filing, and content requirements
specified by the CROP.
22. 30( a) (2 )
Adrnini trator ‘ Actions
Even if the [ nftt.il decision Is not formally appealed, the Administrator
may determ’n ’-’ nonte that a review of the initial decision is
necess; rv. 1 Adti iistrator, however, has only 45 days after service of
the initial i 1lon to ‘review the initial decision sua 8ponte . Otherwise,
the Intttal d. s n of the Presiding Officer becomes the final order of
the Adn1n1 trat ,or. 22.27(c), 22.30(b) If the Administrator determines to
review the initial decLsion sua sponte , the Hearing Clerk shall serve
notice of ‘ ucl Intention upon the parties. The notice will include a
statement of issues to be briefed by the parties and a time schedule for
the service and fi [ ing of briefs.
22.30(b)
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Chapter Seven Post—ilearing Stage
Scope of Review
The appeal of the initial decision must concern only those issues raised by
the parties in the previous proceeding.
22.30(c)
Oral Argument on Appeal
Oral argument on appeal is not automatic and may be granted only if a party
makes a request to the Administrator or the Administrator orders it sua
sponte . in assigning a time and place for oral argument, the Administrator
must consider the convenience of the parties. There are no standards
specified in the CROP for deciding whether oral argument should be heard.
22. 30(d)
Final Order
Timin& and Content
The Administrator is required to issue a final order as soon as is
practicable after the final action of the appeal process——either after
filing of appellate briefs, filing of subsequent briefs it ordered by the
Administrator, or oral argument, whichever occurs last.
22.31
The Administrator may, in the final order:
• Adopt, modify, or set aside all or some of the findings and
conclusions contained in the initial decision or order; and
• Increase or decrease the recommended penalty unless the initial
decision is a default order (in which case the Administrator may
not increase the recommended penalty).
The CKOP requires the final order to contain the reasons for any decision
that the Administrator makes.
Motion To Reconsider and Stay Request
A party may file a motion to reconsider a final order within 10 days after
service of the final order. A motion to reconsider must set forth the
matters claimed to have been erroneously decided and the nature of the
alleged errors. The motion may also include a request that the final order
he stayed pending a resolution of the motion to reconsider. Unless such a
request for stay is granted, however, the effective date of the final order
is the date on which it was issued, unless otherwise ordered by the
Administrator.
22.32
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Chapter Seven Post—Uearing Stage
Appeal From Final Order
A party may appeal the findings of the final order to a United States court
of appeal8 pursuant to the provisions of Section 16(a)(3) of TSCA. The
obligation to pay the civil penalty doe8 not become due until the party has
exhausted all appeals.
Payment of Penalty
The payment of the civil penalty specified in a final order of the
Administrator is due and payable In full within 60 days after the respon-
dent receives the final order, unless otherwise agreed by the parties.
22. 31(b)
TSCA Oomp1Iance1 nforce.ent 7-68 Guidance Manual 1984
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Chapter Eight
Judicial Enforcement: Civil Actions
Chapter Contents Page —
I Introduction a—i
Statutory Authority 8—1
2 Elements of a Violation: Civil 8—5
Evidence in Support of Civil Actions 8—5
Use of Expert Vitnesses 8—7
3 Procedures for Filing Actions 8—9
Exhibit 8—1: Model Civil Litigation Report
Outline and Guide 8—12
4 Injunctive Actions 8—21
Section 5(e) Injunctions 8—21
Section 5(f) Injunctions 8—23
Section 7 Injunctions 8—24
Section 1 7 (a) Injunctions 8—25
Procedures for Seeking Injunctive Relief 8—27
Court Actions on Motions for Injunctive Relief 8—31
Exhibit 8—2: Model Motion for Temporary
Restraining Order S-33
Exhibit 8—3: Model Motion for Preliminary Injunction 8—34
Exhibit 8—4: Model Affidavit in Support of Motion
for Preliminary injunction 8—35
Exhibit 8—5: Model Motion for Permanent Injunction 8—36
TSCA Cowpliance/Enforceinent 3-1 Guidance Manual 1984
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Chapter Eight Contents
5 In Rem (Seizure) Actions
Sect .on 7 in Retn Actioas
Section 17(b) In Rem Actions
Procedures for Initiating an In Rem Action 8—39
Compliance With a Seizure Order 8—39
Exhibit 8—6: Model Complaint In p 840
6 Settlement Agreements 8—43
TSCA Cotip1iance/Enforce eflt i Guidance Manual 1984
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Chapter Eight
1 Introduction
Under TSCA, regulatory remedies are initially and primarily ha idled through
the use of administrative actions. However, in those instances where EPA
is unable to obtain compliance through the use of administrative actions or
in those cases involving imminently hazardous chemical substances or
mixtures, the Act authorizes EPA to seek relief through civil court
injunctive and In rem (seizure) proceedings.
An injunction is a writ issued by a court forbidding or commanding a person
to perform a particular act. Injunctions involve the equity power of the
federal courts and are generally viewed as an extraordinary form of
relief. Consequently, they are not readily granted and a party seeking
Injunctive relief has a heavy burden in demonstrating the need for such
action.
In rem (seizure) proceedings signify acts against things rather than
individuals. Therefore, a proceeding “in rem’ is one taken against
property and has for its object the disposition of the property.
Statutory Authority
The use of TSCA judicial civil actions is authorized by th following
sections of the Act.
Section 5(e ) authorizes the use of injunctive actions to prohibit or limit
the manufacture, processing, distribution in commerce, use, or disposal of
a chemical substance that is subject to the notification requirement of
Section 5 and for which there is insufficient information to permit a
reasoned evfluatlon of the human health and environmental effects of the
substance, if the Administrator determines that:
• In the absence of such information, the manufacture, processing,
distribution in commerce, use, or disposal of the chemical
substance may present an unreasonable risk of injury to human
health or the environment; or
TSCA Co.p1iance/Enforce ent 8—i Guidance Manual 1984
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Chapter Eight Introduction
• The chemical substance is or will be produced in substantial
quantities, and such substance either enters or may reasonably be
anticipated to enter the environment in substantial quantities or
there is or may he significant or substantial human exposure to the
substance.
Section 5(f ) provides for injunctive relief to prohibit the manufacture,
processing, or distribution in commerce of a chemical substance that is
subject to preinanufacture notification if the Administrator finds that the
substaiice presents or will present an unreasonable risk of injury to human
health or the environment before a rule promulgated under Section 6 can
protect against such risk.
Section 7 gives the Agency authority to commence civil actions in district
courts for the following purposes:
• Seizure of an imminently hazardous chemical substance or mixture or
any article containing su a substance or mixture; and
• Relief ( e.g . injurictiuns or other judicial orders) against a
person whc manufactures, processes, distributes in commerce, uses,
or disposes of an imminently hazardous chemical substance or
mixture or any article containing such a substance or mixture.
Such relief may be temporary or permanent as may be necessary to
protect human health or the environment from the unreasonable risk
associated with the chemical substance, mixture, or article
involved in the action. In the case of an action brought against a
person who manufactures, processes, or distributes in commerce an
imminently hazardous chemical sub8tance or mixture or an article
containing such a substance or mixture, such relief may include the
issuance of a mandatory order requiring:
—— In the case of purchasers of such a substance, mixture, or
a’ticle known to the defendant, notification to 8uch purchasers
of the risk associated with the substance, mixture, or article,
—— Public notice of such risk,
—— ec ll,
eplacem. nt or repurchase of the substance, mixture, or article,
ot
\ny combination of the above actions.
Section 17(a ) accords district courts jurisdiction over civil actions to:
• Restrain any violation of Section 15 of the Act;
• Restrain any person from taking any action prohibited by Section 5
or 6 of TSCA or by-a rule or order issued under those sections;
• Compel the taking of any action required by or under the Act; and
TSCA GumpliancefEnforcei.ent 8-2 Guidance Manual 1984
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Chapter Eight Introduction
• 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
to:
— Give notice of such fact to distributors in commerce and (to the
extent that they can be reasonably ascertained) other persons
who possess or may be exposed to the chemical substance or
mixture,
—— Give public notice of such risk of injury, and
Either replace or repurchase the chemical substance or mixture.
Section 17(b ) autliurizes the seizure, through an in rem condemnation
proceeding in district court, of:
• Any chemical substance or mixture that was manufactured, processed,
or distributed Ln commerce in violation of TSCA or any rule
promulgated or order issued under the Act; or
• Any article containing such a substance or mixture.
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Chapter Eight introduction
CA pliancel&force*ent 8-4 idance Manual 1984
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Chapter Eight
2 Elements of a Violation: Civil
Evidence in Support of Civil Actions ——___________ _____ -—
Civil actions require supportive evidence that goes beyond the prima fade
evidence necessary to establish administrative violations of TSCA. in some
instances, this may require the use of expert witnesses to establish
certain elements of proof ( e.g. , immediate and irreparable injury or
unreasonable risk of injury). Below follows a list of additional eviden—
tiary showings that should be met before undertaking an injunctive or in
rem action.
Injunctive ACtions*
Traditionally, courts have required the petitioner or plaintiff to make the
following showings before a permanent Injunction would be issued:
• There is an inadequate remedy at law;
• The applicable administrative remedies have been exhausted; and
• Irreparable injury, loss, or damage will result if the relief is not
granted.
Issuance of a preliminary injunction or temporary restraining order would
require the following additional showings:
• Immediate and irreparable injury, loss, or damage will result if the
relief is not granted; and
• There is a likelihood of success at trial, based on facts before the
court.
* These actions may consist of permanent injunctions, preliminary injunc-
tions, or temporary restraining orders. These types of Injunctions are
discussed in more detail in Section 4 of this chapter.
TSCA Coiipliance7 nforcement 8-5 - iidance Manual 1984
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Chapter Eight Klement of a Violation: Civil
The above criteria have not, however, been uniformly applied by the various
judicial districts. Jhile some jurisdictions have emphasized different
aspects of the criteria, other courts have developed alternative tests that
use some, but not all, of the elements listed above. For example, recent
court decisions have indicated a relaxation In the requirement of
irreparable injury. In particular, where a statute prohibits certain
conduct, many courts will presume the conduct to be injurious, thus
warranting an injunction without the need to show irreparable injury [ see
Bradford v. SEC, 278 F.2d (9th Cir. 1960)). For this reason, an attorney
should research recent trends in the jurisdiction in which the injunctive
action is being sought to determine the appropriate criteria.
The general requirements mentioned above for obtaining injunctive relief
apply primarily to injunctions sought under the authority of Section 17(a)
of TSCA. Notwithstanding the above criteria, injunctions based on Sections
5(e), 5(f), and 7 of TSCA require the following evidentiary showings:
Section 5(e) :
• The information available to the Administrator, submitted in
accordance wiLh Section , is insufficient to permit a reasoned
evaluation o the human health and environmental effects of a
hemical substance subject to premanufacture notification and
ither:
—— The manufacture, processing, distribution in commerce, use, or
disposal of such substance present an unreasonable risk of
injury to human health or the environment, or
—— The chemical substance is or will be produced in substantial
quantities, and such substance either enters or may reasonably
bC anticipated to enter the environment In substantial
quantitie8 or there is or may be significant or substantial
human exposure to the substance; and
• The Administrator has not issued a proposed order under Section
5(e) with respect to the chemical substance, or the Administrator
tssue d such an order, however, the order does not take effect
onjeclions were filed pursuant to Section 5(e)(1)(C).
Section (f) ;
• There a [ easonable haHis to conclude that the manufacture,
processing, distribution in commerce, use, or disposal of the
chemical substance subject to the notice requirement of Section
5(a) sents or will present an unreasonable risk of injury to
human health or the environment before a rule promulgated under
Section 6 of the Act can protect against such risk.
TSC& oa .pliance/ nforce.ent 8-6 Guidance Manual 1984
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Chapter Eight Ele nts of a Violation: Civil
Section 7 :
• The manufacture, processing, distribution in commerce, use, or
disposal of a chemical substance or mixture is likely to result in
imminent and unreasonable risk of serious or widespread injury to
human health or the environment; and
• Such injury is likely to occur before a final rule under Section 6
of TSCA can protect against such risk.
In Rem (Seizure Actions )
The following evidentiary showings should be met before undertaking an in
rem (seizure) action under Section 7(a) or 17(b) of TSCA:
Section 7(a) :
• The chemical substance or mixture is imminently hazardous; and
• The imminently hazardous chemical substance or mixture, or article
containing such substance or mixture, is found within the
jurisdiction of the district court that will hear the action.
Section 17(b) :
• The chemical substance or mixture was manufactured, processed, or
distributed in commerce in violation of TSCA or any rule
promulgat!d or order issued under the Act; and
• The chemical substance or mixture, or article containing such
substance or mixture, Is found within the jurisdiction of the
district court that will hear the action.
Use of Expert Witnesses
As in the case of administrative actions, civil judicial enforcement
proceedings generally require the presentation of expert testimony by EPA
personnel appearing as witnesses. Such testimony is used to establish
certain elements of proof that justify the relief sought ( e.g. , the showing
of immediate and irreparable injury for obtaining an injunction).
Witnesses should he selected for their direct knowledge of the
circumstances surrounding the suspected violation, because the witnesses
will be required to relate any such knowledge to the court. (See Appendix
2, “Expert Witnesses.”)
TSCA Coi,pliance/Enforcement 8 —7 Guidance Manual 1984
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Chapter Eight E1e nts of a Violation: civil
TSC& Co.pliancelEnforceent - Guidaoce Manual 1986
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Chapter Eight
3 Procedures for Rung Actions
Except where otherwise authorized by law, the Department of Justice repre-
sents EPA In judicial court actions.*
Requests for TSCA civil court actions are referred to the Department of
Justice or the appropriate United States Attorneys Office by the Assistant
Administrator for OECM (or the Assistant Administrator’s delegatee).** In
most instances, the Regional Office will initiate the request for an in-
junction or an in rem action and will designate the lead Agency attor—
ney.*** The lead attorney is responsible for preparing the ‘referral pack—
age,” which, upon completion, is sent from the Regional Office to OECM. A
copy of the package should also be forwarded to Headquarters PTSCMS.
A referral package contains:
• Referral Memorandum . A referral memorandum identifies the primary
elements of the proposed litigation. Specifically, the memorandum,
at a minimum, should include:
Identification of the potential detendants;
* Sections S(e)(2)(A)(i), 5(f)(3)(A)(ii), and 7(e) of TSCA permit EP at-
torneys to appear and represent the Administrator in such actions au-
thorized by these sections. However, under the current EPA delegations
of authority, only Section 7 actions may be initiated without first
referring the case to the Department of Justice.
** The Regional Office has independent authority to refer requests for
emergency temporary restraining orders under TSCA to the Department of
Justice and the appropriate United States Attorneys Office. When exer-
cising this authority, however, the Regional Administrator must notify
the Assistant Administrator for OECM and the Assistant Administrator
for Pesticides and Toxic Substances (or their designees).
*** Headquarters program and Enforcement Counsel staff may participate mord
actively in the cas’ development process if precedential or nationally
significant issues are Involved.
TSCA Coaipiiance/Enforceaent — 3-9 - Qiidance Manual 1984
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Chapter Eight Procedures for Filing Actions
Brief factual summary of the case;
—— Identification of the major issues (including potential problems
that may exist with the case);
—— Status of past Agency enforcement efforts; and
—— Names of Agency and Department of Justice attorneys who are
involved ir the case, including the lead attorney.
• Civil Litigation Report . in addition to the referral memorandum,
the referral package must contain a litigation report, prepared by
the designated lead EPA attorney. (See Exhibit 8—1 for a complete
outline and guide to preparing the report.) The report must
include a synopsis of the facts and history of the violation,
including past violations by the potential defendant. The report
must ‘ite the specific sect iocr ot TSCA and Its regulations that
have been vioiatc
Fhe report ntis ’ show that all elements ot the violation have been
tt si ed. : each element, the rep)rt should indicate the
available supp ’rring evidence. A copy of the necessary documentary
evidence and a summary of the expected expert testimony should be
attached to the litigation report.
The lead attorney should include a statement regarding the specific
relief to be sought ( e.g. , injunctive or in rem action). The
report should also include a list of any equities that may weigh
against granting the relief sought by EPA; any expected defenses by
the violator (and how they will be countered); and any past,
anticipated, or pending state or federal actions (administrative or
lud.’ial) against the violator. Where art injunction is requested,
the report should discuss the likelihood that the violator would
comply without the imposition of an injunction.
Once the referral package is received by Headquarters, Enforcement Counsel
attorneys will conduct a limited final legal review to ensure completeness
and consisten”v in application of enforcement policy. The case will then
be trar mlt’rd to thP Department of Justice or the appropriate United
States ttorrevs Office. OECM will notify the Regional Administrator and
the Assistant Ad inistrator for Pesticides and Toxic Substances (or their
designees) upon the ransmi tral of the civil referral.
oIlowing the referral of a case, the lead EPA attorney will be responsible
tor coordinating responses to all requests for supplemental information by
the Department of Justice or the United States Attorneys Office. The lead
Agency attorney also will be responsible for keeping program officials and
other previously involved Agency attorneys apprised of case developments
after reterral.
TSCA Co.pliance/Enforceaent 8-10 Guidance Manual 1984
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Chapter Eight - -- ___ Procedurea for Filing Actions
Agency employees who are involved in the investigation and referral to the
Department of Justice of civil TSCA actions should familiarize themselves
with the Agency documents listed below. These documents are contained in
EPA’ s GeneralEnforcement Pol icy Com e nd ium .
• Memorandum of Understanding Between the Department of Justice and
the Environmental Protection Agency (6/15/77);
• Quantico Guidelines for Enforcement Litigation (4/8/82);
• General Operating Procedures for EPA’s Civil Enforcement Program
(7/6/82); and
• Case Referrals for Civil Litigation (9/7/82).
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Chapter Eight Exhibit 8—1
Model Civil Litigation Report Outline and Guide*
Title Page
A. Identify the facility by name and location and indicate the parent
company if difterent from the facility name.
B. Identify who prepared the report (both legal and technical
personnel) indicating addresses and telephone numbers.
C. Show the date of completion/submission of the report.
Table of Contents (Stardirdized Example)
1. informatIon identifying the Defendant(s) Page —
Ii. Synopsis of he Case Page
III. Statutory Authority Page
IV. Descr 4 ption of Defendant’s Business and
Technical Description of the Pollution Source Page —
A. Facility Description Page
B. Source of Pollution Page —
C. P.. llurants Involved; Environmental Ilarm
(Where ppropriate) Page —
). Avillable Control Technology and/or
emedial Action Page —
* The Mod.] Civfl Litigation Report Outline and Guide is to be used
for all Agency civil referrals to the Department of Justice. Civil
litigation reports, however, are most frequently used in referring
civil court actions under statutes other than TSCA. Therefore,
certaifl ections of the report would not need to be as detailed as
those prepared for referrals involving non—TSCA violations. For
example, since TSCA referrals involve only requests for injunctive
or in rem relief, civil penalties would not need to be discussed in
Section VII of the report (Relief Requested).
TSCA Coapliance/Enforce.ent 8-12 Guidance Manual 1984
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Chapter Eight ExhIbit 8—1
V. Administrative and Enforcement History Page —
VI. Required Elements of Proof and Evidence Page —
A. Elements of Proof Page —
B. Evidence of Violation Page —
C. Evidence of Environmental Harm
(Where Appropriate) Page —
D. Discovery Page —
E. Evidence Favorable to Violator Page —
F. Government Witnesses Page
C. Defense Witnesses Page
H. Resource Needs Page
VII. Relief Requested Page —
A. Preliminary Injunction Page —
B. Standards To Be Met Page —
C. Compliance Schedule Page —
D. Stipulated Contempt Fines Page
E. Civil Penalties Page
F. Necessary Bonds Page —
VIII. Anticipated Issues Page
A. Possible Defenses Page
B. Equitable Arguments Page —
C. Pending Related Administrative or Court Action Page —
D. Other Issues Page —
E. Discussion of Any Potential Practical
Problem With the Case Page —
IX. Litigation Strategy Page —
A. Need for Preliminary Injunction Page —
TSCA Coapli ance / Enforce.ent Guidance Manual 1984
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Chapter Eight Exhibit 8—1
B. Potential tor Summary Judgment Page
C. Settlement Potential Page
D. Other Potential Defendants Page —
X. Index of Attachments Page —
Xl. Attachments Page
• Copies of correspondence
• Copies of re1evant regulated submissions
• Copies of relevant policy memos, regulations, interpretations
Body of the Report
I. Information Identifying the Defendant(s)
A. Legal name of company
B. Address: Corporate headquarters
C. Name of facility (if different from “A”)
D. Address of facility (if different from “B”)
E. SIC code
F. of incorporation
C. Re istercd agent for service
U. Legal counsel (name, address, telephone number)
1. , jici l district in which violator is located
II. Synopsis of he Case
This section should he a one— or two—page articulation of the
heart of the case. It should describe both the violation and the
proposed relief. It should not describe statutory authority or
intricate legal tssues in detail.
This succinct statement of the case will provide the reader a
framework in which to fit the details developed and presented in
the body of the litigation report.
TSCA Co.pliance/Enforce.ent 8-14 Guidance Manual 1984
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Chapter Eight Exhibit 8-1
The factual basis of the case should he touched upon. Purely
conclusory characterization of the case is not as useful as
showing the facts of a violation and requested relief. For
example, it is better to say a violator discharged or emitted X
quantity of Y pollutant for Z days, than to simply say that the
violator did not comply with the terms of a permit, State Imple-
mentation Plan (SIP), or statute.
The environmental seriousness of the violation, its ongoing
nature, and a violator’s recalcitrance may be touched upon in
this section (hut will also be developed later in paragraph
IV(C)).
III. Statutory Authority
A. Present the substantive requirements of the law and
applicable regulations. Reference all federal statutes by
U.S.C. citation as well as by the section of the pertinent
Act. Sunimarize the enforcement authority, jurisdiction, and
venue. Specific elements of proof are to be addressed in
paragraph Vi.
B. Lengthy dissertation on the law is unnecessary. However, in
the instance of State Implementation Plans under the Clean
Air Act, or Water Quality Standards under the Clean Water Act,
or involvement of any other state law or regulation, a more
extensive explanation of the law or regulation may be
necessary. Pertinent excerpt8 from any applicable state
laws or regulations should he identified and attached to the
litigation report.
C. Any prior interpretation of pertinent state laws or
regulations that are germane to the case should he
referenced when identifying the law violated. If a state’s
interpretation of the law has been different from ours, the
issue should he discussed with the state and fully explained
in this section of the litigation report. (This section may
then he referenced when discussing potential defenses, etc.,
in paragraph VIII.)
D. List any other possible theories of violation under federal,
state, or common law.
IV. Description of the Defendant’s Business and Technical Description
of the Pollution Source
A. Describe the violating corporation and the particular
division or tacility in question. Any inte estlng corporate
interrelationships or subsidiaries should be noted.
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Chapter Eight h’Ibit 8-1
. Discuss the business of the corporation and/or division,
providing details about the facility in question, what is
produced, and what causes the pollution. Emphasis should be
on the particular process that Is causing the problem. Plant
and process should be thoroughly explained, including those
outfalls or emission points not subject to this enforcement
action. Diagrams should be referenced and attached to, or
included in, the litigation report. Photographs of the
source may he helpful.
C. Discuss the types of pollutants being discharged, and
potential health and environmental effects. Although the
seriousness of the violation is not technically a requirement
of proof In enforcement of certain statutes, it is sometimes
relevant to the assessment of penalties and equitable
relief. For this reason. ‘ should be discussed in the report
although It will not he toe sole determinant of whether a
case has rosecutoriaL rit. The Department of Justice has
suggested the following considerations In assessing the
seriousnesb of the violation:
• The discharge of toxics or mutagens or carcinogens is more
serious than the discharge of conventional pollutants;
• The discharge of large quantities of pollutants
is more important than the discharge of small quantities;
• Bloaccumulative wastes posing long—term threats are more
serious than biodegradable wastes;
• The discharge of pollutants in an area not attaining
primary ambient air quality standards is more important
ttian discharges in an area not meeting secondary
standards;
• The discharge of pollutants that directly and demonstrably
,rfect health or the environment is more than those that
itave no direct or obvious effect;
• t’r . oIng present violations that the government seeks to
more important- than episodic violations which
have (-eased; a d
• A defend. nt with a history of violations is more worthy
of attention than a first offender.
If u case does not present obvious serIous health effects
or environmental harm, hut is compelling for some other
reason ( e.g. , deterrence of continued, blatant violations of
the law), this should be indicated.
TSCA Coiupliance/Enforce.ent 8-16 Guidance Manual 1984
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Chapter Eight h1b1t 8-1
B. Discuss available methods of controlling the problem.
Specify technology(les) that will achieve the imposed limits,
and indicate the time requirements for a schedule of
compliance that considers time necessary for design,
contracting, con8truction, and startup. (This is not
inconsistent with EPA policy of not prescribing specific
compliance technologies. This information may be necessary
in court to illustrate technical feasibility if requested by
the ludge.)
Cost estimates should be included, to the extent known.
Indicate the reliability of the estimates. (Reference
paragraph VIl(E) as appropriate.)
V. Chronological Administrative History and/or Earlier Enforcement
Actions (State and Federal)
A. Show all attempts to exact compliance or impose sanctions
administratively or judicially that have been considered or
taken. A full historical chronology should be presented.
B. Indicate whether necessary notice pursuant to the statutory
requirements has been given to the violator prior to
initiation of court action.
Vi. Required Elements of Proof and Evidence
A. List the necessary elements of proof to establish the
violation under each statute involved.
B. Present a detailed, objective, factual analysis of all real,
documentary, and testimonial evidence corresponding to each
necessary element of proof in paragraph VI(A) above.
Indicate the location of all real evidence.
Reference each item of documentary evidence as an attachment,
except where it is too voluminous (In which case indicate its
present location).
Identity all witnesses by name (indicating whether lay or
expert), when indicating the import and substance of their
testimony. Complete addresses and phone numbers of witnesses
will he listed in paragraph VlI(E) below.
C. Discovery. Where evidence may be made available by
discovery, indicate:
1. The type of evidence anticipated;
TSCA Coapllance/Enforce.ent 8—17 Guidance Manual 1984
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Chapter Eight hibit 8—1
2. The person or organization currently having the
evidence; and
3. The type of discovery to he used.
Assess the quality of the evidence. Be objective. Any facts
or circumstances that affect the strength of the Agency’s
proof should he explicitly set forth. The newness or oldness
of evidence is relevant; the dependability of testing
techniques is important. Any assumptions, and the reasons
for them, should be spelled Out.
D. If establishing environmental harm is important to the case,
set forth the evidence or harm (as done in paragraph VI(B)
for elements of substantive violation).
E. List all evide ’ ’ ‘aiorahle to the violator, including test
results that dtrtc iron EPA’s. Any relevant fact that may
bear adversely on the government’s contentions should be
highlighted. E)efen e wlrnesses, to the extent they can be
anticipated, should be listed in paragraph VI(G).
r. List all government witnesses alphabetically with business
address, and telephone number and home telephone number. Qual
tications of experts should be given.
All witnesses listed should have been consulted and
thoroughly interviewed. Paragraph VI(S) should set out in
succinct fashion the actual facts and opinions to be included
in the testimony.
C. Tist all th fense witnesses anticipated, identifying their
employment, expertise, etc. The likely content of their
testic ony should be set out in paragraph VI(E).
I. Indicate projected resource needs ( e.g. , experts, money,
‘rc -
Vii. R&! jr ’t Requested
fl ‘s par.i ra h shr’uild include a comprehensive “bottom—line
settlement position on all items of relief necessary, including
those set forth below. If there are policy questions or conflicts
associated with any requested relief, discuss them. This section
should be carefully detailed. It will be relied upon in
det rtnining the acceptability of any settlement offers/proposed
consent decrees.
A. Preliminary Injunction.
B. Standards to be r’ ’t (interim and final).
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Chapter Eight R h1bjt &4
C. Compliance schedule for available technology with phasing,
duration, etc. (Reference paragraph IV(D), as appropriate.)
D. Stipulated contempt fines in conjunction with compliance
schedule.
E. Civil Penalties.
1. Economic savIngs realized by the violator should be
analyzed. The EPA Civil Penalty Evaluation form should
he completed, discussed, and attached. Calculations
should be included as attachments. This section should
include discussion of all elements developed under EPA ’s
civil penalty policy, Including ability of the company
to pay and recalcitrance.
2. Comment on types of credits possible (or proposed by the
violator), as well as credits considered and/or allowed
for other similar violators (including municipal POTWs).
3. If economic savings Is not a relevant measure of penalty
assessment, explain what basis should be used.
F. Necessary bonds.
Witnesses necessary to establish the relief requested should
be identif led by name, address and telephone number, with a
brief summary of the subject of their testimony.
VIII. Anticipated Issues
A. Possible defenses.
(Analyze only defenses that are likely to be presented;
fanciful theories can be ignored.)
1. Outline legal issues. Attach legal memoranda on threshold
legal issues ( e.g. , Chapter 11 Reorganization) or col-
lateral legal action asserted as a bar to enforcement
litigation.
2. Outline factual issues.
B. Equitable arguments by the violator EPA delay in
promulgating guidelines; i istallation of equipment that did
not work; in compliance at its other facilities; emission
standird to be revised; inability to finance; economic
constraints, etc.). Any past action, or inaction, or
inaction, (not necessarily judicial or administrative) by a
state or any EPA office that the company may use as an excuse,
or cite for reliance. ( e.g. , promises of less stringent
limits; agreement not to sue, etc.).
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Chapter Eight KThf bit 8-1
C. Pendency of any action involving the violator or EPA on
related issues in any court or administrative forum.
(Reference paragraph V(A), as necessary.)
D. Other possible issues that might arise at trial.
E. Discuss any potential practical problems with the case.
IX. Litigation Strategy
A. Need for preliminary injunction.
B. Potential for summary judgment.
C. Settlement potential.
1. Past cont ct.i by EPA, the Department of Justice or the
t nited States Attorneys Office.
2. Present negotiating posture and a8sessment of potential
for settlement. Include comparison of posture with
“bottom—line settlement position from paragraph VII.
D. Other potential defendants.
E. Other pending actions against violator.
X. Index of Attachments
XI. Attari 1 n ents
TSCA Co pliance/Entorce.ent 8-20 Guidance Manual 1984
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Chapter Eight
4 Injunctive Actions
Injunctive actions may be initiated under the authority of Section S(e),
5(f), 7, or 1 7 (a) of TSCA.
Section 5(e) Injunctions
Criteria for Use
Injunctive relief authorized by Section 5(e) of TSCA should be considered
when:
• The information available to the Administrator under Section 5 of
the Act is insufficient to permit a reasoned evaluation of the
human health and environmental effects of a chemical substance that
is subject to the notice requirement of Section S(a) and either:
—- In the absence of such information, the manufacture,
processing, distribution in commerce, use, or disposal of such
substance may pre8ent an unreasonable risk of injury to human
health or the environment, or
—— The chemical substance is or will be produced in substantial
quantities, and such substance either enters or may reasonably
be anticipated to enter the environment in substantial
quantities or there is or may be significant or substantial
human exposure to the substance; and
• The Administrator has not issued a proposed order under Section
5(e) with respect to the chemical substance, or the Administrator
has issued such au order, however, the order does not take effect
because objections were filed pursuant to Section 5(e)(l)(C).
Use of Section S( e) Injunctive Actions
Pursuant to Section S(a) of TSCA, any person who manufactures a new
chemical substance or who manufactures or processes a chemical substan e
for a significant new use must submit a premanufacture notice (PNN) to
TSCA Co.pliance/Enforce.ent 8-21 Guidance Manual 1984
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Chap _EjL t _ ___ Injunctive ActiouB
EPA. The PMN is to contain specific information regarding the effects of
the new chemical or the effects concerning the significant new use for an
existing chemical.
The Agency will review the submitted information to determine whether a
reasoned evaluation may be made of the effects of the chemical or the
significant new use. The Act provides a 9 0—day review period following
submission of the PKN, although the period may be extended for a maximum of
90 additional days if good cause is shown.
Upon reviewing the information, the Administrator nay issue a proposed
order prohibiting or limiting the manufacture, processing, distribution in
commerce, use, or disposal of the chemical substance if there is
Insufficient information to permit a reasoned evaluation of the human
health and environmental effects of the substance and either:
• In the absence of sufficient ‘iformation, the manufacture,
prnce s1ng, dtqtrt!”ition 1’ commerce, use, or disposal of such
substance may preseut . 3ondble risk of injury to human
health or the environment; or
• Th substance is or will be produced in substantial quantities and
may:
-- Enter, or reasonably be anticipated to eater, the environment
to substantial quantities, or
-- Result in significant or substantial human exposure to the
substance.
The proposed order must be issued no later than 45 days before the
expiratlor the review period, and the order will become effective upon
the ex?irat on of that period.
However, an af cteo firm may challenge the proposed order, thus delaying
the effective date of the order. Therefore, unless the Administrator
immediately sustains the objection (i.e., finds that there is sufficient
ioIormatio tc ‘ crmtt a reasoned evaluation of the human health and
environme i ecc& of the substance), the Agency must seek an injunction
to proi.1 lt or imit the manufacture, processing, distribution in commerce,
use, : disposal of the PMN chemical substance. Additionally, the
Administrator is req itred to seek an injunction if it is found that there
Is inguf h1t t toformatto ’ concerning the new chemical substance or
significant new use but a proposed order has not yet been issued in that
particular matter. This latter circumstance might occur if the review
period expires before the Administrator can issue the proposed order.
- - 8’22 i nce ajajjT
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Chapter Eight Injunctive tions
Section 5(f) Injunctions
Criteria for Use
Injunctive relief authorized by Section 5(f) of TSCA should be considered
when there is a reasonable basis to conclude that the manufacture, proces-
sing, distribution in commerce, use, or disposal of a chemical substance
subject to premanufacture review presents or will present an unreasonable
risk of injury to human health or the environment before a rule promulgated
under Section 6 can protect against such risk.
Use of Section 7 (f) Injunctive Actions
Pursuant to Section 5(t) of TSCA, if the Administrator determines that
ther is a reasonable basis to conclude that the manufacture, processing,
distribution in comm ’rce, use, or disposal of a chemical substance subject
to premanufacture review presents or will present an unreasonable risk of
injury to human health or the environment before a Section 6 rule can he
promulgated, the Administrator may (before the expiration of the PMN review
period):
• Prohibit the manufacture, processing, or distribution in commerce
of the chemical substance by:
—— Proposing a rule under Section 6(a),
—— issuing a proposed order under Section 5(f)(3)(A)(i) that, if
challenged, must be followed by the initiation of a Section
5(f)(3)(A)(ii) injunction, or
—— Seeking a Section 5(f)(3)(A)(ii) injunction; or
• Limit the amount of the chemical substance that may be
manufactured, processed, or distributed in commerce by proposing a
Section 6(a) rule. Section 5(f)(2) states that such a proposed
rule would become effective upon publication.
lit is important to note that Sections 5(f)(3)(A)(i) and 5(f)(3)(A)(ii)
allow the Administrator to immediately implement a prohibition on the
manufacture, processing, or distribution in commerce of a chemical
substance that is subject to premanufacture review and that has been
specified in a proposed Section 6(a) rule. These sections of the Act are
necessary because proposed Section 6(a) rules are generally not immediately
effective. Section 6(d) does permit a Section 6(a) rule to become
immediately effective if there is a showing of an “Imminent unreasonable
risk of serious or widespread injury.’ However, Sections 5(f)(3)(A)(I) and
5(f)(3)(A)(ii) permit the Administrator to implement immediately a
prohibition on the manufacture, processing, or distribution in commerce of
a PMN chemical substance by showing an “unreasonable risk of injury,” not
the more stringent ‘serious or widespread injury” requirement of
TSCA Coap1iance/Enforce ent 8 —23 Guidance Manual 1984
-------
__ Injunctive Actions
Section 6(d)*. If, on the other hand, the Administrator wishes only to
limit the amount of a chemical substance that is subject to premanufacture
review, the Administrator may do so under Section 5(f)(2). Under Section
a proposed Section 6 (a) rule (limiting the amount of the chemical
substance that may be manufactured, processed, or distributed in commerce)
becomes effective upon publication.
ctori 7 1s -- III
Criteria for Use
Injunctive relief authorized by Sectior. 7 of TSCA should be considered when
a chemical substance or mixture, or article containing such a sub8tance or
mixture, poses an imminent hazard to hu n health or the environment.
Use of Section 7 Inj nctive Act Ions
Section 7(a)(l)(B) of TSCA authorizes the Administrator to seek injunctive
relief, through EPA or Department of Justice attorneys, against any person
who manufactures, processes, distributes in commerce, uses, or disposes of
an imminently hazardous chemical substance or mixture or any article con-
taining such a substance or mixture.
Section 7 (c) derines an tmmfnently hazardous chemical substance or mixture
as one that presents an imminent and unreasonable risk of serious or wide-
spread [ n ury to human health or the environment. An unreasonable risk is
considered imminent if ii can be shown that the manufacture, processing,
distribuie’ ‘n commerce, use, ot disposal of the chemical substance or
mixtur- is i e!. to result in such injury before a final rule under
Section ( of th. Act c-an protect against such risk.
If an Imminent razard exists and the Administrator has not issued an
immediately eftective rule under Section 6(d)(2)(A)(i) against the
lmn..aentiy h i us chemical substance or mixture, then according to
Sect or’ • the AJnintstrator must commence an appropriate Section 7
action •c., a seIzure or injunctive action). Agency policy, however,
* in iiit ten, ecti ii 6(3’) requires that in order for a Section 6 rule
(which prob! N.c the manuiaciure, processing, or distribution in
oinm”me of . mi -al substance or mixture that is likely to result In
n unreasonable risk of -serious or widespread injury) to become
immediately effective, a court must first have granted relief under
Section 7 of the Act.
TSCA Compliance/Enforcement 8-24 Guidance Manual l
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Chapter Eight Injunctive Actions
permits the Administrator to initiate an immediately effective rule under
Section 6 in lieu of seeking a Section 7 civil action.*
A Section 7 injunctive action may seek such temporary or permanent relief
as may be necessary to protect human health or the environment from the
unreasonable risk associated with the chemical substance, mixture, or
article involved in the action. If the injunctive action is brought
against a person who manufactures, processes, or distributes in commerce an
imminently hazardous chemical substance or mixture or an article containing
such a substance or mixture, the action may include the issuance of a man
datory order requiring:
• In the case of purchasers of such a substance, mixture, or article
known to the defendant, notification to such purchasers of the risk
associated with it;
• Public notice of such risk;
• Recall;
• Replacement or repurchase of such a substance, mixture, or article;
or
• Any combination of the above actions.
Concurrent with the filing of a Section 7 civil action or soon thereafter
as may be appropriate and where practicable, the Administrator must ini-
tiate a Section 6(a) rulemaking proceeding.
Section 7 civil actions may he commenced notwithstanding the existence of a
rule under Section 4, 5, or 6 or an order under Section 5, and notwith-
standing the pendency of any TSCA administrative or judicial proceeding.
Section 17(a) Injunctions
Criteria for Use
Injunctive relief authorized by Section 17(a) of TSCA, which is the most
common form of judicial relief sought, should be considered when there is a
need to:
* This policy, however, would not apply to a Section 6 rule that seeks to
prohibit the manufacture, processing, or distribution in commerce of an
imminently hazardous substance, since Section 6(d)(2)(A)(ii) requires
that, in order for such a rule to become immediately effective, a court
must first have granted relief under Section 7 of the Act. The policy
does apply to the other forms of relief ( i.e. , other than a complete
prohibition) available under Section 7.
TSCA CoapiiancelEnforce.ent 8—25 GuIdance ManUil 1984
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Cha 1 er Eight ___ Injunctive Actions
• e_st al any violation of Section 15 of the Act. The violations
specified by Section 15 include:
—— Failure or refusal to comply with any rule promulgated or order
issued under Section 4, any requirement prescribed by Section 5
or 6 of TSCA, or any rule promulgated or order issued under
Section 5 or 6,
—— Use, for commercial purposes, of a chemical substance or
mixture chat such person knew or had reason to know was
manufactured, processed, or distributed in commerce in
violation of Section 5 or 6 of TSCA, a rule or order under
Section 5 or , or an order issued in an action brought under
Section 5 or 7,
—— Failure or refusal to esta I sh or maintain records; to submit
reports, notices, or other information; or to permit access to
or copying of records, as required by TSCA or its rules, and
—— Failure or refusal to permit entry or inspection as required by
Section ii of TSCA;
• Restrain any person from taking any action that Ls prohibited by
Section 5 or 6 of TSCA or by a rule or order issued under those
sect tons;
• Compel the taking of any action required by or under the Act; or
• Direct any manutacturer ot- processor of a chemical substance or
mixture manufactured or processed in violation ofSection 5 or 6 or
a rule or order under Section 5 or 6 and distributed in commerce
to:
—— Giv notice of such fact to distributors in commerce and (to
the extent that they can be reasonably ascertained) other
persons who possess or may be exposed to the chemical substance
or mixture,
— — ‘ottce of such risk of injury, and
Either replace a repurchase the chemical substance or mixture.
2!i
As discussed in Chapter Five, administrative penalty proceedings are the
preferred enforcement tools of the Agency in enforcing TSCA requirements.
Injunctive relfc’f authorized by Section 17 (a) will generally be sought in
those instances where civil penalty proceedings are (or will be)
ineffective ber ause of the nature of the violation, or the nature of the
violator. Specifically, a permanent injunction should be considered when:
— - j - - i aa e l 4
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Chapter Eight — —— Injunctive tions
• The Agency’s administrative or other judicial enforcement remedies
would be inadequate either at restraining the violation or at
preventing unreasonable risk to humans or the environment;
• The Agency has, in fact, already diligently exercised all
appropriate administrative remedies, yet the violation continues
unabated; and
• Irreparable injury, loss, or damage will result if relief is not
granted. “Irreparable” means that the damage cannot be undone once
it takes place. (See the discu s.toci on irreparable injury in
Section 2 of this chapter.)
A preliminary injunction or temporary restraining order 8hould be con-
sidered when the following additional elements are present:
• Immediate and irreparable injury, loss, or damage will result if
relief is not granted. “Immediate” is self—explanatory and is in-
terpreted strictly; and
• There 18 likelihood of success at trial based on facts before the
court (i.e., more than a 50—percent chance of winning at a trial
based on facts before the court at the time of application).
The above considerations relating to permanent injunctions, preliminary
injunctions, or temporary restraining orders may occur when:
• The violator is recalcitrant and has demonstrated a history of
noncompliance with administrative orders and, therefore, should he
made subject to the contempt powers of a district court;
• The nature of the violation is such that it cannot be remedied
eftectively by Agency proceedings. (Because injunctive proceedings
are equitable in nature, they permit the court to fashion the
necessary relief); or
• The violation is very serious and meets the technical criteria for
a finding of “imminent hazard” under Section 7 of TSCA but the
Agency does not wish to initiate a Section 6(a) rulemaking pro-
ceeding.
Procedures for Seeking Injunctive Relief
1. Determine the Necessity for Injunctive Relief
• Regional Initiation . The Regions generally make the initial deter-
mination that an injunction is necessary to restrain violations of
TSCA or to prevent harm to humans or the environment. The regional
TSCA CoapliancefEaforce 7 Guidance Manual 1984
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Chapter Eight - Injunctive Actions
determination must he based on a careful weighing of the facts of
the violation, of the evidence available to document the severity
of the violation, and of the criteria discussed above.
• headquarters Initiation . In some instances, Headquarters may be
the initiating party when noncompliance with the terms of the
statute exists on a national level, or the hazard to human health
or the environment is of national significance ( e.g. , Section 7
injunctions).
2. Determine Type of Injunction To Be Sought
• Temporary Restraining Order (Exhibit 8—2) . A temporary restraining
order (TRO), sometimes known as a provisional injunction, is used
for immediate temporary relief prior to issuance of a preliminary
injunction, or unless otherwise p rnitted by statute. For example,
issuance of a TRO may be warrsnred when:
— A situation exists c st-Lfies the use of a Section 7 civil
action to prevent the unreasonable risk of an imminent hazard
before a final Section 6 rule can protect against such risk, or
—— Under a Section 5(e) or 5( t) injunctive proceeding, where the
notification period under Section 5(a), (b), or (c) may expire
before the judicial proceeding is completed.
The purpose of the TRO is to preserve the status 2. until a motion
for a preliminary injunction can be heard. Its advantage is that
it is the most expediently obtained form of injunctive relief.
However, a TRO is limited in duration to only 10 days (although it
can be extended an additthnal 10 days by the court).
Ru1 f5cb) of the Federal Rules of Civil Procedure (Fed. R. Civ.
P.) contro1 the procedural steps for obtaining a TRO. Generally
the attorney for the adverse party, if known (or if not known, the
adversf party its lf) must be given oral or written notice of the
request [ or a TRO. This requirement, however, is suspended if (1)
it t 1 wn by specific facts that immediate and irreparable harm
cur t fore the adverse party can be heard and (2) if the
goverr’r’er t attorney certifies In writing the efforts, if any, taken
t•o pr .. notice no the adverse party and the reasons supporting
the chain thrt net re shoe d n t he required. The facts demonstra—
ting .nm !Lite and irreparable injury, loss, or damage, may appear
either in a verified complaint or in a separate affidavit signed by
an EPA employee other than the attorney for the case. Along with
the moti. n for a TRO, a copy of the suggested TRO should be filed.
When ik() s granted without notice ( i.e. , ex parte) , the motion
a pretirninary inluriction must be set for hearing at the
earliest possible time. The party who obtained the TRO must then
proceed with the application for a preliminary injunction and if
TSCA Corn liance/Enfo t - - - - - ___ ___
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Chapter Eight Injunctive Actions
the party does not do so, the TRO will he dissolved by the court.
If a defendant moves to modify or dissolve a TRO, there must be a
hearing and the Agency must be informed at least two days before
the hearing.
• Preliminary Injunction (Exhibit 8—3) . A preliminary injunction by
its very nature is interlocutory, provisional, or temporary. It is
intended to preserve the status pending final determination of
the action after a full hearing on the merits. It is different
from-a TRO in that a preliminary injunction requires advance notice
to the adverse party, and it can last longer than 10 days.
Notice presumes a hearing and an opportunity to contest the motion
for an injunction. The applicant has the burden of establishing
the right to injunctive relief. To do so, it is advisable to rely
on more than affidavit8 (Exhibit 8—4) whenever possible. Oral
testimony should be available when and if necessary to substantiate
the Agency’s contentions.
The court may order the advancement and consolidation of the trial
on the merits with the hearing on the application for preliminary
injunction. Consequently, the government attorney should be
prepared to go forward with the prosecution of the case when
seeking a preliminary injunction.
• Permanent Injunction (Exhibit &-5) . A permanent injunction, also
called a final or perpetual injunction, is generally unlimited in
duration. It is usually granted only after a full trial on the
merits. Consequently, the judgment granting a permanent injunction
constitutes final disposition of the suit, although the judgment
may he appealed to a circuit court.
Mere passage of time will not dissolve a permanent injunction,
unless the judgment itself so provides. However, the prospective
features of a final injunctive decree are subject to termination or
modification by the court when warranted by changed conditions.
For example, under Section 5(e)(2)(D) of TSCA, a district court,
upon petition, will dissolve a Section 5(e) injunction if test data
is submitted that is sufficient to evaluate the human health and
environmental effects of the chemical substance subject to the
injunction unless the Administrator has initiated a proceeding for
the issuance of a rule under Section 6(a) respecting the
substance. If such a proceeding has been initiated, the court will
continue the injunction until the effective date of the rule or, if
the proceeding is terminated without the promulgation of a rule,
upon termination of the proceeding.
3. Determine the Appropriate District Court Having Jurisdiction
The Regional Office must determine which is the appropriate district
court having jurisdiction over the violator. An injunction operates
inpersonam (meaning “against the particular person”), so that the
TSCA CoiapliancefKnforcenient 8—29 Guidance Manual 1984
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Chapter Eight — Injunctive Actions
district court in which the motion is filed must have in personam jurisdic—
tion over the party against whom the injunction is sought. Usually this
means that the person or corporation who is the defendant must live or have
a place of business within the state. Furthermore, service of process, or
the delivery of written notice, is subject to the territorial limits of the
state in which the district court is located unless otherwise provided for
in a statute.
In some instances, an injunction may have an in rem (“against the world at
large”) effect on property or items that are the subject of the suit or
that are within the court’s in rem jurisdiction. In rem jurisdiction may
have a broader reach for serving process than does in personam——it is
easier to get “the thing” than it is “the person. These possibilities
should be explored informally with the appropriate U.S. Attorney before
formal referral of the case file.
The following specific jurisdictional requirements apply to injunctions
sought under Sections 5(e), 5(f), 7 and 17(a) of TSCA:
• Section 5(e ) and 5(f) h junctions . Injunctive actions that are
based on Sectton8 5(e) and 5( 1) of TSCA may be filed in:
—— The United States District Court for the District of Columbia,
or
—— The United States district court for the judicial district in
which the manufacturer or processor of the chemical substance
subject to the action is found, resides, or transacts business.
• Section 7 Injunctions . Injunctive actions that are based on
Section 7 of TSCA may be filed in:
—— The United States district court for the District of Columbia.
—— The United States district court for the judicial district in
which the person who manufactures, processes, or distributes a
chemical substance or mixture that is the subject of the action
is found, resides, or transacts business.
According to Section 7(c)(1)(A), process in a Section 7 injunctive
action u ay be served on a defendant in any other district in which
such defendant resides or may be found. However, Section 7(c)(1)
(B) states that in instances in which the action may be brought in
more than one judicial district, the Administrator is to take into
account the convenience of the parties. Subpoenas requiring the
attendance of witnesses may be served, pursuant to TSCA Section
7(c)(1)(C). in any judicial district.
According to Section 7(c)(2), whenever proceedings involving iden-
tical chemical substances, mixtures, or articles are pending In two
or more district courts, they are to be consolidated for trial upon
application reasonably made by any party in interest and upon
notice to all parties in Intereat.
TSCA Co pliance/Eaforcement 8-30 Giidance Manual 1984
-------
Chapter Eight Injunctive Actions
• Section 17(a) Injunctions . Injunctive actions that are based on
Section 17(a) of TSCA differ on their filing location depending
upon the nature of the activity that is the subject of the action:
—— If the injunctive action involves a violation of Section 15 ot
the Act, the action must be filed in the United States district
court for the judicial district in which the violation occurred
or where the defendant is found or transacts business, or
—— If the injunctive action involves any other activity specified
by Section 17(a), the action must be brought in the United
States district court for the judicial distric in which the
defendant is found or transacts business.
Process may be served on a defendant in any judicial district in
which the defendant resides or may be found, and subpoenas
requiring the attendance of witnesses at trial may be served in any
judicial district.
4. Prepare the Referral Package
See discussion in “Procedures for Filing Actions” (Section 3) in this
chapter.
Court Actions on Motions for Injunctive Relief
If an injunction is granted , the following actions should ensue:
• Preparation for the Next Stage of the Proceeding . If the court
grants a motion for a preliminary injunction or TRO, the regional
attorney ir conjunction with the U.S. Attorney must begin
7reparation for the next stage in the proceeding, whether that he a
full trial on the merits or a more extensive and permanent type of
inj unction.
• Monitoring the Injunction . Although it is the court’s
responsibility to monitor any equitable decree, Including an
Injunction, the courts have limited resources and often encounter
practical difficulties in monitoring compliance. If the court does
not ask the ! gt ncy to monitor the injunction, the Region should
offer to assist the court in monitoring the injunction and to
report any violations of the injunction. A violation of an
injunction will subject the party to a charge of contempt of court.
TSCA Coapliance/&iforcemeflt 8-31 Guidance Manual 1984
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Chapter Eight Injunctive Actions
If an injunction is denied , the Agency may either:
• Appeal the denial; or
• Accept the denial and pursue other legal remedies.
In both instances, the Headquarters Case Development Officer (HQCDO) should
be consulted by the Regional Office to determine which course of action to
take.
TSCA Compliance/Enforce.ent 8-32 Guidance Manual 1984
-------
Chapter Eig ht _____ — ______________ Exhibit 3—2
Model Motion for Temporary Restraining Order
United States District Court
__________ District of
(Tile of Action ) Civil Action No.
Motion for Temporary Restraining
Order [ With or Without Notice]
Plaintiff, the United States of America, herewith moves this court to
grant [ *(1) forthwith and without notice to defendant or his or her
attorney) a temporary restraining order restraining defendant, his or herj
agents, and employees from ( set forth acts sought to be enjoined )
pending a hearing and disposition of plaintiff’s motion for a
preliminary Injunction on the grounds that Immediate and irreparable
injury, loss, or damage will result to [ *(2) plaintiff, the public, the
environment] as set forth in the attached affidavit of ( name of
affiant) [ *(3) before notice can he given and before defendant or his
or her attorney can he heard in opposition, as certified to by the
undersigned].
(Signature of U.S. Attorney)
United States Attorney for the
_____ _____ District of
Date
* (1),(3) —- These statements are optional depending upon whether or
not the defendant or his or her attorney receives
advance notice of the request for a TRO.
* (2) —— The victim of the alleged injury can he best determined
from the actual facts of the case at hand.
TSCA CoRpi lance/En force ent — 8-33 Guidance Manual 1984
-------
Chapter Eight ___ ____ Exhibit 8—3
Model Motion for Preliainary Injunction
United States District Court
District of
(Title_of Action) Civil Action No.
Motion for Preliminary Injunction
Plaintiff, the United States of America, herewith moves this court for a
preliminary injunction enjoining the defe -dant ( name of defendant) , his
or her agents, servants, employees, and attorneys and all, persons in
active concert and arttctpation with the defendant pending the final
hearing and determination cf ‘r! action, from ( set forth act or acts
sou 1 t to be enloirted) on the gro &.ds chat:
(I) Unless restrained by this court, defendant will perform the acts
referred to;
(2) Such action by the defendant will result in immediate and
irreparable injury, loss, or damage to ( the plaintiff, the
public nterest,or the environment) , as appears in the
verified complaint and the affidavit of ( name of affiant) ,
attached hereto; and
(3) The Issuance of a preliminary injunction herein wIll not cause
und inconvenience or 1088 to defendant, but will prevent
a iiate and rreparablo injury to the plaintiff.
(Sigt ture of U.S. Attorney )
United States Attorney for the
District of
Date
_
TSCA Coi.pltance/Enforce.ent 8-34 Guidance Manual 1984
-------
Chapt r t_ ___ Exhibit 8-4
Model Affidavit in Support of Motion for Prellainary Injunction
United States District Court
District of
Civil Action No.
Affidavit in Support of Motion for
Preliminary Injunction
(Name of Afflarit), being duly sworn, deposes and says:
(1) The United States of Ai erica, plaintiff in the above—entitled
action, makes this affidavit in support of plaintiff’s motion
for a preliminary injunction.
(2) This is an action [ to enjoin defendant from engaging in any
violation of the Toxic Substances Control Act, 15 U.S.C §2601
et seq., or an action otherwise authorized by the Act].
(3) [ Statement of facts to support the motion].
(Signature of Affiant
other than EPA attorney)
Subscribed and sworn to and before me at ( City and State) -
this day of , 19.
(Signature of Attesting Official
other than EPA attorney )
TSCA Co pliance/Enforceeflt 8-35 Guidance Manual 1984
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Chapter Eight
Exhibit 8—5
Model Motion for Permanent Injunction
United States District Court
_____District of
Plaintiff, the United States of kne ica, herewith moves
make permanent the preliminary i.njunctton issued herein _____
support, plaint 1ff submits (the opinion oi the court of ____
which is conclusive to the effect tL:1’ Lhe ( behavior or
defendant) is unlawful n a r 4 itfonal evidence could
result.
tOptto i: (1) C.junsel may also want to include a paragraph moving
the court to enter the mandate of a higher court,
if the grant of injunction has been unsuccessfully
appealed.]
[ Optional: (2) Counsel may also find it necessary to include a
motL)n either for the dismissal of defendant’s
counterclaim or for the grant of summary judgment
as to the counterclaim..]
(Title f Action) Civil Action No. ____
Motion for Permanent Injunction
this court to
on ( date) . In
),
activity of the
alter that
(Si ature of U.S. Attorney )
United States Attorney for the
District of
Oat
TSCA compliance/En forcesent 8-36 Guidance Manual 1984
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Chapter Eight
5 La Rem [ Seizure) Actions
In rem (seizure) actions may be Initiated under authority of Section 7 or
17(b) of TSCA. The seizure of a chemical substance or mixture or article
containing such a substance or mixture, as authorized by chose sections, is
effectuated through an In rem condemnation proceeding conducted according
to Rule 9(h) of the Federal Rules of Civil Procedure (Fed. R. Civ. P.) and
the Supplementary Rules for Certain Admiralty and Maritime Claims [ Title 28
U.S.C. I.
Section 7 in Rem Actions — ____ - —_____ ____
Authority
Section 7(a)(1)(A) of TSCA permits the Administrator to commence a civil
action in an appropriate district court for the seizure of an imminently
hazardous chemical substance or mixture or any article containing such a
substance or mixture.
Criteria for Use
A Section 7 seizure action should be used In a situation in which a
chemical substance or mixture presents an Imminent and unreasonable risk of
serious or widespread Injury to health or the environment. Such risk is
considered imminent it it is shown that the manufacture, processing,
distribution In commerce, use, or disposal of the substance or mixture is
likely to result in such injury before a final rule under Section 6 can
protect against such risk. Whether or not a chemical substance or mixture
presents an imminent hazard will have to be determined on a case—by—case
basis. However, it is expected that the standard would apply to those
cases where a chemical substance or mixture poses an acute risk of harm to
human health or the environment or is being used by large numbers of people
iii many areas of the country and the substance, mixture, or article must be
seized to prevent that risk. A seizure action under Section 7(a) may be
used in conjunction with any other relief authorized by that Section
(including injunctive actions). It may also be used notwithstanding the
TSCA Co pliance/Enforceaent 8-37 ( iidance Manual 1984
-------
Chapter Eight - ___ In lea (Seizure) Actions
existence of a rule under Section 4, 5 or 6 or art order under Section 5 of
the Act, and notwithstanding the pendency of any administrative or judicial
proceeding under any provision of TSCA. A Section 7 action (either seizure
or other relief) is mandatory if the Administrator has not made a rule
under Section &(a) immediately effective with respect to the imminently
hazardous chemical substance or mixture.
Jurisdictional Considerations
A seizure action authorized by Section 7(a)(l)(A) against a chemical
substance or mixture, or article containing such substance or mixture, may
be brought in any United States district court within the jurisdiction in
which the substance, mixture, or article is found.
Section_17(b) In Rem Actions
Section 17(b) of TSCA authorizes the seizure of any chemical substance or
mixture that was manufactured, processed, or distributed in commerce in
violation of the Act or any rule promulgated or order Issued under TSCA or
any article containing such substance or mixture.
Criteria for Use
An tn rem action authorized by Section 17(b) should be considered when a
chemical sub tarice or mixture presents an unreasonable risk of injury to
human health cr the environment but does not constitute an imminent hazard
under Section . Note that a Section 7 seizure action may be used in in-
stances wher.-. there is no violation of TSCA, whereas a Section 17(b) in rem
act ion requires that the chemical substance or mixture has been manufac-
tured, processed, or distributed in commerce in violation of the Act.
Jurisdi rional C rtsiderations
A stnzure act ou iuthorizcd by Section 17(b) of TSCA against a chemical
substance or xH .tute, oc . rtIc1e containtng such 8ubstance or mixture, may
be brought in ny Urt1te States di8trict court within the jurisdiction in
which such gubst nc’, mixture, or article is found.
TSCA Coapliauce/Knforceaent 8-38 Guidance Manual 1984
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ter Eight _ In Re (Seizure) Actions
Peesf Ii ’ &_ “
1. Pr 2 aretheReferrai Package
Upon eterinining that an in rem seizure action is appropriate, the Regional
Offic%. should prepare a civil litigation referral package (see Section 3 of
this chapter). The package may include a proposed complaint in rein
(Exhibit 8—6), which is prepared in accordance with Rule C of the
Supplemental Rules for Certain Admiralty and Maritime Claims that accompany
the Fed. R. Civ. P. The necessary elements of the complaint in rem are
that:
o It be verified by oath or affirmation;
o It describe with reasonable particularity the property that is the
subject of the action;
o It state that the property to be seized is (or will be during the
pendency of the action) within the jurisdiction of the district
court that will hear the action;
o It state the place of seizure; and
o It state the allegations of the violations, as required by the
statute, with sufficient particularity that the
defendant/respondent can frame responsive pleadings and investigate
the facts without moving for a more definite statement.
2. Execute the Warrant
Once the comp Laint Ia rem is filed with the court, an “arrest” warrant
(i.e., a warrant for the arrest of the property that is the subject of the
action) will be Issued. According to Rule C(3) of the Supplemental Rules,
the warrant is delivered to a U.S. Marshal for execution.
3. f 1 Other Reli ons
The Region should notit.y other Regions of Its actions if there is reason to
believe that the violative product is also in those Regions.
Com 2 1 lance Witha Seizure Order -
The violation of a court—ordered seizure or decree of condemnation
constitutes contempt of court. When any such violation is found, it should
be reported promptly to the U.S. Attorney who filed the seizure action.
TSC JEz ce A nt 8-39
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Chapter Eight Rihlbjt 8—b
Model Cosplaint In Rein
IN THE UNITED STATES DISTRICT COURT FOR ThE
________________ DISTRICT OF __________________
United States of America
V.
— Complaint In Rein
TO THE HONORA1 LE JUDGE OF SAID COURT:
This is a complaint in rem filed in behalf of the United States of
America by the United States Attorney for this District, who
represer. as follows:
I
This i ao -tion in rem instituted pursuant to Section 17(b) [ or Sec—
tion 7(b)C Y of the Toxic Substances Control Act (TSCA), 15 U.S.C.
§2616(b), f t r the seizure and condemnation of a chemical substance or
mixture ‘ i been manufactured, processed, or distributed in corn—
mer; - f TSCA or any iniplementing rule or order or any
art r’r 1ntng ti h substance or mixture. Authority to bring this
ac ori is in tLi Un -ted States Attorney by 28 U.S.C. §547(2).
I’
This Court has jurisdiction of the subject matter of this action
pursuant to 15 U.S.C. §2616(h).
III
The property o be seized is located at ( exact location) , which is
within this judicial district [ or, the property will be located at
( exact location) , within this jurisdic on, during the pendency of
the actionf.
TSCA Coi.pliance/Enforceaent 8-40 Guidance Manual 1984
-------
Chapter t _ - Exhibit 8-6
Iv
( Name of chemical substance or mixture) is a chemical substance
or mixture that has been manufactured, processed, or distributed in
commerce in violation of TSCA as follows:
(State allegation with specific reference to the
sections of the Act, regulations, or orders that
allegedly have been violated.)
WHEREFORE, the complainant, United States of America, prdys:
(a) That the chemical substance or mixture j fchemIcalsubstance
or mixture) or article containing such substance or mixture be seized
and condemned, and that it be disposed of as the Court may direct in
conformity with the practice of this Court.
(b) That the (name of com ai that manufactures, processes, or
distributes in commerce ) and any or all persons having, or pretending
to have any right, title, or interest in or to the substance, mixture,
or article, be notified to appear in order that they may answer the
allegations herein set forth.
(c) That this Honorable Court may enter all such orders, decrees, and
judgments as may be necessary and grant the complatnant the costs of
this proceeding.
(d) That the complainant may have such other and further relief as the
nature of the case may require.
( re of U.S. Attornej) -
United States Attorney for the
District o
VERIFICATION
I have read the foregoing pleading and know its contents, which is true
and correct of my own knowledge, except as to matters therein stated
upon my information and belief, and as to such matters I believe
it to be true.
Executed on this day of (date)
(location)
United States Attorney
TSCA Co.pliance/Knforce.ent 8-41 Guidance Manual 1984
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Chapter Eight bits
TSCA Coap1ianceJ nforce.ent 8-42 Guidance Manual 1984
-------
Chapter Eight
6 Settlement Agreements
By their very nature, TSCA judicial civil actions do not involve settlement
agreements. Nonetheless, an injunction or inreni (seizure) action that is
granted to EPA by a district court is usually monitored for compliance by
the Agency. The violation of either type of civil aciion will subject the
responsible party to a charge of contempt of court.
TSCA Cospliance/Enforce.ent 8-43 GuIdance Manual 1984
-------
Chapter Nine
Judicial Enforcement: Criminal Actions
Chapter Contents _____ ____ _________________________— Page
Statutory Authority 9—i
Basic Enforcement Policy 9—i
Criteria for Identification of Potential Criminal Action 9—2
Procedures for the Invest lgatioi and Referral of a Criminal Case 9—6
Exhibit 9—1: Office of Criminal Investigatlon8: Field Offices 9—10
Exhibit 9—2: Memorandum (9 May 1983): Referral Procedure
for Criminal Cases 9—il
Exhibit 9—3: Uniform Criminal Referral Package Format 9—16
TSCA Coapliance/Enfor-cement 9-i Guidance Manual 1984
-------
Chapter Nine
Judicial Enforcement: Criminal Actions
Statutory Authority ______ ________
The imposition of criminal penalties is authorized by Section 16(b) of
TSCA, which states that:
***tAJ y person who knowingly or willfully violates
a iy 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.
Section 15 of TSCA enumerates those acts considered unlawful under TSCA
(see Chapter Seven for a complete listing).
Basic Enforcement Policy _________ ____________________
The objecrive ot the toxic substances enforcement program is to ensure
compliance with the terms and provisions of TSCA. The Act provides the
Agency with a variety of administrative, civil, and criminal enforcement
options to accomplish this goal. Potential overlap exists among these
various options, but the Agency is free to pursue criminal sanctions
whenever sufficient evidence is available to support the requisite elements
of proof.
As a matter of eururcemeut policy and resource allocation, such an
unrestrained use of criminal sanctions is neither warranted nor practical.
The commitment of investigative and technical resources necessary for the
successful prosecution of a criminal case is high. More importantly, a
criminal referral for investigation or prosecution can entail profound
TSCA Compliance Enforcement 9— i Culdance Manual 1984
-------
Chapter Nine Judicial Enforcement: Criminal Actiona
consequences for the subject of the referral. Accordingly, criminal refer-
rals should be confIned to situations that-—when measured by the nature of
conduct, the compliance history of the subject(s), or the gravity of the
environmental consequences——reflect the most serious cases of environmental.
misconduct.
Criteria for Identification of a Potential Criminal Action _______
This section discusses the considerations that should be examined in deter-
mining whether to proceed with a criminal vis—a—vls administrative/civil
action.
The Scienter Requirement
An Individual who engages In conduct prohibited by statute or regulation
can be prosecuted civilly or ii. . ruatively without regard to the mental
state that accompanied the conduct. J i nInal sanctions, on the other hand,
will be limited ordinarily to cases in which the prohibited conduct is
accompanied by evidence of a guilty knowledge” or intent on the part of
the prospective defendant. Referred to as the scienter requirement, this
element of proof exists under virtually every environmental statute
enforced by the Agency.*
TSCA imposes criminil penalties only for “knowing or willful violations” of
tne Act. Although there is, as yet, no case law on the meaning of this
phrase under TSCA, the phrase is used in a number of other criminal provi-
sions. As such, it has been interpreted to mean that the violative
* Onc c cept ion to this general rule is the Refuse Act, 33 U.S.C. §407,
which has generally been inttrpreted as a “strict liability” statute.
ISee, e.g.. United States v. White Fuel Coiiporation , 498 F.2d 619 (1st
cT i 7Z ).1 [ naddition, a prosecution for illegal discharges under
the Clean Water Act canbe based on negligent or willful conduct, 33
U.S.C. Iii9(c)ii). “Negligence” is not, strictly speaking, a form of
S ci e n t e r.
TSCA Compliance/Enforcement 9-2 Guidance Manual 1984
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Chapter Nine _____ Judicial Enforceaent: Crialnal Actions
act must have been done inteattonally and not as a result of accident or
mistake. *
The requirement to prove a culpable mental state, as well as a prohibited
act, is certainly the clearest distinction between criminal and
administrative/civil enforcement actions.
The Nature and Seriousness of the Offense
As a matter of enforcement policy and resource allocation, EPA will inves—
tigate and refer only the most serious torms of environmental misconduct
for criminal prosecution.
Of primary importance to this assessment is the extent of environmental
contamination or human health hazard that has resulted from, or was threat—
ened by, the prohibited conduct. In general, this determination will
depend upon considerations such as the duration of the conduct; the
toxicity of the polLutants Involved; the proximity of population centers;
the quality of the receiving land, air, or water; the amount of federal,
state, or local cleanup expenditures; and the public sentiment supporting
strong enforcement: action in response to a specific situation.
Also of signiticance in assessing the seriousness of the illegal conduct is
the impact——real or potential——on EPA ’s regulatory functions. This factor
is of particular importance in cases involving the falsification or
concealment of records, reports, or other information. For example, even
if a technical falsification case can be made, criminal sanctions may not
be appropriate if the distortion of information could not reasonably have
been expected to have a significant impact on EPA’s regulatory or
decisionmaking process. Where the materiality of the falsification is
clear, however, the need for criminal sanctions 8hould be considered.
* Courts do make a distinction between the terms ‘knowingly” and “will—
fully.” ‘Knowingly” is generally defined to mean an act done iritea—
tionally and not as a result of accident. “Willfully” is often de iaed
as requiring proof that the person performed the violative act with
intent to violate the statute. However, courts that have interpreted
the term “willfully” in the context of the Clean Water Act have declined
to impose this more stringent burden of proof. These courts have mdi —
cated that evidence demonstrating that the act was intentionally done
was sufficient to demonstrate willfulness. [ United States v. Hamel , 551
F.2d 107 (6th Cir. 1977); United States v. Frezzo Brothers, inc. , 461
F. Supp. 266 (E.D. Pa. 1978), aff’d , 602 F.2d 1123 (3d Cir. 1979),
cert. denied , 444 U.S. 1074 (1980); United States v. Ouelette , 11 ERC
flSO (E.D. Ark. 1977).] Courts can reasonably be expected to attach the
same meaning to the term in TSCA cases.
TSCA GoapIiaace/Knforce .ent 9-3 Guidance Manual 1984
-------
Chapter Nine JUQI C1 1 u orce ut; rim ious
The Need for Deterrence
Deterrence of criminal conduct by a specific individual (individual
deterrence) or by the community at large (general deterrence) has always
been one of the primary goals of the criminal law. Where the offense is
deliberate and results in serious environmental contamination or human
h alth hazard, the need to achieve deterrence through the application of
strong punitive sanctions will almost always exist.
The goal of deterrence may, on occasion, justify a criminal referral for an
offense that appears relatively minor. This would be true, for example,
for offenses that——while of limited importance by themselves-—would have a
substantial cumullattve impact if commonly committed. This might also be
true when addressing violations by an individual with an extended history
of recalcitrance and noncompliance.
The Compliance Hist 1 of the Subject(s’
The compliance history ot th 3ub ’ct(s) of a potential criminal referral
should also be considered ii determining ne appropriateness of criminal
sanctions. As a general rule, criminal sanctions become more appropriate
as the incidents of noncompliance increase. The occurrence of past
enforcement actions against a company or the failure of administrativef
civil enforcement, is certainly not a prerequisite to a criminal referral.
However, a history of environmental noncompliance will often indicate the
need for criminal sanctions to achieve effective individual deterrence.
The Need for Simultaneous Administrative/Civil Enforcement Action
Simultaneow admin strative/civLl. and criminal enforcement proceedings are
legally ptrntissthie 1Jnited States v. Kordel , 397 U.S. 1, 11 (l97O) and on
occaslon C t j wdrranted. However, i arate litigation staffs must be
appointed on ni tatLon of a grand jury investigation, if not before.
Furthermore. tr.e purbuit of siniu taneous proceedings would provide fertile
grounds tar lu al challenges to one or both proceedings that, even if
unsuccessful, would cotsutae additional time and resources. Thus, parallel
proceedings c &ou d h avoid”d except where clearly justified.
In ti . s -egard. should he noted that some of the goals of a criminal
ion, Jin ; leIt!r ’nc( , can be achieved through an administra—
tive iv i t 1 on that secures substantial civil penalties in addition
to inj . nc i.t t lk t. Moreovet ecent xperience indicates that while
some cases ro y Ct uil in 1 . ertods of incarceration, criminal sentences will
oft u be limiced to monetary fines and a probationary period. In light of
this reality, Lhe use at the additional time and resources necessary to
pursue a crimit.ai Ln estlgatiOn is often not justified.
TSCA Co p1iance/Eaforceeflt 9-A ()utda e Manual 1984
-------
Chapter NIne Judicial Enforce nt: Criiiinal Actions
Criminal Enforcement Priorities
The Office of Criminal Investigations, in conjunction with the Agency
program offices, has developed investigative priorities in each of the
Agency’s program areas. The purpose of this effort is to focus the limited
investigative resources of the Agency on the most serious cases of
environmental misconduct. These priorities are fluid and will be modified
to reflect additional regulatory programs in the Agency as they develop.
In addition, the creation of these priorities does not preclude the
possibility of criminal referral for conduct not faTlTng within these
investigative priorities.
The order of thu Usting is random. It is not intended to create ranking
within the priorities for TSCA; nor is any section of the Act given higher
priority than another. The priorities for TSCA are listed below.
Violations of Section 4 Testing Rules or the Section 5(b) Premanufacture
Notification Program . Sections 15ç1) and 16(b) of TSCA, 15 U.S.C.
§ 2614(l) and 2615(b), establish misdemeanor penalties of one year of
Imprisonment and a $25,000 fine for knowing or willful violations of any
rule promulgated under Section 4 or any requirement prescribed by Section 5
of TSCA. A high investigative priority will be placed on violations that
have a significant impact on the Agency’s ability to act under Section
4(f)(1), 15 U.S.C. 2603(f)(1), and on situations of falsified test data
submitted pursuant to Section 5(b), 15 U.S.C. §2604(b), and the preinanufac—
ture notification program.
Failure To Report Substantial Risk Information . Sections 8(e), 15(3)(B),
and 16(b) of TSCA, 1.5 U.S.C. §S2607(e), 2614(3)( ), and 2615(b), establish
misdemeanor penalties of one year of imprisonment and a $25,000 fine for
knowing or willful failure to submit to EPA information that reasonably
supports the conclusion that a chemical substance or mixture manufactured,
processed, or distributed in conmerce presents a substantial risk of injury
to health or the environment. A high investigative priority will be placed
on all violations ot this reporting requirement.
Violation of PCB or Dioxin Regulations . Sections 15(1)(C) and 16(b) of
TSCA, 15 U.S.C. SS2614(1)(C) and 2615(b), establish misdemeanor penalties
of one year of imprisonment and a $25,000 fine for knowing or willful
violations of rules issued under Section 6 of TSCA. The Agency has issued
regulations governing polychlorinated hiphenyls (PCBs) and the disposal of
dioxin—contaminated pesticide wastes. A high investigative priority will
he placed or knowing or willful violations of these regulations that result
in, or threaten, significant environmental contamination or human health
hazard.
TSCA Copliance/Enforcei.ient 9—5 Guidance Manual 1984
-------
Chapter Nine ____ Judicial Knforce ent: Crthinal Actions
Procedures for the Investigation arid Referral of a Criminal Case
Inve St I ga ti.on
The Office of Criminal Investigations maintains the primary role of
investigating and referring all allegations of criminal misconduct to the
Department of Justice. The office is staffed by experienced criminal
investigators located in each of five field offices and in EPA
Headquarters. (ExhibIt 9—1 contains a list of the field offices and their
scope of responsibility.)
An initial ‘lead’ or allegation of potential criminal activity may come to
the Agency from atiy of several sources, including state agencies, routine
compliance Inspections, disgruntled plar t employees, or citizen groups.
Regardless of its source, the lead ai outd be transmitted iediately to the
Special—Agent—In—Charge of the respuna ie field office, who will open a
case file* arid assign a -rlmina] tnv stigator (known as a Special Agent) to
the lead fur follow-up.
If the re i ’nLiity of tue lead is unclear, the Special Agent will conduct a
prelimin ary inquiry solely to determine the credibility of the allegation
and to make an initial assessment of the need for a more thorough investi-
gation. This initial Inquiry will he brief and will not involve extensive
commitment of resources or time. Its soLe purpose is to reach an initial
determination on the need for a con plete investigation.
Once a detetmination has been made by the Office of Criminal Investigations
that a :horugh Inv stTc stIon is warranted, the Special Agent will immedi-
ately contact the Regional Counsel in the Region where the investigation is
to be conducrert. The Regional Counsel will ensure that no civil enforce-
ment action is pending or contemplated against the investigative target and
will S a uraey to erk iiih the investigator during the case
d veiopmeoL. • ss. The regional attorney and Special Agent will also
cont. t t tp a1e regional program office to ensure that no adminis-
trative enrcrLC lnen1 acticri Is pending or contemplated. In addition, where
the need rcr Leennical support during the investigation is contemplated,
the regi na c.gram office will he asked to assess the availability of
tt chri1ci wnen ap)rotriate, to designate a specific individ-
ual r ur;.. C Ccid1 Agent during the course of the investigation.
* Th opeiii’ o - . file does nut commit the Agency to proceed with
a criintnal r - fer:ci t the culmination of the investigation; nor does it
reflect an Aglcy decision that criminal conduct occurred. All
enforcement ottlns rin open and should be considered until referral
to the irtnt±r.t of Justice.
TSCA CoRpliance/Enforce.eot 9-6 Guidance Manual 1984
-------
Chapter Nine Judicial Enforceaent: CriRlual Actions
Management ot the investigation will he the primary responsibility of the
Special. Agent, acting under the supervision of the field office’s
Special—Agent—In—Charge. The Special Agent will be responsible for
determining the basic investigative approach and will take the lead in
conducting interviews; assembling and reviewing records; planning and
executing surveillance; coordinating with state, federal, and local law
enforcement agencies; planning and executing searches; developing
informants; and performing other investigative matters. A technical person
will work with the Special Agent during those portions of an Investigation
requiring technical expertise.
Referral
A referral recommendation will be developed when the independent field
investigation has been exhausted or when it can or should proceed no fur-
ther without the initiation of a grand jury investigation by the Department
of Justice.* At this point, the results of the investigation will be
assembled in a referral package. The preparation of the overall referral
package Wilt be the responsibility of the regional attorney assigned to the
investigation, working in conjunction with the Special Agent.**
Once the package is prepared, it will be reviewed by the Special—Agent--In—
Charge and the Regional Counsel, who will act as joint signatories. Tech—
nical portions of the package will also be reviewed by the regional or
Headquarters program office, or NEIC——dependirtg on the source of technical
support. During this technical review, the availabilIty of technical
resources to support Litigation should also be reviewed and specifically
confirmed by the appropriate technical office.
Following completion of the referral package and concurrence in the
referral recommendation by the Special—Agent—In—Charge and the Regional
Counsel, three copies of the referral package and all exhibits should be
directed to the Associate Enforcement Counsel for Criminal Enforcement,
Criminal Enforcement Division (LE—134E); U.S. Environmental Protection
Agency; 401 M Street, S.W.; Washington, D.C. 20460. No copies of the
referral package will be sent to the local United States Attorney or
the Department of Justice until Headquarters has reviewed and approved the
referral.
* Where a referral is made for further investigation by a grand jury, the
task of creating a complete referral package is difficult since the case
has not yet been compLetely developed. Therefore, a streamlined refer—
ra1 process has been instituted for these cases to eliminate ineffi-
ciency and to provide for the more natural development of criminal
cases. (See Exhibit 9—2 for a copy of these procedures.)
** Where a referral is made for further investigation by a grand jury, the
package will be prepared by the Special Agent in coordination with the
regional legal and technical staffs assigned to the case.
TSCA Coapliance/Enforceaent 9-7 Guidance !lanual 1984
-------
Chapter Nine Judicial Enforce nt: Criainal Actions
It either the Special—Agent—In—Charge or the Regional Counsel believes the
referral should not be made, that official will include a statement of the
reasons underlying this position and make an alternative recommendation
( e.g. , close out investigation, etc.). The package nevertheless will be
directed to the Criminal Enforcement Division for review; a final referral
decision will be made by the Assistant Administrator for OECM (or the
Assistant Administrator’s delegatee).
The Headquarters review will focus on the adequacy of case development,
adherence to the criminal enforcement priorities of the Agency, legal
issues of first impression, consistency with related program office policy,
and general prosecutorial merit. In cases involving particularly complex
issues of law, the Criminal Enforcement Division will also consult with
General Counsel attorneys, if, following this review process, the referral
recommendation is accepted, referral packages will be directed
simultaneously to the Department of Just.ice and the appropriate United
States Attorneys Otfice. Appropriate covet letters will be drafted by the
Crininal Enforcement Division.
Ref erral Pac oi . na t
Referral packages should he prepared in accordance with the Uniform Crimi-
nal Referral Package Format effective on January 1, 1982. A copy is
included in this Manual as Exhibit 9—3. However, referral packages
prepared for those cases referred for further investigation by a grand jury
should be prepared in accordance with the May 9, 1983, guidelines (see
Exhibit 9—2).
Re f e r e nc es
Age icv e1n ’it’yees who are involved in the investigation and referral to the
Depariment f JUSLICC of allegations of criminal violations of TSCA should
ramiliarize t eives with the agency documents listed below. Although a
dige ted err r seu.e of this material is contained in this section, most
or the items te not. covored in detail. The documents are contained in the
(; iera1 Enlotcement Poiicy Compendium , or copies of the documents may be
otitained by ‘cnracring the Criminal Enrorcement Division, EPA Headquarters.
• t t’ CL . - pet atilig I’rocedures tor the Criminal Enforcement Program;
• Ur1m ia’ t ’.• citcement Priorities;
• Ae itv ,u1U . jAflc$ tor Participation in Grand Jury Investigations;
• Agency uideiines for the Use of Administrative Discovery Devices
in the L)evelopment of f otential Criminal Cases;
1CA Co.pliance/Entorcement - __—- 9-8 Qiidance Manual 1984
-------
Chapter Nine Judicial Knforce.ent; Cri.inal Actions
• Guidelines on Press Relations on Matter8 Pertaining to EPA ’s
Criminal Entorceinent Program;
• Policy and Prn dure on Parallel Proce diugs at the EPA; and
• Guidance Concerning Compliance with the Jencks Act.
TSCA Coiipllance/ nforcewent 9—9 Guidance Manual 1984
-------
Chapter Nine
RwM bit 9—i
Office of Crialnal Investigations: Field Off ices
Philadelphia Field Office
( Regions I, II and III )
Seattle Field Office
( Regions IX and X )
Spec’ ial—Agent—In—Charge
Office of Criminal
Investigations
EPA — Region III
Curtis Building
6th & l’ialnut Streets
Philadelphia, PA 19106
FTS 597—1949
Atlanta Field Office
( Regions IV and VI)
Special—Agent —In—Charge
Office of Criminal Investigations
EPA — Region X
1200 6th Avenue
Seattle, WA 98101
FTS 399—9874
Denver Field Office
( Region VIII)*
Spec iai—Agent—Ir—Charge
0 t1ce of Criminal
invest igat ions
EPA — Region IV
345 Courtland Street, N.E.
Atlanta, GA 30365
FTS 257—48&
ca F1eld Otice
( Regi.!s V and VIl )
Special—Agent—In—Charge
Office of Criminal Investigations
National Enforcement Investigations
Center
Box 25227
Denver Federal Center
Denver, CO 80225
FTS 234—2158
. C1 - flt— n--CLdIge
Orf IC t ot • :in rial
: jOfl
EPA — Re i n V
230 Soui. 1 i .earhorii St eet
Chic m
FTS au,-
* In add!tion to Region VIII cases, the Denver Field Office’s
responsibilities include cases that overlap the jurisdiction of
of field ottices.
TSCA Coapliance/Knforceaent
9—10
idance Manual 1984
-------
Chapter Nine R hf bit 9-2
Referral Procedures for Crisinal Cases
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WA$H NGTOM. DC 20440
4( 0 t ’
MAY 9 1983
0 ,
..SGAI. AND CH 0NCSI.I4fl? COUNILt.
MEMORANDUM
SUBJECT: Referral Procedure for Criminal Cases
FROM: Courtney M. Price
Acting Associate A ministrator
and General Counsel
TO: Regional Counsels, Regions I—X
All SAICs, Criminal Enforcement Division
Under the current General Operating Procedures, a
criminal referral to the Justice Department may be reads for
one of two reasons: for prosecution (where the investigative
effort is complete and we believe the crime is capable of
being proved); and for further investigation in conjunction
with the Justice Department.
In the latter situation——’referrals for further
investigation-—the scope of the ultimate prosecution, and
even the identity of defendants, may well not be known. The
purpose of trie referral is to facilitate further development
of the case rather than to incorporate final Agency decisions
on the viability or advisacility of a prosecution. As such,
It can and often does occur at an early stage in the case
development process.
In these situations, the task of creating a complete
referral package is difficult——in light of the fact that the
case has not yet been completely developed. It is also tine
consuming, and thus can prejudice the investigation. The
time spent in attempting to prepare a complete referral
package, and in processing the package through the Regional
and the Headquarters review system, can cause delays in the
development of the case while not providing the countervailing
benefits normally realized in the referral process, i.e.
close scrutiny of the evidence prior to filing or a final
assessment of the merits of criminal prosecution.
TSCA Coapliance/ nforceaent 9—11 Guidance Manual 1984
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Chapter Nine Rwhibit 9—2
—2—
To eliminate this inefficiency, and provide for the more
naturaL development of criminal cases, a shortened referral
package will be used where th . purpose of the referral is
for further nvestigat .on in. conjunction with t. . Justice
Department rather than to incorporate a complete investigative
pacXage. (The format appears as Attachment a’.)
This package will provide a basis on which to make the
best possible assessment ooth at the Regional level and at CPA
Neadquarters on the merits of the potential case. At the
same time, it will provide a ehicle for the more rapid
transmission of our invettigative work product to prosecutors
with the Justice Department, who will then become part of the
criminal case development team.
The modi’ied fcr.- ’. ,3ckage will normally be prepared
by the Special Agent assigned ti the investigation, who will
be most f!miliar with investigativ, activity to date. The
package nust be prepared in close coordination with Regional
legal and techflical personnel assigned to the Investigation.
As under existing procedures, the referral will be approved by
both the Special—Ag ent—in—Charg. and the Regional Counsel
before transmission to CPA eadquarters for approval. Cover
letters to the appropriate United States Attorney and to the
Land and Natural Resources Division will, be drafted at CPA
a.adquarters for the signature of the Associate Administrator.
Questions on this procedure should be directed to
Peter Beeson !382_4543). It is our hop. that these modified
procedures will ensure the most efficient possible development
of our criminal cases.
At :hm.ftt5
TSCL Co.pliance/& force.erit 9-12 Guidance Manual 1984
-------
Chapter NIne I zhibit 9—2
TACHMENT A
MEMOP.ANDUM
SUBJECT: Cr .minal Referral.
FROM: Special—Agent—in—Charge_______________________
_______________________Field Office
Criminal Enforcement Division
Regional Counsel
Rsqion________________
Associate Enforcement Counsel
Criminal Enforcement Division
Enforcement Co insal
TO: _____________________
Associate Administrator and General Counsel
Attached for your consideration are materials assembled
by this Agency in a criminal investigation against____________
____________________________ It is th. opinion of our offices
that further development of this case should proceed in
close coordination with the Justice Department. An overv .ew
of the nature of this investigation is provided be.ow for
your information. we recommend immediate referral to the
( U.S. Attorney/Federal District ) and to the Land and atural
Resources Division for further development.
TSCA Coapliance/Enforceaeat 9—13 Guidance Manual 1984
-------
Chapter Nine bit 9—2
REFERRAL PACKAGE
( Name of Case)
( Name of District )
I. Identity of Subj ect(s) of Investigation:
Individual(s )
1. Name
2. Title
3. Age
4. Hcime/work a dress
S. Current employment
6. Criminal record, .. any
7. Prlo: PA e ,forcei’ ent action
8. .her p rt nent iAfor nat.ort
Corpo’ at .c’ .s :
1. Name and nature of business
2. Parent company
3. Sucidiaries
4. Address of facility(ies) associated
with offenses
5. Stat. of incorporation
6. Size of company
7. Prior !PA enforcement action
8. Other pertinent information
4ature of Activity urder Iwestigation
1. t o at1on and duration
2. Venue
3. 3ignificance of Activity (A brief statement
of reasons under.ythg the need to address
the Qisconduct with criminal sanctions.)
TSCA Co.pliance/&iforce.ent 9-14 Guidance Manual 1984
-------
Chapter Nine xhibit 9—2
— 2-
111. Statutory Offenses
1. Applicable Statutes : (A summary of Federal
env ronmerital and related laws potentially
violated by the activity, accompanied by
pertinent citations to the United States
Code arid the Code of Federal Regulations>
2. evidence Gathered to Date : (A brief summary of
available evidence, accompanied by copies of
aelected investigative reports prepared within the
Criminal Enforcement Division that reflect this
evidence (for example, surveillance reports or
interview summaries.)
IV. Personnel Assigned
1. Special Agent
2. Regional Attorney
3. Technical Staff
TSC4 Co pIiance/ nforceaent 9-15 Cu.1dance Manual 1984
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Chapter Nine Rrh{bit 9—3
Unit ora Criminal Referral Package Foraat
Effective January 1, 1982, the following format should be used by all
EPA offices in preparing criminal cases for referral to the Department
of Justice. Obviously, organizational changes should be made where
considered necessary to achieve an effective presentation of the facts
or issues of an individual case. However, this format and the
accompanying instructions reflect the subject matter that should be
included in the package. If changes are made in the format, please
be sure that required subject matter is not omitted in the process.
INTRODUCTORY SECTIONS _________________________________
Title Page
Each referral package should carry a title page or cover sheet that
includes:
• Identity of the company and/or primary individual subject(s)
of the investigation;
• Federal district of the proposed referral;
• T1 ntity, occupation, and telephone number of the Agency
personnel who assisted in preparing the referral package; and
• Date LU hmittal of the report from the regional office.
Table of Contents
F. ’ r fera1 p kage should have a table of contents that includes
th fol1ot.’ ig sections:
Page
I. Intro( uctLon
II. Statutory Authority
Ill. Subject(s) of the Investigation.
IV. Enforcement md Regulatory History
V. DescrtptionoftheEvidence
TSCA Co pliance/Enforce.ent 9—16 Culdance Manual 1984
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Chapter Nine ExhIbit 9—3
Page
VI. Legal Issues . .
VII. Environu ental Impact . . . . .
VIII. Recommendation . . .
Appendix A. List of Witnesses . . . . .
AppendixB. List of Exhibits
Appendix C. Exhibits ....
A discussion of each individual section follows.
Body of the Report
Section I— —Introduction . The introduction will provide a synopsis of
the investigation to orient the reader. It should be brief. A
detailed discussion of the evidence will be provided in a subsequent
section of the report.
Within the introduction, the following areas should be addressed:
• The identity of the corporate and individual subject(s) of
the investigation;
• A brief description of the nature and duration of the
criminal activity under investigation;
• Venue ( i.e. , the federal district(s) in which the offense
occurred). If venue lies in more than one district, an
explanation should be included for the Region’s choice of
one federal district over another for referral; and
• The regional recommendation underlying the referral.
Section lI——Statutory Authority . This section should include the
statutory provisions that provide the basis for the referral.
Pertinent portions of each statute should be quoted in full, followed
by a listing of the elements of each offense that must be provided in
a subsequent prosecution.
Section Ill——Subjects of the Investigation . This section will be
used to provide pertinent background data on the subjects of the
referral. For each individual subject, the following minimum
information ahould be included:
• Name and title;
• Approximate age;
• Home and work addresses;
• Nature of current employment; and
• Criminal record, if known.
TSCA Conipliance/Enforceaent 9-17 Guidance Manual 1984
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Chapter Nine Exhibit 9-3
For each corporate subject, include:
• Name of company and parent corporation, if appropriate;
• Complete address of company;
• Complete address of facility associated with offenses;
• State of incorporation of corporate subjects;
• Registered agent for service; and
• A brief statement of the business, profits, and size of the
company.
Section IV——EnEorcement and Regul ory History . This section should
include a description all knowr enforcement activity (state and
federal.) relating i envir ;’ ’. matters taken against the subject
in the past. in additin, any previous efforts by EPA to remedy the
present problem through informal, administrative, or civil means
should be discussed.*
Finally if the Region is recommending that the criminal referral be
pursued simultaneously with a parallel civil/regulatory proceeding
against the subject(s), this fact should be highlighted. The steps
taken in the Region to ensure proper coordination and separation of
the parallel proceedings should also be described.
Section V—--Description of the Evidence . This section will constitute
the ma L; purtio of Lhe report. Its function is to present the
res, ts or the Region’s inve tigative activity and to demonstrate how
tn& erin1n conduct uncovered in that investigation will he proved
at trial.
Background. There is no one proper way to present the evidence. Any
method that is clear amid organized is acceptable. A chronological
appru .c c .’’ mxnended, however, both because it is simple to follow
ani h ’ rtc co s often present their evidence before the grand
jflT and at .rial within a chronological framework.
Regardles’ or th •)rga 1ization chosen, all substantial facts detailed
in ibis section shouLd be iupported by some item of evidence——a
witness lnter .’iew, a Letter from EPA correspondence files, an NPDES
permit, results from a compliance inspection, technical analysis of a
* Care should be taken while writing this report to avoid duplication.
If tacts m c tating to past regulatory or enforcement activity are
discussed in subseqtie t sections ( e.g. , as evidence of a “willful”
or ‘knowing iolarton), only a bric’ summary should be included in
this section.
TSCA Couipliance/Entorceaent 9-18 Guidance Manual 1984
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Chapter Nine ExhIbit 9—3
pollutant sample, a photograph, etc. Copies of these items of
evidence should he included, in turn, as exhibit8 to the litigation
report, for easy reference by the reviewing personnel at EPA
Headquarters, the Justice Department and the United States Attorneys
Office.* The existence of evidentiary support for the factual
allegations contained in the referral is crucial. The end goal of
the referral process is a successful prosecution. The question is
not, ultimately, what happened but whether it can he proved at trial.
Required Information . In completing Section V, the following items
should be included (although not necessarily in separate portions of
the section):
• A detailed review of all facts constituting the alleged
criminal behavior. Speculation should be avoided. If the
evidence currently available does not support one or more
elements of the of tense(s) under investigation, this should
be highlighted, since this will assist in focusing future
investigation by grand jury or otherwise;
• Any statements by the subject(s) of the investigation
pertaining to the subject matter of the investigation.
Written as well as oral statements should be included;
• Evidence indicating willful or knowing behavior by the
investigative targets;
* The following paragraph is an example of the chronological
presentation of evidence supported by exhibits:
On May 1, an NPDES permit was issued to Company X
that contained the following provisions...(see
Exhibit 1, NPDES permit). On May 5, the plant’s
waste treatment system ceased operation. (See
Exhibit 2, Interview Report of Informant A.3At that
time, Company X faced several imminent production
deadlines. (See Exhibit 3, Sales Contract Between
Company X and Company Y.) Production continued,
resulting in the discharge of raw sewage between May
5 and July 5. (See Exhibit 4, Analytical Reports
Provided by Former Chemist of Company X.) Discharge
monitoring reports submitted by Company X for this
period nevertheless falsely reported compliance.
(See Exhibit 5, Company X DMRs.) Moreover, in
response to an EPA inquiry, Company X reported the
successful operation of its waste treatment system on
July 1, almost two months after the breakdown. (See
Exhibit 6, Letter, Company X to EPA.)
TSCA Co pliaiice/Enforceaent 9—19 Guidance Manual 1984
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Chapter Nine Exhibit 9-3
• Any facts that bear on the reliability of the available
evidence. This might include, for example, equipment
breakdowns during technical sampling, or prior inconsistent
statements of a government witness. Ultimate conclusions
should not be made on the reliability of a particular witness
or piece of evidence in the report; rather, simply include
all facts relevant in assessing the reliability; and
• A complete chronology of contacts between EPA and the
subject(s) concerning the environmental problem underlying
the referral.
Section Vi——Legal Issues . in preparing a case for trial, the Justice
Department’s prosecutor will want to consider both the weaknesses in
the government’s case and the affirmative defenses available to the
defendants. In completing this pe tion of the referral package,
consider:
• Legal Defenses . This might include, for example, arguments
that a discharge of pollutioa was not into a navigable water
for the United States and therefore not regulated under the
Clean Water Act; or that dumping activity did not involve a
•hazardous waste” identified or listed under the Resource
Conservation and Recovery Act.
• Evidentiary Challenges . This might include, for example,
challenges to the methods used to obtain evidence, or to the
government’s ability to authenticate evidence due to a break
in the chain of custody.
• I itable Detenses . This might include, for example, EPA’s
va -ci1latiori of regulatory standards, the cost of compliance,
labor difficulties at the facility, etc.
In cornplettng this section, speculation should be avoided. Potential
defenses should not be included unless there is some basis for their
assertion •- de the facts of the case.
Section V I I - Environmental Impact . This section should provide an
assessment of the significance of the environmental harm or human
health hazard r suiti g from the conduct under investigation.
Precise statements in this area are not essential elements of most
criminal offenses and will otten be difficult to support scientifi-
cally. When the investigation focuses on historical rather than
ongoing conduct, or involves falsified technical documents, the
task becomes even mort dif tcult. Normally, however, an educated
estimate——based on the type of pollutant involved, the location, and
normal operating capacity of the facility——can be made. Where this
is possible, the information will provide one significant basis for
assessing the gravity of the misconduct.
TSCA Co.pliance/Enforce.ent 9-20 Guidance Manual 1984
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Chapter Nine - Rxhf bit 9—3
Section VIII——Recommendation . The report should conclude with a
specific recommendation for the appropriate future course of the
case. Normally, one of two recommendations will be made:
o Further Investigation . Where the use of an investigative
grand jury is contemplated (for example when witnesses are
not talking and compulsory process is required), the referral
will recommend turther investigation. In this situation, an
additional recommendation for prosecution may or not be
appropriate. If the evidence in hand provides an adequate
basis on which to base such a judgment, a recommendation for
prosecution under specific statutory provision8 should be
included. If the available evidence is not sufficient, a
prosecutortal recommenation should be withheld pending
completion of the grand jury work and consideration of the
re8UltS.
o Prosecution . If the fieLd investigation is complete, the
conduct has been documented, and grand jury work is
required—-if at all——only to present the evidence and secure
an indictment, the referral should include a recommendation
for prosecution under specific statutory provisions.
Following the specific recommendation, the report should include the
best available projection of resources necessary to bring the case to
resolution. Th1-s projection should discuss investigative, technical,
and legal resources and should indicate the Regional Office’s
ability to provide these resources.
Appendix A——List of Witnesses . This section is particularly useful
to prosecutors supervising the case and will frequently be used in
issuing subpoenas, planning a grand jury presentation, and estimating
the scope of the prosecution. For each witness, the writer should
provide all available background data (e.g., name, residence, work
address, telephone numbers, etc.) and a brief summary (one paragraph)
of the matters on which testimony is anticipated. This section
should include not only the key substantive witnesses, but also those
who will establish the appropriate foundation for documentary or
physical evidence ( e.g. , photographers, chain of custody record
custodians, etc.). Confidential informants should not be identified
in this list.
Appendices B and C——List of Exhibits and Exhibits . Copies of every
iiiistantial piece of documentary evidence in the case should be
included as an exhibit to the report* and should be indexed to allow
* Exceptions wiLl be made if the exhibit is too bulky or otherwise
inappropriate for inclusion in the report. Pollution samples, for
example, will remain with the Regional Offices; however, copies of
reports reflecting their analysis should be included where possible.
TSCACoiiipliancefEnforce.ent —— 9-21 Guidance Manual 1984
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Chapter Nine R h4bit 9—3
for easy reference in the main body of the report. Original exhibits
or documents should not be included in the referral package if this
can be avoided. They will normally be used as evidence in trial, and
should be retained in the Regional Office until other arrangements are
made with the Justice Department prosecutor supervising the case.
TSCA Co.pliance/Knforce.ent 9-22 Guidance Manual 1984
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Chapter Ten
Post—Settlement Enforcement
p ter Contents —— __________ ____ Page
Monitoring Settlement Agreements 10-1
Enforct ment of Settlement Agreements 10—2
TSCA Compliance/1 nforceaent 10-i Guidance Manual 1984
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Chapter Ten
Post-Settlement Enforcement
Monitoring Settl ent Agreements _________ _______
The Agency otten settLes an administrative civil penalty action with a
violator prior to the actual hearing, thus obviating the need for costly
lit igation. Such settlements under TSCA take the form of either consent
agrecuents and consent orders or settlements with conditions (SWC).*
Consent agreement negotiations focus primarily on the appropriate size of
the penalty to be Imposed on the violator. Adjustments to the penalty are
made by considering such factors as 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. Remedial performance as a means of remitting
a civil penalty assessment is generally not used in the context of a TSCA
consent agreement and consent order. however, remedial performance and the
remittance of all or part of an assessed penalty is permitted under an
swc.
I n order to ensure continued compliance with TSCA as well as with the terms
of the consent agreement and consent order or S’WC, the Agency performs
post—settleme it monitoring, which includes:
• Follow—up inspections as a part of routine assignments under a
neutral inspection scheme,
• Fol1o —up inspections as part of an SWC agreement; and
• Ensurarice that the violator has paid the stipulated civil penalty.
* An SWC involves the
and scheduLe) and a
and consent order.
g ;t I dn nc t on L1it use
use of a remittance agreement (compliance program
remittance order in addition to a consent agreement
(See Appendix 4, “Settlement With Conditions”, for
SWC.)
TSGA Co.pltance/Entorceaent 10-1
Omidance Manual 1984
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Chapter Ten Post—Sett].e nt Enforcement
Enforcement of Settlement Agreements
Collecting fines thut. have been tmpo ed undet the terms of u conseitt
agreement and consent order should be followed up on a timely basis by
government personnel. The procedures and policies for collection action
referrals to the United States Attorneys Office are set forth in Appendix
1.
Enforcement of SWC agreements must be done in accordance with the
procedures contained in the SWC guidance (Appendix 4).
Follow—up inspections that reveal continuing violations of a settlement
agreement could subject the violator to additional civil penalty actions,
to civil court actions, or to possible criminal sanctions. (Consult
Chapter Five for the level of action guidance appropriate in these
situati)ns.)
TSCA CoRpliance/Enforceaent 10-2 Qitdance Manual 1984
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Chapter Eleven
Special Considerations
Chapter Contents Page
TSCA—Confidentjal Business Information 11—1
Disclosure of Confidential Information 11—7
Exhibit 1: Request for TSCA—CBI Access Approval 11—8
Exhibit 2: Sample CBI Complaint (With CBI Deleted) 11—9
Exhibit 3: Sample CR1 Complaint (With Hypothetical
CBI Included) 11—13
TS A Co p1iancefEnforce.eQt 11-1 cuidance Manual 1984
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Chapter Eleven
Special Considerations
TSCA Confidential Business Information —
Compliance/enforcement 1 ersonnel will, on occasion, need to review and use
information that is ntii ed to confidential treatment under Section 14 of
TSCA and the EPA regulatiocis at 40 C.F.R. Part 2. That section of the
tatite and the regulations protect confidential business information
(CBI)* from unauthorized disclosure. Material that is designated as CR1
inclides information considered to be trade secrets that could damage a
company’s competitive position if such information became publicly known.
Because CBI may be used as part of an active enforcement case, the
following section on confidentiality and disclosure of information is
included fri this manual. For a complete guide to TSCA CBI procedures,
consuit the TSCA Confidential Business Information Securltj Manual .
Anthorit v
Sect i a ) u ‘i’ ;A states that any information reported to, or otherwise
obtained by, the Administrator (or any representative of the Administrator)
under TSCA and that is exempt from disclosure under the Freedom of
Information Act Subsection (b)(4), 5 U.S.C. 552j, shall not be disclosed
by the Administrator or by any officer or employee of the United States,
except that such information may be disclosed:
• To any officer or employee of the United States in connection with
the official duties of such officer or employee under any law for the
protection of human health or the environment or for specific law
enforcement purposes (TSCA § 14(a)(1)(A) and 14(a)(l)(B)1;
• To contractors with the United States if the Administrator determines
that such disclosure is necessary for the satisfactory performance by
the contractor of a contract with the United States [ TSCA §14(a)(2)];
* TSCA UHI m.irerial does not in any maniler refer to classified National
Security Iiitormat oIi as defined in Executive Order 12065.
TSCA Co pliance/Entorcement li —I Guidance Manual 1984
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Chapter Eleven special Considerations
• If the Administrator determines it necessary to protect human
health or the environment against an unreasonable risk of injury
[ TSCA §14(a)(3)]; or
• When relevant in any proceeding under TSCA, except that such
disclosure is to be made In a manner that will preserve
confidentiality to the extent practicable without impairing the
proceeding [ TSCA §14(a)(4)]. [ See Section 22.22(a) of the
Consolidated Rules of Practice and Section 26(c) of the Federal
Rules of Civil Procedure.]
Section 14(b ) of TSCA states that Section 14(a) does not prohibit the
disclosure of:
(A) any health and safety study which is submitted
under this Act with respect to——
(1) any chemical subBtance or mixture which, on
ihe date c ct:ch such study is to be
disclosed has beet . offered for commercial
distribution, or
(ii) any chemical substance or mixture for
which testing is required under section 4 or
for which notification is required under
section 5, and
(B) any data reported to, or otherwise obtained by, the
Administrator from a health and safety study which
relates to a chemical substance or mixture
described In clause (I) or (ii) of subparagraph
(A).
However, Section !4(b) does not authorize the release of any data that
discloses proct -sse used in the manufacturing or processing of a chemical
substance or 1 ture, or, in the case of a mixture, the release of data
disc osirig the portion or the mixture comprised by any of the chemical
s hstances Iii the mixture.
Secticri 1 1 ;(C ) of TSCA, in co junction with 40 C.F.R. Part 2, specifies the
requirements ud procedures tor the designation of information as
confidential, is ell as tht. notification requirements that must be met
prior to the reieas of any information so designated.
Penalties
Section 14(d)(1) of TSCA spc ifies the penalties that may be assessed
against any person who knowingly and willfully discloses confidential
information contrary to the provisions of the Act. Section 14(d)(1)
states:
TSCA Co.pliancefEnforceaent 11-2 Guidance Manual 1984
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Chapter Eleven Special Considerations
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 posses-
sion of, or has access to, material the disclosure of which
is prohibit:ed by subsection (a), and who knowing that dis-
closure 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, United States Code, does not apply with respect to the
publishing, divulging, disclosure, or making known of, or
making available, information reported or otherwise
obtained under this Act.*
Section 14(d)(2) of TSCA stateS that for the purpose of imposing criminal
Uahility under Section 14(d)(1), any contractor or any employee of such
contractor, who is furnished confidential information, is considered to he
an employee of the United States.
Document Control
Procedures for gaining access to CBI documents, and procedures relating to
the use of CBL material in case preparation, administrative hearings, and
civil and crtmina1 actions, are briefly outlined below. However, the TSCA
Confidential Business Information Security Manual should be referenced in
all matters pertaining to document control.
Access to CBl Documents . Only those individuals whose names appear on the
TSCA Authorized Access List may have access to TSCA CBI. The following
steps must be taken to apply for inclusion on the list:
• Section II (Confidentiality Agreement for EPA Employees) of the
Authorization Form 7740—6 (Exhibit 1) must be signed by the
individual seeking access;**
• Section 1 (Request for TSCA—CBI Access Approval) of the
Authorization Form must be completed and signed by the appropriate
authorizing official. An authorizing official must be equivalent
to a supervising Division Director, or above, and the official may
* In addition to these criminal penalties, EPA employees who violate CBI
procedures may be subject to disciplinary action in accordance with the
procedures detailed in the EPA Conduct and Discipline Manual .
** A different form (see EPA form 7740—7) is used to apply for access to
computer systems that process or store TSCA CBI.
i o ,1tanceJEnforceiient 11-3 — Guidance Manual 1984
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Chapter Eleven Special Considerations
only authorize those employees under his or her supervision. In
facilities where there is no Document Control Officer (DCO) or
Document Control Assistant (DCA), the authorizing official must
also execute Section I of the Authorization Form (cross out “DCO”
and insert proper title);
• The Authorization Form must be taken to the local DCO or DCA who
will certify (by signing and dating Section IV) that all necessary
forms have been completed and forwarded to the Security, Management
Support Division, EPA Headquarters. (For all employees with
permanent appointments or those with temporary appointments of 700
hours or more per annum, and those employees who require full field
investigation, the local DCO/DCA may assume that the proper forms
were completed at the time of employment.);
• The local DCO/DcA will keep the original of the Authorization Form
and send a copy within 10 d s s to the Chief, Security, Management
Support Division: and
• Upon completion of the secur ty processing, the local DCO/DCA will
be notified that the employee’s name has been placed on the
Authorized Access List. The local DCO/DCA will then notify the
individual.
Summer EF”A employees of four months or less and temporary or seasonal
employees limited to three months cannot be processed for access to
TSCA CBI without written authorization of the Chief, Security, Management
Support Division. Division Directors (or equivalent) must submit a
“Request for Approval of Temporary Employee for Access to TSCA/CBI” form to
the Management Support Division prior to submission of the required
investigative forms.
ObtainingCk3i . To obtain a document containing TSCA CM, the authorized
person must request the document from the appropriate DCO/DCA, who will
verify that the req ester is on the TSCA CBI Authorized Access List. The
DCO!DCA will then obtain the document from either local secure storage,
another DCO, or an authorized computer facility.
If the requester h s access to no acceptable and secure storage cabinet,
the individual may check the document out for a maximum of 90 days,
renewable at the discretion of the DCO/DCA; otherwise, the document must be
returned to the DC ’f!)CA ‘y close of business the same day it is logged out.
The DCOIDCA wili enter the appropriate information in the User Sign Out Log
and will ensure that the document has a document control number, a cover
sheet, and, at a minimum, a CM stamp on the first page and on the back of
the last page, before releasing the document.
Use of CBI In Case Preparation . In reviewing an Inspection file and in the
course of case preparation, compliance/enforcement personnel may require
access to CBI.
TSCA Copliance/Enforce.ent 11—4 Guidance Manual 1984
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Chapter Eleven Special Considerations
An inspection file may contain a 031 inspection file, which includes
information that was gathered during a TSCA inspection and has been
declared TSCA 031. When an inspector returns from an inspection with
information that has been declared confidential, the information is
immediately given to the DCO, who assigns a document control number to the
confidential material. In addition, the inspector informs the DCO of any
physical samples that have been declared confidential. Such samples are
assigned a document control number by the DCO who, in turn, notifies the
laboratory of this number. (The document control number is used by
laboratory personnel in completing the sample chain—of—custody and
laboratory analysis forms.) The CBI file may also contain the inspection
report if the inspector chose to include C I information on the report.
Once the CBI material has been logged in by the DCO, review of the file
must be done in accordance with TSCA CBI security procedures.
Compliance/enforcement personnel, when preparing their report based on
review of the inspection file, should either:
• Reference TSC \ CBI material in a nonconfidential manner or by
Document Control Numbers; or
• Include the CP.l material in their report (in which case the entire
report must be treated as a confidential document).
In preparing a complaint or other pleading that is based in total, or in
part, on CBI material, compliance enforcement personnel should prepare the
pleading so that it consists of a confidential and a nonconfidential
document. The nonconfidential document should be drafted so as to state
the charge or substance of the pleading without disclosing the confidential
information (see Exhibit 2). The confidential document should contain the
CM material, and the document must be treated in accordance with TSCA CBI
security procedures.
Spe ia1 procedures must be used when filing a complaint or other pleading
that contains CM. For example, when filing a CBI complaint, both the CBI
document and the public (non—CBI document) must be hand—delivered to the
Hearing Clerk for simultaneous filing. Copies of the complaint may be made
after the original pleading has been stamped in by the Hearing Clerk. This
ensures that the date and time of filing is reflected on each subsequent
copy. The Document Control Officer must then give each confidential copy,
excluding the respondent’s copy, a document control cover sheet and a copy
number. The original CBT complaint remains with the Hearing Clerk, who
executes a TSCA 031 loan receipt.
EPA delivers a copy of the CM complaint to the respondent by placing the
document in an envelope bearing the respondent’s name and mailing address
and the statement TSCA CM: To Be Opened By Addressee Only.’ This
envelope, plus a copy of the public iion—CBI complaint, is then placed in
another envelope bearing the respondent’s name and mailing address, but
without the statement. The entire package is to be sent by registered
mail, return receipt requested.
TscAcopliancefEnforcemeflt 1I—5 - -- - Guidance Manual 1984
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Chapter Eleven Special Considerations
Use of CBI in Administrative Hearings . Section 14(a)(4) of TSCA states
that confidential Information may be disclosed when it is relevant to any
proceeding under the Act provided that such disclosure shall be made in a
manner so as to protect, to the extent practicable, the confidentiality of
the information without impairing the proceeding. In addition, Section
22.22(a) of the Consolidated Rules of Practice (CROP), which govern TSCA
administrative hearing proceedings, provides that the confidentiality of
trade secrets and other coninercial and financial information shall not
preclude such information from being introduced into evidence. Under the
CROP, the Presiding Officer may make such orders as may be necessary to
consider such evidence in camera ( i.e. , in chambers; in private), including
the preparation of a supplemental initial decision to address questions of
law, fact, or discretion arising out of that portion of the evidence that
is confidential.
Use of CBI in Civil and Criminal Proceedings . The Department of Justice
represents EPA in most civil and all criminal actions. Department of
Justice employees may he furnished TSCA CBI when prosecuting cases under
the Act or providing legal assista c to EPA. The Department of Justice,
including the FBI, sh 1] he presumed to meet EPA’s security requirements.
However, any transfer of TSCA CBI documents from EPA to the Department of
Justice must be accomplished through an EPA DCO/DCA, and all requirements
for security of CR1 during transmIs ion must be met. Authorized EPA
employees, when necessary and with permission of a Division Director or
above, may discuss TSCA CR1 with appropriate Department of Justice
employees, whether in person or on the phone. Any TSCA CR1 discussed must
he clearly identified as such.
Determining Confidentiality
EPA’s Yreec of Information Act (FOIA) regulations (40 C.F.R. Part 2
Suhpart B coctain a procedure for determining whether information is
cont identiai.
Cnder this procedure, if informatio: submitted to EPA has been claimed as
TsCA tRl, the information nay not he disclosed to the public until a
thtermination has been made that the information is not confidential, the
affected hus ’rt -i his been giver 30 days’ notice of the determination, and
the a fected business has been given an opportunity to challenge the
deci ion. F nal determinations are made by the Office of General Counsel;
howewr, progr rn .tfices may make initial determinations (see 40 C.F.R.
§2.20 .). If toe program office tiiake the determination that the
info’mation may r e ‘ntitled to confidential treatment, the office must:
• Deny any FOIA request for the information;
• Write to the affected business requesting substantiation of its
claim; and
o Refer the iiatter to the EPA General Counsel’s Office for a final
confidentiality determinations
TSCA Co plianceIEnforce.ent 11-6 Guidance Manual 1984
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Chapter Eleven Special Considerations
If the program office determines that the information in question is
clearly not entitled to confidential treatment, the program office must
give notice of the decision to the affected business and, after the notice
period ends, disclose the information to the requestor.
Disclosure of Confidential Information
Under certain circumstances, EPA may disclose TSCA CBI to specific persons
outside the Agency. These disclosures include disclosures to Congress or
the Comptroller General [ TSCA S14(e) and 40 C.F.R. §2.209(bfl, disclosures
to other federal agencies [ 40 C.F.R. §S2.209(c) and 2.306(h)], disclosures
to federal courts [ 40 C.F.R. §2.209(d)], disclosures to contractors [ TSCA
§14(a)(2) and 40 C.F.R. §2.306(j)], and disclosures when necessary to
protect human health or the environment against an unreasonable risk of
injury [ TSCA §14(a)(3) and 40 C.F.R. §2.306(k)].
TSCA Co pliance/Enforce.ent 11-7 Guidance Manual 1984
-------
Chapter Eleven
Request for TSCA—C3I Access Approval
I. REQUEST FOR TSCA—CBI ACCESS APPROVAL
I. RIOUESTINO COMPONENT IOffic.fDMaoe,$’wic*l 2. DCO & PHONE NUMBER
I FULL NAME (Lt. fAin. m. Mi
.SOCIAL SICURIT’s NUMBER
I. LOCATION/COI4TRACTOA
I o*TE OP elRTii ,ra i y4,ierI
I. Pt.ACI OP BIRTh fury. SeieiJ
I. CLU.RAN RIOUUTED
(000. DGA. AA’. Owi.W A j
POSITION
10. PHONE NUMBER
11. PREVIOUS Cit CLEARAMCE
TYPE
c:y. Ne!
¶2 ! CA CR1 SECURITy BRIEFING DATE 13. FORUE AtTACHED —
40 lCaIagO’v UA III) EPA F,,iii 141029 1Ca eorv I) EOPM $7 QPM 329-A
.... ,.Otliw_(Sp ,f l
II QTI ER CLEARANCES fC&..,wno’ W
Cl.eiei i
$c0naorln ,1 flCf
An authorizing official (Diweion O,, tor at Hdqueil*rs. R.g,on.! Ad ‘arc or Labo iralory O’r* wt ,,i she FI/d, Of
CQI’TratTOr P’oi. t Off r must sign this section.
SIGNATURE ANO TITLE OF REQUESTI 40 OFFICIAL DATE
I I. CONFIDENTIALITY AOREEM(NT
undertt$fld that will have access to certain Confd.nt,.4 Business Information tubmitted under the Toxic Substances Control
Act ‘ SCA 5 ..SC 280! er wo “s ac e has b..n grimed ifl ac rdance with my official outies relating to the Environ-
P otec ion Agency proqrains
cer ari t tat SCA CDI n j ’ ot tie isclo,aa except as authorizec Dv rSCA and Agency regulatIons. I understand that
under secton 14 d of TSCA 15 uSC 2813(dII rn Ii.OIr or a pouible fin, of up to 15,000 and/Or imprisoomim for up to
‘S year 1 wiII$ lly dac.)tU ISCA CDI to any person not authOfZId to receive it. In addition. understand that I may
i . ti sct o 3sct,ii rv scIon tir . OlatiOo of this agreement with penalties ranging up to and induCing aiunIsasI.
agree till! I Will t?ii ! any SCA CDI furnished to m. as confidentias and tP t I will follow the procedurse lit forth in the
T$C4 C on fiawir a/ 8us,neu In fO!7?)flOf, Sicui-,ry Menua’.
have real iri . zv’d tile proCs.3ure$.
______________— DATE
ii i. REOUIREMENT
FF1 NACl .NAC PwiO ifl$ JO P M —.JD I ICO
SUBMITTED COMPLETED APP ROVED
No
APPROVED BY - DATE
EPA Pen,. 77404 (0-411 ewiw.. CPA Foin, 7lO.47• lICi, • OO,slna.
TSCA O p11ance/Eaforce ent 11-8 Guidance Manual 1984
-------
Chapter Eleven ________________ _______ ExhIbit 11—2
Saaple CR1 Coaplaint (With CR1. Ueleted)*
UNITED STATES
ENVLRON NTAL PROTECTION AGENCY
BEFORE THE ADMINISTRATOR
In re: ) Docket No. TSCA—H--83—18
)
)
Firetog Industries, Inc. ) COMPLAINT
36 Sunshine Drive ) AND
ClarK, MA 02856 ) NOTICE OF OPPORTUNITY
) FOR HEARING
Respondent )
)
Notice of Treatment of Confidential Business Information
Portions of this complaint require use of information that respondent
submitted to the United States Environmental Protection Agency as Con—
fidential Business Information (CBI). Information in the complaint
constituting or based on CR1 has been deleted as indicated by the fol—
lowing: (Cbi deleted). The original complaint, which is filed with
the Headquarters Hearing Clerk and contains the CR1 information, will
be treated as confidential unless and until respondent waives confi—
dentiality thereto or the Agency releases the information in accor-
dance with 40 C.F.R. Part 2.
COMPLAI NT
This civil penalty action is instituted pursuant to the authority
vested in the Administrator of the United States Environmental Protec-
tion Agency by Section 16(a) of the Toxic Substances Control Act, 15
U.S.C. §2601 et sea. (hereinafter referred to as “the Act” or “TSCA).
The complainant is A. E. Conroy II, Director of the Compliance
Monitoring Staft, Office of Pesticides and Toxic Substances, United
States Environmental Protection Agency, who has been duly authorized
to iosritute this action. The respondent in this action is Firetog
Industries, Inc.
Allegations or Counts
This is to notify you that there is reason to believe that respondent
has violated Section 15 of TSCA in that respondent manufactured and
used tor commercial purposes a chemical substance in violation of
of Section 5 of the Act. The complainant alleges that the violations
occurred in the following manner:
* i ote: This sample complaint would be part of the public record.
TSCA Co.pliance/Eaforce aent 11-9 Qjidance Manual 1984
-------
Chapter Eleven h1bjt 11-2
Count 1
1. On September 18, 1983, respondent submitted to the United States
Environmental Protection Agency (EPA) production records revealing
that respondent manufactured (CBI deleted).
2. Inspection of respondent’s production records revealed that
respondent manufactured approximately (C8 1 deleted).
3. Inspection of respondent’s production records revealed that
respondent manufactured a total of (CBI deleted).
4. Respondent has stated to EPA that (CBI deleted) was processed into
a product that was distributed in commerce.
5. The (CbI deleted) does not appear on the TSCA chemical substance
inventory.
6. Respondent failed to submit a notice to the Administrator of EPA
of its intention to manufacture the (CBI deleted).
7. Section S(a)(1) of TSCA states that no person may manufacture a
chemical substance that does not appear on the TSCA chemical
substance inventory without submitting a notice to the
Administrator of EPA at least 90 days before manufacturing such
substance.
8. Section 15(1)(B) of TSCA states that it is unlawful for any person
t( fail or refuse to comply with any requirement prescribed by
St tion 5 or 6 of TSCA; Section 15(3)(B) of TSCA states that it is
ut 1 ufu1 for ny person to fail or refuse to submit reports,
nt tices, or other information as required by TSCA or a rule there-
under.
1 . The conduct described in Paragraphs 2 through 6 above constituted a
violation of Sections 15(1)(B) and 15(3)(B) of TSCA in that
responde’it iailed to submit a notice to the Administrator of EPA,
i ; rcqeired by Section 5(a)(l) of the Act, before respondent
manufjc . red (CBI deleted).
Count 2
1. On September 18, 1983, respondent submitted production records
to EPA revealing that respondent used (CBI deleted) in the produc-
tion of (CBI deleted).
2. lnspeclion of respondent’s production records revealed that
respondent used (CRL deleted).
3. Inspection or respondent’s production records revealed that
respondent used (CBI deleted).
4. Respondent has stated to EPA that (CBI deleted) was distributed in
commerce.
TSCA Copliance/Eoforcement 11-10 Guidance Manual 1984
-------
Chapter Eleven h(bjt 11—2
5. The (Clii deleted) used in the production of the (Clii deleted) does
not appear on the TSCA chemical substance inventory.
6. Respondent failed to submit a notice to the Administrator of EPA
of respondent’s intention to manufacture the (CBI deleted).
7. Section 15(2) of TSCA states that it is unlawful for any person to
use for commercial purposes a chemical substance or mixture that
such person knew or had reason to know was manufactured, pro—
cessed, or distributed in commerce in violation of Section 5 or 6.
8. The conduct described in Paragraphs 2 through 6 above constitutes
violation of Section 15(2) of TSCA in that respondent used for
commercial purposes (CBI deleted) that respondent knew or had
reason to know was manufactured in violation of Section 5 of the
Act.
Proposed Civil Penalty
In arriving at the assessment of the penalty specified below, EPA, as
required by Section 16(a)(2)(B) of TSCA [ 15 U.S.C. §2625(a)(2)(b)J,
has taken into consideration the following factors:
• The nature, circumstances, extent, and gravity of the
violations; and
• The respondent’s ability to pay, ability to continue to do
business, history of prior violations, degree of culpability,
and other matters as justice may require.
Based on the above considerations, EPA proposes to assess the
following penalty against Firetog Industries, Inc.:
Count 1
Fai’ure to notify of intention to
manufacture a chemical substance
not on the TSCA inventory $275,000
Count 2
Use of an illegally manufactured
substance for commercial purposes $710,000
Total Penalty Assessment $985,000
TSCA Co.pliance/Enforceaent 11—11 Guidance Manual 1984
-------
Chapter i 1even —____________________ - ExhIbit 11—2
NOTICE OF OPPORTUNITY TO REQUEST A HEARING
This administrative civil penalty proceeding will be conducted pursuant
to the Consolidated Rules of Practice (CROP) [ 40 C.F.R. 422.01 et
seq.!, a copy of which accompanies this complaint. Pursuant toThe
CROP, you have the right to request a hearing to contest any factual
allegation set forth in the complaint or the appropriateness of the
proposed penalty. In the event that you wish to request a hearing and
to avoid having the above penalty assessed without further proceedings,
you must file a written answer to this complaint with the Headquarters
Hearing Clerk (A—hO), United States Environmental Protection Agency,
401 M Street, S.W., Room 3706, Washington, D.C. 20460.
If you do not request a hearing or file a written answer within 20 days
of receipt of this complaint, the above penalty will be assessed with-
out further proceedings, and you w11 he notified.
Settlement Conference
The Environmental Protection Agency encourages all parties against whom
a civil penalty is proposed to pursue the possibility of aettlement as
a result of informal conferences. Therefore, whether or not you
request a hearing, you may confer informally with the Agency concerning
(1) whether the alleged violations tn fact occurred as set forth above,
or (2) the appropriateness of the proposed penalty in relation to the
size of your husinesa, the gravity of the violation, and the effect of
the proposed penalty on your ability to continue in business. The
request for an informal conference does not stay the running of the
20—day time period for requesting a hearing and filing an answer. To
explore t ie possibility of settlement in this matter, contact Mr. K.
Jackson, Office of Enforcement and Compliance Monitoring, United
States Environmental Protection Agency, 401 M Street, S.W.,
Washington, D.C. 20460, telephooe (202) 690—9680.
A.E. Conroyll, Director
Compliance Monitoring Staff
Otfice of Pesticides and Toxic Substances
Date; ________ At;
EncU ur ±s: TSCA
Consolidated Rules of Practice (CROP)
TSCA Coapltance/Enforce.ent 11-12 Guidance Manual 1984
-------
Chapter Eleven - Kzhibft 11—3
Saaple CR1 Coaplaint (With Hypothetical. CR1 Included)
UNITED STATES
ENV LRONMENTAL PROTECTION AGENCY
BEFORE THE ADMIN ISTRATOR
in re: ) Docket No. TSCA—H—83—18
)
)
Firetog Industries, Inc. ) COMPLAINT
36 Sunshine Drive ) AND
Clark, MA 02856 ) NOTICE OF OPPORTUNITY
) FOR HEARING
Respondent )
)
COMPLAINT
This civil penalty action is instituted pursuant to the authority
vested in the Administrator of the United States Environmental
Protection Agency by Section 16(a) of the Toxic Substances Control
Act, 15 U.S.C. §2601 et seq . (hereinafter referred to as “the Act” or
“TSCA ”). The complainant is A. E. Conroy II, Director of the
Compliance Monitoring Staff, Office of Pesticides and Toxic Substances
United States Environmental Protection Agency, who has been duly
authorized to institute this action. The respondent in this action Is
Firetog Industries, Inc.
Allegations or Counts
This is to notify you that there is reason to believe that respondent
has violated Section 15 of TSCA in that respondent manufactured and
used for commercial purposes a chemical substance in violation of
Section 5 of the Act. The complainant alleges that the violations
occurred in the following manner:
Count 1
1. On September 18, 1983, respondent submitted to the United States
Environmental Protection Agency (EPA) production records revealing
that respondent manufactured at its Toledo Pilot Plant and its
Clark Pilot Plant, the chemical substance, Heatherstone X.
2. Inspection of respondent’s production records revealed that
respondent manufactured approximately 175 pounds of ileatherstone X
on each of the following dates at Its Toledo Pilot Plant——8/9182,
9/15/82, 10/11/82, and 11/2/62.
3. Inspection of respondent’s production records revealed that
respondent manufactured a total of 35,000 pounds of Heatherstone X
on each of the following dates at its Clark Pilot Plant——1/3/83,
2/4/83, 5/6/83, and 9/1/83.
TSCA Coapliance/Enforceaent 11-13 ( iidance Manual 1984
-------
Chapter Eleven Rwhibjt 11—3
4. Respondent has stated to EPA that Heatherstone X, manufactured at
both the Toledo Pilot Plant and the Clark Pilot Plant, was proces-
sed into a product that was distributed in co erce.
5. Heatherstone X does not appear on TSCA chemical substance inventory.
6. Respondent failed to submit a notice to the Administrator of EPA of
its intention to manufacture Heatherstone X.
7. Section 5(a)(1) of TSCA states that no person may manufacture a
chemical substance that does not appear on the TSCA chemical
substance inventory without submitting a notice to the
Administrator of EPA at least O days before manufacturing 8uch
substance.
8. Section 15(1)(B) of TSCA states that it is unlawful for any person
to fail or refuse to comply with any requirement prescribed by
Section 5 or 6 of TSCA; Section 15(3)(B) of TSCA states that it is
unlawful for any person to fall or refuse to submit reports, no-
tices, or other information as required by TSCA or a rule there-
under.
9. The conduct described in Paragraphs 2 through 6 above constituted a
violation of Sections 15(1)(B) and 15(3)(B) of TSCA in that
respondent failed to submit a notice to the Administrator of EPA,
as required by Section 5(a)(1) of the Act, before respondent manu-
factured Reatherstone X.
Count 2
1. On September 18, 1983, respondent submitted production records
to EPA zevealing that respondent used Heatherstone X in the
production of plastic products at its Toledo Pilot Plant and its
Clark Pilot Plant.
2. lnspectio-* of respondent’s production records revealed that
responnert tised Heatherstone X in the production of plastic on the
follow rig dates at Its Toledo Pilot Plant—1O/1/82, 11/6/82,and
12/1/82.
3. Inspection of respondent’s production records revealed that
respondent used Heatherstone X in the production of plastic on the
following dates at its Clark Pilot Plant—2/6/83 and 3/3/83.
4. Respondent has stated to EPA that the plastic product was distri-
buted in co erce.
5. Heatherstote X used ifl the production of the plastic product does
not appear on the TSCA chemical substance inventory.
6. Respondent failed to submic a notice to the Administrator of EPA
of respondent ‘a intention to manufacture Heatherstone X.
TSC& Q.pliance/&aforee.ent 11-14 i4eee Nemasi 1984
-------
Chapter Eleven R M bit 11—3
7. Section 15(2) of TSCA states that it is unlawful for any person to
use for commercial purposes a chemical substance or mixture that
such person knew or had reason to know was manufactured, procesved,
or distributed in commerce in violation of Section 5 or 6.
8. The conduct described in Paragraphs 2 through 6 above constitutes a
violation of Section 15(2) of TSCA in that respondent used for
commercial purposes Heatherstone X that respondent knew or had
reason to know was manufactured in violation of Section 5 of the
Act.
Proposed Civil Penalty
In arriving at the assessment of the penalty specified below, EPA, as
required by Section 16(a)(2)(B) of TSCA [ 15 U.S.C. §2625(a)(2)(b)], has
taken into consideration the following factors:
• The nature, circumstances, extent, and gravity of the
violations; and
• The respondent’s ability to pay, ability to continue to do
business, history of prior violations, degree of culpability,
and other matters as justice may require.
Based on the above considerations, EPA proposes to assess the following
penalty against Firetog Industries, Inc.:
Count 1
Failure to notify of intention to
manufacture a chemical substance
not on the TSCA inventory $275,000
Count 2
Use of an illegally manufactured
substance for commercial purposes $710,000
Total Penalty Assessment $985,000
NOTICE OF OPPORTUNITY TO REQUEST A HEARING
This administrative civil penalty proceeding will be conducted pursu-
ant to the Consolidated Rules of Practice (CROP) [ 40 C.F.R. 22.01 et
seq.), a copy of which accompanies this complaint. Pursuant to the
CROP, you have the right to request a hearing to contest any factual
allegation set forth in the complaint or the appropriateness of the
proposed penalty. In the event that you wish to request a hearing
and to avoid having the above penalty assessed without further
proceedings, you must file a written answer to this complaint with the
Headquarters Hearing Clerk (A—hO), United States Environmental
Protection Agency, 401 M Street, S.W., Room 3706, Washington, D.C.
20460.
TSC& Co ltance/Enforceent 11-15 Guidance Manual 1984
-------
Chapter Eleven Rxhlbit 11—3
If you do not request a hearing or file a written answer within 20 days
of receipt of this complaint, the above penalty will be assessed with-
out further proceedings, and you will be notified.
Settlement Conference
The Environmental Protection Agency encourages all parties against whom
a civil penalty is proposed to pursue the possibility of settlement as
a result of informal conferences. Therefore, whether or not you re-
quest a hearing, you may confer informally with the Agency concerning
(1) whether the alleged violations in fact occurred as set forth above,
or (2) the appropriateness of the proposed penalty in relation to the
size of your business, the gravity of the violation, and the effect of
the proposed penalty on your ability to continue in business. The
request for an informal conference does not stay the running of the
20—day time period for requesting a hearing and filing an answer. To
explore the possibility of s ttiement in this matter, contact Mr. K.
Jackson, Office of Enforcement and Compliance Monitoring, United
States Environmental Protection Agency, 401 M Street, S.W.,
Washington, D.C. 20460, telephone (202) 690—9680.
A. E. Conroy II, Director
Compliance Monitoring Staff
Office of Pesticides and Toxic Substances
Date: ______________ At: ________________
Enclosures: TSCA
Consolidated Rules of Practice (CROP)
TSCA o*pliance/Knforce nt 11—16 &idance Manual 1984
-------
Chapter Eleven h1bjt 11—3
CERTIFICATE OF SERVICE
The undersigned certifies that on ( date) , copies of
the foregoing complaint and notice of opportunity for heiring were
served on the following individual(s) by placement in the EPA maliroom
at 401 M Street, S.W., Washington, D.C. 20460 to be mailed by regis-
tered mail, return receipt requested:
Respondent Name
Company
Street Address
City, State, Zip Code
( Signature of Document Control Officer )
Name
Document Control Officer
Environmental Protection Agency
401 M Street, S.W.
Washington, D.C. 20460
TSCA Co pliance/Enforce.ent 11-17 Guidance Manual 1984
-------
Appendices
Chapter Contents Page
Collection of Civil Penalty Assessments A—i
Authority A—i
Policy A—i
Collection Procedures A—i
Types and Methods of Payment A—3
Suspension or Termination of Collection Authority A—4
Referral Procedures A—5
Exhibit A—i: Federal Claims Collection Standards A—6
Exhibit A—2: Model Demand for Payment Letter A—18
Exhibit A—3: Model Final Demand for Payment Letter A—19
Exhibit A—4: Claims Collection Litigation Report A—20
2 h xpert Witnesses A—57
Selection of Witnesses A—57
Procedures for Requesting Witnesses A—58
Appearing as a Witness A—58
3 Enforcement Response Policies and Penalty Policies A—63
Guidelines for the Assessment of Civil Penalties Under
Section 1 of TSCA A—64
Enforcement Response Policy: Asbestos A—75
Entorcement Response Policy: Dioxin A—9i
Penalty Policy: PCBs A—113
TSC& Co.pliance/Euforceuent A-i Qildance Manual 1984
-------
Appendix _____________ Coutent8
4 Settlement With Conditions A—123
Introduction A—124
When To Use an SWC A—125
Elements of Settlement With Conditions A— 128
Roles and Relationships A—134
Responses to Noncompliance With the SWC A— 137
Appendices A—138
5 Additional Sources of Compliance/Enforcement Information A—161
TSCA iT nceIEnforce.ent A-ii - Guidance Manual 1984
-------
Appendix
1 Collection of Civil Penalty
Assessments
Authority
Upon nonpayment of a civil penalty within the prescribed time periods,
Section 16(a)(4) of the Act specifies that the matter be referred to the
Attorney General for collection. In such an action to recover the assessed
civil penalty, the validity, amount, and appropriateness of such penalty
is not subject to review.
However, before any referral to the Attorney General, the Agency must
satisfy the directive8 and standards for collection set forth in the
Federal Claims Collection Act (31 U.S.C. §4951—953) and the Federal Claims
Collection Standards (FCCS, 4 C.F.R. §5101—105, Exhibit A—i).
In general, the procedures in the FCCS are mandatory, but the failure of
the Agency to comply with any provision of the standards will not be
available as a defense to any party in a subsequent action for collection.
Policy
Under the FCCS, the Agei cy is held to a policy standard of aggressive
collection action, on a timely basis, and with effective follow—up of all
civil penalty assessments.
Collection Procedures
Written Demands for Payment
The FCCS require that the Agency make three written demands, at 30—day
intervals, on the respondent in terms that inform the debtor of the
consequences of failing to cooperate.
TSCA Co .pliance/Mforceaent A-i Guidance Manual 1984
-------
Appendix Collection of civil Penalty Mseaø.enta
The Agency’s policy is to initiate the written demands concurrent with the
issuance of a final order so that the third and final demand will be made
on the same day the payment period elapses ( i.e. , 60 days after issuance of
a final order).
Upon the Issuance of the Final Order . At the time that a final order is
issued and served on the respondent, he or she should receive a written
demand for any payment of such penalty and the length of time in which he
or she has to pay it. Such notice should also inform the respondent of the
consequences of failing to cooperate.
Thirty Days After Issuance of the Final Order . After 30 days have elapsed,
even though the payment period has not expired, the Agency will again serve
on the respondent a demand for the payment and again warn the respondent of
the consequences of failing to pay (Exhibit A—2). Given the possibility
that the payment may he in the mail when this second warning is sent, the
Agency should also make a brief apologetic statement informing respondent
to disregard the warning if the payment has been sent.
Sixty Days After the issuance of the Final Order . The respondent must pay
the civil penalty 60 days after the service of a final order unless a
motion to reconsider has been made or judicial review of the final order
has been sought. Subject to those two exceptions, if payment of the
penalty has not been tendered at the end of the 60—day period, the Agency
will send a final demand to the respondent for payment of the delinquent
civil penalty assessment. This letter should be written to inform the
respondent that unless payment is tendered within 15 days, the penalty will
be referred to the United States Department of Justice or the United States
Attorneys Office for collection in a di8trict court. The letter should
state that such action is routinely accomplished through a motion for
summary judgment in favor of the United States and that the respondent will
be barred from raising any issues as to fact or law that should have been
raised in the administrative proceeding (Exhibit A—3).
Follow—up to Final Demand for Payment
Section ]02.6 of the FCCS dictates that the Agency undertake personal
interviews with the debtors when it is feasible, having regard for the
amuu .ts involved and the proximity of Agency representatives to such
eht rs.
It is PTSCMS policy to arrange personal interviews if it is feasible and
convenient for the regional officials involved in the case. In the absence
of a personal Interview, the Regional Office should at least establish
telephone contact with the respondent to urge prompt payment of the claim
and to personally warn the respondent of the consequences of failing to pay
the penalty.
G r’1 faith inability to arrange a personal interview or to establish
telephone contact with the respondent should not deter the Regional Office
from referring claims to the United States Attorneys Office for collection.
TSCA CompliancelEnforcement A-2 Guidance Manual 1984
-------
Appendix Collection of Civil Penalty Aaaeas nts
Documentation of Collection Efforts
The Agency should record and maintain a file of all collection efforts and
activities prior to referral.
Types and Methods of Payment
Full Payment
The most preferable method of collection is a check for the full amount
owed, payable to the Treasurer of the United States. Such payment should
be delivered to the Regional Hearing Clerk for the Region in which the
final order was issued.
Collection Installments
Section 102.10 of the FCCS provides for installment payments. This type of
payment should be used when the respondent has demonstrated and documented
an inability to pay the penalty in a lump sum.
Because Section 16(a)(2)(B) of TSCA requires a consideration of ability to
continue in business in assessing the penalty, this installment provision
should rarely be needed as the issue will have been resolved previously.
In the event that installment payments are justified and allowed, such
payments shall:
• Be on a regular basis;
• Bear a reasonable relation to the size of the debt and the debtor’s
ability to pay;
• Be sufficient in size and frequency to liquidate the claim in not
more than three years; and
• Be no less than $10 except under the most unusual circumstances.
In allowing a respondent to pay by installment, the regional attorney
should attempt to obtain an executed confess—judgment note, comparable to
the Department of Justice Form USA—70a.
The Agency may accept installment payments notwithstanding the refusal of
the respondent to execute a confess—judgment note.
Compromise of the Penalty
The FCCS provide for compromising claims when it can be assured that the
respondent’s financial ability will not permit payment of the claim in full
TSC& p1iance/Enforce.ent A—3 cuidance Manual 1984
-------
Appendix Collection of Civil Penalty Maess nte
or when the litigative risks or the costs of litigation dictate such
action.
It is the express policy of PTSCNS that penalty assessments in final orders
shall not be subject to compromise except under the most unusual
circumstances. For the most part, TSCA requires that ability to pay be
considered before a civil penalty is imposed; therefore, the inability to
pay the penalty should not be an issue in the post—final order stage of the
civil penalty proceeding. However, inability to pay should be considered
where:
• The civil penalty was assessed by default, so that the respondent’s
ability to pay was never confirmed by the respondent in determining
the amount of the penalty; or
• The respondent’s financial condition has deteriorated dramatically
since the time the penalty was assessed. The Agency should be
alert to the possIbility that assets have been fraudulently
concealed or improperly transferred. The burden falls upon the
respondent to affirmatively demonstrate and document any such
inability.
Section 103.5 of the FCCS provides that, where an enforcement policy is
concerned, a penalty should only be compromised if the sum to be agreed
upon will adequately serve the Agency’s enforcement policy in terms of
deterrence and securing compliance.
For this reason, and for the reason that a respondent usually has already
had an opportunity for settlement, the compromise provision should be
rarely exercised.
In the event such a compromise is effected, it must be authorized by the
Regional Administrator for it has the effect of altering the final order.
Suspension or Termination of Collection Activity
Suspension
The Agency may temporarily suspend collection action for payment of a
penalty when the respondent cannot be located after a diligent search
and/or when future collection prospects seem more promising than pre8ent
actions.
Section 104.2 of the FCCS provides a partial listing of sources that may be
helpful in locating missing respondents. Efforts should be made to avoid
any applicable statute of limitations.
TSCA Copllance/Bnforceaeflt A-4 Guidance Manual 1984
-------
Appendix Collection of Civil Penalty Maeaaents
Termination
Collection action may be terminated and the Agency’s file on the penalty
closed under the following conditions:
• Inability to collect any substantial amount;
• Inability to locate debtor;
• Cost will exceed recovery;
• Claim legally is without merit; or
• Claim cannot be substantiated by evidence.
Section 104.3 of the FCCS provides further information on termination of
claims.
Referral Procedures
General
Claims on which aggressive collection action has been taken and that cannot
be compromised will be referred to the Department of Justice or the United
States Attorneys Office. Such referrals should be made as early as
possible consistent with the aggressive Agency collection action and the
standards for collection set forth in the FCCS.
Referral Parties and Minimum Amounts
Department of Justice . All penalty assessments in the amount of $10,000 or
greater should be referred to the Department of Justice.
United States Attorneys Office . All penalty claims in amounts less than
$10,000 should be referred to the appropriate United States Attorneys
Office.
When referring a claim of less than $600 for collection, the Regional
Office must emphasize to the United States Attorney that the referral is
important to a significant enforcement policy.
Procedures for a Proper Referral
The regional attorney should prepare the Claims Collection Litigation
Report (CCLR) for the United States Attorney consistent with the form and
instruction8 in Exhibit A—4.
TSC& .pliaoce/ force.eot A-5 Gl3idmnce Manual 1984
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Appendix Rzbibit k-i
CHAPTER It—FEDERAL CLAIMS COLLECTION
STANDARDS (GENERAL ACCOUNTING
OFFICE—DEPARTMENT OF JUSTICE)
Part Page
101 Scope of standards 66
102 Standards for the administrative collection of
claims 67
103 Standards for the compromise of claims 71
104 Standards for suspending or terminating collec-
tion action 73
105 Referrals to GAO or for litigation 74
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W h4b.jt A—i
§101.1
Titi. 4—Accounts
PART 101-—SCOPE OF STANDARDS
Sec.
101.1 PrescrIption of standards.
101.2 Omissions not a defense.
101.3 Fraud, antitrust, and tax claims ex-
cluded.
101.4 CompromIse, waiver, or disposition
under other statutes not precluded.
101.5 Conversion claims.
101.8 SubdIvision of claims not authorized.
101.1 RequIred administrative proceedings.
101.8 Referral for litigation.
Av’rnoarrv: Sec. 3. 80 Stat. 309; 31 U.S.C.
952.
Souxcz 31 FR 13381, Oct. 15, 1966. unless
otherwise noted.
0 101.1 Prescription of standards.
The regulations In this chapter,
issued Jointly by the Comptroller Gen-
eral of the United States and the At-
torney General of the United States
under section 3 of the Federal Claims
Collection Act of 1966, 80 Stat. 309,
prescribe standards for the adminis-
trative collection, compromIse, termi-
nation of agency collection, and the
referral to the General Accounting
Office, and to the Department of Jus-
tice for litigation, of civil claims by the
Federal Government for money or
property. Additional guidance is con-
tained in Title 4 of the General Ac-
counting Office Manual for Guidance
of Federal Agencies, Regulations pre-
scribed by the head of an agency pur-
suant to section 3 of the Federal
Claims Collection Act of 1966 will be
reviewed by the General Accounting
Office as a part of its audit of the
agency’s activities.
(44 FR 22101, Apr. 17, 1919]
§ 1012 OmissIon, not a defense
The 3tandards set forth In this chap-
ter shall apply to the administrative
handling of civil claims of the Federal
Government for money or property
but the failure of an agency to comply
with any provision of this chapter
shall not be available as a defense to
any debtor.
01013 Fraud, antitrust, and tax claims
excluded,
The standards set forth In this chap-
ter do not apply to the handling of
any claim as to which there Is an mdi-
cation of fraud, the presentation of a
false claim, or misrepresentation on
the part of the debtor or any other
party having an interest in the claim,
or to any claim based in whole or in
part on conduct in violation of the
antitrust laws. Only the Department
of Justice has authority to compro-
mise or terminate collection action on
such claims. However, matters submit-
ted to the Department of Justice for
consideration without compliance with
the regulations in this chapter because
there is an indication of fraud, the
presentation of a false claim, or mis-
representation on the part of the
debtor or any other party having an
interest in the claim, may be returned
to the agency forwarding them for
further handling in accordance with
the regulations in this chapter if it is
determined that action based upon the
alleged fraud, false claim, or misrepre-
sentation is not warranted. Tax claims,
as to which differing exemptions, ad-
ministrative consideration, enforce-
ment considerations, and statutes
apply, are also excluded from the cov-
erage of this chapter.
§ 101.4 Compromise, waiver, or disposi-
lion under other statutes not pre-
cluded.
Nothing contained In this chapter is
Intended to preclude agency disposi-
tion of any claim under statutes other
than the Federal Claims Collection
Act of 1966, 80 Stat. 308, providIng for
the compromise, termination of collec-
tion action, or waiver In whole or In
part of such a claim. See. e.g., “The
Federal Medical Care Recovery Act,”
76 Stat. 593. 42 U.S.C. 2651. et seq..
and applicable regulatIons. 28 CFR
43.1, et seq. The standards set forth in
this chapter should be followed in the
disposition of civil claims by the Fed-
eral Government by compromise or
termination of collection action (other
than by waiver pursuant to statutory
authority) under statutes other than
the Federal Claims Collection Act of
1966. 80 Stat. 308, to the extent such
other statutes or authorized regula-
tions issued pursuant thereto do not
establish standards governing such
matters.
66
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Appendix
chapter Il—Federal Claims Collection Standards
R wh1bjt &-L
§ 102.2
§ 101.5 Conversion claims.
The instructions contained in this
chapter are directed primarily to the
recovery of money on behalf of the
Government and the circumstances in
which Government claims may be dis-
posed of for less than the full amount
claimed. Nothing contained in this
chapter is intended, however, to deter
an agency from demanding the return
of specific property or from demand-
ing, in the alternative, either the
return of property or the payment of
its value.
§ 101.6 Subdivision of claims not author.
ized.
A debtor’s liability arising from a
particular transaction or contract
shall be considered as a single claim in
determining whether the claim is one
of less than $20,000, exclusive of inter-
est, for the purpose of compromise or
termination of collection action. Such
& claim may not be subdivided to avoid
the monetary ceiling established by
the Federal Claims Collection Act of
1966, 80 Stat. 308.
O 101.7 Required administrative proceed-
ings.
Nothing contained in this chapter Is
Intended to require an agency to omit
or foreclose administrative proceed-
Ings required by contract or by law.
$ 101.8 Referral for litigation.
As used in this chapter referral for
litigation means referral to the De-
partment of Justice for appropriate
legal proceedings, unless the agency
concerned has statutory authority for
handling it.s own litigation.
PART 102—STANDARDS FOR THE
ADMINISTRATIVE COLLECTION OF
CLAIMS
Sec.
102.1 Aggressive agency collection action.
102.2 Demand for payment.
102.3 CollectIon by offset.
102.4 ReportIng delinquent debts to com-
mercial credit bureaus.
102.5 Contracting for collection services.
102.6 personal interview with debtor.
102.7 Contact with debtor’s employing
agency.
Sec.
102.8 Suspension or revocation of license
or eligibility.
102.9 LiquidatIon of collateral.
102.10 Collection In installments.
102.11 Exploration of compromise.
102.12 Interest.
102.13 Analysis of cosT ,s.
102.14 Documentation of administrative
collection action.
102.15 Automation.
102.16 Prevention of overpayments. delin-
quencies. and defaults.
102.17 Additional administrative collection
action.
Aijrnoa irv: Sec. 3. 80 Stat. 309; 31 U.S.C.
952.
§ 102.1 Aggressive agency collection
action.
The head of an agency or his desig-
nee shall take aggressive action, on a
timely basis with effective followup, to
collect all claims of the United States
for money or property arising out of
the activities of, or referred to, his
agency in accordance with the stand-
ards set forth in this chapter. Howev-
er, nothing contained in this chapter
is intended to require the General Ac-
counting Office or the Department of
Justice to duplicate collection actions
previously undertaken by any other
agency.
(31 FR 13381. Oct. 15, 1966)
§ 102.2 Demand for payment.
Appropriate written demands shall
be made upon a debtor of the United
States in terms which Inform the
debtor of the consequences of his fail-
ure to cooperate. In the initial notifi-
cation, the debtor should be informed
of t-ie basis for the indebtedness, the
applicable requirements or policies for
charging interest and reporting delin-
quent debts to commercial credit bu-
reaus, and the date by which the pay-
ment Is to be made (date due). The
date due should be specified and, nor-
mally, should be not more than 30
days from the date of the Initial notifi-
cation. Three progressively stronger
written demands at not more than 30-
day Intervals will normally be made
unless a response to the first or second
demand indicates that further demand
would be futile and the debtor’s re-
sponse does not require rebuttal. Fur-
ther exceptions may be made where It
67
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Appendix
RvM bit A -i
§ 102.3
Is necessary to protect the Govern-
ment’s interests (e.g.. the statute of
limitations (28 U.S.C. 2415)). Agencies
should respond promptly to cornniunl-
cations from the debtor. Agencies
should advise debtors who dispute the
debt to furnish available evidence to
support their contentions.
144 FR 22102. Apr. 17. 1979)
* 102.3 Collection by offset.
(a) Collections by offset will be un-
dertaken administratively in accord-
ance with these standards and imple-
menting regulations established by the
head of each agency on claims which
are liquidated or certain in amount in
every instance in which this is feasi-
ble. Collections by offset from persons
receiving pay or compensation from
the Federal Government shall be ef-
fected over a period not greater than
the period during which such pay or
compensation is to be received. See 5
U.S.C 5514.
(b) When the head of an agency, or
his designee, pursuant to 5 U.S.C.
5514, 5522, 5705, 5724(f). or other stat-
utory authority, seeks to collect a debt
by offset against accrued pay, compen-
sation. accrued benefits derived from
Federal service or amount of retire-
inent credit due to a present or former
Government employee, a member of
the armed forces, a Reserve of the
armed forces, or a present or former
employee of the U.S. Postal Service,
the agency to which the debt allegedly
is owed will accord such debtor an op-
portunity for a pre-offset oral hearing
when:
(1) The debtor requests waiver of
the indebtedness and the waiver deter-
mination turns on an issue of credibil-
Ity or veracity or (2) when the Individ-
ual requests reconsideration of the
debt and the head of the agency or his
designee determines that the question
of the indebtedness cannot be resolved
by review of the documentary evi-
dence. for example, when the validity
of the debt turns on an Issue of credi-
bility or veracity: Provided that, where
the employment or active duty status
of a debtor entitled to a hearing under
paragraph (bXl) or (bX2) of this sec-
tion terminates, and the creditor
agency determines that:
Titi. 4—Accounts
(i) Amounts accruing to the debtor
upon such termination are available
for offset In satisfaction of the alleged
indebtedness, (Il) such amounts would
not be available for offset subsequent
to termination and (iii) the time prior
to termination does not permit a pre-
offset hearing, the agency may with-
hold from amounts accruing to the In-
dividual upon termination, a sum not
greater than that of the alleged In-
debtedness and, subsequent to termi-
nation, promptly provide an opportu-
nity for an oral hearing to resolve the
issue of indebtedness or waiver.
Amounts withheld but later deter-
mined not owing to the Government
shall be promptly refunded.
(C) Except for debt collection sys-
tems in which determinations of in-
debtedness or waiver rarely involve
issues of credibility or veracity, or
when employment or military status is
about to terminate as described in the
proviso of paragraph (b) of this sec-
tion, prior to collecting any indebted-
ness by offset the head of the agency
to which the debt allegedly is owed or
his designee shall provide the debtor a
written demand containing the notices
prescribed in § 102.2 of this part and
include therein:
(1) NotIce of the agency’s intention
to collect by offset; (2) an opportunity
to request reconsideration of the debt.
or if provided for by statute, waiver of
the debt, and (3) an explanation of the
debtor’s rights pursuant to this sec-
tion.
(d) Collection by offset against a
Judgment obtained by the debtor
against the United States shall be ac-
complished in accordance with the Act
of March 3, 1875, 18 Stat. 481, as
amended. 31 U.S.C. 221.
(e) Appropriate use should be made
of the cooperative efforts of other
agencies in effecting collections by
offset, Including utilization of the
Army Holdup List, and all agencies are
enjoined to cooperate In this endeavor.
68
[ 46 FR 39113, July 31, 19813
§ 102.4 ReportIng delinquent debts to corn-
mercial credit bureaus.
Agencies shall develop and imple-
ment procedures for reporting delin-
quent debts to commercial credit bu-
TSCA Cospi iance/Euforc tent
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Appendix
bit A-i
reaus. In the absence of a different
rule prescribed by statute, contract, or
regulation, a debt is considered delin-
quent if not paid by the date due spec-
ified in the initial notification, unless
satisfactory payment arrangements
are made by the date due. Agency pro-
cedures for reporting delinquent debts
to credit bureaus must give due regard
to compliance with the Privacy Act of
1974, as amended. 5 U.S.C. 552a, which
includes the following requirements:
(a) Promulgate a “routine use” for
the disclosure; (b) keep an accounting
for disclosures and make them availa-
ble to the debtor; (c) provide the credit
bureaus with corrections and nota-
tions of disagreement by the debtor;
and (d) make reasonable efforts to
assure that the information to be re-
ported is accurate, complete, timely,
and relevant. Prior to exercising the
option of reporting delinquent debts
to commercial credit bureaus, agencies
should send a demand letter advising
the debtor that such reporting will
take place within a specified period of
time unless the debtor makes satisfac-
tory payment arrangements or demon-
strates some basis on which the debt is
legitimately disputed.
(44 FR 22702, Apr. 17, 1979]
• 102.5 Contracting for collection services.
Agencies should consider contracting
for collection services. Contracts may
be entered Into for this purpose when
they meet the following conditions:
(a) The service must supplement,
but not replace, the basic collection
program of the agency; (b) the author-
ity to resolve disputes, compromise
claims, terminate collection action.
and initiate legal action must be re-
tained by the agency and; (C) the con-
tractor shall be subject to the Privacy
Act of 1974, as amended, 5 U.S.C. 552a,
and, when applicable, to Federal and
State laws and regulations pertaining
to debt collection practices such as the
Fair Debt Collection Practices Act, 15
U.S.C. 1692.
148 FR 22353, Apr. 20, 1981)
• 102.6 Personal interview with debtor.
Agencies will undertake personal in-
terviews with their debtors when this
is feasible, having regard for the
§ 102.8
amounts involved and the proximity
of agency representatives to such debt-
ors.
[ 31 FR 13381. Oct. 15. 1966. Redesignated at
44 FR 22702, Apr. 17, 1979 and 46 FR 22353.
Apr. 20, 1981]
§ 102.7 Contact with debtor’s employing
agency.
When a debtor is employed by the
Federal Government or is a member of
the military establishment or the
Coast Guard, and collection by offset
cannot be accomplished in accordance
with 5 U.S.C. 5514. the employing
agency will be contacted for the pur-
pose of arranging with the debtor for
payment of the indebtedness by allot-
ment or otherwise in accordance with
section 206 of Executive Order 11222
of May 8, 1965, 3 CFR, 1965 Supp., p.
130 (30 FR 6469).
[ 31 FR 13381, Oct. 15. 1966. Redesignated at
44 FR 22702, Apr. 17, 1979 and 46 FR 22353,
Apr. 20. 1981]
§ 102.8 Suspension or revocation of li-
cense or eligibility.
Agencies seeking the collection of
statutory penalties, forfeitures, or
debts provided for as an enforcement
aid or for compelling compliance will
give serious consideration to the sus-
pension or revocation of licenses or
other privileges for any inexcusable,
prolonged or repeated failure of a
debtor to pay such a claim and the
debtor will be so advised. Any agency
making, guaranteeing, Insuring, ac-
quiring, or participating In loans will
give serious consideration to suspend-
ing or disqualifying any lender, con-
tractor, broker, borrower or other
debtor from doing further business
with It or engaging in programs spon-
sored by it If such a debtor falls to pay
its debts to the Government within a
reasonable time and the debtor will be
so advised. The failure of any surety
to honor Its obligations In accordance
with 6 U.S.C. 11 18 to be reported to
the Treasury Department at once. No-
tification that a surety’s certificate of
authority to do business with the Fed-
eral Government has been revoked or
forfeited by the Treasury Department
will be forwarded by that Department
to all Interested agencies.
69
Chapter lI—Federal Claims Collection Standards
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A—lU
Guidance ! nua1 1984
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Appendix
§ 102.9
Title 4—Accounts
I hIbjt A-i
(31 FR 13381. Oct. 15, 1966. Redesignated at
44 FR 22702. Apr. 17, 1979 and 46 FR 22353.
Apr. 20. 1981]
§ 102.9 Liquidation of collateral.
Agencies holding security or collat-
eral which may be liquidated and the
procecds applied on debts due it
through the exercise of a power of
sale in the security instrument or a
non-judicial foreclosure should do so
by such procedures lfthe debtor fails
to pay his debt within a reasonable
time after demand, unless the cost of
disposing of the collateral will be dis-
proportionate to its value or special
circumstances require judicial foreclo-
sure. Collection from other sources, in-
cluding liquidation of security or col-
lateral, is not a prerequisite to requir-
ing payment by a surety or insurance
concern unless such action is expressly
required by statute or contract.
[ 31 FR 13381, Oct. 15, 1966. RedesIgnated at
44 FR 22702, Apr. 17. 1979 and 46 FR 22353,
Apr. 20, 1981]
§ 102.10 Collection in installments.
Claims, with interest in accordance
with § 102.10 should be collected in
full In one lump sum whenever this is
possible. However, If the debtor is ft.
nanclaily unable to pay the indebted-
ness in one lump sum, payment may
be accepted in regular Installments.
The size and frequency of such install-
ment payments should bear a reason-
able relation to the size of the debt
and the debtor’s ability to pay. If pos-
sible the installment payments should
be sufficient in size and frequency to
Uquldate the Government’s claim In
not more than 3 years. Installment
payments of less than $10 per month
should be accepted In only the most
unusual circumstances. An agency
holding an unsecured claim for admin-
istrative collection should attempt to
obtain an executed confess-Judgment
note, comparable to the Department
of Justice form USA-70a, from a
debtor when the total amount of the
deferred installments will exceed $750.
Such notes may be sought when an
unsecured obligation of a lesser
amount Is involved. Security for de-
ferred payments, otherthan a confess-
judgment note, may be accepted in ap-
propriate cases. An agency may accept
installment payments notwithstanding
the refusal of a debtor to execute a
confess-judgment note or to give other
security, at the agency’s option.
(31 FR 13381, Oct. 15, 1966. Redesignated at
44 FR 22702, Apr. 17. 1979 and 46 FR 22353.
Apr. 20, 1981]
§ 102.11 Exploration of compromise.
Agencies will attempt to effect com-
promises (preferably during the course
of personal interviews), of claims of
$20,000 or less exclusive of interest, in
accordance with the standards set
forth in Part 103 of this chapter in all
cases in which it can be ascertained
that the debtor’s financial ability will
not permit payment of the claim in
full, or in which the litigative risks or
the costs of litigation dictate such
action.
(31 FR 13381, Oct. 15, 1966. Redesignated at
44 FR 22702, Apr. 17. 1979 and 46 FR 22353,
Apr. 20. 1981]
§ 102.12 Interest.
In the absence of a different rule
prescribed by statute, contract, or reg-
ulation., interest should be charged on
delinquent debts and debts being paid
in installments in conformity with the
Treasury Fiscal Requirements
Manual. When a debt Is paid In install-
ments, the Installment payments will
first be applied to the payment of ac-
crued interest and then to principal, in
accordance with the so-called “U.S.
Rule,” unless a different rule Is pre-
scribed by statute, contract, or regula.-
tion. Prejudgment interest should not
be demanded or collected on civil pen-
alty and forfeiture claims unless the
statute under which the claim arises
authorizes the collection of such Inter-
est. See Rodgers v. United States, 332
U.S. 311.
(44 FR 22702. Apr. 17. 1979. Redesignated at
46 FR 22353, Apr. 20, 19811
§ 102.13 Analysis of costs.
Agency collection procedures should
provide for periodic comparison of
costs Incurred and amounts collected.
Data on costs and corresponding re-
covery rates for debts of different
types and In various dollar ranges
should be used to compare the cost ef-
70
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Guidance P nua1 1984
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Appendix
K htbjt A—i
fectiveness of alternative collection
techniques, establish guidelines with
respect to the points at which costs of
further collection efforts are likely to
exceed recoveries, assist in evaluating
offers in compromise, and establish
minimum debt amounts below which
collection efforts need not be taken.
Cost and recovery data should also be
useful in justifying adequate resources
for an effective collection program.
(44 FR 22702, Apr. 17. 1979. Redesignated at
48 FR 22353, Apr. 20. 1981]
§ 102.14 Documentation of administrative
collection action.
All administrative collection action
should be documented and the bases
for compromise, or for termination or
suspension of collection action, should
be set out in detail. Such documenta-
tion should be retained in the appro-
priate claims file.
(31 FR 13381, Oct. 15. 1966. Redesignated at
44 FR 22702. Apr. 17. 1979 and 46 FR 22353,
Apr. 20, 1981]
I 102.15 Automation.
Agencies should automate their debt
collection operations to the extent it is
cost effective and feasible.
(44 FR 22702. Apr. 17. 1979. Redesignated at
46 FR 22353, Apr. 20. 1981]
• 102.16 Prevention of overpayments. de-
linquencies, and defaults,
Agencies should establish procedures
to Identify the causes of overpay-
ments, delinquencies, and defaults and
the corrective actions needed. One
action that should be considered is the
reporting of debts or loans, when first
established, to commercial credit bu-
reaus.
[ 44 FR 22702. Apr. 17. 1979. Redesignated at
46 FR 22353. Apr. 20, 1981]
I 102.17 Additional administrative collec-
tion action.
Nothing contained In this chapter Is
Intended to preclude the utilization of
any other administrative remedy
which may be available.
[ 31 FR 13381, Oct. 15, 1966. Redesignated at
44 FR 22702. Apr. 17. 1979 and 46 FR 22353,
Apr. 20. 1981]
71
§ 103.2
PART 103—STANDARDS FOR THE
COMPROMISE OF CLAIMS
Sec.
103.1
103.2
103.3
103.4
103.5
103.6
103.7
Sons.
103.8 Further review of compromise offers.
103.9 Restrictions.
AUTHORITY: Sec. 3. 80 Stat. 309; 31 U.S.C.
952.
Souscs: 31 FR 13382, Oct. 15. 1966. unless
otherwise noted.
§ 103.1 Scope and application.
The standarth set forth in this part
apply to the compromise of claims,
pursuant to section 3(b) of the Federal
Claims Collection Act of 1966, 80 Stat.
309, which do not exceed $20,000 ex-
clusive of interest. The head of an
agency or his designee may exercise
such compromise authority with re-
spect to claims for money or property
arising out of the activities of his
agency prior to the referral of such
claims to the General Accounting
Office or to the Department of Justice
for litigation. The Comptroller Gener-
al or his designee may exercise such
compromise authority with respect to
claims referred to the General Ac-
counting Office prior to their further
referral for litigation. Only the Comp-
troller General or his designee may
effect the compromise of a claim that
arises out of an exception made by the
General Accounting Office in the ac-
count of an accountable officer, in-
cluding a claim against the payee.
prior to Its referral by that Office for
litigation.
* 103.2 Inability to pay.
A claim may be compromised pursu-
ant to this part If the Government
cannot collect the full amount because
of (a) the debtor’s Inability to pay the
full amount within a reasonable time,
or (b) the refusal of the debtor to pay
the claim in full and the Govern-
ment’s Inability to enforce collection
In full within a reasonable time by en-
forced collection proceedings. In deter-
O apt.r Il—Federal Claims Collection Standards
Scope and application.
Inability to pay.
Litigative probabilities.
Cost of collecting claim.
Enforcement policy.
Joint and several liability.
Settlement for a combination of rea-
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Appendix
§ 1033
Title 4—Accounts
I 1iIbjt h—i
mining the debtor’s inability to pay
the following factors, among others.
may be considered:
Age and health of the debtor;
present and potential income; inherit-
ance prospects; the possibility that
assets have been concealed or improp-
erly transferred by the debtor; the
availability of assets or income which
may be realized upon by enforced col-
lection proceedings. The agency will
give consideration to the applicable
exemptions available to the debtor
under State and Fetieral law in deter-
mining the Government’s ability to
enforce collection. Uncertainty as to
the price which collateral or other
property will bring at forced sale may
properly be considered in determining
the Government’s ability to enforce
collection. A compromise effected
under this section should be for an
amount which bears a reasonable rela-
tion to the amount which can be re-
covered by enforced collection proce-
dures, having regard for the exemp-
tions available to the debtor and the
time which collection will take. Com-
promises payable In installments are
to be discouraged. However, if pay-
ment of a compromise by installments
Is necessary, an agreement for the re-
instatement of the prior indebtedness
less sums paid thereon and accelera-
tion of the balance due upon default
in the payment of any Installment
should be obtained, together with se-
curity In the manner set forth in
102.8 of this chapter, in every case in
which this is possible. If the agency’s
files do not contain reasonably up-to-
date credit information as a basis for
assessing a compromise proposal such
information may be obtained from the
individual debtor by obtaining a state.
ment executed under penalty of perju-
ry showing the debtor’s assets and li-
abilities, income and expense. Forms
such as Department of Justice form
DJ-35 may be used for this purpose.
Similar data may be obtained from
corporate debtors by resort to balance
sheets and such additional data as
seems required.
103.3 Litigatlve probabilities.
A claim may be compromised pursu-
ant to this part If there is a real doubt
concerning the Government’s ability
72
to prove its case in court for the full
amount claimed either because of the
legal issues involved or a bona fide dis-
pute as to the facts. The amount ac-
cepted in compromise in such cases
should fairly reflect the probability of
prevailing on the legal question in-
volved, the probabilities with respect
to full or partial recovery of a judg-
ment having due regard to the avail-
ability of witnesses and other eviden-
tiary support for the Government
claim. and related pragmatic consider-
ations. Proportionate weight should be
given to the probable amount of court
costs which may be assessed against
the Government if it is unsuccessful in
litigation, having regard for the litiga
tive risks involved. Cf. 28 U.S.C. 2412.
as amended by Pub. L. 89-507, 80 Stat.
308.
§ 103.4 Cost of collecting claim.
A claim may be compromised pursu-
ant to this part if the cost of collecting
the claim does not justify the enforced
collection of the full amount. The
amount accepted in compromise in
such cases may reflect an appropriate
discount for the administrative and 11-
tigative costs of collection having
regard for the time which It will take
to effect collection. Cost of collecting
may be a substantial factor in the set-
tlement of small claims. The cost of
collecting claims normally will not
carry great weight In the settlement of
large claims.
§ 103.5 Enforcement policy.
Statutory penalties, forfeitures, or
debts established as an aid to enforce-
ment and to compel compliance may
be compromised pursuant to this part
if the agency’s enforcement policy in
terms of deterrence and securing com-
pliance, both present and future, will
be adequately served by acceptance of
the sum to be agreed upon. Mere acci-
dental or technical violations may be
dealt with less severely than willful
and substantial violations.
§ 103.6 Joint and several liability.
When two or more debtors are joint-
ly and severally liable collection action
will not be withheld against one such
debtor until the other or others pay
TSC& Q.pliance/ Entorc ent
A- 13
Guidance ) nua1 1984
-------
Appendix
Q,apt.r ti—Federal Claims Collection Standards
Rrhf bit A—i
§ 104.2
their proportionate share. The agency
5hould not attempt to allocate the
burden of paying such claims as be-
tween the debtors but should proceed
to liquidate the indebtedness as quick-
ly as possible. Care should be taken
that compromise with one such debtor
does not release the agency’s claim
against the remaining debtors. The
amount of a compromise with one
such debtor shall not be considered a
precedent or as morally binding In de-
termining the amount which will be
required from other debtors jointly
and severally liable on the claim.
0103.7 Settlement for a combination of
reasons.
A claim may be compromised for one
or for more than one of the reasons
authorized in this part.
1103.8 Further review of compromise
offers.
If an agency holds a debtor’s firm
written offer of compromise which is
substantial in amount and the agency
Is uncertain as to whether the offer
should be accepted, it may refer the
offer, the supporting data, and par-
ticulars concerning the claim to the
General Accounting Office or to the
Department of Justice. The General
Accounting Office or the Department
of Justice may act upon such an offer
or return It to the agency with instruc-
tions or advice.
0103.9 Restrictions.
Neither a percentage of a debtor’s
profits nor stock In a debtor corpora-
tion will be accepted in compromise of
a claim. In negotiating a compromise
with a business concern consideration
should be given to requiring a waiver
of the tax-loss-carry-forward and tax-
loss-carry-back right,s of the debtor.
PART 104—STANDARDS FOR SUS-
PENDING OR TERMINATING COL-
LECTION ACTION
Set
104.1 Scope and application.
104.2 Suspension of collection activity.
104.3 Termination of collection activity.
104.4 Transfer of claims.
Au-rijoairy: Sec. 3, 80 Stat. 309; 31 U.S.C.
952.
Souaci 31 FR 13383, Oct. 15. 1966, unless
otherwise noted.
§ 104.1 Scope and application.
The standards set forth in this part
apply to the suspension or termination
of collection action pursuant to sec-
tion 3(b) of the Federal Claims Collec-
tion Act of 1966, 80 Stat. 309, on
claims which do not exceed $20,000 ex-
clusive of interest. The head of an
agency or his designee may suspend or
terminate collection action under this
part with respect to claims for money
or property arising out of activities of
his agency prior to the referral of such
claims to the General Accounting
Office or to the Department of Justice
for litigation. The Comptroller Gener-
al or his designee may exercise such
authority with respect to claims re-
ferred to the General Accounting
Office prior to their further referral
for litigation.
§ 104.2 Suspension of collection activity.
Collection action may be suspended
temporarily on a claim when the
debtor cannot be located after diligent
effort and there is reason to believe
that future collection action may be
sufficiently productive to justify peri-
odic review and action on the claim
having consideration for its size and
the amount which may be realized
thereon. The following sources may be
of assistance in locating missing debt-
ors: Telephone directories; city direc-
tories; postmasters; drivers’ license
records; automobile title and license
records; state and local governmental
agencies; district directors of Internal
Revenue; other Federal agencies; em-
ployers, relatives, friends; credit
agency skip locate reports and credit
bureaus. Suspension as to a particular
debtor should not defer the early liq-
uidation of security for the debt.
Every reasonable effort should be
made to locate missing debtors suffi-
ciently in advance of the bar of the ap-
plicable statute of limitations, such as
Pub. L. 89-505. 80 Stat. 304, to permit
the timely filing of suit if such action
Is warranted. If the missing debtor has
signed a confess-Judgment note and is
In default, referral of the note for the
entry of Judgment should not be de-
layed because of his missing status.
73
TSCA Coap1iance/Enforce ieflt
A- 14
Guidance Manual 1984
-------
Appendix
R h4 bit h- i
§ 104.3
Title 4—Accounts
Collection action may be suspended
temporarily on a claim when the
debtor owns no substantial equity in
realty and is unable to make payments
on the Government’s claim or effect a
compromise thereof at the time but
his future prospects justify retentions
of the claim for periodic review and
action and:
(a) The applicable statute of liinita-
tions has been tolled’or started run-
ning anew or (b) future collection can
be effected by offset notwithstanding
the statute of limitations.
[ 31 FR 13381. Oct. 15. 1966. as amended at
44 FR 22702. Apr. 17. 1979)
104.3 Ternunation of collection activity.
The head of an agency or his desig-
nee may terminate collection activity
and consider the agency s file on the
claim closed under the following
standards:
(a) Inability to collect any substan-
tial amount.. Collection action may be
terminated on a claim when it be-
comes clear that the Government
cannot collect or enforce collection of
any significant sum from the debtor
having due regard for the judicial rem-
edies available to the Government, the
debtor’s future financial prospects,
and the exemptions available to the
debtor under State and Federal law. In
determining the debtor’s inability to
pay the following factors, among
others, may be considered: Age and
health of the debtor; present and po-
tential income; Inheritance prospects;
the possibility that assets have been
concealed or improperly transferred
by the debtor, the availability of assets
or Income which may be realized upon
by enforced collection proceedings.
(b) Inability to locate debtor. Collec-
tion action may be terminated on a
claim when the debtor cannot be lo-
cated, there is no security remaining
to be liquidated, the applicable statute
of limitations has run, and the pros-
pects of collecting by offset notwith-
standing the bar of the statute of limi-
tations is too remote to justify reten-
tion of the claim.
(C) Cost will exceed recovery. Collec-
tion action may be terminated on a
claim when it Is likely that the cost of
further collection action will exceed
the amount recoverable thereby.
(d) Claim legally without merit. Col-
lection action should be terminated on
a claim whenever it is determined that
the claim is legally without merit.
(e) Claim cannot be substantiated by
evidence. Collection action should be
terminated when it is determined that
the evidence necessary to prove the
claim cannot be produced or the neces-
sary witnesses are unavailable and ef-
forts to induce voluntary payment are
unavailing.
§ 103.4 Transfer of claims.
When an agency has doubt as to
whether collection action should be
suspended or terminated on a claim it
may refer the claim to the General Ac-
counting Office for advice. When a sig-
nificant enforcement policy is involved
in reducing a statutory penalty or for-
feiture to judgment, or recovery of a
judgment is a prerequisite to the im-
position of administrative sanctions,
such as the suspension or revocation
of a license or the privilege of partici-
pating in a Government sponsored
program, an agency may refer such a
claim for litigation even though termi-
nation of collection activity might oth-
erwise be given consideration under
104.3 (a) or (c). Claims on which an
agency holds a Judgment by assign-
ment or otherwise will be referred to
the Department of Justice for further
action if renewal of the judgment lien
or enforced collection proceedings are
Justified under the criteria discussed
In this part, unless the agency con-
cerned has statutory authority for
handling its own litigation..
PART 105—REFERRALS TO GAO OR
FOR LIUGATION
Sec.
105.1 Prompt referral.
105.2 Current address of debtor.
105.3 CredIt data.
105.4 Report of prior collection actions.
105.5 Preservation of evidence.
105.6 MInimum amount of referrals to the
Department of Justice.
105.7 Referrals to GAO.
Au ’rHoRflY Sec. 3, 80 Stat 309; 31 U.S.C.
952.
SouRcE 31 FR 13384. Oct. 15. 19643. unless
otherwise noted.
74
TSCA Cti.p1iance/LifotC ent
A— 15
Guidance ? nua1 1984
-------
Appendix
R hIbjt A—i
O apter Il—Federal Claims Collection Standards
§ 105.6
1105.1 Prompt referral.
Claims on which collection action
has been taken in accordance with
part 102 of this chapter and which
cannot be compromised, or on which
collection action cannot be suspended
or terminated, in accordance with
parts 103 and 104 of this chapter, will
be referred, to the General Accounting
Office in accordance with R.S. 236, as
amended, 31 U.S.C. 71, or to the De-
partment of Justice, if the agency con-
cerned has been granted an exception
from referrals to the General Account-
lug Office. Such referrals should be
made as early as possible consistent
with aggressive agency collection
action and the observance of the regu-
la lons contained in this chapter and
In any event well within the time lim-
ited for bringing a timely suit against
the debtor.
O 105.2 Current address of debtor.
Referrals to the General Accounting
Office, and to the Department of Jus-
tice for litigation, will be accompanied
by the current address of the debtor
or the name and address of the agent
for a corporation upon whom service
may be made. Reasonable and appro-
priate steps will be taken to locate
missing parties in all cases. Referrals
to the General Accounting Ofuice. and
referrals to the Department of Justice
for the Institution of foreclosure or
other proceedings, In which the cur-
rent address of any party is unknown
will be accompanied by a listing of the
prior known addresses of such a party
and a statement of the steps taken to
locate him.
1105.3 Credit data.
(a) Claims referred to the General
Accounting Office, and to the Depart-
ment of Justice for litigation, will be
accompanied by reasonably current
credit data Indicating that there Is a
reasonable prospect of effecting en-
forced collections from the debtor,
having due regard for the exemptions
available to the debtor under State
and Federal law and the judicial reme-
dies available to the Government.
(b) Such credit data may take the
form of: (1) A commercial credit
report, (2) an agency investigative
report showing the debtor’s assets and
75
liabilities and his income and ex-
penses, (3) the individual debtor’s own
financial statement executed under
penalty of perjury reflecting his assets
and liabilities and his income and ex-
penses, or (4) an audited balance sheet
of a corporate debtor.
(c) Such credit data may be omitted
if: (1) A surety bond is available in an
amount sufficient to satisfy the claim
in full, (2) the forced sale value of the
security available for application to
the Government’s claim is sufficient
to satisfy its claim in full, (3) the re-
ferring agency wishes to liquidate loan
collateral through judicial foreclosure
but does not desire a deficiency judg-
ment, (4) the debtor is in bankruptcy
or receivership, or (5) the debtor’s lia-
bility to the Government is fully cov-
ered by insurance, in which case the
agency will furnish such information
as it can develop concerning the iden-
tity and address of the insurer and the
type and amount of insurance cover-
age.
§ 105.4 Report of prior collection actions.
A checklist or brief summary of the
actions previously taken to collect or
compromise a claim will be forwarded
with the claim upon its referral to the
General Accounting Office or to the
Department of Justice. If any of the
administrative collection actions enu-
merated in Part 102 of this chapter
have been omitted, the reason for
their omission will be given with the
referral. The General Accounting
Office and the Department of Justice
may return or retain claims at their
option when there is insufficient justi-
fication for the omission of one or
more of the administrative collection
actions enumerated in Part 102 of this
chapter.
§ 105.5 Preservation of evidence.
Care will be taken to preserve all
files, records and exhibits on claims re-
ferred or to be referred to the General
Accounting Office, or to the Depart-
ment of Justice for litigation.
§ 105.6 Minimum amount of referrals to
the Department of Justice.
Agencies will not refer claims of less
than $600, exclusive of Interest for liti-
TSCA Coapliance/Enforcement
A-i 6
Guidance Manual 1984
-------
Appendix
I h1bit A—i
§ 105.7
gation unless: (a) Referral is impor-
tant to a significant enforcement
policy or (b) the debtor has not only
the clear ability to pay the claim but
the Government can effectively en-
force payment having due regard to
the exemptions available to the debtor
under State or Federal Law and the
judicial remedies available to the Gov-
ernment.
[ 42 FR 38891. Aug. 1, 1977)
§ 105.7 Referrals to GAO.
Referrals of claims to the General
Accounting Office will be in accord-
ance with instructions, including mon-
etary limitations, contained in the
General Accounting Office Policy and
Procedures Manual for the Guidance
of Federal Agencies.
T,tI. 4—Accounts
100
TSCA Cospliance/Rnforcent
A- 17
Guidance ) nniu1 1984
-------
pp endix — Erhibit A—2
Model Deaand for Payment Letter
Name: Date:
Address:
Docket No.:
Demand for Payment of Civil Penalty — Warning for Failure To Pay
Dear Sir/Madam:
In connection with the enforcement of the Toxic Substances
Control Act (15 U.S.C. S2601 et! g ), you are hereby given notice
that your penalty payment of $ __________ is due within
thirty (30) days and that we ex .ect payment in full before the
the expiration f the s1’ y (60) day payment period that started
on and ends on -____________
f payrhent 1 s not received by the expiration of the payment
period, this matter shall he referred to the (United States
Attorneys Office/Department of Justice) which shall recover such
amount by civil action in the nature of a debt owed to the United
States government.
in the event that you have already submitted your payment
or chat it is currently in transit, please disregard this
notice and accept our apologies for any inconvenience it may
cause you.
Title
EPA Region _______— —
Date At
TSCA Comp 1 1ance/ &i forceaen t A18 Guidance Manual 1984
-------
Appendix hibjt A—3
Model Final De ai i for Payment Letter
Name: Date:
Address:
Docket No.:
Final Demand for Payment of Civil Penalty — Notice of Referral
to the United States Attorney
Dear Sir/Madam:
This letter is to inform you that your penalty payment of
$ ____________ is past due and to demand immediate payment of the
above—mentioned sum. The penalty was imposed by a (Final Order,
Consent Decree, or Default Order) signed by the Regional
Administrator of Region ___________ on ( date) . You were
notified of your obligatTó n to pay upon receipt of the Regional
Administrator’s order on and you were again Informed
of your obligation to pay on ( date second demand was Bent )
You are hereby notified that unless the payment of the penalty
is received in the Regional Office within fifteen (15) days of the
date of this notice, this matter will be referred to a United States
Attorney who shall recover such amount in a civil action in the
appropriate United States district court. Such action is routinely
accomplished through a motion for summary judgment in favor of
the United States. In this proceeding, you will be barred from
raising any issues of fact or of law that should have been raised
in the administrative proceeding.
Title
EPA Region ____________________
Date At
TSCAL Co.pliance/Enforceaent A-19 Guidance P nua1 1984
-------
Appendix Riii4 bit &—4
Clalas Collect ion Litigation eport
An Overview
The Federal Claims Collection Standards (4 C.F.R. § 101—105)
prescribe regulations for the administrative collection, compro-
mise and termination of agency claims, and for the referral of
administratively uncollectible claims to the General Accounting
Office or to the Department of Justice for litigation . The
Standards require that certain informatT be provided to
the Department of Justice when an agency refers a claim for
litigation and enforced collection (4 C.F.R. §105.1 et seq.).
In cooperation with the General Accounting Office, t1T attached
Claims Collection Litigation Report (CCLR) has been developed by
the Debt Collection Section of the Executive Office for United
States Attorneys, Department of Justice, as the standard report
to provide this information when claims are referred to Justice
for litigation and enforced collection. All claims referred to
Justice should be accompanied by a completed report.
The CCLR is provided in three different formats: letter
(Exhibit 1), memorandum (Exhibit 2), and standard form (Exhibit
3). Each agency may choose the format it prefers to use. Dupli-
cate copies of each format which include bracketed explanatory
text are also provided (Exhibits 4, 5 and 6). In addition, an
Item Explanation (Exhibit 7) is provided to assist and direct
agencies on the specific information required in each item on
the report.
Uniform use of the CCLR by all agencies will serve a
number of purposes. First, it will provide Justice with all
the information it must have to effectively litigate the claim
and enforce collection. The CCLR will provide this essential
information “on top and up front” so that no time will be lost
searching the client agency s file for the necessary informa-
tion. This will increase the speed at which claims received
from agencies are taken to judgment, or otherwise converted to
paying status, and, as a result, should increase the amount of
money collected by Justice and returned to the agencies.
Second, the CCLR should improve the quality of claim
referrals to Justice by prompting agencies to take more aggres-
sive administrative action to collect claims. Such aggressive
collection action is required by the Federal Standards (4 C.F.R.
§102.1 et seq. ) but has often been overlooked or ignored. In
this respect, the CCLR will also serve as a checklist and as
a reminder to all persons who deal with these matters of the
importance of the Federal requirements. Furthermore, both
aggressive action by the agency to collect and prompt referral
to Justice of claims which are accomoanied by current, accurate
and complete information, directly affect Justices success in
the enforced collection of claims. Therefore, we hope that
each agency will establish the goal that all of its referrable
claims be referred to Justice npt later rihan six months after
Ths P i. d and rcxic 9ub tanc*. Offic.a hay. adopt.d th.
m ranrni ‘ormat. ‘.r.for. , t thibit 5 t • randu format
that incJ.ud.. brac**tad • p Lax atorv text) a includsd in this
app.ndix. E diibita 1, 2, and 3 (i fo ma) and !thibits 4
and six which p.:ta •. . thir fr.;mmta • ara ot includd.
TSC4 Coapllance/&iforceent A—20 Guidance l4anual 1984
-------
Appendix R hibjt £—4
tne agency’s final determination of the amount of the claim.
If, as stated in the Item Explanation, preparation of the CCLR
is made an integral and contemporaneous function of aggressive
collection efforts by all agencies, the CCLR will be completed as
and when the agency completes administrative collection action,
thus, allowing agencies to promptly refer claims to Justice.
Finally, the CCLR will provide the information needed by
Justice from all agencies in the same order and sequence. This
will enable Justice personnel to design procedures around the
report which will permit better utilization of the modern word
and data processing equipment which many law offices now have.
Once the information is received in the same sequence, then
prerecorded programs will enable such equipment to “read” each
“debtor file” to “automatically” produce the documents essential
to litigation, for example, the demand letter, complaint, summons
and judgment, which relate to a claim. Such automated collec-
tions systems will improve the efficiency and speed with which
claims are handled and, as a result, Justice should be able to
better serve its client agencies.
Because of the uniform order and sequence of this standard
report, it will be possible, if an agency so chooses, to provide
merely the answers to Items 1 through 51 of the report seriatim.
This means that instead of inserting answers to Items 1 through
51 on the actual CCLR form, an agency may follow the standard
format of the report, as illustrated in the attached Exhibits 1
through 6, down to Item 1 of the report, and then at that point
merely provide a running list of only the Item numbers and
corresponding answers for Items 1 through 51. The actual CCLR
form and the accompanying Item Explanation would then be used
by the agency as its pattern, guide, or key for providing the
answers in the running list. When a running list is provided
in lieu of inserting the answers onto the actual report form,
however, great care should be taken by the agency to assure
that the Item numbers and answers provided in the running list
correspond to the Item numbers on the report. This method of
providing information should both simplify and expedite the
agency’s preparation of the CCLR. In addition, it should allow
for better utilization of available word and data processing
equipment to prepare the report.
As both the CCLR and the Item Explanation state, all docu-
mentation which supports the claim or, where appropriate, the
agency’s debtor file should be attached to the report. In addi-
tion, the following materials should be prepared and included in
the CCLR package:
1) A Certificate of Indebtedness which will provide
the United States Attorney with a complete
statement of how the claim arose (including the
statutory, regulatory, or other authority from
which the claim arose, a summary statement or
resume of the factual basis for the claim, an
—2—
TSC& Co p1iance/Eaforc eut A- 21 Guidance ) nua1 1984
-------
Appendix K htbtt A—4
itemization of the dates and amounts of any payments
made by the debtor to the agency or any credits made
by the agency to the debtor, and an itemization of
the amount due and owing) and which may be offered by
the United States Attorney into evidence to prove the
claim;
2) A Department of Justice Demand Letter (Exhibit 8)
which will be used by the United States Attorney to
notify the debtor that the Department of Justice has
received the claim for litigation and suit will be
brought unless full payment is made within 10 days
(please note that this letter need only be prepared
and included in the CCLR package for those United
States Attorneys’ offices listed on the Attachment
to Exhibit 8);
3) A Department of Justice Acknowledgment (“Comeback
Letter’) (Exhibit 9) which will be used by the
united States Attorney to officially notify the
agency that the claim which was referred has been
received and will give the referring agency the
United States Attorney’s claim number; and
4) A Department of Justice Deficiency or Declination
Letter (“Sendback Letter”) (Exhibit 10) which will
be used by the United States Attorney to send
deficient claims, or claims which the United States
Attorney declines to litigate, back to the agency.
The letters should be prepared in the same format reflected in
the exhibits.
The Department of Justice solicited comments on the use, con-
tent and format of the report from divers Federal agencies. These
comments expressed almost universal support for the concept of the
report. To the extent possible, all agency suggestions for changes
to the report, or that additional items be included in the report,
were incorporated. Several agencies were concerned that some of
the items of information requested on the report may be superfluous
to their particular claims or impossible to obtain. Inability to
obtain all information required by the report should not be viewed
as a bar to referral of claims to Justice. However, information
requested in the litigation report should be provided to the extent
feasible. Questions of feasibility should be answered on the basis
of and with a clear understanding of the fact that claims referred
to Justice are for litigatio following aggressive administrative
collection acti by the referring agency, and that on the basis
of the information contained in the CCLR , including the age 37’s
t inatiOn of the debtor S bTTTtY to pay, and the accompanying
supporting documentation or agency debtor file, Justice should
be able to successfully prosecute the claims referred to it
to judgment and enforce collection of a substantial sum. Any
omissions should he explained in the appropriate item on the
face of the report.
—3—
TSCA Co p1iauce/Enforc nt A-22 Guidance ) nua1 1984
-------
Appendix Th1 bit A—4
We realize that as agencies gain experience using the CCLR,
problems may arise which could not be foreseen while the report
was being developed. Although completion of the report is
required, its content and format may be modified in the future
based upon any comments or suggestions from agencies using
the report. Comments should be brought to the attention of
Mr. Edward H. Funston, Assistant Director, Debt Collection
Section, Executive Office for U. S. Attorneys, Suite 803,
5205 Leesburg Pike, Falls Church, Virginia 22041. In the near
future, the General Accounting Office will incorporate the CCLR
and accompanying materials in Title 4 of the General Accounting
Office Policy and Procedures Manual for the Guidance of Federal
Agencies.
—4—
TSCL Cospliauce/Ecforceent A- 23 Guidance ) mi a 1 1984
-------
Appendix
Rxhibit A-4
To: >Unlted States Attorney
>iJudlciei Dlstrlcti of iStatel
>lCity, State, Zip Codel
CLAIMS COLLECTIcS 1 LITIGATIc1 REPcRT
(on memorandum of referring agency>
>lDatel
Attention dales Collection t lt
>1 FF5 Ptmofle rmumberi
Re: >l0ebtor’s full name (LAST, FIrst, Mlddle)1
>iDebtor’s mat I ing address)
>
>
>(Dobtor’s file a- reference numberi
>$iAinounti Is the total principal clue.
>$lAa,ount l Is the total interest due.
>SiAmeunti Is the total ecbwlnistratlve
charges due.
>SlAjyiountl Is the total penalty charges
total asount due.
annual interest r 5te.
SOL date.
ThIs claim Is referred to you fa- suit and such other action as you dean appropriate to
enforce collection. The pior actIon taken by this agency and the information povided you can—
plies fully with Federal Claims Collection Standards (4 CFR Parts iOi—I05). The doc ntmtlon
required by 4 cm P -ts 10 1— 105 Is attactied and the Information you have requested fol tows.
i.E T R
i. Date of Birth:
3.
Also
known
as:
iLlst
alIases of debtor, if knowrm.i
5. Present residence:
iShow actual place of residence, not
merely the debtor’s mailing address.i
2. Social Security Number:
4. Name used on note/applIcatIon:
6. Residence verIfied by/when:
iFran what source end when?J
7. Present phone nu er:
8. Phon, numb,r verifIed by/when:
iFran what source and when?l
9. Debtor locator (skiptracing) information:
iShow Information which will assist the
Fm: >iNamel
>ITltlel
>iMaillng address if not shown abovel
>
>
>$IAcnountl
>iRatei
>iDate l
due.
Is the
% Is the
is the
io.
(9. cont’d.) U.S.
Attorney’s office
In relocating the debtor if he a- she menves fr a u the
residence given at
item 5,
above.i
THE CLAIM
BasIs of claIm a- cause of
benefit overpayment, loan
action:
default,
ihrlefiy describe the claim, e.g.,
bankruptcy, etc.i
(MenK ’>
iE,(HiBiT 51
TSCA Coapliance/ Enforc ent
A- 24
Guidance ? nua1 1984
-------
Appendix
I rh1bjt A—4
11. Statute of llm [ t tlons (SOL) runs on:
[ Date?)
[ 2. Basis for SOL date:
E.g. • default date, last payment date)
2). Response, It any, to debtor’s dispute:
[ Aqency response to debtor’s dispute. )
with recard thereto. If any. [
23. Conpromi se offered or 01 [ cited:
S [ Ajaount? [
22. ExhaustIon of ade [ n)strativo remedies:
[ Describe administrative remedies
24. Bails for cempronise:
[ Was a conpronise offer elicited fran
25. Response by agency or debtor:
[ If any, by who ano woat resoonsefl
26. Others legally responnible for debt:
lE. .. beneficiaries. conservators. [
27. BasIs of liabIlity by other parties: [ Is [ lability joint or several? Action,
if any, taken against other parties? If none, why not? If yes, what action and what
amount recovered? Give other relevant details.)
AcZXXMT I I* AT ION
28. C.-titi tlon of lndobte ess;
S [ Anount?l as of [ Date of deter ,nination. [
30. Total number/amount of payments
made/credits:
29. Oiginal principal owed by debtci-:
SlAmount?l
31.
ksount applied to principal:
S
32. M ount applied to charges assessed,
penalties and interest:
34.
S
Ba.an e aue on
charges
assessed.
penalties
and
accrued
interest:
p
135. ccntd.) cehtor ore to be abp ,ied.I
33.
Balance due on principal;
S
35. Explain application ot paymeits:
Explain how payments re’:eixod fran the
35. Debtor’s last payment:
SlMrnunt and datefl
37. Interest accrual dale:
The fate fran ph 00 interest 5 duG.
Yemo)
(12. cont’d.)
13.
[ 5.
1 7.
[ 9.
First demand for payment made on:
[ Date?)
14.
16.
18.
20.
First demand made by:
[ Who, i.e., agent, official, office?)
Last demand for payment made on:
[ Date?)
Method of first demand:
[ E.g., letter, mallgram? [
Last demand made by:
[ Who, [ .e, agent, official, off [ ce? [
Method of last demand:
[ E.g., [ otter, phone, personal contact?)
Does debtor dIspute claim:
[ Explain debtor’s position with regard
Debtor’s response:
[ When and how did debtor respond?)
(20. cont’d.) to the claim, if known.J
( 22. cont’d.) available to debtor, how debtor was advised of them, and debtor’s action
( 24. cont’d.) the debtor or offered the debtor by the claimant agency? Was a basis for
compranise offer given; if yes, what was the basIs?) -- _________
TSC& Cosp1iance/Enforc ent
A- 25
iid.nce P nua1 1984
-------
Appendix
vh4 jt A—4
O BTG4 ’S EWLO8MENT
38. Present e loy.nt:
)En loyer ’s nan,e?l
) E ployer ’s reSs; street and r n ber ,
City, State and ZIP Cocefl
lEnplo er’s phone somber?)
39. £rplsy’nent ver f,mt :
:F - .n , har srce and when?)
40. De tors salary:
S,noun) and whethor woehly or monthly
and whether ross or set?)
4). Salary verifle i
( Fro., what scarce and henfl
43. Spoose’s e.nployn ienl narlfied:
)Fr ,, what source an when?)
43, Spouses e.pioy.ent:
IE’nployer ’s na,nefl
Employer’s address; street and nanber,
City, State, ZIP Oodefl
lEnployer’s phone nunber?)
( B1hJ ’S 9BILITY TO PAY
44. i v I ng due regerd for the ex t lo s to vi i Id tfi. debtor Is eat tied esder støt. and
Federal law, The debtor’s age and h. .ith, present end potential In , l.Sserltsnca pe- —
pcts, and tti. pon.slbI I Ity that assets hews been concealed or li roperty transferred; lii.
current a-edit re9urf or financial stateneat attadied (or ofies- Irfcx-entlaa 8 owid I . The
al-tadied tile) disclosen the present or likely future availability of assets or in s
trc efildi a subsThnl ’iai s eny be obtained by enforced collection proceedings:
I SepIa in,
45. The following infortiatice will dssis? you in locating property in which the United Staten
has a secured interest: Describe and attach security agr er ,ts
and des ibe and ioe last known location of property in wEltS the United States has a
secured interest. Pine asset or fair market name of 5 rity (which?).)
46. The following information will assist you is locating other assets of the debtor:
‘ Describe and 0 iue tine location of real and rsonal 0 ropertv of the Cebtor weict is o-
nay be olnerable tO attachment or leuy lnon—ewempt assets). Pine asset or fair market
name of xopertv isted (which?),
YALLE ClAIM
47. It discounted or solo is connierce, the fair market o- asset a ,ue of this lain .o )d he:
5)A ,noani) Eeplain basis for fair market o asset naloutiori divan, :f sny. I
L8. ci Tn due regard tO the debtor S ab i I itt tO pay, as cat I ned by 0 uesn on d4, above, a
reasonable and acceptable con ,prcrlise of far by the tebtor wOold be:
5)Anour?? char is basis ( or amount srio.fl? Ee lnin n relationsr ’iy to 50$ debtOr’S assets
and income which can he reached by garnishment, Len,’, or attacnner-t.
C R DIRECT C P( IT ct yi,cs
49. Eccountlig of)icer:
lame, tile, acenca, nail sq 040resS.L
50. A 9 ency account, ng/ i sbojr tins oft I car
code/symbo’ /flcr’ber:
FT’i pro-a -other. i
‘ eri e)
r0isury ceo :ra ’: -l o:-’rcsr or or
TSCA Co p11ance/Enforce ent
A- 26
Guidance Manual 1984
-------
Appendix RiM bit A—4
if I con be of any further assistance It this matter, please do not hesitate to cmi I ne
e 1 tito number given above.
Agency Employee Re 5ponslbll for liandling the Clam:
>1 Hone I
IT It o f
>lMaillttg ad ess If not st cn abQvei
> )FTS Phone nuolber)
Attacineonts as listed:
The symbols, the brackets, the bones, or The tent .,ithin either of the latter clii not
appear on the fInal typed on printed repOrt, but have been incladet here to eeplaifl cr
cinr y the guestionsfite t S. The mar; n end lab settincs are indicated on the firSt
l:te. Ck,ce set, they need not m cnonged to cc ,nplete the entire report. This report
is des ’gnet ) to be typed onto a printet ‘ore or prepared an cord processing eçuip nent
,.ith either “tab tO—blOCv” on “n,ar;e,teat/pr:nt ” features, .e., merge nariable tent
with pattern (“set”) tent and print.
The address cat the first Page 5 the “ v ie atitress” h at the envelope or “outside
address” ciii have to be re corhlete. iSee £n it 1 tar a prth’ieTe envelope on
.15 Th bOO ’OSS.” ( ‘ he _1: 3, :‘‘ ‘3. Tv ar tten, “Sc ,’Nc’t :stricf at c —n,”
or “Di s’r ict of aflsdS,” CS aT i e. e ¶‘nle can he The acceTted tco capital
- etter abdreviaticfl.
—4—
(Men,:,)
TSC Gc,spliance/Enforce.ent 1-27 Guidance ? nua1 1984
-------
Appendix h4 bit &-4
S1P?W NTAL fl F DETA I LED N SWERS
I nd I cAt. I t nLat ers to Ich the answers açpl y.
If more space s ratalrhcf, cse full shoots of paper the same siae as ttis pate. Attach all
sheets behind page 5.
—5—
I 4 Oen))
TSCA Co.p1iance/Enforc ent A—28 Culdance nua]. 1984
-------
Appendix •R.bIbit L4
LALMS LL I J LITIGATIQ REFORr
Iten Exnlanation
The Clain llection Litigation Report (CLR) will provide the Department
of Justice with the essential information required for litigation and enforced
collection of a substantial sun on an agency claim. As you know, the Federal
Clais CollectTon Standards TrC.F.R. SS1OI-105) require that this inforniaticn
he foz arded to the united States Attorney with each claim. The following
explanations are provided to assist and direct yc*. on the specific information
required in each iten on the report. Careful review of and frequent reference
to these itan explanations throughout the course of agency collections endeavors
will facilitate the final preparation of the CCLR and ac xnipanying claim package.
If preparation of the CCLR is made an integral and contenporaneous function of
aggressive collection efforts by the Department’s client agencies, the CCLR will
he ccinpleted as and when the agency aiiletes aâninistrative collection action.
ien the space provided on the face of the LR is not adequate for your
responses, continuation of the responses should he m& on the su lemental sheet
attached to the report. en this is c ne, priate notations indicating that
additional informat ion is attached should he thcleded at the related iten
the face of the CCLR. The supplenental sheet should alnc he uaed to provide the
sate information recuired in The Debtor, ‘Debtor’s Emplo nent,’ and ‘Debtor’s
Ability to Pay’ sections of the report for the additional debtors on a railtiple
debtor claim. In addition, the supsienental sheet should he used to provide
the same information required in ‘The Claim’ axl ‘Account Information’ sections
of the report for any additional debts of a single debtor. Pqain, appropriate
rctations indicating that additional information is attached should he inclix ed
at the related sections on the face of the report. All information requested in
the report should be provided to the extent feasible. Q estions of feasibility
should he answerei on the basis of and with a clear understanding of the fact
that claims referred to the Department of Justice are for litigation following
aggressive adeinistrative collection action by the ref ing agency, and that,
on the basis of the information contained in the report , theleding the agency’s
termination of debtor’s ability to pay, e Department should he able to
successfully prosecute the claims referred to it to judgment and enforce collec-
tion of a substantial sun. Therefore, any cznissior.s should he explained in the
appropriate items on t report.
As stated in the cover ‘Cverview ’ to this package, the CCLR is a standard
litigation report which will provide Justice with the information on all agency
claim referrals in the sane order or sequence. Because of the uniform order and
sequence of this standard report, it will be possible, if an agency chcoses,
to provide merely the answers to Items 1 through of the report seriatim. This
means that instead of inserting answers to Itet 1 through 51 on the actual CCLR
form, an agency may follow the standard format of the report, as illustrated in
the attached Exhibits 1 through 6, do .n to Item 1 of the report, and then at that
point merely provide a running list of only the Item numbers .sxi corresponding
answers for Items 1 through sI. 1 actual CCLR form sr i ] the accanpanying Item
Explanation ould then he used by the agency as its pattern, guide, or key for
providing the answers in the running list. en a running list is provided in
[ E IEIT 7
TSCA Co.p1iance/Kuforc nt — A-29 Guidance Manual 1984
-------
Appendix R Mbjt k-4
lieu of inserting the answers onto the actual re rt form, however, great care
should be taken by the agency to assure that the Itmli numbers and answers pro-
vided in the running list correspnd to the Item numbers on the reçort. This
methoi of providing information should hoth sirnplif j and expedite the agency’s
preparation of the CCLR. In aidition, it should allow for better utilization
of available rd and data processing equiprent to prepare the repart.
As toth the CCLR and the following explanations state, all documentation
which supparts the claim or, where appropriate, the agency’s debtor file should
La attached to the report. In a5dition, the following materials should be
prepared and included in the CCLR package:
1) A Certificate of Indebtedness which will provide the United States
Attorney with a complete staterent of how the claim arose (including
the statutory, regulatory, or other authority from which the claim
arose, a susn1 ary statement or res .nre of the factual basis for the
claim, an itemization of the dates and amounts of any payments rnaie
by the debtor to the agency or any credits made by the agency to the
debtor, and an itemization of the amount due and owing) and which
may La offered by the United States Attorney into evidence to prove
the claim;
2) A Department of Justice Demand Latter (Exhibit 8) which will La
used by the United States Attorney to notify the debtor that the
Department of Justice has received the claim for litigation and
suit will be brought unless full payment is made within 10 days
(please mate that this letter need only be prepared and included
in the CCLR package for those United States Attorneys’ offices
listed on the Attachment to Exhibit 8);
3) A Department of Justice Acknowledg ant (“Comeback Latter”) (Exhibit
9) which will be used by the United States Attorney to officially
notify the agency that the claim whid was referred has been
received and give the referrinq agency the United States Attorney’s
claim number; and
4) A Department of Justice Deficiency or Declination Latter (Exhibit
10) which will be used by the United States Attorney to seed defi-
cient claims, or claims which the United States Attorney declines
to litigate, back to the agency.
The letters should be prepared in the same format reflected in the exhibits.
‘ioP wri
Date: Show the date that the CCLR is signed.
roside Address Simply thow ‘United States Attorney,” the
or “Th” Block: ‘ederal judicial diatrict, and the city,
tat ird zip ccde. The judicial district
ar he ri :Vn, “southern District of Iowa,”
r fli ;ti ct f ? ansa ,” as appropriate.
Th’ can he the accepted t o capital
iSCA Coiipliance/Euforce eut A-30 Guidance Manual 1984
-------
Appendix whIbit A—4
letter abbreviation. A c’ornplete nailing
address for the United States Attorney
should be provided on the nviiling envelopa.
(Exhibit 11 provides current nailing
addresses for United States Attorneys.)
“Frci s ” Block: [ When us i r g the” Mmsorandum” or “Furm” for-
mat) Show the name, title, complete mailing
address and RI’S telephone number of the
amency official Who will sign the repart.
Debtor’s Full Name: Shci. the last, first and full middle name
or middle initial of the debtor. Where
appropriate, indicate whether debtor is
a “Sr.,” “Jr.,” “II, ” etc.
Debtor’s Mailing Shci the complete mail i rz address for the
Piddress: debtor which has teen verified by the agency
within the past six nonths.
Debtor’s File or Show the agency’s debtor file or reference
ference Number: number.
Total Principal Dee: Show the aiamunt of principal due on the
claim. Where fees and costs advanced are
to te recovered frc s the debtor, include
then in the principal. The Certification of
Indebtedness which you attach should include
an explanation and itemization when the
total principal due is a cumulative total
and combines separate items recover-
able fees and costs advanced, promissory
notes of different dates or ariounts).
Total Interest Dee: Show the total asount of interest due
through the date of the Certification
of Indebtedness. The Certification of
Indebtedness which you attach should include
an itemization and explanation of interest
charges and when, for example, the total
interest due includes separate items such as
interest die on sore than one promissory note
or a series of discrete claims, each interest
charge should be itemized arid explained.
Total k inistrative Show the total anount, through the date of
arges Due: the Certification of Indebtedness, of any
achinistrative charges which may have been
assessed by the agency to cover the costs of
processing and handling the claim parsuant to
the Debt Collection Act of 1982, P.L. 97—365,
11(e)(2). The Certification of Indebtedness
id u attach should include an itemiza-
tion and explanation of such charges.
—3—
TSC& Coapliance/Enforce.ent A-3 1 Guidance Manual 1984
-------
Appendix R h1bit A—4
‘Ibtal Penalty Show the total anount, through the date of
tharges Due: the Certificaticr of Indebtedness, of any
penalty charges which may have been assessed
by the agency for debtor’s failure to pay
any portion of a debt sore than ninety (90)
days past dIE pursuant to the Debt Collection
Act of 1992, P.L. 97—365 §11(e)(2). The
Certification of Indebtedness whidi you
attach should include an itemization arx 1
explanation of such penalty charges.
Total Mount Due: Show the total (Grand ‘fl tal) anount due
on the claim through the date of the
Certification of Indebtedness.
Annual Interest Show the rate of annual interest charged
Rate: by the agency on the debt.
SOL (Statute of Show the sanE statute of limitations date
Limitations) Date: which is to be entered at Item 11 of the
CCLR.
ThE CEBIOR
ITEM 1: Show the debtor’s date of birth. In the
case of a non—beneficiary debtor (e.g., a
representative payee) and the date3Tbirth
of the debtor is unknown, show “Unknown.”
In the event that the debtor is a corpora-
tion or partnership, show “Not applicable
[ corporate/partnership] debtor.”
ITEM 2: Show the debtor’s social security number.
In the case of a ron—beneficiary and the
debtor’s social security number is unknown,
show “Unknown.”
In the event that the debtor is a corpora-
tion or a partnership, show the tax identi-
fication number of the corporation. If the
tax identification number of the corporate
or partnership debtor is unknown, show
“Unknown.”
ITEM 3: Show any other name(s) (alias(es)) used
by the debtor. If the debtor is a sole
proprietor, show the name under which the
sole proprietor conducts business (e.g.,
d/b/a (doing business as) Smith’s Sundries).
If no aliases, corporate, partnership, or
3ole proprietorship names are used by the
debtor, or known, show “NOt applicable”
or “Unknown.’
—4—
TSCA Co p1iance/Enforceiient A-32 Guidance Manual 1984
-------
Appendix Rrhl bit &-4
ITEM 4: Show the name(s) the debtor used on the
initial instrunent application for
benefits or loan application) which gave
rise to the ir 3ebtedness.
ITEM 5: Show the debtor’s complete present residence
address, j .°., address of dvell ing in which
the debtoFiTves so that he or she may be
fourd for personal service of legal process
(c nplaint arxl sunmis). t D not provide a
Post Of f ice Box address as the residence
address. [ The U.S. Postal Service will con-
vert a Post Office Box address to a residence
street address up n written request.] It is
necessacy for the United States Attorney to
have current residence information in order
to make ard effective service of proc-
ess upon€ eb r. If available, also show
the name of the county in which the debtor
resides. In the case of a cor x)rate debtor,
the address should be the debtor corrora-
tion’s principal place of business ard the
name ani address of the corporation’s agent
for service of process.
ITEM 6: Show the n e of the person or the source
that verified the debtor’s present residence
address the document which verifies
or the r e E] i.sed to make the verification)
ani the cost recent date within the last six
months that the debtor’s residence address
was verified.
ITEM 7: Show the debtor’s present telep*one number.
ITEM 8: Show the n ie of the person or the source
that verified the debtor’s present telephone
nurber the document which verifies
or the m th used to make the verification)
ani the cost recent date within the last six
months that the debtor’s present telephone
number was verified.
ITEM 9: Show any information which will assist the
United States Attorney in relocating the
debtor if he or she coves frcxn the residence
given at Item 5. Such information may
mc i ule, for example, the names, addresses,
arxi telephone numbers of relatives who may
know of the debtor’s whereabouts, a for-
warding address which the debtor left with
neighbors or an mnployer, or the debtor’s
5rivers license number. If the agency
reported the debt to a comercial credit
—5—
TSC Q, 1i*ace/Enforcnt A-33 Guida’M e l .Ial 1984
-------
Appendix R M bit fr4
bureau, include the date the debt was
reported and the name, address and telephone
number of the comercial credit bureau to
whid reported.
[ Stamping “kldress ( rrection Requested”
under the return address block om envelopes
mailed to the debtor will alert the U.S.
1 stal Service to infotm the creditor
agency of dianges in the debtor’s address.
Registered mail with forwardim and
return—receipt requested is also an
effective way to locate debtors. In
addition, the U.S. PDstal Service retains
change of address notices for ore year
after they have been filed by a patron.]
In the case of a corporate debtor, include
the current residence address of the prin-
cipal officers of the corporation. Where
there is a legal successor in interest to
the corporate debtor, the sane information
requested in Item 5, above, and this item,
should be provided for the successor party
or corporation.
THE CLAIM
ITEM 10: Briefly describe or diaracterize the claim
or cause of action “Social Security
ministration benefi t overpayment under
U.S.C. § “). Describe in particu—
T PTty the nature and type of benefit over-
payment, loan default, or other action by
the debtor Aiich gave rise to the claim. As
shown in the parenthetical example above, be
sure to identify the statutory, regulatory,
or other authority from which the claim
arose. In the event the debtor has filed
a bankruptcy petition, include bankruptcy
related information in the description of
the claim or cause of action. Attach a copy
of the initial rotice to the debtor of the
benefit overpayment, loan default, etc.
ITEM 11: Show the last date (nonth, day, year) on
which suit can be brot. ht to recover the
claim or debt, i.e., the statute of liini—
tations (SOL) late.
ITEM 12: Show the basis for SQL (statute of lirnita—
tions) ate, e.q., the default date, late
- iast peyme TE As a general rule, unless
—6—
TSCA Coap1iance/Enforc ent A-34 Guidance ) (enual 1984
-------
Appendix I M bit A—4
the debtor marie a partial payeent on the
debt, the statute of limitations date wuuld
be based on the date the agency first
became aware of the debt. In the event
a partial payment was marie by the debtor,
the statute of limitations date wDuld be
based on the date of the debtor’s last
payment. (See 28 U.S.C. S2415 whidi pro-
vides, in part, that “. . . every action
for noney damages brought by the United
States . . . shall be barred unless the
c’ nplaint is filed within six years after
the right of action accrues . . . [ howaver)
in the event of later partial payment
or written acknowledgment of debt, the
right of action shall be deemed to accrue
again at the time of each such payment or
acknowledgment . . . “)
ITEM 13: Show the date (nonth, day, year) cn which
the first agency demand for payment was
made on the debtor.
ITEM 14: Show the name of the agency official,
agent, or office that marie the first
demand for payment on the debtor.
ITEM 15: Show how the first agency demand for
payment was comunicatari to the debtor
by letter, mailgrazn).
ITEM 16: Show the date (nonth, day, year) on which
the last agency demand for payment was
marie on the debtor.
ITEM 17: Show the name of the agency official, agent
or office that made the last demand for
payment on the debtor.
ITEM 18: Show how the last agency demard for payment
was comunicated to the debtor (e.g., by
letter, teler* one, personal contact with
the debtor).
ITEM 19: Briefly explain the debtor’s response, if
any, to the agency’s demands for payeent,
the date(s) (month, day, year) of any
responses, and the manner in which such
responses re comunicated to the agency
( , by letter, telepè one, personal
contact). If the debtor did not respond
to the agency’s demands for payment, show
“‘b response.”
—7—
TSCA (‘ii.p1ianee/Eiiforc nt A—3 5 Guida”c mie1 1984
-------
Appendix Rwhl bit A—4
ITEM 20: If the debtor denied the claim, in whole or
in part, give the date (rronth, day, year)
of such denial and explain 1-ow the debtor’s
denial of the claim was made known to the
agency (e.g., letter, telephone call, person-
al inter Th ). Briefly explain the debtor’s
posit ion with respect to the claim, if )o own.
Explain any defenses that the debtor raised
or can he expected to raise with respect to
the claim and the merits of such defenses.
Attach copies of any agency records docu-
menting the debtor’s denial. If the debtor
did rot dispite the claim, in whole or in
part, show “Claim rot disputed by debtor.”
ITEM 21: Briefly explain any agency response to the
debtor’s denial of the claim. Attach copies
of any agency response to the debtor’ s
denial, in whole or in part, of the claim.
Otherwise, show “no agency response.•• If
the claim was rot disputed by the debtor,
show “ .bt applicable.”
ITEM 22: Briefly describe any administrative remedies
and/or rights available to the debtor (e.g.,
applicaticn for waiver, request for rec
sideration, appeal, etc.). Explain 1-ow the
debtor was apprised of the availability of
those remedies and/or rights, and what ation
was taken by the debtor with regard thereto.
Show the date (nonth, day, year) of any such
application for waiver, request for recon-
sideration, or appeal. Attach copies of any
doc .mients evidencing such debtor’s application
for waiver, request for reconsideration, or
appeal. Explain what agency action was taken
in response to the debtor’s exercise of or
attempts to exercise rights to administrative
remedies. Show the date (month, day, year) of
any such “agency action” and attach copies of
documents evidencing the same. Explain any
“technical defenses” (procedural deficiencies)
that the debtor has raise -I or can be expected
to raise with respect to the claim and the
merits of such defenses. (Defenses to the
merits of the claim, as distinguished fron
“technical defenses,” are to be discussed
under Items 20 and 21.)
Describe and discuss toe merits of any
counterclaim by the debtor syainst the
United States, as well as any claim for
offset which the debtor nay assert.
— —
TSCA Cospi lance! Enforcesent A- 36 Guidance i n i 1984
-------
Appendix htbjt A-4
ITEM 23: Show the as ount and date (rrKjnth, day, year)
of any conpronise offer made by the agency
or elicited frc the debtor.
ITEM 24: Briefly explain whether the cvmprcrnise offer
s elicited fron the debtor or offered to
the debtor by the agency. Explain the basis
of or reason for the oLnit of the compro—
mise offer, if known.
ITEM 25: Show the agency or debtors s respanse (sreci-
fy which) to the compromise offer and the
reason for the acceptance or rejection of
the offer in compromise “the debtor
asserted that he had r f ñ I with which to
pay the c rpromise offered by the agency”
or, “the agency rejected the debtor’s
compromise offer because the debtor’s known
discretionary expand itures are 10 tines the
aiount of the compromise offer”).
ITEM 26: Show the r me( s) and present residence
address(es) of any other person(s) liable
for repayment of the debt benefici-
aries, guarantors, assumptors, conservators,
corparate officers). The present residence
address provided should be that of the
d lling in which the parson lives so that
he or she may be personally served with
legal process (complaint and sumons). If
rx other person is leqally resçonsible for
the debt, show “ bne.”
IT l 27: Briefly explain the basis of liability
of other parties. Explain whether such
liability is joint or several, or hoth.
Provide details of any action taken by the
agency against the other parties inclndirq,
for example, the anount of any recovery
fran other parties. If r action was
taken against the other parties legally
respDnsible, explain why.
ACCO1l JT INFRMATICI4
ITEM 28: Shov the total anount of the debt (principal,
costs and fees advanced, accrued interest,
administrative charges, penalty charges)
as of the date (ncnth, day, year) of deter-
mination (sett1 nent) as reflected on the
Certificate of Indebtedness. The Certificate
• f Indebtedness should provide the United
States Attorney with a complete statement of
-9-
TSC& Cc.p1iance/ nforc eut A-3 7 Guidance ) i i*1 1984
-------
4ppendix rh4bj £—4
how the claim arose (incleding the statutory,
regulatory, or other authority frc n which the
claim arose, a sucinary statement or resume
of the factual basis for the claim, an itemi-
zation of the dates ad awuits of any pay-
ments maie by the debtor to the agency or any
credits maie by the agency to the debtor, ad
an itemization of the a ount due ad owing)
and should he for the full anount of the debt
sho’ n em the first page of the repart. Attach
the Certificate of Idebtedness to the repart.
In the event that the debtor has filed a
bankruptcy petition ad if the nature of the
security agreement ad the property in which
the United States has a security interest is
such that the debtor can reaffirm the debt,
then list the number, dates and anounts of
payments to which the debtor is in arrears.
ITEM 29: ow the original amount owad by the debtor.
PJttough there may he many exceptions, this
amount will umually he the principal amount
of the indebtedness before the accrual of
interest ad before the debtor has made any
payments.
iTEM 30: Stow the total number ad amount of any
payments made by the debtor to the agency
or the agency’s assignor, or any credits
made by the agency to the debtor. RDr
example, if 5 payments of $25.00 each, stow
“5 payments/$125”; if 2 credits of $30.00
each, show “2 credits/$60.” Indicate the
nature of such payments or credits, i.e.,
whether they ware, for example, by o1? t,
ltrrp sun or ii stallinent. If no paveents or
credits were made, show “tbne.”
ITEM 31: If payments or credits were made, shc the
amount which was a lied to the principal of
the debt. Otherwise, show “ t applicable.
ITEM 32: Show the total amount which was a pl ied to
any administrative charges assessed by the
agency, any penalty charges assessed by the
agency, and the interest due em the principal
amount of the debt, if applicable. If rot,
show ‘,l’bt applicable.”
ITEM 33: Show the remaining balance due on the prin-
cipal amount of the debt. In the event that
the debtor has filed a bankruptcy petition,
sh the balance due on the principal as of
the date the petition was filed.
—10--
TSCA Coapliance/Enforc ent A-38 Guidance Manual 1984
-------
Appendix R h4 bit A—4
ITE2I 34: Show the balance due an any aiministrat ive
charges assessed by the agency, any penalty
charges assessed by the agency, and the
accrued interest on the principal a unt of
the debt, if applicable. If rot, show “ t
applicable.” In the event that the debtor has
filed a bankruptcy petition, show the interest
die to the date the petition i.es filed and
daily accrual of interest thereafter.
ITEM 35: Explain how payments received fran the debtor
are to be applied. rmafly, when a debt
is paid in partial or installment payments,
anoi .mts received by the agency should be
applied first to any outstandirr a ninistra—
tive charges .hich have been assessed by the
agency pursuant to the Debt Collection Act of
1982, P.L. 97—365, S11(e)(2); second , to any
outstandir g penalty charges which have been
assessed by the agency for debtor’s failure to
pay any corticm of a debt sore than ninety (90)
days past due pursuant to the Debt Collection
Act of 1982, P.1... 97—365, S11(e)(2); third , to
accrued interest; and fourth , to outstanding
principal.
ITEM 36: ow the amount and date (ironth, day, year)
of the last payment which the debtor made
to the agency or the agency’s ass igror.
ITE l 37: Show the interest ccinputaticn or interest
accrual date (i.e., the date fran which
interest is du YTif applicable. If rot,
show “ Dt applicable.”
D1BI ‘S EMPLDI!MENT
ITE l 38: Show the name, co’splete address and telep one
n’jit,er of the debtor’s present enployer. If
the debtor’ s actual place of w rk is different
fran the e loyer ‘s address and is known,
provide the address and tele *one nunber of
the debtor’s w rk place. This information
will assist the tk ited States Attorney in
making pranpt service of process uprm the
debtor in the event the debtor cannot be
found for service of process at his or her
residence address.
ITEM 39: Show the date (month, day, year) the debtor’s
enployment s verified by the agency within
the past six nonths, and the sourcc’ of that
verification ( , the debtor, debtor’s
enployer, current docunentat ion).
-ii—
TSC& Co 1jance, w tra .nt A-39 Guidance ? nua1 1984
-------
Appendix ibit A-4
ITEM 40: Show the debtor’s ek1y or nonthly salary
and indicate whether the anount shcs..n is
gross or net salary. For example, show
“$350/weakly/gross.”
IThM 41: Show the date (iionth, day, par) the salary
was verifie:1 by the agency within the past
six na ths, and the source of that verif i—
cation the debtor, debtor’s employer,
current docu nentation).
ITEM 42: If applicable and kno , show the name,
aidress and telephone number of the
spause $ employer. If none of the
jnformatiOn is available, show “ t
available.”
ITEM 43: If aç licable, show the date (sonth, day,
year) the spause ‘S employment was verified
by the agency within the past six nonths,
and the source of that verification (e.q ,
spause’ s employer, current &euntati 3 iil.
If none of the inforrnaticn is available,
show “Nat available.”
DEB ’IOR’S PBILIT? ‘10 PAY
ITEM 44: Explain the evidence that discloses and the
basis for the agency’s determination that,
given the debtor’s present or likely future
avail Ti f assets or i ane , a sub-
stantial sum may tht rned by enforced
5Ilection proceedings against the debtor.
The agency’s determInation should take into
account any exemptions to whith the debtor
is entitled iider state and Federal law,
tha debtor’s age and health, the debtor’s
education, present and patential income,
number of dependents, inheritance prospects,
and the passibility that assets have been
concealed or improperly transferred. Al so,
provide information concerning any legal
proceedings, sud as proceedings in bank-
ruptcy, that may affect the government’s
ability to collect the debt. Attath to
the repart. all supperting documentat ion
including, for example, a current credit
reprt or financial statement. In the
event of a cor rate debtor, an audited
balance sheet of the corperate debtor say
be attached.
—12—
TSC& Co*pUance/Eaforce ent - A-40 - Guidance P niin1 1984
-------
Appendix IThibit A—4
t’bte: A realistic determination ot a
debtor’s financial ability to pay is essen—
tial. to enforced collection, particularly
with regard to nali, unsecured cia ins.
The financial evidence which is provided to
the United States Attorney must be current
and complete and rrust disclose that the
debtor has sufficient inca to pay the
debt, or unencuabered non—exempt assets,
real or personal, wh id can be used to
liquidate the debt. Generally, if there
is insufficient incc e or unencuabered
assets to meet the debtor’s day-to--day
“necessaries” (i.e., indispensable things,
or things proper and ueeful, for day-to-day
living, suth as food, clothing, medical
attention, and a suitable place of resi-
dence), the claim should not be referred to
the United States ttorney for litigation
and enforced collection. A good rule of
thunb for determining whether there is a
reasonable prospect for e forced collection
of a substantial sun on a sa .a11, unsecured
aaijn is that sud claim should not be
referred xiLess the evidence provided
discloses that the debtor has sufficier.t
income to pay for “necessaries” and at
least $1800 over a 3—year period, or that
the debtor has unencunbered non—exempt
assets or property whidi is at least 10
times greater in value than the unt of
the obligation.
ITEM 45: Provide any ir.formation which will assist
the United States Attorney in locating real
or personal property in which the United
States has or may have a security :terest.
Describe and give the last known location
of sudi property. Describe and attach
security agreements or real estate or
chat tel nortgages whid give the United
States a Security interest papers in
the agency’s file whicn describe or show
what property was pledged). c w the asset
or fair market value of any sudi real or
personal property (or chose in action),
and information concerning any prior liens,
rrortg ages, etc., on the pledged real or
personal property listed - In the event
the debtor is a corparation, provide a-iv
information which will assist the Unit€t
States Attorney in locating the assets
of the cor}x tion.
—13—
TSC& Co.p1ianceJEnforc ent A—4 1 Guidance ) i z.1 1984
-------
Appendix Kyh4 bit A—4
ITEM 46: Provide any information which will assist
the United States Attorney in locatir g
other assets of the debtor (i.e., assets
other than pledged property shown in Item
45). Particular care should be given to
identifying non—exempt assets of the debtor
( , real estate which is r*Dt the home—
ste of the debtor, a secord vehicle,
recreational vessels, etc.). In the
event of a corparate debtor, provide any
information which will assist the United
States Attorney in locating other assets
of the corçoration. If this information
is unknown, show “Unknown.”
VALuE OF CLAIM
ITEM 47: Show and explain the fair market or asset
value of the claim, i.e., the a unt of
cash which may be re iT ed as a result
of litigation of the claim. Explain the
basis for the value given. The agency’s
determination of the value of the claim
should be based in part upan the ratio
which the anount of the claim or debt bears
to the nount of the debtor’s assets and
incare which can be realized by enforced
collection and upan the unencumbered value
(after prior liens have been satisfied)
of any poçerty of the debtor in which
the United States has a secured interest.
The information x ovided should reflect
the true value of the claim and, thus,
enabT The United States Attorney to sore
accurately determine the iount which the
government is likely to recover by enforced
collection. See the rule of th rrb in the
te at Item 44, above, for determining
whether there is a reasonable prospect for
enforced collection of a substantial sum.
ITFII 48: with due regard to the debtor’s ability to
pay as defined by Item 44, above, show the
agency’s reconuierdat ion on the amount for
which the claim can reasonably be settled
or compromised. Explain the basis for
the amount shown. This amount should bear
a direct relationship to the debtor s
assets and income which can be reached
by garnishment, levy, or attachment. The
agency’s recommendation will provide the
United States Attorney with the necessary
—14—
TSCA Co p1iance/Enforce.ent A—42 Guidance ) nua1 1984
-------
Appendix hI bit A4
information arxl guidance for an informed
cczisideration of any canpronise offer or
settlement the debtor may make. Further—
more, having such information beforehand
will eliTtinate the delay and expense which
uld otherwise be necessary for the United
States Attorney to cbtain the agencys
asses9flent of a debtor’s ccznprani se offer
mede after the claim has been referred to
the United States Attorney.
TRN FER ( DIRDT (ERJSIT CF FUJt
ITE l 49: Show the nane, title, c’cznplete mailing
aidress and rrs tele!*one n inber of the
agency official at the accounting cede
location, as set forth in Item 50 below,
who is responsible for resolving any
accounting zholems .k ich may arise with
respect to the individual claim.
IT ) S 50 In the near future, monies collected by
and 51: United States Attorneys will be deçosited
directly to the Treasury or to banks
designated by the Treasury to receive such
deçosits. Under the system being developed,
monies will be depDsited to a repartxnent of
Justice Suspense Account and then, on a
regular basis, funds will be transferred
to the referring agencies. United States
Attorneys’ offices will provide on a regular
basis accountings of the ano zits of peysents
received fran eath debtor to the individuals
within the agencies resronsible for handling
debtor claims.
1b a ccmdate these inter-agency fund
transfers (in accordance with the Treasury
Fiscal 1 quirements 4nnual) the information
requested in Itø 50 and 51 is needed.
Therefore, at Item 50 show the agency
accounting locaticn cede/disbursing officer
cede/s x)l/nunber to which the accounting
docunents on recovery f ran the debtor on
referred claims should be initially for-
warded. (Show the agency accounting loca-
tion ccde/symbol/nunber where appropriate.
If your agency does rot have an accounting
location caie, show the disbursing office
c’cde/symbol/nunber.) At Item 51 show the
Treasury appropriation/suspense account/fund
account nunber (whichever is appropriate) to
which any recovery fran the debtor should be
—15—
TSC& C1iance/ aforc ent A-43 Guidance ) b *iaI 1984
-------
Appendix
K’w1 4 bit &—4
“Ccinpl iinentary
Closing” Block:
“1 ency E nployee
es x)nsible for
Hand). ing the
Claim” Block:
“Attac efltS as
Listed” Block:
credited. (Be sure to mci ede the appropr i—
ate agency prefix.) [ T’bte: Please rseienber
that the amount of recovery representing
court costs should always be deposited
into Treasury Miscellaneous r ceiptS Pecouflt
!b. 003099, substituting your agency prefix
for the t o zeros in this symbol.)
(when using the “Letter” fonnat] Show the
name, title, ccinplete mailing aidress, aho
FTh telephone nusber of the agency official
who will sign the report.
ow the name, title, casplete mailing
a )dress arxi Fl ’S telephone nusber of the
agency eaployee who is sost knowledgeable
of the history, facts an details of the
jr ividual claim ar who is respxx sible for
ans ring any questions or resolving any
probleT which may arise with respect to
the iedividual claim.
List all supporting docusentaticfl which
is incleded in the CCLR package. All
docusent$ provided should be legible.
—1 6—
TSCA Coap1iance/EnforC eflt
A- 44
Guidance nua1 1984
-------
Appendix trh4 bit &•-4
Department of Justice Demand Letter
U.S. DEPARTMENT OF JUSTICE
UNITED STATES ATTORNEY
> [ Debtor’s full name]
>(Debtor’s mailing address]
>
>
)Re: [ Name of Agency] Indebtedness
> [ Amount of claim]
>fType of overpayment]
Dear> (Mr./Mrs./Ms.j>(Debtor’s surname]:
The (Name of Agency] claims that you are indebted to the United
States for the amount shown above. The basis for the claim is
set forth on the enclosed Certificate of Indebtedness. It is the
responsibility of this office to file suit to collect debts owed
to the United States after all efforts by the [ Name of Agency] to
collect have failed.
Unless payment in full is received within the next ten (10) days,
we will be compelled to file suit against you in United States
District Court to recover the full amount of the claim. In the
latter event, court costs, United States Marshal’s fees and
interest will be added to the amount you now owe. Enforced
collection can then be made by the United States Marshal who
may be ordered to attach and sell any non—exempt property you
have now or may acquire in the future.
Your check or money order for the amount shown above should be
made payable to “Treasurer of the United States” and mailed to
us in the enclosed self—addressed envelope within ten UO) days.
Only your full cooperation and prompt payment of the amount of
the claim will make suit and enforced collection unnecessary.
Very truly yours,
IName]
United States Attorney
Enclosure
- (EXHiBIT 8
TSC& Co.pliancej nforc ent A-4 5 Guidance ) nue1 1984
-------
Appendix I h1bit A-4
United States Attorneys Offices For Which a
Department of Justice Demand Letter Should
be Prepared and Included in the CCLR Package
Judicial District City of Headquarters Office
Alabama, Middle Montgomery
Alabama, Southern Mobile
Alaska Anchorage
Arkansas, Eastern Little Rock
Arkansas, Western Fort Smith
California, Northern San Francisco
Connecticut New Haven
Delaware Wilmington
Florida, Northern Pensacola
Georgia, Middle Macon
Hawaii Honolulu
Iowa, Northern Cedar Rapids
Kansas Topeka
Louisiana, Middle Baton Rouge
Mississippi, Southern Jackson
Missouri, Eastern St. Louis
Missouri, Western Kansas City
Nebraska Omaha
Nevada Las Vegas
New Hampsh ire Concord
New York, Eastern Brooklyn
New York, Southern New York
New York, Western Buffalo
North Carolina, Middle Greensboro
North Carolina, Western Asheville
oregon Portland
Pennsylvania, Middle Scranton
Puerto Rico Hato Hey
Rhode Island Providence
South Carolina Columbia
Tennessee, Middle Nashville
Texas, Western San Antonio
Vermont Burlington
Virginia, Western Roanoke
West Virginia, Northern Wheeling
[ Attachment to Exhibit 81
TSCA Co.p1tance/Enforc ent A-46 Guidance ) nua1 1984
-------
ppend3.x ibit k-4
Department of Justice Acknowledgment “Comeback Letter”
U.S. DEPARTMENT OF JUSTICE
UNITED STATES ATTORNEY
> [ Name]
> [ Title)
> (Agency]
> [ Nailing address]
>
Re: Receipt of [ Name of Agency) Claim
> [ Debtor’s full name; LAST NAME, first name, middle name]
> [ Agency’s file or claim identification number)
United States Attorney’s claim number:
Dear>
This is to acknowledge receipt of the above—referenced claim
which was sent to this office for enforced collection. You will
be advised of the success of our efforts in this regard in due
course. If your future correspondence or other communication with
this office relative to this matter references the debtor’s full
name and our civil claim number above, we will be able to respond
more quickly. Please annotate your file accordingly.
Very truly yours,
> (Name]
United States Attorney
- [ EXHIBIT 9]
TSCA 1t*DCe/ nforc nt A-4 7 Guidance ? nua1 1984
-------
Appendix whibit A-4
Department of Justice Deficiency or Declination Letter
U.S. DEPARTMENT OF JUSTICE
UNITED STATES ATTORNEY
> [ Name)
>fTitle)
> [ Agency]
> [ Mailing address)
>
Re: [ Name of Agency) Claim
> [ Debtor ’s full name; LAST NAME, first name, middle name)
> [ Agency’s file or claim identification number)
Dear>
Our initial review of the above—captioned claim which you recently
referred to this office for enforced collection revealed that
the claim, as forwarded, does not meet the minimum standards
for referral of such claims to the United States Attorney for
litigation. As you know, the Federal Claims Collection Standards
(4 C.F.R. SSlOl—105) require that certain information be forwarded
to United States Attorneys with each claim.
The reason(s) why we consider this claim to be deficient and we
presently decline to enforce collection of the claim through
litigation is (are) indicated below.
Claim was not referred well within the time
limited for bringing a timely suit against
the debtor.
Claim was less than $600.
Claim did not include the debtor’s current
residence address for service of complaint
and summons.
Claim was not accompanied by credit data obtained
within the last six months indicating the present
Ii eTfutureava11ab T1tY of assets or income
from which a substantial sum may be obtained by
enforced coTlection pro e Tngs.
[ EXHI 3IT 10)
TSCA Compiiance/Enforce*eflt A-48 Guidance ?bnual 1984
-------
Appendix vh1bit k-4
______ Claim was not accompanied by a summary and
supporting documentation of the actions pre-
viously taken to collect (including agency
demands for payment, personal interview with
debtor) or compromise the claim.
_____ Claims Collection Litigation Report not
adequately completed. See Item(s) _____
Please provide requested information or an
explanation of why you cannot.
Other.
If you are able to provide us with the above—indicated information
as required by the Federal Claims Collection Standards, then you
should resubmit the claim to us for appropriate action.
Very truly yours,
> [ Name]
United States Attorney
-2—
TSCA fl 1iauce/Inforc ent A—49 Guidance ! nua1 1984
-------
Appendix
R h{bit A-4
200 Federal Building
1800 Fifth Avenue North
Birmingham, AL 35203
Post Office Box 197
Montgomery, AL 36101
Post Office Drawer S
Mobile, AL 36601
Federal Building & U.S. Courthouse
701 C Street, Room C-252
Mail Box 9
Anchorage, AK 99513
4000 u.s. Courthouse
230 North First Avenue
Phoenix, AZ 85025
Post Office Box 1229
Little Rock, AR 72203
Post Office Box 1524
Fort Smith, AR 72901
450 Golden Gate Avenue
San Francisco, CA 94102
3305 Federal Building
650 Capitol Mall
Sacramento, CA 95814
312 North spring Street
Los Angeles, CA 90012
940 Front Street
Room 5—N—19, u.s. Courthouse
San Diego, CA 92189
1961 Stout Street
Suitc 1200
Federal Office Building
Drawer 3615
Denver, CO 80294
Post Office Box 1824
New Haven, CT 06508
(EXHIBIT 111
U. S. ATTORNEYS’ MAILING ADDRESS LIST
JUDICIAL DISTRICT HEADQUARTERS OFFICE
Alabama — Northern
Alabama — Middle
Alabama - Southern
Alaska
Arizona
Arkansas — Eastern
Arkansas — Western
California — Northern
California — Eastern
California — Central
California — Southern
Colorado
Connecticut
TSCA Capliance/ Euforc ent
A- 50
Guidance Manual 1984
-------
Appendix I’i’i bit &-4
JUDICIAL DISTRICT HEADQUARTERS OFFICE
Delaware J. Caleb Boggs Federal Building
844 King Street, Room 5001
Wilmington, DE 19801
District of Columbia Room 2800
(I. S. Courthouse
3rd & Constitution Avenue, N.W.
Washington, DC 20001
Florida — Northern 100 North Palafox Street
Room 307
Pensacola, FL 32581
Florida — Middle Robert Timberlake Building
500 Zack Street, Room 410
Tampa, FL 33602
Florida — Southern 155 South Miami Avenue
Miami, FL 33130
Georgia — Northern Richard Russell Building
Room 1800
75 Spring Street, S.W.
Atlanta, GA 30335
Georgia — Middle Post Office Box U
Macon, GA 31202
Georgia — Southern Post Office Box 8999
Savannah, GA 31412
Guam Suite 502—A, PDN Building
238 O’Hara Street
Agana, GU 96910
Hawaii Room C—242
PJKK Federal Building
Box 50183
300 Ala Moana Boulevard
Honolulu, HI 96850
Idaho Room 693, Federal Building
550 W. Fort Street, Box 037
Boise, ID 83724
Illinois — Northern Everett McKinley Dirksen
Building, Room 1500 S
219 S. Dearborn Street
Chicago, IL 60604
—2—
TSC& In.p1iace/ nforc ent A- 51 Guidance ) nua1 1984
-------
Appendix R,dijbjt A—4
JUDICIAL DISTRICT HEADOUARTERS OFFICE
Illinois — Southern Room 330
750 Missouri Avenue
East St. Louis, IL 62202
Illinois — Central Post Office Box 375
Springfield, IL 62705
Indiana — Northern Federal Building, Room 312
507 State Street
Hammond, IN 46320
Indiana — Southern 274 U. S. Courthouse
46 East Ohio Street
Indianapolis, IN 46204
Iowa — Northern Post Office Box 4710
Cedar Rapids, IA 52407
Iowa — Southern 122 (3. S. Courthouse
E 1st and Walnut Street
Des Moines, IA 50309
Kansas 444 Quincy Street
Topeka, KS 66683
Kentucky — Eastern Post Office Box 1490
Lexington, KY 40501
Kentucky - Western USPO & Courthouse, Room 211
601 West Broadway
Louisville, KY 40202
Louisiana — Eastern Hale Boggs Federal Building
500 Camp Street
New Orleans, LA 70130
Louisiana — Middle 352 Florida Street
Baton Rouge, LA 70801
Louisiana — Western Room 3B12
Federal Building
Shreveport, LA 71161
Maine P. 0. Box 1588
Portland, ME 04104
Maryland 8th Floor, U. S. Courthouse
101 N. Lombard Street
Baltimore, MD 21201
—3--
TSCA Co.pliance/ aforc ent k-52 Guidance Manual 1984
-------
Appendix t i i bit &-4
JUDICIAL DISTRICT HEADQUARTERS OFFICE
Massachusetts 1107 John W. McCor!nack Fed. Bldg.
USPO & Courthouse
Boston, MA 02109
Michigan — Eastern 817 Federal Building
231 ; . Lafayette
Detroit, MI 48226
Michigan — Western 399 Federal Building
Grand Rapids, MI 49503
Minnesota 234 U. S. Courthouse
110 South 4th Street
Minneapolis, MN 55401
Mississippi — Northern Post Office Drawer 886
Oxford, MS 38655
Mississippi — Southern Post Office Box 2091
Jackson, MS 39205
Missouri — Eastern U.S. Court & Custom House
1114 Market Street, Room 414
St. Louis, MO 63101
Missouri — Western 549 U. S. Courthouse
811 Grand Avenue
Kansas City, MO 64106
Montana Post Office Box 1478
Billings, MT 59103
Nebraska Post Office Box 1228, DTS
Omaha, NE 68101
Nevada Box 16030
Las Vegas, NV 89101
New Hampshire Federal Building
Concord, NH 03301
New Jersey Federal Building
Room 502
970 Broad Street
Newark, NJ 07102
New Mexico Post Office Box 607
Albuquerque, NM 87103
TSCA Qj.pliance/Enforce.ent A- 53 Guidance ? nua1 1984
-------
Appendix
Rrhibit A—4
HEADQUP RTERS OFFICE
Post Office Box 1258
Federal Building
Syracuse, NY 13201
One St. Andrews Plaza
New York, NY 10007
U. S. Courthouse
225 Cadman Plaza East
Brooklyn, MY 11201
502 U. S. Courthouse
Court & Franklin Streets
Buffalo, NY 14202
Post Office Box 26897
Raleigh, NC 27611
Post Office Box 1858
Greensboro, MC 27402
Post Office Box 132
Asheville, NC 28802
Post Office Box 2505
Fargo, ND 5810B
Suite 500
1404 East Ninth Street
Cleveland, OH 44114
220 USPO & Courthouse
5th & Walnut Streets
Cincinnati, OH 45202
Room 460
U. S. Courthouse
333 West Fourth Street
Tulsa, OK 74103
Post Office Box 1009
Muskogee, OK 74401
Room 4434
U. S. Court 1ouse & Federal
Office Building
Oklahoma City, OK 73102
312 U. S. Courthouse
620 S.W. Main Street
Portland, OR 97205
—5—
JUDICIAL DISTRICT
New York — Northern
New York — Southern
New York — Eastern
New York — Western
North Carolina — Eastern
North Carolina - Middle
North Carolina — Western
North Dakota
Ohio — Northern
Ohio — Southern
Oklahoma — Northern
Oklahoma — Eastern
Oklahoma — Western
Oregon
TSCA Coapliance/Enforce.ent
A-’5 4
Guidance Manual 1984
-------
Appendix krht bit A-4
JUDICIAL DISTRICT HEADQUARTERS OFFICE
Pennsylvania — Eastern 3310 U.S. Courthouse
601 Market Street
Independence Mall West
Philadelphia, PA 19106
Pennsylvania — Middle Post Office Box 309
Scranton, PA 18501
Pennsylvania — Western 633 USPO & Courthouse
7th Avenue & Grant Street
Pittsburgh, PA 15219
Puerto Rico Federal Office Building
Room 101
Canoe B. Chardon Street
Hato Rey, PR 00918
Rhode Island Post Office Box 1401
Providence, RI 02901
South Carolina Post Office Box 2266
Columbia, SC 29202
South Dakota Post Office Box 1073
Federal Building & Courthouse
400 South Phillips Avenue
Sioux Falls, SD 57102
Tennessee — Eastern Post Office Box 872
Knoxville, TN 37901
Tennessee — Middle U. S. Courthouse
801 Broadway, 1 om 879
Nashville, TN 37203
Tennessee — Western 1026 Federal Office Building
167 North Main Street
Memphis, TN 38103
Texas — Northern 310 U. S. Courthouse
10th & Lamar Streets
F3rt Worth, TX 76102
Texas — Southern Post Office Box 61129
Houston, TX 77208
Texas — Eastern Post Office Box 1510
Beaunont, TX 77704
—6—
TSC& Cospliance/EnforceRent A-55 Guidance P nua1 1984
-------
Th4bjt A—6
Appendix
JUDICIAL DISTRICT HEADOUP RTERS OFFICE
Texas — Western John 1-1. Wood, Jr. Federal Bldg.
655 East Durango Boulevard
San Antonio, TX 78206
Utah 200 Post Office F Cthse. Bldg.
350 South Main Street
Salt Lake City, UT 84)01
Vermont Post Office Box 570
Federal Building
Burlington, VT 05402
Virgin Islands Post Office Box 1440
st. Thomas, VI 00801—1440
Virginia — Eastern 2nd Floor
701 Prince Street
Alexandria, VA 22314
Virginia — Western Post Office Box 1709
Roanoke, VA 24008
Washington — Eastern Post Office Box 1494
Spokane, WA 99210
Washington — Western 3600 SeafirSt 5th Avenue Plaza
800 Fifth Avenue
Seattle, WA 98104
West Virginia — Northern Post Office Box 591
Wheeling, WV 26003
West Virginia — Southern Post Office Box 3234
Charleston, WV 25332
Wisconsin — Eastern 330 Federal Building
517 East Wisconsin Avenue
Milwaukee, WI 53202
Wisconsin — Western Post Office BOX 112
Madison, W i 53701
Wyoming Post Office Box 668
Cheyenne, WY 82003
N. Mariafla islands do U.S. Attorney’s Office
Post Office BOX Z
Agana, GU 96910
—7—
TSCA Co *p1iance/EnforC 1Le0t A-56 Guidance Manual 1984
-------
Appendix
2 Expert Witnesses
Selection_of Witne8aes ________
Administrative, civil, and criminal enforcement actions sometimes require
the presentation of expert testimony on behalf of the Agency. Witnesses
should be chosen for their direct knowledge of the circumstances
surrounding the suspected violation. Below follows some guidelines to aid
the EPA attorney in choosing witnesses for judicial proceedings.
Headquarters Witnesses
Many of the records pertaining to, and technical experts with knowledge of,
regulations concerning chemical substances or mixtures are located within
the Office of Toxic Substances at Headquarters. Witnesses from the Office
of Toxic Substances are available to testify on:
• Whether a chemical substance or mixture is subject to TSCA;
• Technical data and studies relating to the health and environmental
effects of a chemical substance or mixture; and
• The significance of a discrepancy as it relates to the sample’s
chemical composition or toxicity.
Regi ial Witnesses
Technical experts in the Regions will generally testify as to:
• Inspection procedures and the facts and findings surrounding an
investigation; and
• Programmatic procedures such as inspection schemes, penalty
calculations, TSCA violations, etc.
t w A Co i eJKiforce.ent - - - A-5 7 — Guidance Manual 1984
-------
Appendix ____- ______ ___ Kzpert Vttneg eo
Other Government Witnesses
EPA personnel. often work with other federal government personnel in
developing casework, either through interagency agreements (LAGs) or
memorandums of understanding (MOUs). Other government employees of
agencies such as the Food and Drug Administration may be called upon to
testity concerning:
• Test procedures, findings, and conclusions related to chemical
device studies; and
• information collected during an investigation but referred to EPA
for enforcement.
Contractor Witnesses
Expert wLnesses will occasionally have to be utilized under contract to
testify a to:
• Test procedures, findings, and conclusions related to chemical or
other scientific studies they have conducted; and
• Technical matters for which there are no Agency experts available
for testimony.
Procedures for Requesting Witnesses
ALL requ* s! tot witnesses who are not regional personnel should be made in
writin ; to the appropriate RQCDO. The FIQCDO will, in turn, arrange for the
proper t.ness to represent the Agency in court and will provide a status
of tht’ witness’s availability to the requesting Region.
Appearln nsa Witness ____ _________________- ____
Vigorous enforcement programs will increase the probability that an
Inspector wilL he called upon to testify in court. 8y the time a case has
entered the judicial system, inspectors and case proceedings personnel will
have invested many hours in developing a sound program for prosecution.
When a witness is called to testify, it is imperative that quality
testimony is provided and a professional image is projected in the
court room.
Ys ëA —58 Thuidaace inua1 1984
-------
Appendix - - -
A witness, to be effective, uust make statemants that are understandable
and nust have them accepted as truth by the judge or jury. In addition
to be truthful and honest, a witness’s principal aim shculd be to make
a favorable impression on the court. The guidelines presented in this
section will help prepare the witness to be effective and credible.
Personal Appearance and Conduct
Dress is important. A well—groomed, neatly attired sIitne8s makes a more
favorable impression in the courtroom. Conduct should reflect the solemn
nature of the judicial proceedings. In order that a witness presents the
appropriate image, the following considerations should be kept in mind at
all times.
Co to the courtroom prepared. Be thoroughly familiar with your facts.
Pertinent time and dates 8hould be checked. Order all documents and
exhibits so that testimony will he presented without fumbling. Be on time
when court opens and be available Immediately when called to testify.
Try to avoid:
• Doing anything that may attract attention to you. Make yourself as
Inconspicuous as possible;
• Sitting In groups of more than two or three colleagues. Spread out
in the courtroom;
• Whispering or talking to another person or causing any disturbance
in the courtroom;
• Showing incredulity or surprise at any testimony given from the
witness stand or at statements made by the defense attorney. Avoid
expressing approval or disapproval of any testimony by nod, glance,
or other gesture;
• Having anything in your mouth (such as gum, toothpick, tobacco,
candy, or food);
• Sitting within the enclosure unless instructed to do so;
• Discussing the case with the defendant or the defending attorney;
• Talking to the jurors or discussing the case within their hearing;
• Consulting with case personnel while court Is in session, unless
directed to do so; and
• holding conversations with principals or witnesses for the opposing
side. if conversations are unavoidable, confine remarks to matters
other than the trial.
TSCA Co pliance/Enforceinent A-59 Guidance Manual 1984
-------
j 1i esses
t ’Less Stdt d
When called to the witness stand, unless previously sworu, go directly to
the desk of the Clerk of the Court to be sworn. Take the oath in a solemn
manner. Then proceed to the witness chair. hf you have a long or unusual
name, give a card or paper with che correct spelling to the court
stenographer. Assun e and maintain proper posture, bearing, and demeanor.
Sit erect, but do not appear stiff or tense. Attempt to project an image
ot poise and self—control.
Speaking . Speak in a clear, distinct, and well—modulated voice. When
addressing a jury, look at and speak distinctly to them. Speak loud enough
so that the farthest juror can hear you.
Use simple language. it the subject is technical or scientific, reduce the
terminology to an understandable level or give definitions of terms used.
Avoid idioms or language particular to your profession or to the Agency.
Notes. You may bring flutes with you to the witness stand. However, do not
bring your field notebook or any other documents you do not want the
opposing side to examine. They have a right to see any notes you bring to
the witness stand.
Do not hesitate to ask permission to refer to your notes when testitying,
provided your notes were made at the time of, or immediately after, the
event about which you are testifying. You should not be embarrassed if you
cannot recall exact details without referring to your notes. Try not read
long passages verbatim from your notes.
Answering Questions . Wait until a question is asked in its entirety before
beginning to answer. Never attempt to answer a question you do not fully
understand. Ask that the question be repeated or rephrased if its meaning
is not clear. f you do not know the answer to a question, say so. Do not
try to cover up a lack of knowLedge of a particular subject.
Questions should he answered verbally—do not nod assent or shake your
head. Answer only what is asked fully and to the point without
volunteering information. Do not “spar” or attempt to match wits with the
questioning attorney.
Be trutnful, and answer all questions frankly, factually, and confidently.
Try to limit your testimony to those facts about which you have first—hand
knowledgt. Anything else may be considered hearsay. Do not exaggerate;
state the facts accurately.
Do not express opinions or concluSionS unles9 you are testifying as an
expert witness. You cannot assume expert knowledge in a field unless you
are an expert by reason of your training and experience. If questioned on
a subject beyond your scope, admit that the subject is outside your field
or knowledge.
TSCA pl iauCe7Efl1Orc e A—60 Guidance (iiua1 1984
-------
Appendix ___________ Expert Witnesses
Try not to become lisUess or •dead pan” in your effort to appear impartiaL
and unbiased. Be natural, candid, frank, and “alive.” Conversely, you
should not appear impatient or overly anxious to testify. Attempt to
minimize nervous tendencies, such as arranging clothes, notes, etc.
Do not speak to the judge unleas he or she asks you a question.
Testitying Under Direct Examination
in a proceeding arising out of an Agency judicial enforcement action,
direct or re—direct examinations will generally be conducted by an EPA
attorney or a United States Attorney. The initial questions he or she will
ask will seek to establish:
• Your identity, occupation, and qualifications; and
• The relevancy of your testimony to the proceedings.
Subsequent questions will allow you to relate your testimony to the court.
in order to facilitate this questioning, you should:
• Try to give testimony in chronological order. Reveal your first
connection with the case. Then give facts in the order they
occurred. Your testimony should be memorized, if possible.
• If the opposing attorney objects to a question, do not try to get
in an answer before the judge has ruled whether the question is
proper.
• Do not try unnecessarily to help the questioning attorney. He will
ask additional questions to bring out further details to complete
your testimony.
• Be able to identify the defendant.
Testifying Under Cross Examination
Cross examination is the questioning of witnesses by attorneys representing
the opposing side. Under cross examination you may be subjected to
vigorous questioning.
Do ii t h atraid t .td nit that you discussed your testimony with government
attor’)eys. There is uothing Improper In a practical discussion of your
testimony with the attorneys.
The opposing counseL may attempt to intimidate you by attacking your
veracity and integrity, by making uncomplimentary references to your
qualifications or length of service, or by emphasizing errors you have
made. Remain calm and answer any question asked unless an objection is
raised and sustained. If the opposing counsel attempts to confuse you with
rapid questions, answer the questions deliberately and at a comfortable
f A CoRpltaace/Enfoiceaent - A-6I Guid ce Manual 19
-------
A pendi _
pace. Ask the attorney to repeat or rephrase any question that is unclear
or confusing. If asked a double or “two—pronged” question, ask the
attorney to restate it, or carefully answer each part separately.
\4ait several seconds before you answer a question put to you in cross
examination in order to give the government attorney an opportunity to
object. Avoid, however, undue delays in answering. If an objection has
been raised, do not answer any questions until a ruling on the objection
has been taade.
Do not lose your patience or temper while testifying. A cross—examining
attorney often deliberately baits an irascible witness to anger the
witness. Try to remain calm and unruffled. Do not become argumentative
with the cross—examiner if your testimony is interrupted or for any other
reason. Beware of questions to which the cross—examiner demands a yes or
no answer if such an answer will not reveal the entire truth. These are
often leading questions. If a simple yes or no does not properly answer
the question, inform the cross—examiu . r that the question cannot be so
answered. If the cross examiner should misquote any of your earlier
testimony, you may correct the misquote before answering the question.
If you make an error while testifying, correct it at the first
opportunity. If you discover the error after you have completed your
testimony and have been dismissed, discuss the matter with the government
attorney.
You may be asked whether you regard certain persons in the field about
which you are testifying as recognized authorities. This is often
preparatory to asking you whether you agree with certain statements that
chose authorities have made. If your answer is no, that you do not
recognize them as authorities, that line of cross—examination cannot be
pursued. Unless you definitely have heard of the named persons and are
faiaili3r uth their works and do recognize them as authorities, do not
expose your8elf by saying that you so recognize them.
Fiuper Conduct During Recess and After the Trial
During rceess, continue to maintain the same demeanor as in the courtroom.
Do n t engage in ioud conversation or joking, especially about the
proceedings. be as discreet as possible when making any co ents that
might be overheard.
Afici the trial, continue to conduct yourself in a manner that will bring
crcdLt to you and to the Agency. Make no public display of elation or
disappointment over the outcome of the trial. If there is occasion to
speak to the defendants, be courteous regardless of their demeanor.
fs oi p1 i ii fiT A-62 Guidance Manual 1984
-------
Appendix
3 Enforcement Response Policies
and Penalty Policies
The following Items are used by the Agency in establishing its penalty
policy guidelines:
• Guidelines for the Assessment of Civil Penalties Under Section 16
of the Toxic Substances Control Act; 45 Fed. Reg. 59770 (1980)
• Memorandum (8 Jul 1983) —— Enforcement Response Policy for the
Friable Asbestos—Containing Materials in Schools: Identification
and Notification Regulation
• Memoraudum (8 Jul 1983) —— Dioxin Contaminated Waste Enforcement
Response Policy
• Interim Guidance for the Determination of penalties for Violations
of the PCS Regulations.
TSC& Cospliance/Enforce.ent -— A-63 Guidance Manual 1984
-------
Appendix
Rut ore nt Response Policies and Penalty Policies
ENV1AONMENTAI. PROTECTION
AGENCY
IPRL 1001-41
GiMijainee for the Auus.jnent of Clvi
Pensisles Ikidsr Sentloli 10 of th
bib luhetasioss Control Aa1 PC$
ASICVt O ce of Enforcement.
Environmental Protection Agency (EPA
or the Agency).
*cnois Notic of a policy for
Implementation of the To dc Substances
Control Act, with respect to the
uaeument of viA penalties under
Section 16 interim guid c, for the
dotenninatton of penalties for violation.
of the B regulatfon..
WUu*1W SectIon 16 of the Toxic
Substances Control Act (TSCA or the
Act) authorizes the Athnrnl.trator of
EPA to assess civil penalties for
violations of the Act On March 10, 1980,
Jeffrey C. Miller, Acting Assistant
Administrator for Enforcement,
ti n m ft j to the EPA Regional
Admlnistr*tor, a document which
Implements an administretive civil
penalty policy far TSCA. This document
sets forth a general penalty useuanát
policy which will be supplemented by
regulation-specific penalty assessment
guidance. Together, these documents
provide Internal procedural guidelines to
aid EPA personnel to ezeess appenprilt.
penalties. They are not regulations. The
penalty assessment po 11 cy establishes
standardized defiziltic.. and
applications of the statutory factors that
the Act requires the Administrato, to
consider In esseesing a- penalty. ft also
provide. a merhenism whereby Agency
personnel may, within specified
boundaries, exercise dlscrethm in
negotiating consent agreements. and
otherwise adapt the proposed penalty to
the exigencies of special circumstances.
Separate guidances will apply the
per sIty system to specific regulatory
and statutory provisions. These
guidances will be developed on a
cont]nwng as-needed basis.
On Apr11 24. 1980. RIchard D. Wilson ..
deputy Assistant Administrator for
General Enforcement, transmitted to the
EPA Regional Administrators the fIrst of
the regulation specific penalty policies.
This document consisted of interim
guidance for the determination of
penalties for violations of the PCB
regulations.
The TSCA civil penalty policy and the
PCB penalty policy were effective on
March 10. 1980 and April 24.1980.
respectively, the dates these policies
were issued to the Regional Offices.
Although the Agency is riot required to
publish these documents. EPA Is doing
so In cider to give .hem the wide
circulation that publication will provide.
The full text of the TSCA clvii penalty
policy, and the PCB penalty policy, wfth
the sppro 1 tiate transmittal aemerends,
appear below in the ‘Supplementary
Information” section.
MINTRUS el *1I0N C0NVAC
Peter J. NlainMe . Attorney-Advisor,
Pesticides and Toxic Substances
Enfoioem.nt Division ( 4—342), 401 M
SI, SW., Washington. D.C. )4 0, (2 )
WPPLIemITASY eo ois The
douements appearing below were
transmitted to the EPA Regional
At*n4nisfr.tors on March 10. 1980, and
AprIl 24. 1990, respectively. The
•l’icbnlcal Support Document” referred
to in the TSCA civil penalty do ent
has not been reproduced. but Is
available upon request from the EPA
address above.
Dated: July?. 1980.
— G i,
AcUngAatswneAdmw,b- ewrfoj.
TSCA OvU Penally System
lntrothsctloa
The Toxic Substances Control Act
(TSCA), passed by Congress and sigued
into law in 1079 proyldes for Ineressed
regulation of ubemical substance, and
mixtures; The Environmental Prot on
Agency is charged with carrying out and
enforcing the requirements of the Act
and any rules promulgated under the
Act
Section 16 of the Act provides for civil
sad cs4minai penalitles for violations of
TSCAOrTSCAn*le.. Civil penalty
amounts may range up to $25,000 per
violation. wftheech day that a violation
continues constituting a separate
violation. Civil penalties are to be
admini.o!stively tmposed after the
person Is given a written notice and the
opportunity to request a hearing. There
is a right to review in the United States
Courts of Appeals after the p.qalty has
been imposed by the Administrator.
Section 16 of TSCA requires that a
number of factors be considered in
assessing a civil penalty, as follower
In determining the smount of a civil
penalty, the Administrator shall take into
account the nature. circumstances, extent.
end avlty of th. violation or violations end.
with respect to the violator, ability to pay,
effect on abthty to coutinna to do business.
and history of prior such violations. th.-
degree of culpability, and such other matters
as lustics may require.
The purpose of the general penalty
system is to assure that TSCA civil
TSCA Co.pflaièef äiceaent
A- 64
Guidance Manual 1984
-------
ppendix
Guidelines for the Assessment of Civil Penalties
penalties be assessed In a fair, uniform
and consistent “ er that the
penalties are appropriate far the
violation committed: that icon” 1 c
,tdyse for violating TSCA are
.I 4nated and that peesces will b
d n d from cv ftin$ TSCA
vielatloas.
— of the Civil Penalty System
Th. penalty system dasomibed In this
document provides the general
frmnework for clvii penalty assessment
mider TSCA. It establishes standardized
definitions and applications of factors
the Act requires the MinMiafretor to
am der in assessing a penalty. As
regulations are developed. specific
penalty guidelines will be developed
adopting in detail the application of the
general penalty system to the new
regulation. These specific guidelines will
generally be Issued when enforcement
sfrat.glea are Issued for each new
regulation.
Nots.-Ths documant doss not discuss
whether - ----—‘est of a vtl penalty is the
i,ct .mthucsm.nt response to * lvun
vtolaflve condition. Rather. this document
focuses on determining what the proper civil
penalty should be If a decision has been
nods that a clvtl penalty is the proper
orcsmest renedy to purina.
Brief Description of the System
The gmmsral civil penalty system is
designed to assign penalties for TSCA
vloIatS in accordance with th.
statutory requirements of SectIon 10.
Penalties are determined in two stages:
(1) Determination of a ‘ gr yfty based
penalty” (GSP). and (2) adjustments to
tbe-gravfty based penalty.
To determine the gravity based
penalty, the following factors ifecting a
violation’s gravity are consldered
• The “nature” of the violation.
• The “.xtenr of environmental harm
that could result from a given violation.
and
• The “circumstances” of the
violation.
Thes. factors are incorporated on a
mamx which allows determination of
the appropriate gravity based penalty.
Once the gravity based penalty has
been determined, upward or downward
adjustments to the penalty amount are
made in consideration of these other
factors:
• Culpability.
• History of such violations.
• Ability to pay.
• Ability to continue in business, and
• Such other matters as justice may
Qvtl Penally System and It. Application
This eection describes In detail the
general civil ty system. how
specific ty guidance, will be
developed and applied. and the
reasoning behind th. development of the
The Penalty Porte’.
The Act requires the consideration of
eight named factors in any penalty
ass.ssrpsat. as well as MO facto as
justice may require.”
The first foer factors-nature,
circumstan s, xt L and gravity—
relate lathe violation. Under the penalty
system them four facto.. are charted on
a maotx which yields the Gravity Rated
Penalty This manix Is a cens t
throu mosd the penalty system . As will
be seen below. hawever . the specific
p 5fl (y gef.ii Il a1 will effect Into which
categury along each a ds of the ma t
the vielatice will fall.
t ce a figme Is rwJ’ d. sever.1
adjus fa ssare appliath
Aaupward or
adlus*msnt may be ni.ala for particularly
culpbl* or nenculpable c 4 m An
upward ad ustm.et of up to 100% may
be_*4.when themis a history of such
a violation.
• Two other adjsatmsnts (not
specifically required by the Act, but
suthorlzed” the as justice may
require” “ r of 16) ate In recevsr
cleanup costs paid by the United States,
and to reduceor , 1h 4 ato any flnai .i 4 aI
or onmp,tiUv. advantage g.iii.4 by tb.
violatci a. a ts.uit of his failura’to
follow ibsAct. or Ito regulations Other
caee-by.cas.’sdjusfrasate ma’ . also be
wazant.d nn.4 the “as jestic . may
__adjus *
factors are the vtolaitoi”s ability to pay
and the effect on the vIolator s ability to
continue to do business. For several
reasons we have comnbln.d the concepts
Involved In these factors onto one
“ability to pay” factor. This factor will
often act u a limit oa th, amount of
penalty em.ud. even where other
facto.. indI- * a h1gh penilty is
war nted.
Cdcuktioe of the Gravity Based
The gravity based penalty (GBP) is
found on the following mathx
TSC& Gr’u.pl.iance [ Enforcoment
Guidance ?fanual 1984
-------
PL1i44 c
Guidelines for the Aaaese ut of Civil Penalties
E nt
c nc s —
01 wia9e.) A
01 potenti& age
. 11 ,L 1
c
fwge
— 525.000
2. . .... .. .,._._ 20,000
I d e:
3 _.._____________ tS.000
4. ,.,_ 10.000
Lo v ç
5 ...... 5.000
6.,...._..... . ..,... .......... .._. 2,000
517.000
13,000
10.000
€ 000
3.000
1.300
*5.000
3,000
1,500
1,000
500
200
NOTE— .S gM cw t vIola & as.e sad a! 50-68% 01
— vlolebonL 4e ri 20%
md 15% 01 m r I ai 2. m Ad 10% I
leveb 3-6.
The CSP incorporates natUre, extent.
drcumetances. and gravity u follows
1. Nawv. The “natwe” factor as all
factor, In the pensk system. I . used In
aodencu with It, commonly
undrstood meanlng “The sesentlal
charectsr alt thflt quality or qualities
that ke something what It 1s essence ”
(Webster’s Nuw World Dictloaaiyj.
In the . . unta t of penalty . eseemant
his factor indicate. which specific
penalty gnldsitn . should be us.d to
determine applUpriats mattx levels of
“extent” anti “cirmonstances” (of
environmental harm surrounding the
violation). Thus. thà nature (essential
character) of a vIolation is beat definad
by the set of requirements violated, such
aa the ._ ruLe, or the preinanufactur.
notification requirement Since eeth
TXCA section. rule, or other spp* tIets
group of r quiromants will have a
sop*rst s ot c penalty guithihi. ’ that
will Incl ude ttarta for aasigul
violistlona to the several levels of
“extant” of potential harm. and
prooebility of bum. the specific
ailcring of these operational ori*aiia for
each section or rule ensuree that
pen&flie. aaar ed will reflect the nature
of the v iolation.
Aioo incorporated in the concept of
is wbether the vto&ation Ii of a
chemicol ccctroL control-aucciatad
data gathering, or h rd assesfimnt
aatw
ChemJC4YI control: CLM nAGaL control
regulations are aimed at mInImiTiflg the
risk presented by a Chemical substance.
by placing conatrnintii on how it is
handled. SectIons 8, 7. 12.. 13 and sub-
sections 5 (e ), and 5(fl authorize a wide
variety of chemical control actions, from
labeling requirements to total bane on
manufacture. Thee. requirements its
variously Imposed by rul.v . .k1ng
atIi,&nl.frstive order. court Injunction, or
by the Act Itself,
Control-associated dato gathering?
Control-associated data gathering
requirements are the recordkesping
and/or reporting requirements
associated with a chemical control
regulation. These requirements enable
the Agency to evaluate the effectiveness
of the regulation. and to monitor
Norazd alsessmnt Hazard
uon om lnt reqnzrenants are used to
develop and gather the information
fleCSe5 l7 to intelligently wetgh and
assess the risks and benefits presented
t!y .parM_lar chemical substances, and
to Impose cbr ’csl control requirements
when ap eoprtata. The rsqulrmsato
Include thou of premanufacturs
notification under 5 testing under 14.
and reporting and recordke.plng under
*8 .
As dlscuseed in the next two sections,
the “nature” of the violation will have a
direct affect on the measure used to
determine whlch ”extent” and
“clrcumatancef cat.goriee are selected
on the GEP matrix.
2. £i tenL ‘Extant” is used to take Into
consideration the degree. range. or
scop. of the violation. The matrix
provides, three levels for measuring
extent
Level A (M.)or ) :
—Potential far “ais4ouV ’ dmmage to human
bss2tharin nsg. to the
went
Level fl (9 lficaut)
—Polsetlal ice “sign/f loser smoent of
damage tD ‘t - ” health or the
env lr eot.
Level C (Minor):
..4o 1.nttaI for, lesser smount of d.m _ ge to
human besith or the environment
A number of factors affect into which
level of “extent” a particular violation
fits. The specific application of these
factors depends in large degree on the
specific penalty systems treatment of a
particular violation. Pot example. the
specifIc penalty system will not only
provide guidance for PCBs in general.
but also for the type of PCB violation.
Chemical coatrok For a Chemical
control violation (e.g.. rules for storage
TSCA Coapl iance [ Enfo rcement
A— 6 A
Guidance tlbnual 1984
-------
Appendix
Guidelines for
the Assessment of Civil Penalties
and disposal of PCBs), the quantity of
the regulated substance involved might
be the principal basis for categorizing
extent. In other words, a violation
involving under 10 pounds of a given
subst’ance might be Level C, 10 to 100
pounds Level B. and over 100 pounds
Level A. 1 In the development of specific
guidelines, environmental impact data
and other analyses developed in support
of the chemical control rule making will
generally be the basis for determining
“extent” levels.
ontiuP associated data-gathering:
Poe control-auocialsd data gathering
regulations, the quality of regulated
substance Involved In the recordke.plng
will be used as the indicator of the
extent of the violation. For example, not
reportln.j the whereabouts of 1.000
pound. of PCB is mom serious than Sot
reportibg one pound. In general, the
quantity measures used to define the
“eXtent” of such a violation will be the
saws as thai. used to dinfins tbs
“.xt.nr categories of the control
ViOlatiOn with which It Is associated. As
with chemical control tulsa, factor.
other than quantity may 5. used when
appropriate to tnd1a ts the “extent” of
potential damags.
Hora,d aueumant Hazard
. n ,.mant data-gathering regulations
requir, a d*ff k .t approach to m k
“.xtenr dsterndnation. Unlike chemical
control and co-associated data-
gathering regulations. the degm . of
dang or “huatd’ presented by the
sebstonc . In question may not be
known. bi4,,d . this lack aI knowledge Is
the principl, reason for th. data-
gathering. The measure of ‘extenr of-
ha lifocusan thsgoa la of the
hazard asaaeanent regulation, .th the
types of harm it Is designed te revent
For example, a 14 teat violation will be
of Level A extent if It “seriously” affects
the validity of a test on a substance
which is manufactured In large
quantities. with lesser viol*tionz treated
accordingly, whereas manufacturing a
chemical without submitting a
preutanufactur. notification form 90
days In ad snce, could either be treated
a. (1) always being of Level A or. (2)
varying In level of “extant” according to
th, volume ifiegally manufactured. Thus,
a great number of judgments must be
mad. In the formulation of the specific
penalty policy.
3. Circumstances. “Circumstances” Is
used In the penalty policy to reflect on
the probability of the assigned level of
0th., tt.fls. such u nwnb.r o(peopl.
.xpo..d or pot.nu.Ily .xpo. . could have base
uflllz,d h.,e, but (1) tho.. ttctot, re difficult sad
ntpsn.lvs to quantity for individ ual v*ot alinna. and
121 th... f.ctor, at. airsady con.id.red. to so
exiset. undsr circuntitancas.’
“extent” of harm actually occurring. In
other words, a variety of facts
surrounding the violations as it occurred
are examined to determine whether the
circumstances of the violation are such
that there is a high, medium, or low
probability that damage will occur. The
matrix provides the following levels for
measuring circumstances (probability
factors):
Levels I and 2 (High): The violation is
likely to cause damage.
Levels 3 and 4 (Medium): There is a
significant chance that damage will result
from the violation,
Levels 5 and 6 (Low): There is a small
likelihood that damage will result from the
violation,
Th .probcbllity of harm, as assessed
In evaluating circumstances, will always
be based an the rink Inherent In the
violation c it wasconzjnitted In other
word.. a violatiba which presented a
high probability of causing harm when It
was com xi1ttsd (and/or was allowed to
Edit) must be classified as a “high
probability” violation and penalized as
such, even if through some fortuity no
actuatharm resulted. In that particular
óass. Otherwise some who commit
dangerous violations would be
absolved. tmilar1y. when harm has
actually resulted from a violation, the
“druuistant s” of the violation should
be Investigated to calculate what the
probabilities were for harm occurring at
the time of th. violaticu. The theory Is
that violators should be panaliTed far
the violative conduct, and the “good” or
“bed” l c i whether or not the
jwosortb.d conduct actually caused
harm should not be an overriding factor
In penalty assessment However, the
responsibility for clean-up attaches
without regard to the ?L’obability of
harm (see Adjustment Factor 3,
Govsnuaent Clean-up Costs). Ao with
“extant.” the specific penalty guidelines
are n essential tool In characterizing
the drcumatanco. of a violation.
Chemical cantrob With chemical
control violations, probability is
determined primarily by p yeica1 factors
which affect th, chance of improper
exposure to the chemical’s effects, For
example, certain types of improper
storage of PCB are more likely than
other. to result in release of PCBa into
the environment, and actual dumping of
PCBe Is virtually certain to do some
harm. Criteria for assessing the
probability of harm resulting from a
violation will whenever possible be
based on Information developed in
support of the chemical control rule.
Data-gathering and hazwti
assessment? A slightly different
approach is taken to evauate
circumstances of data-gathering
TSC pliance/&rforceisent
Guidance ) innual 1984
-------
Appendix
Guidelines for the &sseseaent of Civil Penalties
violation.. The effect on the Agency’s
ability to Implement of an(iiroe the Act
Is the prtntApet Ircuma(dnt e to bd
considered. Thus, the matrLx levels for
measuring circumstances (probability)
for data-gathering and hazard
assessment violations are as fbllows:
Levels I and2(High)-Vlolstlons which
seriously impair the Agency’s ability to
monitor (data-gathering) or evaluate
chemicals (hazard aseesiment).
Levels 3 and 4 fMediwn/—Vlolatlona
which impair the Agency, ability to monitor
or evaluate chemicals in a less than attlcal
way.
Level, Sand 8 (Low)—.Vtolatlons that
impair the Agency ’. ability to monitor or
evaluate chemicals in a less than Important
way.
Under these interla. a violation of a
SectIon 4 test standard (serious enough
to make a study totally unreliable) has a
higher probability of resulting in harm to
the public through its effect on the
Agency and would probably be Level I
or 2. whIle late submission f a rr uired
report might be only a Level 5 or 6
violation.
Whenever possible. the specific
penalty system will attempt to classify
certain types of violations according to
probability of dam4ge. For example.
certain types of violations of a disposal
ml. might always Involve a high
probability of de.mage . But other types
of violations might Involve such a large
rang. of probability of harm that each
cue would hay, to b.evaluatsd
Individually. In the Latter cu. the
p.cl& penalty guideline will Include
orltsrla to , gulde th. evaluatIon of each
violation. It Is difficult to estimate the
probability of harm presented by given
situation, particularly In light of the
many variables that make up
“circumstances.” However.
“c rcumstaflceI” can be evaluated for
guideline purposes by comparing
situations. For example. It is clear that.
as a general rule, there is a greater
probability of a falsifIed Laboratory test
leading to actual damage. than to have
such damage resulting from minor errors
in test report formatting.
The specific guidelines will also
address the range of probabilities within
each of the six “circumstances”
classlfic,atlons. For some violations, any
probability of causing harm of over 10%
might be in the “high” range. while other
violations might be classified quite
differently. One particular factor that
may affect probability determinatiOns is
the length of time during which the
violation presents a threat to health or
the environment. Dumping PCBs in an
unapproved landfill may not cause harm
immediately but may inevitably cause
harm as it leaches into nearby
groundwater. But where only temporary
Improper .to I. i ;•.oded. and
removal ti plangz.d. ib. probability of
harm would be d.asassd accordingly.
4. C m vity. “GIaVRY refurs to the
overall se,ionw no of the violatkm. Aa
used In th psualty system, ‘ pw,itY ’ Is
etapintl.ett vwiabls, La.. lbs evaluation
of ‘utters.” “extent.” and
“druamatenose” will ytold a dollar
flgure on the ma bc that determines the
gravity based permIt r .
The A4¾a nt he*w
The gravity based ‘y rallsc a lbs
ssr1o’es aiths violation’s threat to
health .nd frc 1 A .1se
reqidres lbs A icy te Idsrc.ita .
f.iloi,in -----l y4al..U’
oo-’ - cul,abl1It . ) Mstery of
yiolkt 4 , abilty to pay. end ability to
continue to buitess. Is a Itioo. the
Act seem
. sn J d “other fa a as
justice may s. ” U.dsr
suthorizaden. twu adrfi” 1 faø’ ’ .
ounWder beI’ the cost of lbs
violation to t p vu-- end the
b.neftts remleud b the violator due to
his nsm.eosçlissse . In eider to oosp
penalty d uu.* In a l ” ’ ”1 fa.hl ”
these nd$M .at fa . see eo d
In the lullewhis uq
(1) CulpeblIttyt
(2) I * _ , ,
(3) Coat to the gor
(4).31. from aos.oa llaenut end
(5) AbIlity topsy/ability t oontln. .
In bualness.
1. CaDty . Sinos lbs Lem osly
requires lbs Agency to ceusulder the
culpability of lbs ,Iolater aaan
adj 1 .itneat fsctor th.. ,dsten of a
violation can be established without
rely1ngjaLs4 oa b4amewosth ss
facto la ath ,erds .ths A ,ui ma
pursue a policy of 4at liability to
psesilaiseg far a violation. though some
allowance at be mad. based on the
extent of lb. violatous culpability.’
Under tbls puelty system. lb. gravity
based penalty may b.laizeaasd or
d.oreased. or may ato lbs s
depending as lb. vIelatou s
“culpability.”
The t pttauctpul ouitmla for
assessing culpability are (a) the
violators b,ow1e s of the partlcul
TSCA requiremset. and (b) the degree ‘of
the vloiator s control aver the violative
condition.
IThp... cur 4. -— . no “act
ofGodores.e O ’ —toIaltp a(s
coinp.ayS ‘.syflSt?Umit Ia u.e.smnot ot a
vtoladOa (no I i UaEMhl yl. Por .ze ply where
PC8e en properly stored. s plnoe uba. into
the etoespe fastity. ca e .pEH. sn II
probably be no
A-’ ‘ ,,
TSCA Coiipliant iJZflfOtC e t
Guidance Manual 19W.
-------
Appendix
Guidelines for the Ansesamant of Civil Penalties
(a) The violabzs owIe or Th. lack
of owlod of a particular
requireDset would not necesoarily
reduce culpability. since th Ancy has
no intention of snooor in3 l ctancs of
TSCA d Ito requirement.. Tha test
and 1 CA will be whether the , 4 olator
kne 4hiveheoweoItbs
relevant ISCA r.qufremsnt a of the
genemi hawdovens of his actIc
This lau point vsIll allow the Agency
to nd a vioimatw fully culpable avon If
he ha. no knewledge of a rthnilar
rqy raqu t when be doss
ha ,. knowledge that the partboolar
substance he was dealing with was
hawdou.. For exsmp 1 e. lack of
of the P(2 raIse weuld not
n p ilp4& 1 y f
kn.w1s that lbs â plng of P s
aestss a aadu..s threat h’ ’ h l,h.
Th a to lb. p— . ’4y based
on lack of lmoiuü could only o
ak .. a q 1 nniik i
4 vlola r’s
— would not have thM the
conduct was bu or violative of
TSCA. It Is end .tad that
situations at1i 1 t redarilt,i. wID
b.r.r . .
(b) s .ofor.nvJesort
v*,ia’k,or l a may ha ilinatloes
whem the violator moy be leso than
fully re.ponsib . for thi violations
o & Per .xas.ple . enoth.r
eampeny may have bad aema role In
a.sdng the violative djHons aid
thus t else skein is d legal
r e.1bfflty for the rsH’ g
OVSHj s.w Or an uØu a. whose
Iuot caused the kiIa y have
been Leobsytog h is employer’.
ioitr cns ucksftuatic woald
piobablyP Wiuzuntccsui NdVOtbDo lb.
8L
Forpmalty.mri- perpooss- three
levelo pibaftrk’. been ass d,
L I h The violation Is w*lthd. L... lb.
— t I•i&r *
he Inuw wield be a W4flou or wield be
hdousto hseltkorthe
-Ad thaG £ W .
lavol 0 Tha viola tot s&thsr had
haowlsdp to . --c _ tha os.tsd
by baa cea or i on ui over the
situation to avoid ‘ 1tiu the violation.
—No aJJi— - _ -aa to
L.vsI ITh The violator la d e olont
kaowisdp ot lbs poeettal hsrd asisd by
his conlba . o ala ladid over lbs
situatio, to p ..,i..t erTSuce of lb.
Ad usi lb. G doavraward .
It Ia anticipated that most cases will
present Level U cidpahiulty. Iavel I
M” ’ ’ . in many instances. could be
treated as 4M I 4 4 I4g (and often
will be so treated). However , the
decision to film a 4mlr l action has no
effect on civil penalty calculation. aid
is a totally separate luua.
(d)Alti*rd. of the vioiato In
assessing the violates’s “attitude,’ the
Agency will look at the following
Whether tim violator making
“good faith” effort. to comply with the
appropriate regulattonE the promptas..
of tbe violators corrective sctions and
any assistance veu to ‘A to nthiimia ,
any ha to the onvirn r t caused by
the violation.
Since “attitude” is already reflected In
f4veI I culpability. and otoca It Is largely
Inulovant to Level fli culpability , this
sdIu. will really only be nHlii,d
where “knowledge” and “control” result
In a Level U cnlpabthty finding. While
Level U m .lly yields no reduction or
laaseae In penslty the attitud . of the
violator may Justify a penalty
id )tofoi ofth.G Pto
dhv 3tbca. Ol$st*tve evldencs
suck as statement. ar actions of lb.
violator. should be seed to justify suck
rioladtzt&
The psitty based penalty matrIx 1.
dselgesd to apply to ‘list oil ndeie.”
Whise a violator has demonstrated a
hn1l history of “cuch violations.” the
Act require. the penalty to be adjusted
The seed far suck an upwird
adjus t d vao from the vbolatoVs
not being p ffIathvWly wottvatsd to
nply (d.terred from nomcuaiplylngj
by p e nslty r- -forthaprev*os a
sithe’ b.La .s . of economic
facee cesiecletisly analyzed by the
firm, or bscause of ne enos - Mothsr
róa.Do far p repeal vioIa nrs
mom severely th ”flr.t of crs” Is
the i oazcd ou a c ul raooai .’ces
lb . a svLolator
The Agennys poMcy Is to
“ p aith vl& s ” a. referring oaiy
to prior violations of TSC4. even thoegh
lt.wogld seem “such” could refer to any
vto1atl c of ‘A statutes. or remedial
statutes in g,n uI (e.g.. OSHA. SC).
Ho.,.. , alixs Co ma did not
xplicitIy stats ft wanted the Agency to
go beyond TSCA in determining
violation histery the Agency Is noing
this narrower totarpretatloil, The
penalty system dfstlngulahse between
previous TSCA violations in general,
and previous violation, of the same set
of regulatory requirements.
The following n*Lqs apply In
evaluating history of prior such
violat laas
(a) In order to constitute a prior
violation. the prior violation must have
resulted in a final or uftber as a
result of an um at.sted complaint, or as
a result of a contested complaint which
TSCL Compliance/Enforcement
Guidance )fonual 1984
-------
Appendix
G 1de1jnas for the Aaaesg ont of iv11 Penaltiea
iafhialiy reao1vec alnst the violator.
Viclatlena litigated in the Federal
courts, under the Act ’ mmI ent hez ard
( 7). specific enforcement and seizure
( 17). anci i nal ( 15(b)) previsIons,
are part of a violator’s ‘histojy” for
penalty aseei smnt purposee, 48 are
violations for which c lvi i penalties have
been previously aseeseed . However..
notice of non-compliance dose not
cti2rthr ),rIor such vio1oion’ since
no vtolaticn k as formelly been found,
and no oppoetirnity to contact the øotics
baa boon von.
(b).To be conaid ri d a “prior such
violation”, the vith dc muit have
occunod wita n i!vi year. of the present
violation. Thlii ,ezlod begins
when the prbr violation beccim.s a final
order. Beyond five years. the pilot
vlolatlve coud’ ct curnea taa c stani to
reqwrn C mpoazr n of the po alty for
the present violation.
(cI Gan rt y, penico wkh
multlç a eete a e
ai on wtiun L . :ima.
if Qdtl e abila i
comzn a :itu ra. It counts e
hiscorj Waan etablioh *ent al
the senie oo pcny, anywhere In the
countr/. romratr’ another TSCA
violation Howover. two companies held
uy the z .m.psrtrnt corporation do not
necessarily affect ac. 1 r othar’s history It
they are in subetnattaily d rent less
of business, and they are sub tsntiully
independent of co n another in their
F j in the functIon1n of
their oardn of Ufrector,. In the case of
wholly- o p tty.owuid subsidiaries,
the violation b aiy of a parent
co ’poration ahei apply to it
tubsidiarics, enc that of the subsidiaries
to th oarent.
d) i the prior su violation Is of a
ii &erout TS A roviw or regulation.
the penalty ou. d be- upwardly
at i 5t 1 25 ir it & . a rst repetition
a nd SO pei ’cent kr a eecond repet1tIon of
tb vioii tion. the prior “such”
. -t :t me, or ttIos Ly
smikcr prov mon or reguleilon, the
enulty shouid be upwardly adjusted 50
per e: for the F rit repotit on and 100
percent for th ae ond repetition.
For these p rnosr e. a prioe such
viola non is the “ iame or cloisaiy
related” if It is ‘ nhiar to the present
violation. Each T ’SCA rule or regulation
ta :onaidered a ieparate entity for
‘clos€iy rab ed” purpoaes. Thus the
identical pro vl8 on does not have to be
violoteii both tlmi for this higher
iuiustmeat t be itirde. For exampla.
tw cro ’ .‘nlawful diepobala of PCBe
may ue “clucely simik r ” if the PCB.
were unlawfully dumped on the
hghways iz the fIrst instance. md in the
second inetunce. OCBs of over 500 ppm
were burned in a facility that did not
comply with the PCB .tdnerator
standards.
The speci6c guldeftnu will gir. some
guldanc, on what violations a ss “closely
‘ jmjjar ” to others, and may setup. sliding
seal. of upwsrd.edjustment pereentagea
rather than the 50 pen...t or 100 perong
Sgur.s — hers.
3. Government alian-up costs. An
adjustment factor not specified In the
statute, bat which the Agency feels
“juodc. • require(s),” is
reimbursement to the government for
funds cxpsud.d to Investigate, clean-up,
or otharwia. mitigite the effects of a
violation.
Generally, the clean-up expense of a
violatot Is to be born. by the vIolator as
a necessary coat of violation là addition
to any dvii penalty assessed. The
gozuncnt may saab a Federal district
coa t injunction under 7 or 17 to
require, th. violator to dean-up, bi t
there will aLmost certainly be situadon
wher, the government will have to
clean-up the vlolatkur to quickly
dlwlat, any hazard. oreated. Where
the., latter situations happen, the
government could probably file a non-
statutory suit In Federal district court to
recover fund. which It expended, but It
could even more easily assess these
costs, when they are sufficiently low, In
an administrative proceeding under I 16,
particularly where a * to. particularly
whea*eaconl sp, iugto b ,ffled
anyway.
The ma ar lhnftatloa to seeking
reimbursement of government
Investigatory and clean-up costs Is the
limit of $25,000 for each violation.
However, since each day a violation
continues constitutes a separate
violation for which a $25,000 penalty
may be assessed. In many instances
clean-up and Investigatory casts can be
recovered where the violation is a
continuing one. However, where a
penalty would be in th. area of $25,000
for the violation even before government
investigatory and clean-up costs are
considered, a 16 action would be of
little value In recovering these
additional costs.
In adjusting the penalty, the
government investigatory and clean-up
cost should be added to the penalty
calculated thus far. Where the total
penalty under this method exceeds
$25,000. the penalty should be cut back
to $25,000. As will be discussed later,
this type of situation lends Itself to
utilization of the continuing violation
provisions of I 16,
it is important to note that
‘unsideration of government
nve.tlgstory and clean-up costs In the
TSCA Compliance/Entorceseent
A—’ 7
Guidance I nua1 1984
-------
ADpezldix
( iidelinea for the Asgesement of Civil Penalties
penally alueument Is not Intended to In
any way affect the right of the
gu. Sflt to I COVft flVIlti30017 and
dean- up corta In a separate court
action A violator may argue that
Investigatory end dean-up costs have
been abrogated by settlement of the
penalty. Thu., If thur. is a reasonable
possibility that the Agency will seek to
recover such costa In a separate suit.
this factor should not be utilized In
eetes 4 ’ig the *18 penalty. Thus the
Investigatory and dean-up costs will not
be Included twice In ‘ .lc ”ladng a
penalty far a vIolado .
4. Caine from noncompliance.
Another ad meet factor which
luatIc.’ requlre(eJ ” Ii that the
vtolatn . not profit boa Its violative acts.
TSCA’s ability to prevent harm to public
health sad th environment Is severely
weekened whenever an economic
inrentive exists to violate the law. The
penalty system attempt . to e 14 ’ ts. or
at hut radiues, thus. economic
“ tti,ss , by adding to the base
penalty an .iMs’.t.of the scosomic
gaIns-obtaIned by the violator a. a
mt of his “ ‘cnmpllanc&
— such economic — would be
money saved by not investing In new
equipment, or by not following more
costly operating procedures, or profits
gained through the sale of illegal
products. Removing such gatna not only
protects the public by deterring
violation., but also prevents violators
from g&M4. g unfair competitive
advantage over those who are
complying with the law. Far example, a
company which manufactures a new
chemical without submitting a
premanufacture notice. pursuant to § 5,
may gain a strong competitive
advantag, over another company who
Intends to manufactur. the same
chemical. but follows the * 5 procedure.
The violator should be penalized at least
to the extent of the economic gains
achieved through his noncompliance.
Any other result would put a premium
on noncompliance.
The specific penalty guideline.
should. where possible. indicate the
types of economic gains from
noncompliance. and Include either
standard estimates of such gains (e.g.,
the purchase pnc. of required new
equipment or facilities), or a procedure
for estimating the gain. In cases where
economic gains resulted from the
companys failure to make required
capital and operation and maintenance
expenditure, those gains must be
calculated in accordance with the
Agency’s September 27. 1978. “TechnIcal
Support Document” for computing civil
penalties under the April 11.1978, Civil
Penalty Policy. The resulting economic
savinge figure mast be reviewed by the
Civil Penalty Policy Panel for
comslatsnqr with that. policy. In many
lnstancss. the GB? will be sumdently
high without sdiuitv..uit fa, this factor .
In other uthasdone whsie there Is no
economic motive or benefit from
nonno.pIi.nre . or when the cost of
cleaning up a violation outweighs any
econosizic benefits received, this
adjustment factor nogd not be applied.
5 Ability So pay and obililyto
continue in buain (a) Usage of these
terms. The Act lists “ability to pay” and
“ability to continue In business” as tWo
adjustment factors, but for the purposes
of the penalty system the distinctions
between ths,two are so narrow and
artificial that they iii treated as on.. In
wn.klng this determination It was
consldsred that ‘ ability to pay” might
be limited (In the wttzeme sense) to such
indinators as the market value of the
vlolatot In liquidation the profits
accrued by the firm over a given time
period. the net sale. or Income
generated over a given time period, the
value of cash and other liquid assets
held by the firm. and the value of all
liquid assets plus borrawable cash.
Rsemitiafly , however, a firm can pay up
to the point where it can no longsr do
b ’’H avu , It Is evident that
Con eee. by Inserting these two f&ctors
into the Act, for mast cases did not
Intend that TSCA civil penalties present
so great a burden as to pose th . threat
of destroyIng. or even
Impairing, a firm’s buaineu
Measuring * firms ability to pay ‘a
cash penalty, without ceasing to be
operable. can be extremely, complex.
The focus La on the solvency of the firm.
Rather than performing extensive
Rngiuthtl analysis of a firm, which
would take an unreasonable effort on
the pan olboth the Agency and the firm.
it Is believed that a year’s net Income . as
determined by a fixed psrcsntage of
total a1.s , will generally yield an
amount which th. firm can afford to
pay. The average ratio of oaf Income to
sales level for IJ.& manufacturing In the
past fIve years is approximately five
percent (1978 Economic Report of the
Ptesident). Since small firms are
generally slightly I. .. profitable than
average sized firms, and since email
firms are the ones most likely to have
difficulty paying TSCA penalties, the
guideline is reduced to four percent.
0i would aS ia b. .01. to pay
svea If l*npoU .g a pemity would rauas Li to 61. Ic r
beakniptcy. lace. rsotwnlzseon ua1 bl still leave
tO. b.ld ... to
H 1OIIt . .blilty to pay’ wtll be used to
Include abdfti, to contInue to bn.to..”.
TSCA Coaplia ce/Rnforct e
Guidance I nual 1984
-------
Appendix
Guidelines for the Assessment of Civil Pen*l ties
Even where the not tacoir. Is
negative, four percent of gross sales
should still be used u the “ability to
pay TM guld .ilns , since companies with
high alswlllbepresunt.dtohave
sufficlant cash to pay psnaltI.. even
where t s have been net lasses.
P* pw’poes. of c*J4 thIg the ability
topsy, figures for the .ir*It year and
the prior tb.. yesr’ should be
averaged. Four percent of the average
..l.. will se e as the gnld.fl ’ne fur
whether the-company has the abllltTto
pay.
(b) Application of ability to pa,
While It would be possibl, for en
Inspector to utilize Dunn and adstreet,
or to Inquir, during the course of the
Inspection to ascertain iii .. data, the
firm should be presumed to have the
ability to pay.t the time the complaint
is Issued. This Is preferable not only for
purposes of convenience.
but also becauae many firma will not
have their sales nIorrnatlon In
and 8radstreet or . mi r publications,
sad because the Act tn cates that
flr .i. .wt 4 j and sales data Ire only subject
to Inspection when “the nature and
extent of such data are ds.mibed with
r .esenabI . specificity In the w ltten
notice (of Inspection) , TM 11(b)(2). This
sf gilng out by Caere . . of thes, factors
tndlct.s that they are not to be
routinely asked for In every inspection.
and since any alleged violator can raise
the Issue of ability to pay In his answer
o the complaint, both the Agency and
the Inspected firm will save time and
resources by using this approach. Of.
ourss, If such Information can sully be
obtained prior to or during the
inspection, there Is no berm in ilnh g ic.
If the firm raises the Issue of inability
to pay In Its answer, or In the course of
settlement discussions, the four paumut
guideline discussed above should be the
model to follow The firm should be
asked to bring appropriate
documentation to Indicate what their
sales have been, such as tax returns,
financial statements, etc. If the proposed
penalty exca.d i four percent of total
sales, the penalty may be reduced to an
affordable LeveL
Thor. may be some cases where a
firm argues that it cannot afford to pay
even though the penalty as adjusted
does not exceed four percent of sales. A
var ety of f ..ctors. too complex to
discuss here, might require such further
adJt stment to be made. In complex
case., the agency may need to rely on a
management division economist Qt an
accountant to analyze the firms ability
topsy and, on a case-by-case basis, to
further reduce the pro ,osed pinalty.’
a. Other factors at Justice may
require. Whil, two “other factors’ have
been Incorporated as adjustment
factors, other Issues might arise, on a
case-by-cue basis. which should be
cOnsidered In assessing penalties.
Among the .. factors arm
• Money spnt by the violator in
c!.wthtg up or otherwise mitigation the
harm caused by th. violation. Normally
there should be no reduction foe these
costs , since It Is pert of the cost of
violation. However, there may be
Insnnii where the cost of penalty, plus
cost of clauseap . are excessive far the
particular violation, so that some credit
foe thee. ezpsndltures should be given.
• New oivaer ,A4, far ‘itisto y of
violation,. “It may be mitalp In some
cases to burden new ownership with the
previous owner s history.
• National defense.
• Fore npolic
• Conflict or ambiguity vis-a-vis other
Federolsiatoti. and regulations (e.g.,
O8HA, U&3AS DOE).
• Envirmim.ntaily beneficial
.zp.ndftwre, Orcumssnnre , may arise
where a violator will offer to make
expenditures for unvLonmantslly
b- ’.fi 0 ial purpases above and beyond
.thos .requiredbyla ’w. inlisuof paying
civil penalties. The Agency, In penalty
actions In the U.S Dlsfrlct Courts under
the t ’iun Air and Water Acts, has
determined that omdltlng such
expenditures Is consistent with the
purpose of ciVIl penalty aes -1%ent ,
Although civil penalties under TSCA are
adminlslratively assessed, the same
‘Thu analyst emI ksep ussuil psrtlcular points
In ormad. Stout. s1 1 ui c5sn report us 1mb ! .
and lestsSd jiu,tJ . a rusan at thumr
wuur/opuuesa. tteus s.In4su and banndts esnk
an . u eb”s. thusI plans. so forth. Whan
rsoansuus thu . naub Sow, ownur/
apurstois skoild . U psy nt for sswtcss
— that a ea wblsk th could obtal. far
psondlep usamba sarstow to dl. surul labor
madlst Ths.ssst at Ibsir r- p .tlc . should
pes,irty In - lp ’ to psc t for thu any . Thi
reoondpo littohusptoor ladta .- 4,ta*
rslijn . Is ib M emiL I.ly-ownsd plants oboe
hive sorursi orporadem sit up to bundle vaflous
usctsa(tbubu Ifousarmoreof thiss
carparsdons is paMe for sass putt of thu ISCA
violation. thu tax rsseus Lw .11 Involved
...i arsticu should hi -‘—‘-—4 sad a cosbln.d
cia flow prepsisd. Oncu ib. flon, historical cash
flows have bus. — ‘ t thu analyst emi
sons u- i of the Ukuly fuse pith of the
caspany. lass do lbs analyst must considut thu
fits’s ability to ante cub boor Its operations. its
ablilty to liquidat, suits to mast penally amounts
(‘ad still renala In business), sad Its ability to raise
additional cash from lender, and Its owners. Thu
analyst mast tudpe thus. factois without .xpsndiap
eiicsssiv. resources on lbs analysts. Sunk sprocuss
can be assisted thivu h discusatons with
Individuals knawlsduabls to thu puromlar
(nduaD ; tuGS as local bunker., consultants. arid
n1’rs. If oppropriats.
TSCA Compliance/Enforcenent
A.,. 7;
g
Guidance ?isnual 1984
-------
Appendix
Guideline. for the Meeeaaent of Civil Penalties
rational applies. Th&a .id tm..ot. which
constitutes a ci.dlt geinst the actual
pe nalty amount. will n mully be
discussed only In the cunis. of
settlement negotIations. The cr l f a for
soneptable credits are disoiseed In
dtaIIma.sctloc the Ap rIl 11. IW’l
OvIl Penalty PeHcy. Bikes proposed
credit wmrints can be incoepoksted Into
• . s4tIsu’ t . the .eu iykMant must
users hLme that the penalty (with
credit sdjuotnwntj I c conalatont with the
April II. IWSI Ovi! Penalty Policy. and
that the pny baa not already
received credits In anathm eaforo” ”
e lba foe th. same envIronmentally
b& aZ s ditures. The acttlem ”
sgessaent such an
adfus t mak. clear what th.
actual penalty escaeema alLa after
which the ma of tbn
be spelled out in cad in a
enforceable manner.
• ifl Inozbâ2ilce
vi .i o’ ’’ a vfaatica
while of ertent. will be so
doss to the borderline sepentIn . - -
and s1gnfte. utoladens that the
penalty may sesm dlipeopoetLca Ly
high. In this iltsathm. ddft4t t
reduction of up to % oft
be applied bikes the other d us t
facto ar, conildese
Coalinalag VloIo
nce the Act provides one only that
civil penalties may be “ .,,,ved up to
$25.000 icr each violation. but that seth
day s violation ‘ er constitutes a
s.pW violation for width &ItHt! I
.psnaltiss may ha amassed there Is a
potential f vmy large penalties to be
assessed In many at i tlons. In some
ca such large peneittea will be
appropriate foe cuathi b g vlaiadoca,
wtiJ . forotbeer. each en late invontesy
reporting, assessing an at1dlba l
penalty for each day of violation would
yield a penalty sass—— fur pester
than the v mash . The jp
penalty jild.lin. . will disuse . the types
o(contL . 4ia_violedoser which should be
assessed on a pet-day basis - This
dismeilon should in4$’ ts bow aitwia
such a. thi. will be eppM.d e.g., winch
continuing violations should never be
pr’’ 11 d on aver-day b a sin . and which
sheld usually us always be so
Whine penalty I . assessed en a pm ’-
day bails for a tInu1ng violation.
cars must be t k.at t amare that th.
adint factors, ‘ 5 u anm ”
up costW. and huxumtic benefita from
non-compliance” are spread over the
entire penalty, anus these figures are
calculated by looking at the entire
violative situation.. For example. if.
continuing violation lasted four days
ad geasrotsd seoucu in government
clean-up costs. these 4O ,OOO La costs
ajiould be added to the daily penalties
(although each day would still be limited
to a me4 .Ol1l peialty).
Contkaei violations are
dlsdngolshol’frv. multiple violation.
sad v .dese which
a— t % Th Jatiss vl&atiaaer
will generally be separately s..d
SaWem i ni
dee , not prescrib, a
specific percentage g%ijdllne for penalty
reductie.e in the o f settlement.
Whils. on peeral ruin. penalties may
be altered beth. course 4
these sheeld alway. be so
subetsuftes rmaou given, which La to be
oe * aug se ’
— sad consent decree and flzial
order for eny penalty reduction. Other
— of sslthmset are discussed In
the ocn ’ t of psettaiZar penalty factors.
i 4 dAj J ,ruiig Q ec k
a Speci c Penally GiiMance
ThS erAk penally winch
will w y be developed as pert of the
enfc—’- for a particular
regalalcn. will — the dstallad
toln” .1ka needed to fit pertlculai
violations In the overall civil penalty
slats.. Eath peci&psuilty gui ’ ”e
will adthesm
• Toths—1—dgosilbIs .th,typeso(
, thetem ooem
• i ieuidosuu lbs a.a. . 9.. whither
_______ - igetkbi of
$
• How to dst.smtes sad chi.silp the ‘-
oEpee& , been posed by a gives violations.
• Spoulsi cd udoa . In uskig the
adjustment factor,. particulazfy Includ ing
settm.t1 vvevoweet claen-ep
. baraits b
• How and when to utiM the ccoesp il
multi-day vlolakoss.
• Any othsr matters as lustics may
rsqu*ra ’ which may pmtladarly apply to tbs
ven — and
• A.. 7 111. , else necesemy to . ,ff .test.
M.- —-i ei lbs re do ion and the Acts
— —.
Applying a Specific Penalty Guidance
This section briefly summarizes the
steps necessary to calculate a proposed
penalty assessment.
Step t Uttti M ths.spsdfic panalty
gwdancu. determin, the nators. extent, and
oiuumetaflCss of the violation.
Stup Find the a,prupilate extent and
cfrcuas* level, on the puvity hosed
penalty mutrte to dteetmln. the gravity bused
penady (GBP)
Step Z Detmralnu the percuniags
adjustment for culpabdity. if any.
TSCA Compliance! Rutorcement
.- 7)
Guidance ) bsnual 1984
-------
Appendix Guid.linoa for ths Ms..a.snt of cL!IJ
3tsp4 D.tsvutino the perCeatS$*
sdjb.tmunt far history. if any.
Step ft Add the sd$stm pearatagre
from steps 3 sad 4 sad applyth. Gap. If the
am to$. . - -a P isducst h e
pena lly to_____
StaphiythestspUsursby the
number of violation.
Step 7 Apply j .....iuent cleanup costs
adjustment If sppllcsble. Add to tim etepi
ftgurs ________
Step ft Apply . auuofr gale from n an-
0 ipMni. j j auiI f ippbenbla.Md to
the stepG Sgais..
Step Ma. other adj enis as ju.tice
amy res ufre.
ul complaint proposing
Stop U: DiaaaseeltL _ . ....t any tles bjur .
• Snot .lstmlle law lad,.’. .e
(unIea ccl in ant c ttad sad
on a ms$le of law). If
applicable. dotn mtes abElity to
pay. If . enpilstA re sa penally to amouM
vtoi&tar car. e pay. Pina$e nay be
reduc .4u a
Step 1 ‘ .na 1nel order.
Ovil Penoit Aasesaaaent Worksheet
Name of R.øt’endent—
Ad esPOdd.u1t
I Compisint LU. Nmeb
2 Date Co le2nt l d
3 Dat. Answer IZeesivath
4 Dat. Default Osder Sent:
7 s S n.aice ReoMvs4k
1. G.sstty md PawSy (GBP) from
mao . S—
2. Psomnl $.assue a, dawesse for
culpabIlity. .
3. P rcenffn S 5IS far violation history.
4. Add In.s 2 and 3. S .—.
5. Multiply G by percuntage tot I on line
4. S—.
8. Addlincol 5 d5(svbtroctlinssfrom
Ito. I if angsflv. percentage). 3—.
7. Enter line 0 amount or 3.OO0. whichever
is less. $....... .s
8. MultIply line? by the number of days of
violation S—
9. Government dean-up costs. if any. 3—.
10. EcononnC gem. from non-oomphaaCl. if
appropriate. S—
11. Add lizm.Sth 011gb 10. 3—.
2. Total of other .djuatmsnti as justice
n ay .qutrs. S .—.
13 I L 1I a rep.*seflt$ a net itw,co$e to
the penalty add LIne 12 tc lIne 11.3.—.
or
If line 12 represents a net d.c.cse to the
penalty saboact Un. 12 from line 1.3.—.
Notn-—U e 1.3 should be the proposed
penalty a given violation. This procedure
te repeated for each violation.
TSCA Compliance Knforc ent A — I 4 Guidance ! imn1 1984
-------
Appendix Eat orc mnt aapo ae PoUcj: h bsa toe
Enforcement Response Policy: Asbestos
Asbestos in Schools Enforcement Response Policy
CONTENTS
Part I Introduction
The Requirements
Tne Violations 2
Liability 3
PART I I Determining th Level of Action
Notice of Noncompliance
3
Final Response
4
Civil Penalty
4
In3unctive Action
5
Criminal Action
5
PART III Assessing an Administrative Pinalty
.
Gravity Based Penalty
S
Nature of Violations
6
Extent Category
6
Clcumstances Category
7
Independent Assessment
8
Adjustment Factors
9
Ability to Day/Ability to Continue in Business . .
10
ARI I V Application of the Policy
Appendix A: Samole Notice of Noncompliance
fl
‘ ppen 1i 5: Model Compliance Program Schedule
‘2
TSC& Co.p1iance/Euforc ent A- 5 Guidance Pbnual 1984
-------
Appendix Iuforc nt eapooae Policy: Aebeetos
PART I INTRODUCTION
a Eriviromental Protection Agency (EPA) has published the
Fr’atle Asbestos—Containing Materlals in Schools: Identification
nd N t fj tion Rule” (Asbestos In Schools Rule) 47 Feaeral
Register 23361, May 27, 19821 under Section 6 (a) of the ToxIc
Suostances Control Act (ISCA). The purpose of the rule is to
‘dentify the ocation of friable asbestos in school buii.oings ano
to notify Aersons who risk unwitting exposure to asbestos. The rule
was effective on .une 28, 1982, and allows one year after that date
for tne performance of required activities.
The EPAs Asbestos In Schools Program began as a voluntary
activity known as the Technical Assistance Program (TAP). The TAP
was ‘implemented in each of the ten Regions through the Regional
Asbestos Cooroinator and state and local contacts. The inspectlon
and notification requirements of the rule are now mandatory. Cer-
tan Other activities associated with asbestos in.schools, such as
aoatement and control prOcedLjre , are not requirements of the rule.
-‘owever, since these acti iities are often logical consequences o
complying wth the ule, the EPA will continue to offer advice to
school personnel on ‘ow to control hazards from friable asbestos-
containing material through the Regional Asbestos Coordinators.
This Enforcement Response Policy provides guidance to the
egions ‘ii enforcing tne provisions of the Asbestos in Schools
Rule. The remedies under Sections 16 and 17 of TSCA are available
for v oiat ons of this rule. Part II of this document provides
guidance in the se of notices of noncompliance, civil administrative
oenaity actions, injunction and criminal actions for violations
of this rule. rt III of this document explains flow to use the
eneral TSCA Civil Penalty System (45 Federal Register 59770,
September 10, 198O to arrive at an appropriate Civil administrative
oenalty, wnere that penalty is utilized.
The Requirements
‘ ‘ie e. uirements of the regulation are directed at Local Education
Agencies 4 EAs). As discussed in the rule, this term ncludes:
o Any local education agency as defined in Section
198a)(1O) of the Elementary and Secondary
Education Act f 1965.
3 r;ov rnifl9 authority Of any nonprofit elementary or
secondary school.
hiS mpoSes eaui ements which may be divided nto the
‘o owinq f ye uaslc ac.’Ofl areas:
o :oer ti icaz’on :nspeccion of all school 5uildings for
triable materials;
o Sampling: Co)lect 1 on of samples of the friaple
mate ri a 1
TSCA Coaaui lance/En forceeent Guidance ? nua1 1984
-------
Appendix Rnforc . .mut Iasposae Policy: Asbestos
—2-
o Analysis: Analysis of the samples to determine if
they contain asbestos;
o NotificatIon: Informing the Parent Teachers Association
(or parents), faculty and other building users
of the presence of asbestos, posting the notice
to school employees form and distributing
of ‘A Guide for Reducing Asbestos Exposure”
tO custodial and maintenance personnel; and
o Recordke,ping: Maintaining records which describe the
actions taken to comply with the rule.
T i Includes a statement Signed by the
person responsible for compliance with
the rule that the requirements of the
rule nave been satisfied.
The first four areas are sequential steps In achieving compliance
with the rule. In the fifth area, the rule requires the LEA to keep
records in each school and in the LEA administrative office. These
records, available to the public as well as to EPA, oocument the
compliance efforts of the LEA of each school.
Exemptions
o Schools whiCh were built after December 31, 1978, are exempt
from all requirements of the rule.
) Schools which can document that no friable asbestos-
containing materials were used in building or renovating
the School buildings are exempt from all requirements of
the rule. Cer if1cation, as required by the rule, must
be In the schools records.
o Schools which completed specific requirements of the rule as
Daft of the voluntary Technical Assistance program (see “Com-
pliance Assistance Guidelines”) need not repeat these activities.
f no asbestos was discovered by the TAP, the appropriate
cer:ification must be In the schools ecords.
o Schools which nave satisfactorily abated (see Compliance
Assistance Guidelines ”l asbestos—containing materials before
June 28, 1983, are exempt from all requirements of the rule.
o Schoo’s which certify ‘or the record thdt all friable
materials will be treated as asbestos—conta1n ng materials for
?urposes of this rule are exempt only from the inspection,
sampling and analysis requirements of this rule. This cert-
‘ication must De ‘i the scnool s records.
The V’oiat ons
Faiure to perform any requirement of tne rule constitutes a
v’olation of TSCA. ThUS. possible iolations of the rule include:
o Failure to inspect;
o Failure to sample;
o Failure to analyze;
o Failure to ot fy; and
o Failure to eeo re 3rdS.
Tsr .A ( , n1 vw..IRnfa ri,. nt iaiin1 SQR&
-------
Appendix Enforcement Response Policy: Asbestos
—3—
The improper use of an exemption would result in at least one,
and possibly all of the above violations. If records or certi-
‘ication were falsified to support an exemption claim, the
falsification would e a separate violation. TSCA 16 provides
:ivil and criminal penalties for any person who violates a
prOvision f §15 if the violation is knOwing or willful.
1. i a l ii ty
lfl taking enforcement action to redress violations of this rule,
EPA has the option of proceeding against the entity llege tO be in
violation and/or against the responsible official who signs the
cert 1 fl cation.
Generally, EPA will hold only the LEA liable for the actions
of ‘ts officers and employees. The Agency, however, reserves its
rignt to impose individual llabllty ider appropriate circumstances.
Appropriate circumStaflc S for the purposes of this rule are cases
where an indivldt .al has kno cir ; n. willfully signed a certifi-
cation statement which Is false.
PART II DETERMINING THE LEVEL OF ACTION
The regulations require school officials to perform certain
actions in identifying friable asbestos—containing materials and
iot fy’ng specified persons of the presence of such materials.
Since the asbestos n schools regulatory program began as a volun-
tary program, the EDA will continue the program in the same spirit
of cooperatlon.
owever , situations could occur which would require an enforce-
nent response. The various levels of possible enforcement resoonse
the ol Ow 4 ng
o tice of Noncompliance
o Civil Comp 1 a’nt
o ln3unctive Action
o Crminai Action
Not ce c ‘ oncompliance
Reyrial official determines tnat an LEA has violateo the
Dests choOiS Rule, .iie appropriate Regional office should issue
oncomPIianCe. Within 30 days of the receipt of the
-Jt’Ct 01 oncomp aflCe, the LEA snould demonstrate compliance
trie -- .h’.
TSCA Coiipliance/EalfOrCeseflt A —78 — Guidance )4 nual 1984
-------
Appendix Eaiforcent Response PoUcy: Asbestos
-a—
Since the LEA is the responsible party, the notice of noncom-
,J’ance should be sent to the LEA, but a copy should also be sent to
any specific school involved. The notice of noncompliance should
state tnat the LEA must demonstrate compliance with the rule and
describe the actions it has taken to come into compliance with
tne ule within thirty days of the receipt of the notice. If the
LEA cannot achieve compliance withIn 30 days of the receipt of the
notice of noncompliance, the Regional office should seek a final
response.
Final Responses
LEA’S which have received a notice of noncompliance and do not
cOmply with the rule withIn 30 days of the receipt of tPte notice
are subject to one or more types of final enforcement responses.
ThC$e are: (1) tivil penalty, (2) injunctive action or (3) criminal
action. The most cormon enforcement response will be the civil
penalty, but injunctive or criminil actions may be pursued in certain
instances.
Civil Penalty
If the LEA cannot comply with the rule within 30 days of
receiving a notice of noncompliance, the Region should file a Civil
complaint. The Civil Complaint will describe the violations and tne
amount of the penalty to be assessed. Under certain conditions, all
or part of the penalty will e remitted under a negotiated Settlement
with Conditions (SWC’ if the LEA abides by a Compliance Program ano
Schedule (CPS). (The Settlement with Conditions is a separate docu-
ment prepared at the same time as the Civil Compl1ant.
To determine if an LEA is a good candidate for negotating an
SWC appiy the following criteria:
1. Violations have been documented and have not 5een corrected
within 30 days after a notice of noncompliance.
2. me violations will require more tnan 30 iays to correct.
3. he LEA exhibits a good attitude towards coming into
compliance with the rule under a CPS.
4. A CPS acceptable tO EPA can be negotiated. A model CPS
or ‘he Asbestos in Scnools Rule is the subject of
App nøix B.)
More oetailed guidance concerning Settlement w th Conoitions
wi l be sent to tne Regions ‘n the near future. Please not’ce
: iat the ofly aspect of the rule under negotiation s the oead-
T’ne or completion. An LEA may not, at this time, offer to
aoate asbestos ifl the school if ‘t does not have to noti’y
oarents. Any ..E.A which has a 1 lowed scnool cnildren and staff
tosoe exposed to an triable asbestos containing material afte— une
83 , “ust Ilform the P1 A :r t e parents direCt y ano tne staff
of he school
TSC& ( oupUance [ Enforcesent — Guidance P nua.1 1984
-------
4ppendix nforce nt Respouse Policy: Asbestos
If the LEA fai Is tO demonstrate good faith in abiding by its
compliance program anu schedule, the penalty will not be remitted
and thC LEA will oe required to pay the total penalty.
lri unctive ActIon
In certain cases where the EPAs efforts to obtain voluntary
compliance by a notice of noncompliance or a civil penalty
assessment fail to achieve cooperation on the part of the LEA.
inCunctive action may be the approprtate response. In Such
cases, the Regional enforcement attorneys should consider seeking
an in)uflctlve relief pursuant to Section 17 of TSCA to compel the LEA
to comply with the rule.
Injunctive actions must be initiated in U.S. District Court by the
Department of Justice (DOJ) and may be referred to DOJ only by the
Associate Administrator (AA), Office of Legal and Enforcement Councel
DLEC , or the AAs designee. equests for Injunctive action should
te forwarded to JLEC witri c: t the Compliance Monitoring Staff.
For futher guidance see following OLEC memoranda “General Operatng
Procedures for the Civil Enforcement Program” (July 6, 1982) an ‘Case
Referrals ‘or Cnvii Litigation’ September 7, 1982).
Criminal Action
Criminal sanctions are available for violations of the Asbestos
in Schools Rule, pursuant to Section 16(b) of ISCA. Only serious
violations, where there is “guilty knowledge” or intent (‘knowing
and willful” violations), should be considered for criminal sactions.
Guidance on the use of criminal sanctions is available in “Criminal
Enforcement Priorities for the Environmental Protection Agency”
issued by OLEC October 12, 1982.
PART III ASSES5 NG AN AOMINISTRATIVE PENALTY
‘•he purcose of this section of the enforcement response policy
‘s to explain how to use tne ISCA Civil Penalty System, (45 FR 59770,
September 0, 1980, ) to a rr i ye at an ap propri ate penalty wnere an
admlnlStraClve penalty is the app opriate enforcement response.
The Gravity 3aseo enalty
The ;ravl based penalty (GB?), as defined by the ISCA Civil
nalty Cistern, is a function of three factors:
‘no iazure of the violation committed.
The “extOnt of :nw violatiOn, or the amount ov potential
sk to human health from the inability of the Agency
arid trio cuhiic to assess the health hazard involved.
TSCA CoapliancefEnforc ent Guidance ?lanual 1984
-------
—6.
The ‘circumstances” of the violation, or the probabihty
that t . e violation has mpaired the ability of the Agency
and the public to assess the health hazard involved.
When all :nree of these factors are specified for a
1OlatiOfl, i is possiole to oetermine the gravity based
‘—om the GBP matrix. That matrix, whicn was estaolisned
SCA Civi Penalty System, appears below.
EXTENT: MA .JOR
SIGNIFICANT
MINOR
I CUM5iANCE5: LEVEL I
1 16H 1 525 .000
RANGE 2 520,000
S17, 0 00
I i 3,000
55,000
53,000
r
MID 3 $15,000
RANGE 4 510,000
. .
LOW 5 55,000
RANGE 5 52,000
$10,000
56,000
Si .500
51 .000
53,000
51,300
5500
5200
ature o Violations
The Asbestos in Schools Rule constitutes a hazard assessment
-egulation. The rule will serve to identify the location of
F’able asbestos—containing material and to notify persons who
are exposed tO asbestos. With this information exposed persons
iiay take measures to -educe the risk .to themselves.
xtent Category
in this case tne potential risk arises from the inability
of the Agency and the public tO assess whether exposure is
occur’”ng to a material whiCh iS known to result in risk to
human health. Thus, failure to comp)y with the rule prevents
eop e from knowing if tney are exooSed to asbestos and pre—
:luoes any ade uate response to the problem.
S’’e the resence of fr a le as estos —c3ntaining i”aterial
‘s U kflOwfl ‘n :ne cosence of soec’ 1c information about the
ou’ ing, the ossibi1ity of r s can e considered to be evenly
olstr’buted among scnools s ect to the rule whlCh have not
ono ’eo w tfl t’ e ule. Therefore, all violations re placea in
ze same extert category. ‘The extent :ategory is the sigrii’icant
:ategory. n tt is :ase the formatior ’ ‘s not reported to EPA
Appendix - *nfoi c.nt Response Policy: Asbestos
oa rt i cul a r
penalty
in the
TSC& Go.pflance/Entorc nt
“ 8i
Guidance nua1 1984
-------
Appendix Rnforc nt Re.ponae Policy: Asbestos
— 7-.
and will not make a major impact on its overall policy, nor does
t e rule require any act on on the part of the L A In response
to tne rule. Thus the major category is not appropriate. The
information wou’k , however, ha e an important impact on local
programs and policies concerning asbestos in schools, so the
minor category is also Inappropriate.
Circumstances Category
The circumstances axis measures the probability that the
v olation has Impaired the ability of the Agency and the public
to assess whether a health hazard may be involved. The ability
of the public and the Agency to assess the health hazard from
asoestos is directly proportional to the amount of good quality
information available to them. Thus, the violations have been
categorized based on the amount of information available to the
public arid the Agency.
The Agencys goal is to bring about compliance with the
rule. Schools, as non—proit olic service institutions, will
‘eel tne impact of even small fines. Thus, in each Range the
_ower _evel circumstance is applied.
Level 2 Violations•
o Falsification of notices to staff and PTA’s or parents
o Falsification of records or certification for exemptions
The Agency considers falsification of information about the
berformance of the rule requirements to constitute a separate
violation in that complete and accurate records and notifications
a -e not a Va i I able. Fa Is i i cation of records can lead to a sense
3f ‘alse security for school personnel, persons who use the
scriool and cnildrens parents. Additional exposure to asbestos
33ul occur as a result of falsification because employees did
not ta ordinary precautions to limit asbestos exposure. This
eS 7a, be worse than ‘ailure to keep those records in the first
oace. alsification of records or certification wnicn support an
exemption claim are violations in this category. In this case trie
EA wi l ije assessed a penalty for falsification of records.
evel 4 Vio atioflS
o Faiijr to create ano keep accurate records lincluding
:ert ‘‘ on statement or exemptiOns
-3 1 r. to nspect
o ample
to andyze samp ’
‘ crv to post warnings ana notify (including failure to
listritute A ae for
-------
Appendix ntorce.spt I*spoDae Policy: Asbestos
Tne intent of the Rule is to identify the loc&tion of friable
asbestos-containing material in the school and to communicate that
information to the school personnel and parents of the children.
‘me requirements of the rule are elatively simple and the Agency
‘ias provided gu dance documents and other forms f training and
assistance f r LEA’s to comply with the rule. Failure to perform
any requirement deSt0y5 the integrity of the program. For examp’e,
records are meaningless if no inspection was performed. Also, if
an inspection located friable materials but no samples were taken
or analyzed, then there is still no koowledge about whether there
Is a hazard f om asbestos. If the warntng and notification require-
ments are not followed, then the persons who need to know about
the asbestos hazard do not know.
Level 6 VIolations
o Failure to keep adequate records in the right place
o FaIlure to Inspect properly
o Failure to sample properly
o Failure to analyze properly
o Failure to notify properly
hese violations are activities that the LEA performed techni-
cally improperly. Good faith efforts to comply with the rule
constitute a lesser violation than outright failures to comply.
Nevertheless, improper performance results in unreliable infor-
mation and unreliable records.
Note that Level 6 violatiOnS are Instances in whiCh the LEA made
a good faith effort to comply. Incomplete compliance which is in
bad faith w ld be Level 4 or Level 2 violations depending On
tne circumstances.
independent Assessment
Although each school may have failed to comply with more than
one requir ment, Regiona’ enforcement personnel should charge an
LEA only once for each school in violation. The charge should be
for the highest level violation see “Circumstances”, page 7), but
cite al others.
The violation ‘or a lure t keep recoras in the district office,
whiCh occurS at tie LEA evel , ShOuld D treatea as a single
v’Ol tion e , ua’ to tne failure of one School to ma’ritain records.
TSC& Coesitance/Enforcesent — Guidance l4mni ia1 1984
-------
Appendix Eat o c nt &..poa.. Policy: Asbestos
dJu5tmtnt Factors
TSCP requires the Agency to consider certain factors in
assessing the violators conduct: Culpability, history of such
violations, ability to pay and ability to Continue in business.
The Act also authorizes the Agency some discretion to consider
“other factors as justice may require”. n tne General ISCA Penalty
Policy, two factors are considered In this category: cost of tne
violation to government and benCfits received by the violator due
to noncompliance. Since this Is an identification and notification
rule, which does not require any action in response to identification
of a nazard Other than notification, It is difficult to calculate
the enef1t from noncompliance. Th government does not have to
launch expensive clean up activltie or investigations so the cost
to the government is also not high. Therefore, it is not appro-
priate to apply cost a4id benefit factors to adjust the penalty.
Also, the rule requires that the activities be performed only
once. Therefore, there will be no repeat violations. The other
factors will be applied Ifl the follo 1ng sequence:
(1) Culpability
2) Ability to pay/ability to continue Ifl business
Culpability
Tne two principal criteria for assessing culpability are the
violators knowled 9 e of a TSCA requirement and the violator’s
control over the violative condition, Other criteria are the
w 1lfulflC55 of the violator to commit the violation and the
attitude 0 T the violator.
Lack of knowledge of this particular rule would reduce culpa-
bi 1 ity only where a reasonably prudent and responsible person in
the violators position would not have known of the rule. The
Agency has had an asbestos in schools program for several years,
rlas mai’ed copies of the rul€ to all LEAs known to the Depart-
ment f Education and h4 5 supported a vigorous outreach program.
‘ he Agency anticipates that situations in which a reasonably
prudent and responsible person would not know of the rule would
e extreme 1 y rare. If %uch a situation does exist, the penalty
c ul be adjusted downward as much as 25%.
There may te situations where tne violator is ‘less than fully
responS bie ‘or tne violation. For instance, an employee or
contractc isobeyed the instructions of the employer and
as a —esu t of that disobedience, the violation occurred. If
:.‘Der]y riocumented. such situations would warrant some reduction
pena’tr The appropriate reducti3fl is up to 25%.
-------
Appendix Enfor’ nt Response Policy: Asbee toe
- •iO -
Attitude at the violator is an important factor, particularly
with respect to this rule. “Good faith” efforts to comply with
: e u1e can result in a reduction of the penalty by up to 15%.
eli erate recalcitrance can result In an upward adjustment of
iO ø 15%.
oiiit y to Pav/Ab lity to Continue in Business
or purposes of this rule the gravity based penalty will oe
determined Dased on the parameters and culpability factors already
iscussed. This amount will be the penalty in the complaint.
The LEA may aise ability to pay as an issue. In this case the
eçional Office will nave to determine what the LEA can be expected
to pay.
Many tEA’s will have limited funds. Some may argue that they
cannot afford the penalty because they nave used funds to abate
r control the friable asbertos—contalnlng material in the school.
‘he cost of abatement and control activities, even though these
activities are not required by the rule, may be deducted from
the penalty. To qualify for the deductiOn, these activities
Snould either e completed, in progress, or under contract, ano
:ne costs must be clearly documented. Th, cost of vaguely “planned
actions” will not be deducted. egional personnel should review
zne contract and any results reports before determining the
amount of reduction. The deductiOn should not exceed 80% of the
penalty, if tne LEA has not notified the PTA (or parents) and
school staff of any asbestos hazard remaining In the school
after June 28, 1983. (An RWC could allow remission of the
remaining 20% when the proper persons are notified.)
TSC& O .p1iance/Enforc ent - ! - 8 Guidance ) nua1 1984
-------
Appendix nforc ent leapon.e Policy: Mbsstos
— 11 —
Apoenoix A: Sample - Notice of Noncompliance
Local Education Agency
St reet
City. State
ip Code
Dear
The Jnited States Environmental Protection Agency (EPA) finds
(Name of LEA)
(Name of School, if applicable)
in v lation of the Friable Asbestos—Containing Materials in
Scnools: Identification and Notification RegulatIon, 40 CFR Part
763, Subpart F, promulgated under Section 6 of the Toxic Substances
Control Act. The regulation require Local Education Agencies to
dentify. sample, and analyze possible friable asbestos—containing
materials in schools, to notify tne sc•hool personnel and the PTA’S
or parents) of the —esu its of those efforts if asbestos is
scovered nd to eep records of these activities.
An Agency rivestlgat1on has determined that:
i.Describe violation(s), citing the section(s)
of the regulation ‘,iolated)
he EPA is issuing this Notice of Noncompliance rather than pursuing
further enforcement action concerning this violation at this time.
°lease write the Agency within 30 days of your receipt of this
letter describing the actions you have taken to achieve compliance.
Should you have any questions regarding this letter, or should
you need technical assistance, please cont4ct _______________
at ____________________________
S:ncerely yours,
a me
e or 3l
TSCA GoRpiianceI&1forc ent A 86 — Guidance ) nua1 1984
-------
Appendix Kisforc nt Isepoc .. Policy: Mb.ato.
— 12 -
A oencix W: Model Compliance Program Schedule
INTRODUCTION
is the goal of tnis Compliance Program Scnedule to bring
ii schools operated by tht Local Education Agency (LEA) into
compliance with tne Asbestos in Schools Rule within a specifiec
t’me after the effective date of this document. The effective
oate of tnis document is the date it is signed by both the
Env’ ronm.nta1 Protection Agency (EPA) and the LEA. A school will
e deemed to be in compliance when ll five activities required by
the rule have been completed. These activities are:
o joentification: Inspection of all schot3l buildings for
friable materials;
o Sampling: Collection f samples of the friable
materials;
o Analysis: Analysis of the samples to determine If
they contain asbestos;
o Notification: Informing the Parent Teachers Association
or parents, faculty and Other staff
of the presence of asbestos, and distri-
buting A Guide to Reducing Asbestos
Exposure to custodial and maintenance
personnel ; and
o Recordkeeping: Maintaining records which describe the
actions taken to comply with the rule.
This includes a statement signed by the
person responsible for compliance with
the rule that the requirements of the
rule nave been satisfied.
Determination of compliance will be based on the submiSsion
by the LEA tO the Regional Asbestos Coordinator (RAC of copies of
the ecords required by tne rule to be kept at the LEA s central
office and certification that all other requirements have been
net. EPA may verify the certification.
If an LEA completes all the compliance program tasks outlined
n this doCument by tne dates agreed upon by both EPA and the LEA,
the t of the penalty assessed the LEA for violation of the rule
wifloe —emitted Oy letter.
COMPLIANCE PROGRAM TASKS
Determination jf the Extent of Noncompliance
scrioois ‘n e ..E whiCh have not documented compliance with
e u 1 e or aua’ ‘ ‘ Cd for an exemption, muSt be Drought into
:o an e witn :n s ri..le. EP nas assessed penalties for tne
‘oflowing .‘olat ns n the following schools
ian tEnfore nt Guidance )b”u 1 j9
-------
Appendix £nforc nt Besponse Policy: Mbs.toa
Appendix B cont. - 13 -
(List specific schools, violations and penalties as they
appear In the civil complaint and cite the complaint.)
Since EPA did not inspect all schools in the LEA, the possibility
exists that other schools are in v o1ation. The LEA Should examine
its records and develop a list of all schools and their status
with respect to the rule (exempt, in compliance with all require-
ments, not in compliance with one or more requirements) an submit
The list to the Regt6nal Asbestos Coordinator. The final compliance
program schedule will addre s all schools which are not in comp1iance
with the rule. If both parties to the CPS agree, the final date
for compliance may e renegotiated at the time this list is submItted.
2. Compliance with the Rule
The LEA shal follow the Compliance Assistance Guidelines for the
Asbestos in Schools Rule developed by the Environmental Protection
Agency (EPA), approved by the Assistant Admin 4 strator for the
Office of Pesticides and Toxic Sjbs’ahce on December 29, 1982.
EPA will provide assistance c..n as lists of laboratories which
participated in EP s quality assurance program and development
of wording for notIfication of school staff, PTA and parents.
3. DeterminatIon of Compliance
The LEA must submit to the RAC a copy of the records that it must
keep according to the Asbestos in Schools Rule and a certification
signed by the superintendant or other responsible party stating
That the LEA has complied with all requirements of the rule. li
An EPA compliance monitoring inspector may visit the LEA to confirm
compliance with the rule.
COMPLIANCE SCHEDULE
Tasks Schedule
etermination of the extent of 30 days after effective
noncompliance date of CPS
2. Bring schoolS ‘rito compliance days after effective
with the rule date of CPS
3. eCor s nd certification Submitted Within two weeks of the
0 °eg’na 1 Asbestos Coordinator final compliance date
At ne c’ scret ion cf the eglOna counsel other proofs of toni-
— p -ance may b -equired. Such as the a ertifieo receipt fr ni
‘‘ wrio rece vCd not’ficat1On
TSCA CohID1iance/&1fOrC eflt 88 GuidanCe Manual 1984
-------
Appendix snxorc nt lesponse Policy: Asbestos
Appendix B cont. — 14
OTHER PROVISIONS
Enforcement
While this Agreement is In effect, and as long as the LEA ias not
failed to comply with the terms f the agreement, EPA shall not
n tiate additional enforcement action against espondent for
‘iolations of the Asbestos in Schools Rule in schools on the list
submitted to EPA.
This Agreement does not Insulate Respondent from compliance moni-
toring and enforcement actions for TSCA violations not addressed
by tnis Agreement nor from enforcement actions under other laws
3dmlnlstsred by EPA, nor under laws administered by state or local
environmental authorities, except where the TSCA rule would preempt
SuCh laws.
2. otifIcation of Technical or Operational Difficulties
espon0ent shall notify EPA immediately in all cases where technici!
or 3peratlonal difficulties will make it impossible for ‘ esnonderlt
t. meet any of the deadlines in the Compliance Sciiedule.
3. ecnnical Assistance
Shall provide reasonaole technical assistance to , esioncient
)fl ueStiOfl5 concerning such matters is samol 4 ng and analytical
.-oceoures, an oroi’ig of notifications, f r tn purpose Qf
cor p ying wit i t iis Agreement.
.1 Amenoments
Upon r utual consent of E A and Respondent, this Agreement ‘iay be
amended at any time to modify or add technical and operational
ra u’rements (such as, but not limited to, deadline modifications
necessitated by technical or operational difficulties) for the
purpose of achieving compliance by Respondent with the Asbestos
in Schools ule. Any changes and/or amendments to this Agreement
s’all be incorporated into this Agreement when the amendment(s)
iave een signed by authorized representatives of EPA and espcn ent.
5. Evaluation
EPA 4111 assist the LEA In the evaluation of the results of its
AsbestOs !dent ’ication and NotIfication Program.
TSCA Co 1iance/Eaforc ent — A-89 - Cuidince ) nua1 1984
-------
— Enforceaent &eaponse Policy: Aabeatoa
Guidance Manual 1984
-------
Appendix forc mntItaponse Policy: Dioxin
Enforcement Response Policy: Dioxin
ENFORCEMENT RESPONSE POLICY FOR
THE DIOXIN CONTAMINATED WASTE RULE
PART I INTRODUCTION
Definitions
The Violation
Substances Regulated
Persons Regulated
Exemptions
PART IL DETERMINING THE LEVEL OF ACTION
Final Actions
Notice of Noncompliance.
Civil Penalty
Injunctive Action
Criminal Sanctions .
Multiple Remedies
Criminal Sanctions 8
Notices of Noncompliance 9
Civil Administrative Penalties and
Specific Enforcement 9
PART III ASSESSING AM ADMINISTRATIVE PENALTY
Summary of the Penalty Policy
Calculation of the Gravity
Extent
Circumstances: Ranges.
Circumstances: Levels.
Multiple Penalties .
Adjustment Factors .
Detailed Explanation of the Policy
Mature
Extent .
Circumstances
Multiple Penalties
Definition as One Day VIolations
AppendIx 1: Hypothetical Cases 19
1
3
4
5
6
6
7
8
Based
Penalty
10
11
11
12
13
13
14
14
‘8
DART IV APPENDICES
A -91
Guidance ! nuai 19 S4
-------
Appendix Enforc...nt *.spon.s Policy: Dioxin
PART I - INTRODUCTION
On March ii, 1980, the U.S. Environmental Protection Agency
(EPA) published an immediately effective proposed regulation
governing storage and disposal of waste material containing
2,3,7,8—Tetrachlorodlbenzo—p—dioxin (TCDD) (44 Federal Register
15592, 1980). The 1980 rule was affective as a final rule on
May 12, 1980 (45 Federal Register 32676, May 19, 1980). The
rule prohibits Vertac Chemical Company (Vertac) from disposing
of specified wastes containing TCDD. Additionally, the
regulation requires all companies intending to dispose of TCDD
contaminated wastes to notify the EPA prior to disposal. The
information provided in the notification allows the Agency to
mak. a case—specific assessment of the risks Involved in tne
proposed form of disposal. The Agency then decides what action
to take under TSCA or another Agency statute. Other parts of
the rule provide an exemption nmpanies that do not dete-’
TCOO using a specified techn1 li to test their wastes. Actuai
oisposal of the waste may i’ated by promulgation of a rule
under TSCA or application of t ie l e ource ConservatIon and
Recovery Act (RCRA).
This enforcement response policy provides guidance to the Regions
in enforcing the requirements of the regulation entitled Storage
and Disposal of Waste Material; Prohibition of Disposal of Tetra—
cnlorodibenzo—P—Dloxin” ‘hereinafter. Dioxin I(ule). This regulation
was promulgated pursuant to Section 6 f the ioxic Substances
Control Act (TSCA). Accordingly, the remedies in Sections 16
and 17 of ISCA are available for violations of this regulation.
Part 11 of this document provides guidance In the use of notices
of noncompliance, civil administrative penalty actions, injunctions
and criminal actiors for violations of this rule. Part III
of this document explains how to use the ISCA Civil Penalty
System, 45 Federal Resister 59770 (September 10, 1980) to arrive
at an appropriate cfvil administrative penalty, where that remedy
is uti 1 lzed.
Definitions
The Violations
vio;at oris f the regulation may be divided IfltO the following
categores
TSC& Co.pliancef&tforce.eflt
A— 92
-------
Appendix aforc * t l. poiise PoLicy: Dioxin
—2-
o Noncompliance with Prohibitions
- Violation, by Vertac or other parties, of the prohibition
against removal for disposal of Vertec’s pre—May 12,
1980, TCDO—contCajnated wastes; and
- Vertac’s failure to place its post—May 12, 1980, TCDD
contaminated waste In PCB-approved landfills.jJ
Notification Violations
- Vertac’s failure to notify EPA one week prior to ship-
ment of TCDO—contamlnatea post-May 12, 1980, waste to
PC8—approved lanifills;
- Failure of persons subject to the regulation to notify
EPA 60 days prior to removing TCDO wastes for disposal;
— Submitting inaccurate information In a TCOO—contamlnated
waste disposal notification;
- Falsifying Information in a TCOO—contaminated waste
disposal noti f1c tj on;
— Failing to provide all required information in a notice
or failing to provide the Information to the Agency when
requested to do so. (When EPA receives an incomplete
notice its first response is to call the company to obtain
the nissing information. If the information is promptly
provided, no violation has occurred.); and
- Late notification.
o Marking Violation
— Vertacs failure to post its Jacksonville facility as
required by the rule.
o TestIng Violation
- Failure by Vertac to test its post-May 12, 1980 wastes.. f
!i The disposal requirement was part of the rule published in
the Federal Register, but disposal of all wastes on site
at Vertac have subsequently become subject to a consent
decree, dated January 19, 1982, that effectively forbids disposal
of these wastes in landfills.
J Vertac has complied with the testing requirement.
TSC& C p1ianceIEi forc nt Guidance Pbnual 1984
-------
Appendix Enforccs.’nt Response Policy: Dioxin
-3-
Substances Regulated
Waste material containing TCDD Is defined by the rule as:
o Waste material resulting from the manufacture or processing
of 2,4,5—Trlchloroppienol (2,4,5—TCP) or its pesticide
derivatives; or
o Wastes resulting from manufacturing processes using
equipment that was at some time used in the manufacture
of 2,4,5—TCP or its pesticide derivatives. For example,
2,4—0 is often manufactured on equipment previously
used to manufacture 2,4,5—TCP or Its pesticide derivatives:
Wastes from this 2,4—0 manufacture may also contain
2 ,3,7,8-TCDD from the equipment, and these wastes are
regulated by this Rule, unless they qualify for an
exempt Ion.
It is important to note trtac at least two other statutes poteniially
regulate ICOD contaminated tvs. A product packaged and labelled
as a pesticide is -egulated y tne ederal tnsecticide, Fungicide,
and Hoderiticide Act (FIFRA) and not TSC . Disposal of pesticides
and est1c1de containers is coverea in iCRA and FIFRA. Also, when
proposed rules under RCRA covering ICOD contaminated wastes
become final, the TSCA regulation will be repealed.
For further guidance concerning substances regulated by the rule,
consult the chart below.
Regulationof OToxin Cintaining Substances
Substance Law Regulating
ast’ from manufacturing of TSCA
?,4, _TCPor its pesticide
den vati yes
5 pi 11 s of bulk manufacturing TSCA
Intermediates of 2,4,5 -TCP
or its p .ticidm den natives
Residue ( Ui equipment used to ISCA
manutacture ,4.5—1CP or its
esticiJe derivativeS
TSCA Coap1ianceI forc ent A-94 — Guidance ? nual 1984
-------
penu .z xorc—.i t &spoQs Policy: Dioxin
-4.
Packaged, labeled, technical PIFRA, RCRA
grade or final use pesticide
ready for distribution
Residue in pesticide container FIFRA, RCRA (rare
and the container instances ISCA)
Residue in bulk storage container ISCA
with no pesticide label
Technical grade pesticide In the TSCA
process of repackaging or repro-
cessing
Residue on repackaging or TSCA
reprocessing equipment
Repackaged, reprocessed labeled FIFRA
pesticide ready for distribution
Wastes from pesticides manufactured TSCA
on equipment previously used to
manufacture 2,4,5—TCP or Its
pesticide derivatives
Manufacturing wastes that have RCRA
been disposed of after final
I CRA role becoOes effective
Persons Regulated
As defined In the regulation, the persons regulated are
those whose disposal of TCDD-contaminated wastes for commercial
purposes. Such persons Include manufacturers, processors,
waste haulers, waste di posers, persons who operate storage
for disposal facilities ./ and others for whom disposal is
either for commercial advantage or Incidental to their business
activities.
. ./ Additionally, the rule names Vertac Chemical Company
Vertac) specifically, requiring special treatment of that
company’s wastes. As a result, a list of potential
violations of the rule includes violations naming Vertac,
although this does not indicate any greater likelihood
of nonco.pliance on the part of Vertac than on the part
of any other company subject to requirements of the
ru I c.
TSC& if aiieeI sforcemlw1t A-95 Pbnual 1984
-------
Appendix nfore ..nt Response Policy: Diozin
The Ayency considers the waste generator to have primary
responsibility for complying with th. rule’s notification
requirement. For example, where both a waste generator and
a waste hauler did not notify the Agency prior to disposal of
TCDD-contaminated wastes, the waste generator should be
charged with a notification violation.
Exempt ions
Persons holding wastes defined under €his regulation
as ICOD—contaminated wastes may test their wastes for ICOD
using the TCDD detection methodology established by the EPA
Dioxin Monitoring Program (capillary column gas chromatography
interfaced with high resolution mess spectrometry). If this
testing shows that the wastes contain no detectable TCDO,
the waste holder is not subject to the regulation. (See 45
Federal Register 32683, May 19, 1980, ‘The Analytical Methodoiogy
for Testing TCDD. ”)
TSCA Co.pliancelEnforcanent - - Guidance P nual 1984
-------
Appena].x fort ‘t Mspous Policy: DEarth
- 5-
PART
II - DETERMINING THE APPROPRIATE LEVEL OF ACTION
Final Acti
ons
The first step in p’anning an enforcement response to a
violation of this regulation is to determine the appropriate
ltvel of enforcement action. If, after a full review of the
Investigation flIt, Regional enforcement personnel determine
that a violition of the rule has occurred, enforcement alter-
natives include notice of noncompliance, civil penalty,
Injunctive relief or criminal action.
Notice of Noncompliance
Due to the toxicity of TCDO and subsequent seriousness of any
noncompliance with the requirements of this regulation.
few violations of this regulation warrant only a notice of
noncomplIance. Notices of noncompliance are appropriate
for violations coostituting cnly minor or technical Infractions
of this rule and then only if there is no pattern of more serious
ciolatlons or if no previous notice of noncompliance has been
issued to t e company. Examples of violations which warrant Such
notices include the following:
• Repeated failure to use certified mall In making
a notification;
- Repeated failure to supply noncritical information
either in the notification or to Agency personnel
requesting the Information. The Agency recognizes
that not all such omissions are deliberate and its
initial response to an Incomplet, notice will be to
telephone the submitter and attempt to obtain the
missing Information. Only if the submitter continues
to fall to provide the required information will the
notification be considered Incomplete.
— Failure by Vertac to provide results of analysis
of its post-Nay 12. 1980. wastes within two weeks
of the date the analysts are completed.
Civil Penalty
The Agency anticipates that an administrative civil penalty
will be an appropriate response for most violations of this
regulation which do not meet the criteria for a notice of
noncompliance, or the criteria for Imposing criminal sanctions.
Additionally, if a respondent falls to achieve compliance
during the time period specified In the notice of noncompliance,
a civil penalty is the appropriate response. Civil penalties
TSC& A-V GUidance a1 19 4
-------
Appendix nforcnt Respon.. Policy: Dioxin
—7—
should be assessed according to the guidelines in Part III
of this policy. Regional enforcement personnel must consult
with the Compliance Monitoring Staff of the Office of Pesticides
and Toxic Substances and with the Office of Legal and Enforc aent
Counsel prior to instituting a civil or criminal action. For
additional guidance, see “General Operating Procedures for the Civil
Enforcement Program” (July 6, 1982) and “Case Referrals for Civil
LitigatiOn” (September 7, 1982).
Injunctive Action
Injunctive action, under ISCA or RCRA, may be appropriate as an
additional safeguard In protect ng the environment from the hazard
presented by violation of this regulation.
Although Section 17 of ISCA can be a very effective tool in obtaining
compliance, it is also more resource intensive than a civil p tnalty
action. In addition, It has Deen tne Agency’s experience that a
civil penalty action is usu 1lv sufficient to obtain compliance.
For these reasons, the Agency oelieves that the use of Section 17
remedies Should be limited to those instances where, in the
judgment of the egion , a civil oenalty action will not result in
swift enough compliance to protect human health or the environment
jr where there are good reasons why penalties are not appropriate.
njunctive action is appropriate in the following cases:
o To prevent a company or person from violating the
ISCA f 6 regulation by moving or disposing of con-
taminated waste without notifying the Agency 60 days
in advance as required by the rule.
o lo order a clean—up of improperly disposed TCDO—
contaminated waste under the authority of RCRA
003.
The most probable subject of an Injunction under Section 17
,f ISCA would be a person with a significant amount of 2.3,7,8-
DO-contaminated waste who had disposed of some of It without
notifying EPA and still had some of the waste which EPA had
reason to believe night be disposed of without notification.
The ob ec nf the injunction would be to prevent further disposal
witn ut notification.
:n unctive actions must be initiated in Federal District Court by
trie iepertment of Justice (DOJ) and may be referred to 00.1 only
Oy tne . .sc.ciar.v Administrator (AA), Office of Legal and Enforcement
uncel (OLEC), or the AA’s designee. (If necessary, however, the
is ‘elegated the authority to obtain an emergency temporary
.strainlng order from the U.S. Attorney to prevent Imminent isposa1
if the waste without notification.) Requests for Injunctive actions
:flould be sent to OLEC with a copy to the Compliance Monitoring
staff which will review the technical evidence and inspection pro—
.edures used to support the case.
TSC& Co.pliance/Reforce.ent — A -.98 Guidance P nua1 1984
-------
Appendix Enforc nt R aponse Policy: W ozin
-8-
For additional guidance see the following OLEC memoranda, General
Operating Procedures for the Civil Enforcement Programs (July 6,
1982) and Case Referrals for Civil Litigation (September 7, 1982).
Criminal Sanctions
Criminal sanctions pursuant to Section 16(b) of ISCA are the most
serious sanctions availabl, for violations of the Dioxin rule.
Accordingly, criminal sanctions will be sought In situations
that -— when measured by the nature of the conduct, the compli-
ance history of the Subject(s) or the gravity of the environmental
consequences -— reflect the most Serious cases of environmental
misconduct.
Several factors distinguish criminal cases from administrative
or civil actions. First, criminal sanctions will ordinarily
be limited to cases In which the prohibited Conduct is accom-
panied by evidence of “guilty knowledge” or Intent on the part
of tne prospective defendant(s). ISCA Imposes criminal penalties
Only for violations of the Act which are done “knowingly or will-
fully .
A second factor to consider is the nature and seriousness of the
offense. As a matter of resource allocation. EPA will investigate
and refer only the most s Crious forms of environmental misconduct.
Of primary importance to this assessment is the extent of environ-
nental contamination or human health hazard that resulted from, or
was threatened by, the prohibited conduct. Also of significance
is the impact, real or potential, on EPA’s regulatory functions.
Third, the compliance history of the subject(s) of a potential
crimina’ case Is important. Criminal sanctions become more
appropriate as incidents of noncompliance increase. While not
a prerequisite, a history of environmental noncompliance wiTr
often indicate the need for criminal sanctions to achieve
effective individual deterrence.
The Criminal Enforcement Division of the Office of Legal and
Enforcement Counsel maintains the primary role in the investi-
gation and referral to the Justice Department of allegations
of criminal misconduct. (See “General Operating Procedures for
the Criminal Enforcement Program” memorandum from , October
2, 1982.)
Multiple Remedies
There may be instances where a particular situation will present
facts that suggest that more than one final action Should be taken.
The purpose of this Section is to outline when multiple remedies
are appropriate.
TSCA C 11aace1 itorc ent guidance nua1 I 984
-------
Appendix nforc&nt Rasponae Policy: Dioxin
-9-
Criminal Sanctions
Simultaneous civil end criminal enforcement proceedings are legally
permissible. United States v. Kordel , 397 U.S. 1, 11 (1970), and on
occasion are clearly warranted. However, separate staffs will be
appointed with the Initiation of a grand jury investigation, if not
before. Further, the pursuit of simultaneous proceedings provides
fertile grounds for legal challenges to one or both proceedings
that, even If unsuccessful, 1ll consume additional time and
resources. Thus, parallel proceedings should be avoided except
where clearly justified.
While simultaneous administrative/civil and criminal enforcement
actions are legally permissible, they will be the exception,
rather than the rule. As a general rule, an administrative or
civil proceeding will be held in abeyance pending the resolution
of the criminal Investigation. One exception to this general
rule will be those situations in whi:h emergency remedial
response is mandated.
If the Region l considering the i ptiofl of simultaneous civil and
criminal sections, the Region must consult with Headquarters CMS
and OLEC.
Notice of Noncompliance
In ‘ eneral , a notice of noncompliance should not be usea in con-
junction with any other final remedy. Where a particular Situation
presents several violations, some of which would merit a notice
of noncomp 1 iance, while others would merit civil penalties, no
notice of noncompliance should be sent. Instead, an administrative
enalty action Should be initiated, pleading all violations. The
Region may, however, choose not to assess a penalty for minor
infractions.
Civil Administrative Penalties and Specific Enforcement
‘he cr,teria Outlined above already anticipate that civil penalties
no specific enforcement will be used sequentially. There may,
nowever, be instances where the concurrent use of these penalties
s appropriate. tf the Region deems this to be appropriate in
any case, it should consult with CMS and the Department of Justice
nefore bringing either action.
TSCA Comp1iance1En.forc eut A—100 Guidance ) nua1 1984
-------
Appendix
- 10
Mspomae Policy: Dioxin
PART III - ASSESSING AN ADMINISTRATIVE PENALTY
SUmsary 0? the ‘enalty ‘Ol1cY
Cilcu at1on of the Gravity Based Penilty (GBP )
The GBP, a function of the nature, extent, and circumstances
of each violation, Is based on the followinq matrix:
Circumstances (Probability
of asaoesl
Extent of Potential Damage
A f B C
MAJOR I SIGNIFICANT MINOR
As a first step in locating a specific violation on the
matrix, the nature of the violation must be classified. A
violation may be either chemical control, control-associated
data gathering, or hazard assessment in nature. No violations
of this regulation are hazard assessment violations.
Chemical control violations of this regulation include:
o Noncompliance with proh1b t1ons violations :
- Violation, by Vertac or other parties, of the
prohibition against removal for disposal of Vertac’s
pre-May 12, 1980 TCDD-contamlnated wastes;
o MarKing violation :
- Yert*c’s failure to post Its Jacksonville facility as
required by the rule.
High Range:
2
I s.o o
20,000
S17,000
13, 0 0Q
S5,000
3,000
MTd Range:
4
I
Range:
6
15,000
10,000
10,000
6 OOO
1,500
1,000
5000
2,000
3,000
1,300 j
0fl
200
rc — t A-1O1
Guidance t flU8L 1 54
-------
Appendix
11 —
En.forc ønt Reeponse Policy: Dioxin
Control associated data gathering violations include:
o Notification violations :
- Failure of persons subject to the regulation to
notify EPA 60 days prior to removing TCDD—contaminated
wastes for disposal;
- Submitting inaccurate Information in a TCDO-
contaminated waste disposal notification; and
- Falsifying information in a TCDD—contaminat.d waste
disposal noti fi cation.
— Failing to provide all required information in a notice
or failing to provide the Information to the Agency
when requested to do so by a follow—up telephone call or
later.
— Late notif1cati n
Extent
egional enforcement personnel should determir e the extent of the
violation based on the amount of TCDO-contaminated wastes involved
n tne violation, as follows:
55-gallon drums _______ ______
MaJor: 500 or greater, or
amount unknown
Gallons! ,
25,000 or greater,
or amount unknown
________ Pounds. . /
100,000 lbs or
greater or amount
unknown.
Greater than 50 but 600—100,000 lbs
less than 25,000
50 or less 200-600 lbs
Circumstances: Ranges
The range of chemical control violations should be classified as
fo 1 1 ows
High Range:
) evei 1 2)
Medium Range: MarKing violations
Le’ eis 3 4 4)
onconpliance with prohibitions
Si gni ficant:
Minor:
Greater than 1
but less than 500
1 or less
A 55— allon irum is filled to a 50—gallon capacity.
/ The amount jf dry powder that will fill a 55 gallon irum
is approximately 100-600 pounds.
TSCA Coapi IancefEnforcanent
A—102
Guidance P nua1 19S4
-------
Appendix Enforciut Re.po*.e Policy : Dioxin
— 12 -
The range of control associated data gathering violations
should be classified on the clrcua,tances axis as follows:
High Range: Notification violations such as falsification,
(Levels 1 & 2) nonreporting or omission of important
I nformati on.
Medium Range: Testing violations and notification violations
(Levels 3 & 4) such as reports more than 30 days late but
before actual disposal.
Low Range: Minor notification violations.
(Levels S & 6)
Circumstances: Levels
Regional enforcement personnel should determine the level of
circumstances of the violation based on the following criteria:
Waste from production
of 2.4,5..TCP and its
pesticide derivatives
or mixture of both
types of wastes in Un -
known proportions.
Waste from production
on equipment previously
used in the protsuction I
of 2,4,S—TCP or its
pesticide derivatives.
Mon-compliance
with prohibitions
Level 1
Level 2
Marking
fl ol at ions
-
Level 3
Level 4
Mat i flcation
Violations
Falsification or
over 60 dayS ldte
or nonreporting
3O—6i days l. te
Minor Omissions
I
!
— — — Level ! f — —
— — — Level 3 — — —
— Level 5 — —
See page 16 - 17 for a more detailed discussion of the Information
n the chart.
TSC& Co pl1ceI forc eut Guidance ! nua1 1984
-------
Appendix Enforc .nt Relponae Policy: W.oxiu
— 13 —
Multiple Penalties
Multiple penalties may be charged to the same person or business
entity in the following situations:
o One person or business entity commits several
separate violations.
o One person or business entity repeats the same violation.
All violations of this regulation are Considered to be
one-day violations.
For the purposes of this penalcy policy, a violation 1 repeated
if it occurs on separate days. or example, If a waste holder
falls to comply with a prohibition against disposal, and shies
waste twice In one day, one violation should be Charged. however,
if the waste holder ships on two days, two violations should be
charged.
ustiitent Factors
The adjustment factors discussed in the ISCA Penalty Policy
pages 9—17 shOuld be applied as appropriate to violations of
this regulation.
Detailed Explanation of the PoiTcy
This portion of the policy explains the reasons for the specific
structure of the TCDD-contaminated waste civil penalty policy
and provides detailed instructions on Its use.
As noted previously, the gravity based penalty (GBP) is a
function of three factors: nature, extent, and circumstances.
The basis for classifying each of these factors appears below.
TSCA cplianceI iforc ent A-i 04 cuidance P nuaI 1984
-------
Appendix Enforceamnt Response Policy: Moxin
- 14 -
Nature
To determine the nature” of a violation, the ISCA Civil Penalty
System defines three types of TSCA violations:
o Chemical control violations;
o Control-associated data gathering violations; and
o Hazard assessment violations.
Chemical Control Violations . Noncompliance with prohibitions
and marking requirements are chemical control violations.
Chemical control violations attempt to minimize the risk
presented by a toxic substance by placing constraints on how
the substince Is hindled. This rule places constraints
on the handling of TCDD-contaminated waste in the following
manner:
o waste holders must comply with the Agency ’s
re%trlCtlons concerning disposal; âhd
o Vertac must comply with the specific requirements
set out in this rule (See p. 2—3 for complete
description)
Violat ons of these requirements are thus chemical control
violations by nature.
Control—Associated Data Gathering Violations . The notification
and testing requirements develop information necessary to allow
tne EPA to assess and control the risks presented by TCDO-con—
taminated wastes. On that basis, violations of the notification
requirements and of the testing requirements qualify as control-
assoctated data gathering violations.
Extent
‘he extent axis of the GBP matrix measures the degree, range
or scope of the harm or potential harm caused by the violation
to human healtr or the environment. Since larger amounts of
TCDO-contaminated wastes have more potential to cause harm to
human health and the environment, the quantity of waste involved
oetermifles the extent of harm or potential harm.
? L Ccsp].iance/Reforce.ent Guidance P nual 1984
-------
Appendix Enforc nt Ruponae Policy: .oxiu
— 15 -
Three weight/volume classes have been chosen to correspond to
the three extent categories of the TSCA Civil Penalty System.
The Malor category Is placed at 500 drums because Vertac stated
that ts current 2,4-0 production generates a monthly average
of 500-700 drums of waste. The Agency considers the amount of
waste produced by Vertac in 2,4—0 production to be a reasonable
basis for the Major category because equivalent amounts of
other types of wastes regulated by this rule, such as 2,4,5—TCP
waste for example, will contain a higher concentration of
TCOO and thus a larger amount of TCDD. The Agency considers
this amount extremely serious, as indicated by the promulgation
of this rule, which is partially aimed at placing constraints
on this particular waste.
The Minor category is placed at 1 drum, which is currently the
minimum quantity of storage and transfer.
The Significant category encompasses the quantity between the
major and minor categories, from greater than drum to less
tian 500 drums. The definition of t e significant category is
a direct consequence of the definition of the major and minor
extent categories.
In cases whefe amounts cannot be determined, the Major extent
category shall apply.
Circumstances
‘ he circumstances axis of the GBP matrix reflects the probability
‘or harm resulting from a particular violation. Regional enforce-
ment personnel Should place violations into ranges based on the
category of the violation. The assignment of level is based on
the elative concentration of TCDD in the waste based on the
type of pesticide production involved.
Crcumstance : Ranges . The purpose of the chemical control
e u 4 rementS of this regulation is to avoid the harm caused by
exposure uf tie environment to TCDD-contam,nated wastes. Vio—
at1ons of the chemical control requirements are described in
this policy as ‘honcompliance with prohibitions” an “Markin9.
these Categories are classified as follows:
TSCA Ca.pliaflce/ElLforCeaent - A-106 — Guidance ) nual 1984
-------
Ajpendix Enforc i1t Response Policy: Dioxiu
— 16 -
a Violations involving noncompliance with prohibitions
are placid in the hiqh range of the circumstances axis.
The Agency has placed restrictions or prohibitions
on disposal for the purpose of preventing health or
environmental harm from TCDO—contaminated wastes.
Noncompliance with prohibitions is very likely to result
in direct or indirect environmental contamination and
potential harm to human health and the environment.
o Marking violations are placed in the medium ran e .
There is a significant chance that tne falTure to
post the Vertac facility would result In harmful
exposure to dioxin because there would be no indication
to persons unfamiliar with the situation that TCDD —
contaminated wastes are stored on site.
Thi control-associated data gathering violations 3f this
regulation damage the Agency’s ability to make an assessment
of nazaro. These violations are described as 4otlfication. ’
ThESe violations are classfied as follows-
o WIth Notification violations, the Agency is not
informed of proposed disposals and cannot control
tne substance to avoid harm. Since the Agency’s
ability to monitor this chemical has been seriously
impaired by lack of notification, violations of this
type are classified as high range n the circumstances
axis.
o Late notification of more than 30 but less than 60
days is placed in the medium range .
o Minor omissions of information on the notification
and notification less than 30 days late are placed in
the low range.
circumstances: Levels . The leve assigned to a violation
in each range !or both chemical contro and control-aSSoc ateO
iata gathering violations is based 3fl the type.of pesticide
roduct1on which generated the waste involved. There are
two types of wastp subject tO tne notificotion requirement:
o Waste from the production of 2,4,S-TCP and ItS
pesticide derivatives.
o Wastes from the production of other pesticides
such as 2,4-0) if they are produced on equipment
previously used to produce 2,4,5—TCP and its pesticide
den vat ives.
TSC& Iiance1 oz c1p. mnt - Guidance I nua1 I9 4
-------
Appendix Enfotc nt Response Policy: Dioxin
— 17 —
Wastes generated in the production of pesticides on contaminated
equipment are less contaminated than wastes from production
of 2,4 ,5—TCP or Its pesticide derivatives. Therefore, a
lower level on the circumstances axis is assigned to violations
involving wastes produced on contaminated equipment. The
following background regarding the formation of TCDD in the
production of TCP and its pesticide der1vatives will explain
the basis for this distinction.
TCDO forms during the process of manufacturing 2,4,5-ICP. TCDO,
because of its toxicity. is on undesirable contaminant, and most
manufacturers attempt- to remove the substance from their product.
As a result. wastes from the production of 2,4 ,5—TCP contain
greater amounts of TCDO than the final product, depending on
the success of the process used to remove the contaminant.
The Z,4,5-TCP is processed into a 2esttclde by the Same name
and is also used as a stertlnr material for other pesticides.
These pesticide derivatives of 2,4 ,5—TCP are contaminated with
TCOO because the original starting material was contaminated .
However, their degree of contamination depends on how much
TCDD was removed from the original TCP.
in some cases, pesticide producers manufacture 2,4—0 immediately
after making 2,4,5-TCP. esidues of TCDO-contaminated 2,4,S-TCP
left on the equipment cause t e contamination of the 2,4—D
with TCDD. However, the level of contamination Is lower
than that found in 2.4.5—TCP and its pesticide derivatives.
Addit onally, with continued use of the equipment, the
concentration of ICOD contamination decreases.
Inus, if the waste is directly Cc)ntUiilriated by production of
TCP or its pesticide derivatives, the concentration is higher.
so a higher level is assigned. If the waste is Indirectly
contaminated by production on contaminated equipment, the
concentration is lower, and decreases w th continued use of
the equipment, so a lower levei in the range is assigned.
Therefore, a two—part criterion . ased on expected contamination
levels is the basis for determ rilng the level category of
the circumstances axis. (See chart on page 12.)
Multiple Pena Iti eS
egional enforcement personnel -,Ould assess multiple penalties
n tne following situations:
o A separate citation charce or the violation is
found 1 n this penalty polcy.
me violation Is repeatec.
TSCA Co.pliancefEnforc ent A-108 )knual 1984
-------
Appendix nforc mnt Iespoiiae Policy: Dioxin
- 18 -
Assessing penalties only for violations named in citation
charges ensures that penalties are issued only for discrete
and independent violations.
If a Person or a businesS entity repeats an act of violation,
he should be assessed a multiple penalty, so that he Is
penalized more than a one—time violator.
Definition as One—Day Violations
The Agency has decided as a matter of policy that each category
of violations of this regulation should be treated as one—day
violations for the following reasons:
o Noncompliance with Prohibitions on Disposal
This policy defines this violation as a one—day violation to set
limits to the act of violation. Shipments or batches on the
same day are not considered separate violations, but contribute
to the total amount of material disposed which determines the
extent of the violation.
o NotifIcation Violations
The regulation requires any person who wishes to c ispoSe
of TCDD—contaminated wastes to notify the Agency 60 days prior
to disposal. This policy defines the violation as occurring on
Pie one day, 60 days prior to a iisposal, on which a notification
violation nay occur. However, this violation is repeated if
disposal occurs again.
Two disposals that occur in one day constitute one violation.
TwO disposals that occur on two days constitute separate
violations, whether they take place on consecutive days or
whether they are separated by weeks or months. The extent of
the violations Is determined by the amount disposed of on a
given day. If two types of waste are disposed of on the same
day, the penalty Is calculated as though the entire disposal
was of thC type of waste that merits the higher level penalty
(see discussion of the types of waste pages 16—17).
o Marking Violation
jnder estabHched Agency poiicy all marking violations
are considered one-day violations. Therefore posting the
Vertac facility will be considered a one—day violation.
TSC& A109 Gui d ce P nuaL 19S4
-------
Appendix nfore —nt &e.poo.e Policy: Moiiu
— 19 -
Appendix 1: Hypothetical Cases
HYPOTHETICAL I
Case
The ABC Chemical Company did not notify the AA for Pesti-
cides and Toxic Substances when It shipped 1,750 drums of 2,4-0
wastes produced on equipment used previously to manufacture
the pesticide 2,4,5-TCP. The shipments, each consisting of
250 drums, took place over 7 days.
Action
Region Z investigated anonymous tip and found that disposal
of wastes subject to the regulation had taken place without
notification of the Agency as requ1re .. Region Z assessed a
penalty of $91 .000.
Explanation
Using the one day equals one violation criterion, Region Z
determined that 7 violations had occurred. Regional enforcement
jiersonnel used the following factors in finding the total
penalty:
The amount, 250 drums, placed the violation in the
significant category of the extent axis.
2. The category of violation, failure to notify, placed the
violation in the high range of the circumstances axis.
3. The type of waste, equipment contaminated waste,
placed the violation In the level 2 of the circum-
stances range.
he penalty at the intersection of the significant extent
axis and the high circumstances range, level 2, is $13,000.
Seven vIOidt OflS, multiplied by $13,000 produced the total
enalty, $91 ,000.
HYPOTHETICAL 2
Case
A company 1d not notify the Agency before disposing of 600 arums
•f ?,4,5-t waste and 300 drumS of 2,4—0 waste.
Act i on
egional enforcement personnel charged the company with failing
to notify the Agency, assessing a total penalty of $38,000.
TSCA Coap11ance/Euforc ent A-l I. o Guidance 1 nua1 1984
-------
Appendix Enforcaut Re.pon.e Policy: Dioxin
- 20 -
Explanation
Since a mixture of waste was Involved, Regional enforcement
personnel assessed two violations, as follows:
2,4,5—1 waste: Major category, extent axis
High range, circumstances axis
Level 1, circumstances axis
2,4—0 waste: Significant category, extent axis
High range, circumstances axis
Level 2. circumstances axis
Total Penalty: $25,000
1 3,000
38,000
HypothttiCll 3
Case
A company which manufactures 2,4,5—1 decides to manufacture 2,4—0
on-the same equipment. Before beginnIng 2,4-0 manufacture the
comany attempts to clean the equipment by rinsing it with water
into the city sewer. The company did not notify the Agency of the
disposal because it arguea that the ‘evel of ICOD in the rinsate
was not detectable, even though the company did not test either
the rinsate or the residue on the equipment.
Action
CMS targetted the company as part of Its routine compliance
monitoring program. The inspection uncovered the violation
and a civil penalty of $17,000 was assessed.
Explanation
The company is in violation of the rule because it did not tiotify
the Assistant Administrator of the disposal, r quallify for the
exemption by testing tne waste. Based on production records and
cleaning practices, the volume of rinsate was estimated to be
approximately 20.000 yallons. Therefore, extent of the violation
s siyn1f1cant’. The waste In question resulted from the manufac-
ture of 2,4,5—1, so thC circumstance of the violation is Level 1.
According to the matrix the appropriate civil penalty $17,000.
TSCA C 1ianca/T iforc ent — A-ill ) nua1 19 4
-------
Appendix Xnforcsnt Response Policy: Ilioxln
TSCA QapIianceflnforce .ent A-112 Cuidsnce ikausi 1984
-------
Appendix
Penia’Ity Policy: PCI.
PCI olty Pe& ,
Int roduction
On March 10. 1980. the Agency issued
a TSCA Clvii Penalty Policy
meniorandum. That document
tmpla ts a system for determining
penalties In .dminlsttutivs actions
brought pursuant to Section i. of the
Twdc Substanai Control Act (TSCA).
Under that system. penalties are
d.termnthad In two stagen (1)
Detenninatton of a sv1ty based
ty ’ (GaPs , and (2) adJustments to
the svtty based penalty.
To d.twmlns the gravity based
penalty. the following incense affecting a
violation’s gravity are considareth
• . • ‘sa . at vtolatlas.
• The extear of t. - “ ‘ bars that
ceuld result from a v violadam. end
• The _ La.00S ’ of the v’&’ ’-
Thai. factors ax. Incorporated on.
matrix which allows dstsrmlnsticO of
the appropriate levity hued penalty.
Once t*i gravity based penalty has
been dM ukIIiL upward or downward
adJustments to the penalty amount ax.
roads in consideration of these other
• CiIpsblMy . _____
• History of sush vlola
• Ability to pay. ____
• Ability to esetines Ia b ues sad
• Suth oths mettme en Jusft say
be TSCA Civil Penalty Policy system
provide, a framework for the
d vs1oprne’fl of Individual penalty
guidances for each rule pciinlrted
under TSCt This docnm t sets forth
Agency policy fat the use of the CIP
Matrix to sariS penalties for specific
violations of the regulations regarding
polychLortnatsd biphenyla ( s ). These
regulations appear .143 FR 7150 (Feb.
17.1978) and 44 PR 31514 (May 31. 1g 9).
The document also will exp n where
multiple violations should be charged.
and how penalties uhould be determined
for such violations.
This policy Is being Issued amen
Interim guidance for the determination
of penalties foe violations of the PCI
regulations. The Agency will review Its
experience with this policy before
Issuing a final penalty policy for the PCI
rule. The final policy will also address
any special consIderations which the
Agency decides should be used to apply
the .dJus .t factors (e.g.. removing
benefits om non-compliance.)
A summary of the po11cy appears
tmm.dlately below th, applicability
section. That . .sn’ ’y Is followed by a
detailed explanation of the policy.
Applicability
This policy Is Immediately applicable
and should be used to
penalties for all a .rh1,tI.trtftvs actions
concerning PCI. instituted after the
data of th. pOlicy. regatdl.ss of the date
of violation. PeudLg aisle should be
reviewed to determine whether th.
penalty calculated mdi this policy Is
lower than lb. penalty In the civil
complaint If this policy yields a lower
penalty, an . maMherit to lb. complaint
should be mw 4 to substitute the lower
penalty. This policy should not be used
to rite, penalties In erdst*ng actions. No
came should be settled for an macsat
high than the penalty which this policy
would yield.
&mwwiyofth,I iLky
The gravity based penalty (GBP .
bssed on the nature, . xtsat . and
circumstances of the violation. Is found
from th. following matrirc
1 I
L1J
A
5
C
.
:
• i
— —
t
2
3
4
s
so oe
*000
11.000
10.000
ecos
sun
13.110
10.000
lOIS
3005
11.000
3. 1 00
1.000
1.000
en
L -
Since the purpos. of the .=
regulation Is to prevent additional PCI.
from entering the environment, all
violations of It are chemical control
violations by nature. Thus, the nature Is
th . same for all violations. To use the
CBP matrix to determine a penalty for.
PCI violation. It is necessary to
determine the extent and circumstances
of each violation.
The extent Is determined by the
amount and concentration of the B
material involved. The total weight of
PCI material should be ascertained for
each violation of the rule. That weight
should then be reduced. depending on
the concentration. as follows
TSC& GospltaocelEntorceaent
A—i 13
Guidance )b pi 1 1984
-------
Appendix
Pen*lty Policy: PCBs
Table U
Concentration Reductions
(1) 50-48 5 ppm—70% reduction.
(2) soo-e.aoo ppss—8O% reduction.
(3)10-40.980 ppes .—20% reduction.
(4) over 100.000 pp. .—no reduction.
Exceptions: This reduction step doss
no: app 1 y In the following
d uastance s :
(I) Violations of 40 R 751.1( d) (road
oiling, coating. duet control);
(U) Wher, the violation consists of fathug
to test to qualify for an suthoitsatios: or
(IU) For solids, where th. unit of
messuremset Is other than the actual weight.
Extant categories: The total weight
figures. reduced by the concentration. if
applicable. are used to determine extent.
u follows:
Table U I
(A) Malor—S000 kg or mars.
(B) Slgniflcant—1000 kg. more, but less
than 5000 kg
(C) Minor—Len than 1000 kg.
Aitemotive measures: If weight Is not
available. use these siternative
measures:
Table IV
(A) Mojoi
Liquid
(a) 1100 gallons or more, or
(b) a contamtn ted area of 750 square feet
or more. or
(c) 300 or more large capacitor..
Non-liquid
(a) 100 or note fifty-five gallon drums
containing tamAnatad soil, rags. debili or
small ca c torn or
(b) 5 uaor drained taa.fosmere. or 100
or more empt ’ ruuaa w i1ch once contained
PCB thud. or a y other PCB solids having a
volume oZ 75A fl OiC feet or more.
(B) Significan&
Liquids
(a) 220 ga oca or more but lan than 1100
8ailonS , or
(bI A contauninuted area of 130 square feat
jr greater. out lesi than 750 square feet. or
(cj 80 large capa tore or more, but l is a
than 300 large capacitors.
Non-liquids
(a) 20 or more, but tees than lot) fifty-five
gallon drums containing contaminated soil.
rags. debris or small capacitors.
(b) 3 or more, but l o u than 25. drained
transformers. or more than 20. but less than
100. empty drums which once contained PCB
fluids, or any other solid having a volume of
150 or more, but Ie 5 than 754) cubic feet.
IC) Minor:
Liquids
(a) Lou tban gsImons. or
(b) A con*-.itost.d ares of less than 1 0
square feel.
(c) Less 85 large capseitan.
Nea-liquith
(a) Lass than 20 fifty-five gellos dusas
ooe htbig oos ated aeiL r . deinls or
sash c.p.cltorn or
1W Lees than 5 draIned trsoefoanses, 30
flfty-flve gallon dreas whish psaviosoly
oont.lned PCB fluids, or any other PCB solid
a volume of a,,.--’ila toly 150 cabIn
Spills into water. food or feeds. Any
PC8 disposal which reeelts In
contamination of ssrfaos or çound
water, or food or feeds Is always major
In nx nnt
zms ncew (Probability Jo, Damage)
To determine which level on the
cfrct nstancie a s to see. classify each
violndce of the reguladcn Into one of
tnnae eight categories of vtolatlo
(1) D cmi
(2)
(3) SIorega
(4) ManufacturIng
(5) ProcessIng
(5) DIstribution
(flU..
(8) R*iardk.splng
After claulfylng the violations.
determine the level on the
stances vds ban the fofl
Table V
Lovei
(1) he or disposal.
(2) ) . s win
( PrecsssZng.
(2) DIstribution.
(3)hinp opar use.
Vediuw ,ua
vsh th,e
(1) MaIct , tarage v4 a
(2) Malor recordk.eptng violations.
— fsctiine . .
(31 Major marling vtelstlou.
Lav.ifawr
(1) Malor rscordks.pins violations, ass
stange facilities.
Low m
L.vsh w
(1) FaiLure to date PCB lieu. placed In
storage.
2) Minc’ or.p wtoladou.
(3) MInor marling violations.
L.eaI s
(1) MIst recoidheeping violations. —
(2, Failure to use ‘N. PCBS’ lable at
Finding the CBPpenoity. The extent
and circumstances, as determined
above, will determine a penalty amount
on the GBP Matrix, Table L This figure
shoulu o entered on line one (1) of the
TSCA CoaplianceTEnf5rceasent
A—i 14
uidance Manual 1984
-------
ADpendix
Peiialty Policy: Fda
Clvii Penalty Assessment Worbh.et.
(hereinafter, “worksheet”) attached as
Appendix A. The other plushy factors.
such as aaIpabihty ability to pay, and
othsrs. .bauld be applied to the
deaalb.d in the TSCA evIl Penalty
Policy.
MiiLfpl. Vioktiani
Assess multiple violations a *ast a
singi. vloIat r In any of the following
drcums*. 11
(1) Thu violudass fall late mere thee ass
iiol*Uoa ash,...,.
(2) The v’olstiom are In ,ub.te ttoUy
dlftoreat inc.tiom or
(3) 1 e is sv±-e bat th. violatlas he.
bess camm*ttsd as rupr r 4 o ’ ’ or ha.
c ...iI.—’4 far mare than ass d.y.
If multiple violations are charged
t of n 4 4*we 01 rsp.stsd or
casdn A Mt the penalty will
nismefly be uloelstod the
p1oposth palty ‘-lIos. winch
In Table VI, below. fLaw.. . ir ,
the A cy o as Ito dlawstlom
either to chesge for wily one day. or to
charge as a strai it per day or per
v1oiado baN. ( Gap X n.. 1 ’er of days
or violado s). da r.idIeg on factors rsth
an bet.ndal . øusI harm, the uremiel
asters of risk pre.iuited . or other unique
T k V I
Slip t the total macsd
mesdais *tnc*est Uass thee two times
Ito afar — i t os ’y . (mess than 10
kg.) ge to slip 3. Ulsss too s the
— to the maler
. r ;yPsssth1O.O10ka.Lom
sar’en to .t • pom.Ity fr the C M. .
D lvtdstbspu.s ltybytb.es mbsro(ds ys’
sad ss on tins ass 01 the ____
( Appentth A).
Step 3; DIvide the amount from step ass by
the — ameent In the moser wi
catsgoly (5010 k J. (Round fr ’od to ass
dsdmel)
Step 3; Multiply the sm form step two
by the doder smouni from the G Mardx
— unt category. This Is th. total G
Step t Divide the . m ’sd fromstsp 3 by
the masher as’ days or violatiess Invo lved.
tar ibis daily amount as tin. mo of the
werkab.st ( Appssdhr A).
wwpa i d nof Policy
Nature
Since the purpose of the Pd
regulation Is to pusvssat fast
lntrodaactioa of PCB Into the
unvirasmasm. this regulation lea
‘I â aid b. .asat ito. it the
p tp calmI.*as . hessd — repsisd i” ”
th the ‘ —“sar .i On. sot th. bib.st
th*e_ OIdoyL
chemical control regulation. as defined
by the T8CA Civil Panalty Policy.
Accordingly, mast violations of this
regulation em d i 0 i control
violations. Th. only exception would be
violations of the reoiw mspthg
tSqWN ts. which as. control-
associated data.gsthaieg In nature. The
Agency has t kwi this Into account In
designing a specific policy for
penalties. The definitions of the ‘ exteat”
and “dronms’ ”cn” cat.gos4u below
reflect the nature of thes. violations.
£vtent
Because the regulations are
chemicaJ control and control-assocIated
data-gethsrlng In nature. the ‘eator the
amount of Pd containing material
(hereinafter, “Pd materiel”) involved In
a pmrtlcuiar violation. the more likely it
Is that berm will result from the
violation of the ._ rules. For this
reason. the amount of Pd material
Involved na particular Incident will
determine whether the mato
or m iont category
should beused Ind e riv i n g a penalty
from the ( Matrix. 1nce the
___ of the Pd material
Involved In an. incident will also affect
the potential for harm, this factor must
also be considered in detor nin4ng which
extent category Is applicable to a
rtfrnla violation.
Amount of Material Involved
The mast bvloua measure of the
amount aI material Involved in a
violation Is weight Therefore. the
weight of the P( material Involved as
violation Is th, primary determinant of
the extent catgg. . to be used to find
the G . To be consistent with the three
extent categories of the CBP Matrix (I.e.
major, significant, and minor), three
weight d...ss have been chosen to
define th. extent of. Pd violation.
The.. classes ate as follows:
(A) Msjas 5000 klloçsmo or more.
(B) Jø’ ”t B.tw,.a 1000 and 5000
k sma
(C) ?.Oaar Lass than 1000 kiloçams.
The minor category weight wa,
°fi d as less than 1000 kilograms
because this Is slightly less than the
amount of PCB in an average
transformer. Since a major portion of the
PCBs In existence are In transformers, it
Is essential that these Items be disposed
of properly. Accordingly, the Agency
defined the minor category as an
amount of l Bs less than the contents
of an average transformer, so that most
transformers would fail In the significant
category. The Agency believes this will
encourage the proper disposal of
transformers.
k -us
TSCA vepliauceIIa forcameiit
Guidance Manual 19 ö4
-------
Appendix
Penalty Policy: PC3
The ma lot category weight was
selected at 50 kg. kilograms. This is
slightly less than the contents of five
average size transformers, and
corresponds to the fact that the penalty
for a maior improper disposal is five
times larger than that for a minor
improper disposal; that is. $25.000 versus
$5,000. (As will be seen below. Improper
disposal is always level one on the
circumstances axis.) The significant
category is defined aa 1.000 kg. or
greater. but less than 5.000 kg. This
definition is a direct consequence of the
definition of the other two categories.
Units Other Than WeIght
The Agency realizes that ther. will be
situations where the number of
kilograms of PCBs involved La not wily
determined, in htany cases, other units
of measurement (e.g. gallons. cubic feet.
etc.) may be more easily obtained.
Additionally, some violations will
involve non-liquid PCB material, usually
as a result of liquid PCB. being spilled
into cr cleaned up by absorbent solid
materials. Such solids will often weigh
considerably more than liquid PCB.. If
the penalty for such solids were baud
on the weight categories outlined above,
the result, in the Agency’s opinion.
would be inequitable.
For the.. reasons, the Agency has
decided to define each of the three
extent categories by several different
units of measurement. Although these
units of measurement are not
necessarily equal. it is the Agency’s
opinion that they are generally
comparable.
A) /t Io jot:
Liquid
(a) l3 X) gallons oc more. or
(b) A contaminated area of 750 square feet
or more. or
(C) 300 or more large capacitors
Von-liqu id
Ia) 100 or tilOrS fifty-five gallon drum.
contaLniog conicuuneted soil, rags. debris or
small capaotors . r
(b) 25 or more drained transformer ., or 100
r more empty fifty-five gallon drums which
once contained PCB awd. or any other PCB
solid having a volume of 750 cubic feet or
more.
(B) SignificanL
Liquids
(a) 220 gallons or more, but I... than 1.100
ailofl*. or
(b( A contaminated ares of 150 square feet
or greater, but less than 750 square feet. or
(c) 00 large capacitors or more, but lee.
than 300 large capadtors.
Non-liquids
kI 20 or more but less than 100. ftfty.flvs
gallon drums containing contaminated soil.
rags. debris or small capacitors.
(b) 5 or more, but less than 25. drained
transformers; or more than 20. but less than
100. empty fifty-five gallon drums which once
contained PCB fluids. or any other solid
having a volum, of 150, but Isu than 750,
cubIc feet.
(C) Minor?
Liquids
lees than 220 gallons. or
(b) A contaminated area of less then 150
square feet. or
(c) Lass than 00 large capacitors.
Non-liquids
(a) Lass than 20 fifty-five gallon drums
containing contaminated soil. rags. debris or
small capacitors; or
bj Lees then 5 drained transformers. 20
fifty-five gallon drum, which previously
contained PCBs fluids, or any other
solid having a volume of approximately 150
cut. c teet.
The figures above are based on the
aasumptlon that the density of PCB
fluids is 10 lbs. per gallon. which is the
average density of high concentration
PCB’s. If the actual density of the fluid
involved Is known, then the actual
density should be used to convert the
volume of fluids Involved into kilograms.
The figure for capacitors is based on an
average of 36 pounds of fluid in the most
popular models of large capacitors.
Because it is often difficult to
determine the amount of PCB’s in a
solid, the Agency did not attempt tar
define the extent categories for solids by
trying to estimate how much solid PCB
material had the same amount of PCB ’s
as the average PCB transformer. Instead.
the Agency tried to maintain the same
aconornic incentives for solids as for
liquids. Thus, the decision to make 20
drums the cutoff point for the upper
limit of the minor category is based on
an estimate that the cost of disposing of
twenty 55 gallon drums, either empty or
containing PCB solids, is approximately
the same as the cost of incinerating the
liquid in one transformer.
In certain instances, the use of the
different units of measurement
discussed above would result in a
particular violation falling into more
than one category. For example, fluid
PCB material having a density less than
that of average high concentration PCB’s
may result in 250 gallons weighing as
itt1e as 900 kilograms. Using the gallon
measurements, this would be a
significant violation: but using the
kilogram measurement, this would be a
minor violation. In such instances, the
penalty should be based on the category
deturnwied by the actual weight. in
kilogrum . of the material involved, if
TSCA Como1iance/Enforc ent
A—i 1E ,
Guidance Manual 1984
-------
Appendix
Pei,*1 ty Policy: PCIe
this information is known. If the weight
is not known, the gallon measure should
be used.
Exceptions to Extent Category
Spills thin water. Where any Improper
disposal results In a contamination of
face or sound water, the extent will
always be considered major. Since It Is
virtually impossible to remove all PCB’s
from surface or ground water once a
spilt occurs. environmental harm is
almost assured. Because of this clean-up
problem, such a. spill creates•
substantial risk of human exposure.
either directly from the water, or
through the food chain. For these
reasons, the Agency believes that spills
into surface or ground water are always
major incidents. regardless of the
amount and concentration.
Spills into food and feed. Where any
improper disposal results directly In
contsmh’.tlon of food or feed, the
extent Is always major. If such spills are
not quickly detected. they will result In
direct hui, n exposure. Even if the
problem is detected before hwn.n , eat
the contaminat.d food. It is likely that
the cost of finding and destroying the
corztnrn.t.d products will be lugh.
Thus, the Agency believes such
incidents should always be considered
major in extent
Concentrution Adjustments
The Agency recognizes that the
concentration of the PCS materials is a
relevant factor to consider in
determinñig the amount of damage done
from a violation of this regulation.
Obviously, a spill othigh concentration
PCB ’e puts more contaminants into the
environment than a spill of low
concentration PCWs. Nonetheless.
because PCB’s can be toxic at very low
concentrations, a spill of a large amount
of low concentration PCB material could
cause widespread harm. Thus. a system
which would require th. total weight of
1 B material involved to be reduced In
direct proportion to the concentration of
that matenai would severely undermine
the regulatory scheme.
The problem a illustrated by the
following hypothetical Someone spills
2.000.000 lbs. (or 900.000 kg..) of fluid
containing PCBs at a concentration of
1.000 parts per million (ppm). I L in
calculating the penalty. the total weight
of the fluid was reduced by the direct
proportion of the concentration. leu
than 1.000 kilograms of PCB would be
involved for th. purpose of calculating a
penalty. As a suIt this Incident would
be considered minor In extent. and the
violator would not be fined more than
35.000. A penalty as small as this would
not reflect the potential for harm to the
environment and would create an
enormous economic Incentive far people
to improperly dispose of PCB at low
conosatradosts. contrary to the intent of
the regulations. __
To account foe the affect of the
conc*ntratlon of PCB liquids In
detsrii4uitig the . ‘r’t of a violation,
sad at the s time establish, a system
which doss not severely hIud the
agency. program. the following system
has been developed. To determine the
extant of probable damage for a
particular violation, the total amount of
PCB material Involved in an hv4d,nt
should be reduced by the pemautages
which appear below:
(1) 50-455 ppm.-7O% dWIca.
(2)500-9000 pç 1%
(3) 10.000-15 .155 pp—. % redaction .
(4) 1 ppm or abo,s — rs a11on .
Thus. In the hypothetical quoted
above. where LOtVk000 lbs. of ._ — fluid
at a ( io ntr.tioo of 1.000 ppm was
disposed of’. th. total emowit would be
reduced by 30%. Thus, the amosset of
fluids for detarmining the a ’ * of the
probable harm would bsi.000.000 Ibs.,cr
• 1I kllograme.
Exceptions to Concentration A4usWwnt
Calculation
These oo trsdcus adjustment
factors are not used In the following
Waits oiL The use of waat.oil that
contains detectable c w itraticns of
PCB. ass sealant , coating, or dust
control agent. which is prohibited by 40
( R 7eL1( d), Is cas situation where the
con u1r.tion reduoHan would not
apply. The agency those to prohibit
these uses whenever any detectable
level of PCB were present becaass any
such use of PCB is likely to result In
widespread environmental and health
damags. Thus. allowing any reduction of
the amount of s used by virtue of
low concentration would be contrary to
the regulatory scheme.
Pal/we to ts.L The ooncsntratlon
reduction also does not apply where the
violation Is the failure to test liquid
required to be testedi for example. the
contents of a beat transfer system that
has contained P( s. 40 R 761.31(dXl).
in such cases. the risk created by the
violation is that the fluid will be high
concentration PCBs. and that this
material will continua in use. Thus, the
Agency feels that these persons should
dot obtaIn a fortuitous b ftt when the
liquid is finally tested and found to be of
some lower concentration.
Alternative measure for solids.
Finally, the concentration adjustment
should not be used when the PCB
material is measured by one of the
TSCA Coemflance/ Eatorcement
A—117
Guidance Pbnual 1984
-------
Appendix
Penalty Policy : - PCB
alternative measures for solids which
appear in Table IV. These alternative
measures were chosen to maintain
economic Incentives for proper disposaL
The cost of disposal of such materials in
not dependent on the concentration of
the PCB. In them. Accordingly, to allow
adlusthients for lower concentration
might remove the economic Incentives to
dlspo.e of these materials properly.
Circumstances
The other variable for determining a
penalty from the GBP Matrix Is the
circumstances of th. violation also
called the probability of damage.. The
TSCA Civil Penalty System established
three range, of probability of damages.
high. medium. and low. Each of these
ranges in turn has two different levels.
for a total of .lx levels of probability of
damages .
Explanation of Catagori..
Becaus, there are many ways the P( 3
regulation cem be violated, and because
each of these vtoladons could occur In
50 many different esVvtroi,m.ntal
contexts. It Is virtually Impossible to
easess In advance ill the possible
factors that logically might have some
impact on the probability of damage. for
a particular PCB viola lien, it would be
even more dlmcult to try to determln. .
in advance, how all of thes. factors
would loteracUn any particular
situation. For this reason, ths Agency
believe. It I . appropriat. to soup the
different type. of l violations, assess
the probability for harm resulting from
each typ. of violation, and then wtgu
that typ . of violation to one of the lóvela
cm the circumstances axis of the GBP
Matrix.
For the purooses of assessing the
probability of damage. from a particular
type of PCB violation, all the poulbi.
violations of the PCB rule can be
grouped into eight categories. u follows:
(1) DIsposal
(2; Maa*ing
i3) Storage
(4) MaeuEactw ng
(5) Processing
(6) DIstributing
(7) U..
(8) R.cordkeeping
Immediately below Is a table a.signln
the different categories of PCB
violations to the levels of probability of
damages on the GBP Matrix. After the
table, the reasons for the assignment of
each category ol violation to a level of
probability of damages is explained.
High Range
Level one:
(1) bnproper dIsposal of PCB. This
includes operating disposal facilities at
conditions which dt. not meet the
requirements of the regulations. It also
Includes any uncontrolled discharge of PC8,
e.g.. Leakage from a stored container.
(2) Manufacthrlrtg of P s without an
exemption or In violation of any condition of
an exemption.
Level t
(1) Promising P without exemption
in Violation of say condition of an
exemption.
(2) DIstributIOn In comauros of PC s
without exemption or In violation of any
condition of an exemption.
(3) Improper tape of PC s or using PCE. In
vto1aU of any condition of authorization.
Far . ‘iampls . this Includes removing a cod
from a PCB tiensfosinse for servicing, and the
failure to test a heat transt’Sr system that
coos contained
Medium Range
Level th
(1) Malar storage violation.. A major
storage violation means a siniatton whet, a
slgeifloant portion of spilled material would
not ua uctitalned. Example. of molt sltuation .
irs storage Is areas with so curbing, non
ooudziuous or no oostng or unsealed floor
drains. Storage o1P( s In a am with
permeable flocdri er marbiog would also be
a major storage violation .
(2) No records as major record keeping
violations at disposal facilities. including high
emcisncy boiler, and Ian’ flfl . Major record
keeping violations would Include the failure
to keep data on b lzmretor operating
parameters.
(3) Major marking violations. A major
marking violation Is a situation where there
is no indlcatioa to someon . who I. unfamiliar
with the..aituatgon that P a are present
L.ve nr
(1) No records or major recoedks.plng
violadoes at facilities that use or store PCDs.
Major recoedk.eplng Violations would
Include the absence of data on PCB
transformer.. and the absence of rs tads on
any transfer of PCI. from the sits.
Low Rang.
Level firer
(1) FaIlure to dat, PCB Items placed In
storage.
(2) Minor storage violations. Example. of
these age small oracks In walls, no roof, or
small orack. In otherwise Impervious floor or
curbing,
(3) MInor mazldng violation.. These are
situations In which all th. requirements of the
rule have not been followed, but there are
sufficient Indications to notify someone
unfamIlar with the situation that PCB are
present and enable them to identify PCB
items. An example would be the failure to
mark a transport vehicle containing PCB
tern, which are themselves marked.
Level six .
(1) MInor recordk.epfng violations,
Examples of such violations are small errors
In the numbers of large capacitors, small
errors In number of containers, or the
omission of the date of transfer on PCBs.
(2) Failure to label small capacitors.
fluorescent light ballasts, or large low voltage
capacit ’rs with a “no PCB” label as required
by 44) CFIt 7s1. (g).
TSCA Coap1iance/ nforceaent
A—118
Guidance I nua.l 1984
-------
Appendix
Pn..1 ty Poflçy: PB
Explanatian for Asaignfrmnt of Levels of
Probability of Damage
Level one. This level contains the two
violations which the Agency c ns 1 dses
most serious. memdacturisg and
improper disposaL Manufacturing Is
extremely serious because It aisles
new PCBs. In so dnln& It enlarges the
risk of snvfronmental and human
exposure, places additional burden.. on
disposal factlitles. and increases the
cost of protecting th, public from this
chemical. Improper disposal creates
sve risks of harm to lbs environment
or human health, because It assures lb.
entry of more l Bs Into the
environment ibis Is contrary to the
main theist of the P regulation. which
wa to prevent further contamfnadoa of
the . nvlr —ent with P( S . This, these
violations are considered to be th. most
serious. and provide the standard
egein.t which th, other PCB violations
are measured.
Level twe. The vloIad which weu
placed In L.vsl two on the CW Ms
wem those w the Agency’
ctmsldemd to be the most likely to result
in improper disposaL FOr .ca.ple.
____or distribution of Bs
without an exemption or In violation of
a condition of an exemption Is likely to
result in spillage . leakage. volatilleatlon
or other uncontrolled discharges of
Iarty, i p use of PC s
will, at result In P
confani1 adon of a wide range of
products (as when they are usedina
leaking hydraulic s .$.a) . oral best will
result in an Increased risk of L ,y
d i -
Level three. This level Ini 4 wI.s major
storage violations, major recordkaep*ng
violations at disposal fsó .lItlss. and
major marking violations. The Agency
regards storage violations. such as the
lack of a floor, to be somewhat less
dangerous than the risk inciwed by use.
processing , or distribution of P
without an exemption. The latter ’srs
VST7 Likely to result In Lmprup.r
disposal. However. storage violations
will only cause damage where there Is
an accident , or a liak. which probably
would be unintentional. Nonetheless. If
such events occurred, the possibility for
widespread contamination would be
high.
The tact of records, or inadequate
records, at disposal facilities similarly
does not present as severe a riskof
improper disposal as processing of PCBs
without an exemption. However, such a
violation severely reduces the Agency’s
ability to enforce the requirements of the
regulation as they pertain to the
operators of such facilities. Accordingly.
th. absence of adequate records at
these facilities removes a significant
incentive for compliance, thus
substantially Increasing the risk of
Improper disposal.
Major marking violations have been
defined as those situations where
someone Investigiting a situation would
not know that s wee piaseut or
would be unabl. to tell which Items
contained PCBe. Such s situation creates
a high risk of Improper disposal.
However. If the other portions of the
PCB regulatk.a a e observed, records
would be kept on PCB materials.
thereby creating at least some chance
that Improper disposal would not occur.
For this reason. this violation Is dot
considered as risky as Improper use-or
distribution. However, wher, major
marking Is associated with other
vIolations, such as recordkeeplng, the
Increased risk will be reflected by an
additional penalty.
Lava! /bur. Iavel four Includes major
recorilkesping violationa at facilities
thaf use or store s, Major
recordkeeplr4 vt tatloaa at facilities
that use or store PCBs present a
somewhat lower risk than major
recordke.ping violations atjllsposal
facilities. Sinai these facilities do not
themselves dispose c i the there is
a greater rheac , that the PCB, will be
identified an such before they are
actually disposed oL However, the fact
that these violations substantially
hhid ’ the Agency. ability to trace the
movement of s means that they
make Improper disposal more likely. For
this reason. the Agency considers this
viOlation to be significant
Level flv& Included in this category
are the faiiwe to date PCB items plated
in storage. minor storage violations. and
minor marking violations. The failure to
dais PCB Items placed in storage simply
means that the items may be stored
longer than is presently permitted by the
rule. Assuming these items are
otherwise treated In accordance with
the rule. the lengthy storage will simply
increase, by a small amount. the risk of
an accidental spill. Similarly, minor
marking violations are, by definition.
violations where there is sufficient
marking to alert someone investigating
the situation that there are PCBs
present. Thus, the likely ill effect of such
violations is simply that. in emergency
situations, the length of time required to
discover the presence of PCBs might be
increased somewhat. This should not
significantly increase the amount of
damage done. Finally, minor storage
violations are those in which riy spilled
material will óe substantiaily contained.
Thus. the amount of damage that could
TSC csplianieTlnfàrcomeàt
A—119
Guidance llanual 1984
-------
Appendix
Penalty Policy: PCB.
result from such violations would be
relatively small.
Ldvel six. Level six represents those
violations which the Agency believes
pose the least risk of causing harm. It
i c1udes only minor recordkeeplug
violations, and failure to label with the
“no PCB” mark. In th. cue of minor
recordkeeplng violations, such
vzolations, although they might make
enforcement somewhat more difficult.
should not seriously impair the Agencyl
enforcement efforts. The failure to label
with tt a no PCB’ mark will only result
in the disposal of certain Items more
carefully than necessary, thereby
increasing the cost of compliance with
the regulation.
The risk to the envtronment and
human health in this case is minimal .
Moveover. the Agency believes that
there are already s bstantlal economic
incentives for manu acn3rers to comply
with thic labeling Mqurem.nt. sinCe
theiz cuatornere would probe .Lly be
anxlcu to ootain eqL ptnent baartng
such label.
UsL’ g the’ ClIP Matrix To Find aPCB
Penak
In order to determine a penalty for a
specific PCB violation, the following
steps should be followed:
Step 1: Dotsrnuns which category of
violattan is Involved (I.e.. disposal, marking.
storage. nanufsctunng. processing and
disthbution. use. or recordkeeping). If more
than one vtoiation category is involved.
repeat th. calculation in steps 2 through S for
each violation category.
Step I Find wtuch level the violation fits
on the cu ’c’ ’jostanous axis of the GBP Matrix.
Step :..- Calculate the total amount of PCBn
ovoivad in the violation, If there ar, several
ter aAc i . nivad which f j : to different
unCanhraUOn n.tnges. CiCa separate
ccui.ao .o i f .r eè h c c.ntrstion.
S ap . . : ke .uca the amounts in step 3 by the
concs tratia : ad ust ietft. (Be sun to note
the exceptions to this step).
Step 5: i different concentration rang.. are
prea. it ‘ p r figiues from step 4.
St . ot .nun wlt.c?i extent category
(zna ’or. il cant. or uunorj is applicable to
li amuun .flifl step S.
Step 7: Use the level from step 2 and the
extent from st ’m 6 to locate the penalty on the
GBP Mathx E.g.. Lcv ii 3. significant is
$10.000!.
Stop 8: zter the amount from step 7 on line
i of Civil Penalty Assessment worksheet
artuched to uie TSCA Civil Penalty Policy.
Us , that wo kii eet io complete the
calcuin i the patta ty accounting for
factors such as culpability. history of
violatlone c .
Exon pie
2 transformers
3 capacftces
All three capacitors have earns plates
that show that thsy contain high
oeno nIrsdon PC$s and have a vo 1 ume
of 30 gallons e trensfomisr
contains gsl1ons and Is tasted at
1000 ppm. Tb. sacund aus mir
contains 500 gallnee and Is tested at
04% PCBs. ft Is ie ng and X ’s general
foreman says that about 20 geHf sa have
Leaked . The equipment Is marked, and IC
has , .nurds on this equipment. Assume
the density of all fluids Ia 10 lbs/gaL
Step 1 Determias the catsg.sIs. of
vto iatta .
These u
these si ’e t catag.du. a
i uint1oe is nssd.d far seth.
Oiapseol
St ip 3: Pind..tbe ‘thvamstanc.. ” level. This
is Is.ul one, for disposel .
Step 3: Plad d i. total ameowl Iavoivet
-r . .i dlapossh a g&Ltq .
20 gal. 1 10 lb . • 200 lbs.
gal.
200 lbs. I • 90 kg.
Step 4d ! sks ConCsflt *tin adluitmatit,
No reduction for PCBs over 100.000
ppm. which Is what was sp 11 tL
Steps. Not applicable.
Step Determine exheit category.
50 kg. — Minor
Step 7: FInd penalty from matrix.
Level one + Minor — 35.000
Step a Enter 35.000 or Line I of the
worksheet (Appendix A)
50mg.
Steps. Find “clrcunistances’ieval.
Ma)os ’ storage (permeable floor) Is
Level 3.
Steps. Find total amount Involved.
(a) .r 100.000 ppsi
1 trasaferast 0 300 gaL. 500
3 csçtcste:, 1 gal.
3W ga L.
350 gal. 5 10 x .45
3155 k,. e,eg 100.000 pp.
tat 300—10,010 ,
I :iastog..g 5 300 gal.
300 geL. 5 10 j Z .45 , • 1350 kg.
Step 4: Make concentration adjustment.
(aJ over 100.000 ppm—no adlustm.nt 2655
kg.
An IflSpOct O i of X Company reveals
that the following items are cii stored
for disposal in a room with an earthen
fi oor
TSCA Coapl1ance/Entorc ent
A-120
Guidance Manual 1984
-------
4ppendix
Pen 1 ty Policy: PCI.
(b) son4o000 ppm—5O% redoctlon 1350 kg
X .50 — ar5 kg.
Step & Add fl.sss fleer itspe.
-is
+ s7u .
Slip * Dstmelis — teni ‘ -u--
3550 kg. — Q4gpls. iii
Slip It Find the peushy,*cs the uUt.
Level 3+ i’$” ’ — ” —____
Slip srP 1 .00Oon Use I aIth
( A èx A).
PInoltyANr-uTwtjbr MbitIpl
Violatiara
In the pest. the OMos of Bofoevument
hu bad namenus questions shoot
which WItS
for the s.uu—’t of multipis p a)d —
For the pos . of presoting
co stency bmws.n regions and to be
cossistent with the penalty r set
forth above. the following gei hl .
should be followed far u.seslng
— —
When Not To A - ” Multip! . Penalties
Then are certain Instances when
sperate counts should Dot be charged
and multiple penalties not usenet 1
flrsttypeclc .aswhe r etb lslsnot
appropriate Ii when a single situation
presents violations of many portions of
the regulation. which are all In the same
violation category. For - “pl. . If X
Company bass storage area which Is
unmarked. and which contains one
unmarked PCI cont ln , thea are two
infractions of the regulation; The failuis
to mark the cont in t . and the failure to
mark the storage area. However, only
one violation should be tharged
n ..m, ly. • 5 0 . 1cr marking violation. Both
infractions present the same xisk that is.
that DO one will r .ilue that PCIs are
present Accordingly, only one penalty
is . sssd U the ViOlation category Is
one ilk. marking, which appears at
severs! levels of the circumstances axis,
the penalty should be assessed by
looking at the most serious Infraction
co ftet
Another situation In which only one
count should he alleged and one penalty
charged I. where there are multiple
Infraction. of the same regulatory
requirement For example. if five
transformers are unmarked, only one
penalty should be charged. Although
five transformers present a greater risk
than one transformer, this fact is
accounted for by the larger extant
category applicable to th. situation with
five unmarked transformers. A q , the
nature of the risk presented Is the same .
so only one ty Ii charged.
When Multiple h,aa!ti Sbeulde
Asser ted
The most obvious situation for
uesssing multiple penalties Is where the
situation oo sdtntas infractions of
lff.r.nt violation categoriss (e.g..
marking and storage). in such Instances,
on count should be charged for each
violation catlg. . This was dons in the
sample penalty calculation. above.
Another example of multiple penalties
used property Is when one company
has ii . .. ..! • situations which are In
violation of the regulation in
substantially difl. iaI locations.
Different buildings or yards on the same
site would be suMnisut for a multiple
violation; two sites In the same building
would net, unless the building is very
large (for example. an auto assembly
building). In these cases , the separate
locations present separate and distinct
risks to hasm., health and the
environment Thus, separate penalties
are justified.
Assessing Penalties for Continuing or
R q*ated Violations
Section 18 of TSCA clearly gives the
Agency the power to assess penalties on
a daily basis for continuing situations,
suck as where a frsnsfomsr Is
Improperly stored Ice a month. It also
gives the Agency the discretion to
charge a penalty for each separate act of
a repeated course of conduct, such as
where someone manufactures PCB on
twenty different occasions without an
exemption. However, any simple rule
the Agency might develop concerning
when to charg. multiple counts in such
cases Is likely to have undesirable
effects. For example. a policy which said
that only one charge will be assessed for
a continuing violation would not
adequately protect the environment
Under such a policy, a company with a
leuith g PCI transformer would have no
Incentive to cuiiact the leak, since how
quickly It acted would not affect the
penalty significantly. Alternatively. a
policy that required the Agency to
assess multiple penalties whenever
there was evidence of. continuing
TSC& Compliance! Enforc at
Guidance Pianual 1984
-------
Penalty Policy: PCB.
violatior wouJc i.o caua de r ble
effects. meo . w c sd az ifltact
P B traj sior r ‘Ot)C -1V for 30 days
couid b Thi i
p nsiiv. in t i r ivstjn
&at( a;U 1, c i7 5 ‘ L I 5IV ,
For thi ee nt on . 2 e it tflvy h a
deveioped U e ‘ or’orthr a1 penalty
calctioo ’ w izcb is xpiatn.d tn
detad below. Th i citic lafion should h.
used whenever there is evidence ãf
continuing ittioris, or reneated
vtolatona whIch are part of a zin3Ie
course i ca du ..t. cupt i tt uuuaual
C UO w J.L yield
the pen& ty t b s a xo such
repes ted a c t k ns. Ths
effect of thIs A 5 r4 Is .hat tile
penalty is piiad-f r repast d or
cont1rt &ln v oin Qns where mbetan4sl
amou nts C 1 lls 01” L V( tVed. The
I SflZ ’uL € J 0n 1
popo t c . . t.c L
thvoLve . su 4 C4
$25,003 L& . :•; eve it
is apptop ’. t i
penalties tha; . ; r r s rroin tinu1ng
or repea ad v o
those 1tu tIon wher. c *W.It$ Of
Nonetha1 ec. u . . ::c roaflzen that
there ay be sre no
multiple perisit ipr . or
when, this vio1 Jor t it a penalt)
calculated tiy it 4y d P
penalty d r cil’ ae a tb r c days
at jfl fl 5 he
Agency rase 1 -v ’ :: c ozi to aaocse
peneltleb fcr .. crt
voadonswI thou r r t z
propertfo ts.
The :
cases.th , .i :
cottn -
ca cuin ; io . - -:
proport J:jt
u naer 5 5
* ;L-:-1
oc in f ta ...
•
tQ O
Inc envirc
• Other; g tina& .
The .
sbouId niyh; ’
with H. . dQu irt .:
the reas s c ; ti i . rcise &
expiatne i in a .i ai
Explanation of h6 ‘rc,orti fl..J Pvr,aity
The p or :iirv i u i y
in the .
StepLC.i. ’ 1
PCBs jflvojVeu :n tz
by the concentra io c d i U
as an exaU ?1e oO wi J
pro as6o3 20 gallons of ?CBs or 200
unys. the total amount is 4.000 gailona
(aseumm the coricenfratlon is greater
than I00.000ppns). If two 50 aiion
eve stored impr-e ’.rlv liw an
diey . the amount Involved te wit
gallons.
SLap 2:11 th, amount from step 1 Is
less than two times the tne or extent
category (10.000 kg. at 2.200 gallons), uss
this amount to determine the extent
category and obtain a penalty from the
G iP Matrix. For example, the penalty
for the two capacitors improperly stored
for 20 days would be $1.50 Twenty
coumi would be charged. at a penalty of
$ ....CO/2O days or 75 per day. If the
amount from step I I greater than 2
mea the extent category, proceed to
step 3.
Step 3: Dtvtde the total amount from
stop i b i major extent category limit
te.g., 5.000 ( g. or 1.1(n) galAua 4.
Mv fl ly he uLt by : ‘ mount In the
a eg r’j. y c1da the
pre x t ci & ’ I. Mfl 5 .ae example
of th i ‘n . ’ rocbe,es 20
gellun.. of ?C : per day ro 200 days, the
cuicii atI Q ees as follows:
Am int hem 1tsp I 4 OO 5.1.
4 .0 5 5
3.8x&’ .O0O ( elor. eve1 2) $72.0OO Total
penel t y
Step 4’ vida the total penalty by ths
unmber of days (or events) Involved.
i ner thin amount . n line I of the TSCA
Civil l’ selty Assessment Wozltsh.st In
4. t uf
V2 OOO total penalty/200 d.ys ’.$3tO per day.
Th pnc g es on i ne of the
wo¼ hr .
Tha p cr insl penalty should
aiw jc be utied un. oae the calculation
y eIds more than 325.000 per day. In that
ca . . tao p&uity should be 325,000 per
y . L flOXtU4U allowed by statute.
The proportional penalty should be
used in the same way as-any other
pev nity e iv d from the GBP Matrix.
Th p ir dnj’ penalty houid be entered
oh i ue I d the TSCA Civil Penalty
Asse ment Worheheet. and should be
d u tcI iy the factors, such as
ii .abtht’i and vlo!atlon history, shown
on that docui ont . whic i Is attahced to
this policy.
Dated: iii 2.4. 1080.
iJopu ’, A .u&nf Adm!vi trawr for General
ch4J w hy Aa a i: WoiltsAes
Nc ’ne .)1 i poncen .. —
A t6 1 Rpc .raarir
(1’ ( i iit
; : eri . . jixt .’i ’nt Luued:
3 Dat. Answer R.cete.d
4 Date Default Order Sent
5 Data Consent Agreenint Sigoed:
a Dat. Ftn.i Ord.r Sent:
(7 Del. Mestttene , R.ee4,e*
•
S Ins _ . _ .. . -
3. p. .es t. ..— %
&frmsesawo s
& isUPW,__ e oab s4_. 5—
5—
• .__
ss see ms .o ’. i a—
5—
I. a.. -.. — * — e ______ a—
* —- — - . 5—
a iø to_______________ I—
ILT U — e MUSS I 1—
is. ese ¶2 .__ • un au u Se I- .—
pu aese iz seti.
• sets r iui ..m a es . iJu _ J ma pr - I—
e SuS ts sense ’. —
ue $3 OniSi ma , .... _ .. _ u a CUS.
— Ill. C i- U use ’
In, Ost IS-V7IS PSed 5441 145 a.
uw ones
TSCA p1i . / t orca ant
A— 122
Guidance Manual l9 4
-------
Appendix
4 Settlement With Conditions
Introduction
1
Purpose and Background
1
Over ,lsw
2
When to U e an SWC
2
Initial Criteria
2
Other Considerations
4
Incentives
4
Elements of Sett emsnt With CondItions
5
Complaint
Consent Agreement and Final Order
5
Remittance Agreement
6
Compliance Program and Schedule
6
Remittance Order
0
Roles and Relationships
11
Decision to Use SWC
11
Preparation and Issuance of Documents
12
Monitoring
12
Determination of Violation
13
Responses to Moncompilance with the SWC
14
Reinspection and Additional Enforcement
Action
14
Appendices
A. Application of SWC Criteria to PCB Rule
B. Sample Documents
C. Penalty Remittance Worksheet
D. CPS Monitoring Sheet
TSC& )i.p1iance/ iforc .nt - A -123 Guidance I nua1 1984
-------
Appendix Settl.nt with Conditiona
In r oduct Ion
Purpose and Background
This document provides guidance for the settlement of adminis-
trative cases Involving alleged violations of the Toxic Substances
Control Act (TSCA) through a settlement with conditions. Using this
kind of settlement, the Environmental Protection Agency (EPA) may
remit all or part of a penalty In exchange fo specifcc remedial
action performed by the Respondent.
Sections 16 and 17 of TSCA provide the EPA with a choice of
remedies with which to respond to violations of section 15 of ISCA.
These remedies include civil administrative penalties, injunctive
relief, and criminal sanctions. In addition to these remedies, the
Agency uses nonstatutory notices o noncompliance to respond to minor
technical violations. These remedies are described In TSCA Level of
Action Guidance documents, which provide criteria to assist Regions in
selecting the appropriate remedy.
Section 16(a)(2)(A) of ISCA • ithor1zes the Administrator to assess
civil penalties for vio1at o SCA. Section 36(a)(2)(C) permits
the Administrator to compromise, modify, or rem1t.. ,/, with or without
conditions, any civil penalty which may be imposed under Section l6(a)
(2)(A). The term used to refer to the settlement of a case under
terms which commit the Respondent to perform specified acts in exchange
for a remittance of all or a portion of the penalty is ‘Settlement
with Conditions’ (SWC).
The purpose of the Settlement with Conditions Is to enhaflce
the level of compliance where violations require complex remedies.
In exchange for the amount of the proposed civil penalty which
the Agency is to remit, the violator agrees to take extensive and
specific remedial actions. These actions must exceed those normally
expected under the circumstances, must be taken within a specific
time period and will be strictly monitored by the Agency. The
remedial actions may be related not only to the violations cils-
covered by the Agency, but also to other current violations as yet
undiscovered, or to deterrence of future violations. In addition
to remittance of the penalty, the Agency will also agree to refrain
from taking further enforcement action with respect to the specific
situations covered by the settlement agreement for the term of the
agreement and, as long as the company acts in good faith, to ..ablde
by the conditions. At the end of the term, If the Agency is not
satisfied that the conditions have been met, the full amount of the
penalty is due. The Agency may then elect to reinspect the facility
to document further violations or to take Injunctive action to
remedy the violation.
1/ The term ‘remit’ is not defined in Section 3 or discussed
in the legislative history of Section 16. It has, however, been
Sed in other Federal enforcement statutes. In these contexts its
meaning is to release from a penalty; to refrain from enforcing;
to refrain from exacting as a penalty; to forgive a penalty in
whole or n part.
TSCA Coap1iancef sforc eflt A 1 cuidance ) nua1 1984
-------
Appendix Set t1e- ”t with Conditiona
-2—
verv1 ow
An SWC is set forth In three documents: (1) a consent
agreement and consent order assessing an administrative civil
penalty according to Sections 16(a)(2)(A) and (3) and the Con-
solidated Rules of PractIce, (2) a remittance agreement which
sets forth the conditions for Remittance (Compliance Program •nd
Schedule (CPS)) and (3) a Remittance Order.
The consent agreement and final order assesses a total
penalty and disposes of the proceeding. This document cannot
contain any conditions precedent to the assessment of the penalty
or It will not be considered a final order.
Th, remittance agreement sets forth the CPS, the completion
of which Is a condition precedent to th. remittance of all or part
of the penalty.
Th. remittance order formally remits the penalty (or portion
of the penalty) and Is executed when the Agency is satisfied that
the Respondent has met the conditions outlined in the CPS. If the
Respondent has not satisfied the conditions, the order informs him
that the payment of the previously assessed penalty is due.
When to Use an SWC
Initial Cr lterla
Using an SUC requires a two-step process: First, a decision
must be made to choose an SWC as the appropriate remedy. This is
done by applying the criteria set forth In the first part f this
section. Second, once an SWC is selected, the amount of the penalty
to be remitted Is determined by considering the factors Set forth
In the second part of this section.
Settlements with Conditions should be employed with some
restraint. SWCs should not be used in a manner which encourages
ndustr1es to violate TS Thntil they are discovered and then
offer to correct actions in hope of a remittance. Most CPSs will
describe actions which go beyond correction of violations.2/
A Settlement with Conditions should be considered when non-
profit entitles are found to be in violation of TSCA. Such
settlements allow the Agency to avoid increasing the burden
on public service Institutions and at the same time increase
the level of compliance and benefit the public. However, these
3.I It is important that the remittance agreement specify that the
remedial actions are performed in lieu of a civil penalty since this
prevents the company from deducting as a business expense the cost
of such actions and gaining an unwarranted income tax advantage.
TSC ( ospIianee/ forcement — - A-i 25 Guidance 1 nua1 1984
-------
Appendix Sett1 ’a t with Conditions
—3—
settlements should not automatically be employed for settlement
with all nonprofit entities. The criteria listed below should
determine if an SWC is an appropriate remedy, regardless of
whether the violator Is a profit or a non—profit entity.
Criteria for Choosing an SWC
In the foflowing circumstances an SWC should be considered:
o VIolations have been documented which warrant a civil
penalty; and
o The violations do not evidence wanton, knowing, or willful
disregard for regulatory requirements; i!
o The violations are continuing (for more than 30 days) or
recurring In nature; and
o To come into com iisnce, the facility needs to undertake
a detailed design, en3ivaerlng, and/or monitoring program
requiring numerous, complex steps over time, and
o The company has exhibited a good—faith attitude toward
solving the noncompliance and has no history of non-
compliance; and
o There are clear public benefits to use f an SWC; and
o An SWC acceptable to EP can be negotiated.
Criteiia for Determining the Penalty Amount to be Remitted
The amount of the proposed penalty to be remitted should be
determined by considering the following factors:
o The severity of the environmental contaminatiOn or health
risk associated with the violation; and
o The degree of good faith the violator has demonstrated in
his efforts to correct the problem; and
o The relationship of the proposed penalty to the estimated
clean up cost or other environmentally beneficial expendi-
ture; and
The need for the authority of the Agency to be vindicated.
A 1 pendix A of this document provides explicit application of
t!lese criteria to the PCB rule (40 C.F.R. Part 761).
TSCA Coap1ianca/ UforCeReflt A-126 Guidance ) nua1 1984
-------
Appendix Sett1 at with Conditions
—4-
Other Considerations
Co ari son with Section 11
The CPS portion of the SWC may Impose performanc. require-
ments identical with those contained in an order for injunctive
relief obtained In federal district court under a Section 17 order.
Since such an action Is more resource Intensive than an SWC!/,
injunctive relief should be sought only where:
o Significant environmental contamination or health exposure
Is actually occurring, and the person responsible for
creating the problem refuses to take swift corrective
action; or
o The violator refuses to correct a substantial violation; or
o The compliance history and attitude of the violator are
such that the Agency believes that the contempt power of
the Court Is needed to insure that the violator adheres
to the program needed to achieve compliance.
I ncenti yes
Although remedies exist to enforce adherence to an SWC, the
Agency should not enter Into this type of settlement unless the
violator Is clearly acting in good faith. The Agency expects the
violator to strictly adhere to the compliance program and schedule
contained in the settlement. The violator’s Incentives to comply
with an SWC should be examined in the context of each case. Possible
incentives to the Respondent can include:
o The Respondent may use the SWC to demonstrate his good
faith commitment to take responsible remedial action
or as evidence that adequate remedial action has been
taken. Thus, the SWC would give the Respondent a
favorable position In suits that may be brought against it
by citizens or other governmental bodies for correction of
conditions covered by the SUC.
o The Respondent will benefit from EPA’s promise not to
reinspect and bring civil penalty actions for each day of
a continuing violation covered under the SWC.
/ Petitioning the Court requires the preparation of formal
documents with supporting briefs, and the active involvement of,
OLEC/RC. the Department of Justice, and the local U.S. Attorneys
Offlce. Similar steps must be taken to amend a SectIon 17 court
order, in contrast to the simpler procedure required to amend an
swc.
T & 47” ’I A- 127 - Guidance lbnual 1984
-------
Appendix Sett1a nt ith Co ditiove
—5—
o The Respondent may desire not to pay the remitted penalty
in addition to expendlt ires needed to achieve compliance.
o Tn. Respondent may receive favorable publicity from performance
of the acts outlined in the compliance program and schedule.
Elements of Settlement with Conditions
An SUC, like any Section 16 settlement, consists of a complaint
(40 C.F.R. 22.14) and a consent agreement and consent order (40
C.F.R. 22.l8). It also includes a remittance agreement and a
remittance order. This part of the guidance describes the specific
language which must be Incorporated ‘nto these documents to constitute
a SWC.
Complafnt _____________________________
A complaint alleging v 4 olatlons of TSCA and proposing a
civil penalty must be issuid t.’ t. b1tsh the Agency’s allegations
that violations have occurred arid to initiate any SI C negotiations.
The complaint should be issued in the same format as In any ISCA
administrative civil penalty action. me content of the complaint
is prescribed by 40 C.F.R. § 22.)4(a) & (e).
Consent Agreement and Hnal Order
This document must meet the requirements of 40 C.F.R. 22.l4(b
and (c). In the agreement the Respondent (I) admits the ,jurls-
dictional allegations of the complaint (2) admIts the facts stipu-
lated In the consent agreement or neither admits nor denies specific
factual allegations and (3) consents to the assessment of a stated
administrative civil penalty. The consent agreement shall Include
all terms of the agreement and shall be signed by all parties or
their counsel or representatives. The consent order /or “final
order” disposes of the adminfstrative proceeding and Is signed by
the Regional Administrator or the Assistant Administrator for OPTS.
A sample consent agreement and final order appear in Appendix B.
The consent agreement and final order should consist of the
following elements:
Prel1m1nar Statefflent
This part of the document states that a civil penalty Is
assessed ;‘ir specific violations of TSCA. The Respondent admits
tne jurisdiction of the complaint and may admit or neither admit
nor deny the allegations. The Respondent also waives its right to
a hearlnq and consents to the issuance of a final order and payment
of a civil penalty.
.I Unlike Jd1ci3l consent decrees and consent orders filed in
Federal court, the Administrative Law Judge, unlike a federal judge,
does not have continuing jurisdiction over a consent agreement and
consent order signed by the Regional Administrator. (see Corisoli-
dated Rules uf Practice, 40 C.F.R. Part 22)
TSCA Co p11ance/EnforC eflt A-128 iid ce ) nua1 1984
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Appendix Sett1 t with Conditions
-6—
Findings of Fact
This section lists the findings of fact as to each allegation
in the complaint.
Conclusions of Law
This section contains conclusions of law which establish a
violation of TSCA.
Final Order
The final order contains the assessment of a final penalty
which is calculated based on the gravity based penalty matrix and
adjustment factors in the enforcement response policy or civil
penalty assessment guidance for the rule. A final order In an SWC
should contain a statement that indicates that payment of the
assessed penalty may be deferred until 60 days after the remittance
(or nonremittance) order. Such a procedure Is permitted under 40
C.F.R. 22.3l(b).
Remittance Agreement
At any point in the negotiation of the consent agreement and
consent order or after the final order Is signed, the EPA and the
Respondent may enter into a Remittance Agreement. Under this
agreement, EPA will agree to remit all or part of a penalty if the
Respondent performs specific actions. The actions usually include,
but go beyond, compliance with ISCA. These activities are
described In the Compliance Program and Schedule. The parties which
negotiated the agreement may amend it according to the procedures
outlined In this document without affecting the consent agreement
and consent order. A sample remittance agreement appears in
Appendix B.
The most important part of the remittance agreement Is the
commitment to the CPS. The CPS is referenced in the remittance
agreement and attached to it. An example of a CPS is appended to
this document in Appendix B.
Compliance Program and Schedule
Generally
The CPS details the steps the Respondent must take to remedy the
violations and report Its progress to EPA.
The specific provisions of the CPS will vary with each settle-
ment depending upon the facts of the specific case; this guidance
discusses factors to consider In drafting any CPS.
forc ent A129 Guidance 1 nua1 1984
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Appendix Settl”-..nt vith Conditions
—7—
Final Compliance
This section of the CPS should state that the goal of the CPS
Is to bring all the Respondent’s facilities subject to the CPS Into
final compliance with the applicable TSCA regulation no later than
the date specified In the CPS for final compliance. The meaning
of final compliance should be set forth In this section, e.g., a1l
of the Respondent’s transformers shall contain PCBs In concentrations
less than 50 ppm no later than January 1, l984.N The Agency wfll
determine whether the company has complied with the rule based on
the monitoring and reporting provisions of this agreement. The
Agency will inform the Respondent of its decision concerning compli-
ance in a letter. If the Respondent has adhered to the terms of the
CPS, then the Agency will permanently remit the deferred portion of
the final penalty. If the Respondent has not complied with the CPS,
the uncollected portion of the penalty is due.
Interim Milestones ________
Because final complIance .111 often take considerable tine
to achieve, Interim compliance standards will be necessary In most
CPSs. Discrete milestones should be established which lead
consecutively to final compliance. There may be several separate
schedules (e.g.. a schedule to develop a plan; to construct equipment
or facilities; to decontaminate, to test, etc.). Interim standards
are appropriate In those instances in which (1) the final standard
Is presently unattainable in light of immediately available tech-
nology or present knowledge of the noncompliance problem; or (2)
cost, or safety risks which Immediate imposition of the final
standard would require outweigh the continued environmental
risk presented by the ongoing violation. For example, necessary
equipment may not be available at the execution of the CPS. The
C I ’S can specify an Interim standard (e.g., concentration of PCBs
in PCB items such as transformers) which the Respondent must meet
prior to the final compliance date.
T I met a b 1 es
The CPS should specify timetables for performing tasks necessary
to achieve compliance as quickly as Is reasonable under the circum-
stances. The performance periods for accomplishing relevant milestones
may be expressed as dates certain, as working days following the
effective date of the consent agreement and consent order, or as
days following the performance of some contingent event, such as
EPA approval of plans or review of test results.
Monitoring
An important part of the CPS is the inclusion of provisions for
monitoring tne performance required by the CPS. Monitoring provi-
sions will generally require periodic testing and reporting by the
Respondent. In selecting the monitoring provisions, such factors as
the impact on Agency resources of different monitoring requirements
and the ease with which the Agency can proceed with monitoring Should
TSCA Co.pliance/Eflforceeflt - A--130 Guidance P nua1 1984
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Appendix Set t1 nt with Conditions
-8-
e considered. Reporting should be required at least quarterly;
more frequent reporting should be considered where a CPS is parti-
cularly complex; however, reporting should not be so burdensome
that it distracts the Respondent’s energies from the remedial task.
This section wIll also address issues such as site entry and document
review by the Agency both as authorized by Section 11 and to monitor
compliance with the CPS.
Notification of Technical or Operational Difficulty
The CPS should provide for prompt notification to EPA by the
Respondent of unexpected technical or operational difficulties
which compromise the Respondent’s ability to meet a deadline.
Technical Assistance
There may be a provision requiring EPA to provide reasonable
technical assistance concerning such matters as sampling, analytical
procedures, and acceptable disposal options for the purpose of
complying with the agreement. This requirement Is only appropriate
where Innovative technology or procedures which are new or not
well established are part of the performance requirements.
Amendments to CPS
The remittance agreement should contain an amendment procedure
upon mutual consent of EPA and the Respondent. This provision
should clarify that the CPS may be amended at any time to modify
or add technical and operational requirements (Such as, but not
limited to. deadline modifications necessitated by technical or
operational difficulties) If needed to achieve compliance by the
Respondent. Other specific circumstances for amendment may be
discussed (I.e., the occurrence of events beyond control of the
Respondent, but not including an Increase In cost of compliance).
Any changes and/or amendment to the agreement will be deemed to be
Incorporated Into the agreement when it Is signed by authorized
representatives of EPA and the Respondent.
Standing alone, the mere fact that the Responient is going to
miss a deadline should not lead to an amendment. Simple failure to
comply, without more, calls for an enforcement response. Where.
ho eyer. the Respondent has made a good faith effort to comply wit i
a requirement, and (1) that requirement was arrived at by mutual
mistake, or (2) a condition precedent to the requirement was not
fulfilled (through no fault of the Responcent) Such that compliance
is impossible, the CPS Should be amended.
In general the following are guidelines for granting extensions
or amendments:
o Extensions or amendments will be considered only in
circumstances which are entirely beyond the control of
tne Respondent. Respondent may not claim economic
hardship or increased costs as circumstances beyond
its control.
TSC& Oo 1icI forc .nt A—i 31 Guidance P nua1 1984
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Appendix ett1 rt with CondlUons
-9-
o The burden Is on the Respondent to prove that events
requiring the extension or amendment are beyond its
control
o The Respondent must notify the Agency immediately of
any need for extension or amendment of the CPS.
o The Respondent should take measures to prevent or
minimize the need for amendment or extension of the CPS.
o The events which trigger the extension or amendment
do not excuse the Respondent from ultimate compliance
with the CPS. Compliance should occur as quickly as
possible.
o Disputes concerning th. need for extension or amendment
of the CPS may be resolved according to the procedures
described In the MOispute Resolution” section.
Specificity and Clarity
To avoid controversy over whether the Respondent met any
requirement of the CPS, the performance requirements must be stated
in a manner which is capable of Only one interpretation. For
example, rather than simply requiring the Respondent to prepare
a sampling plan, the CPS should set forth the component parts of
the plan such as sample volume, method of collection, and sample
handling procedures, and location of each sampling point.
Requirements should not be so detailed as to be unnecessarily
burdensome or to eliminate the Respondent’s needed flexibility.
For example, It would normally not be necessary to specify the
type or brand of equipment necessary to perform certain construction-
related tasks. On the other hand, such specifications might be
necessary in the case of equipment to detect PCBs.
A CPS with many technical or potentially ambiguous or misleading
terms, or terms defined according to agreement reached between the
partIes, should contain a separate section listing definitions of
those te ms. Definitions contained In the CPS must conform with
de 9 initions given in TSCA and its regulations. Redefinition of
terms th.at have specific statutory or regulatory definitions should
not be attempted; however, examples or Illustrations of these terms
may be appropriate.
Quality Acsuran e
Depending on the nature of the compliance program, the quality
assurance measures to be taken by the Respondent should be discussed.
It may be appropriate to require the Respondent to participate in
an indepefl 1eflt or government quality assurance program or to split
some sariples with an EPA Of State laboratory.
TSCA Co p1ianceIEnforce.eflt - A-132 - Guidance 1 nua1 1984
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Appendix S.tt1 umnt with Conditions
- 10 -
Enforcement
The remittance agreement should include a statement that EPA
shall not initiate additional enforcement action against the Respon-
dent concerning the violations which are the subject of the agreement
as long as he complies with the CPS. EPAs promise is part of the
Quid of the agreement. The clause should state clearly that
the .Insulation from enforcement does not extend to violations of
other TSCA provisions or to violations of other laws administered by
EPA, nor does this agreement affect the defendants liability with
regard to other State, Federal or local statutes or regulations.
In addition, this agreement does not limit or affect the
rights of the United States or of the Respondent against any
third parties.
Dispute Resolution
Disputes may arise between EPA and the Respondent after
signature of the remittance agreement. The agreement (In the CPS)
can provide its own mechanism for resolving some or all of the
potential disputes. The parties could agree to submit the matter
to arbitration. This approach Is useful where technical disputes
can be submitted to an expert respected by both parties. If
possible, this expert should be selected in advance and named in
the decree.
Confidentiality of Documents
The Respondent has the right under TSCA to claim that infor-
mation submitted to the Agency is Confidential Business Information.
This section should cover the procedures the company must follow to
exert a confidentiality claim. If the company waives Its right
to exert a confidentiality claim, that Should be stated in this
section.
Remittance Order
If the Respondent performs the actions described in the CPS,
the Agency will remit all or part of the penalty. The Agency will
issue a em1ttance Order which formally states that the Administrator
is satisfied that the conditions for remittance have been satisfied
and that the penalty (or part of the penalty) is remitted.
TSCA Co.p1iance/ forceaent A-133 Guidance nua1 1984
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4ppendix Sett1 nt vith Condition.
— 11 —
Roles and Relationships
While Headquarters may assume the lead on the few cases which
involve issues of first Impression or national significance, the
Regions will primarily Implement this guidance. Regions may organize
their offices in any way consistent with the Administrator’s guidance
on Regional organization; the suggested allocation of responsibility
with regard to SWCs between Program Offices and Counsel is as follows:
Decision to Use SWC
As In any other choice of remedy or level of action deter-
mination, the Regional Program Offic, is responsible for this
decision following the criteria set forth in this document.
Negotiations ——
Negotiations!’ are a critical part of the SWC process. The
adequacy of the remedial measures to be incorporated into the SWC
will often depend on information in the Respondent’s possession.
Negotiations that take place prior to the filing of a cgmplaint
are the primary responsibility of the Regional Program Office /. If
the Respondent is represented by counsel, however, Regional Counsel
or headquarters OLEC must attend.
At the start of negotiations, EPA’s representatives should
Inform the Respondent’s representatives of the scope of their
authority to speak for the Agency and of Agency policy, regulations
and concurrence practices which may affect the terms of the SWC and
the time necessary for EPA to execute the SUC. Similarly, Agency
representatives will want to ascertain the scope of authority of the
Respondent’s representatives.
It Is strongly recommended that EPA representatives conduct
negot at1ons of administrative actions according to their own specific
timetables. Establishing milestones of which all negotiators are
aware wifl ensure that enforcement actions proceed and are not unduly
delayed Dy the negotiating process. In order to keep negotiations
moving, every offer or request made to the Respondent should con-
tain a definite date for response. A final date ninety days after
/ Preliminary discussions which may bear on the decision to
proceed with an SWC are oot included under “Negotiations’ but
rather are instrumental in determining good faith under ‘Criteria’.
/ Once 1itigation commences, negotiating sessions must be led
by the Regional Counsel or Headqarter’s OLEC Attorney of Record, with
attendance by technical personnel. These sessions should be conducted
as part of an overall litIgation/settlement strategy.
TSCA Co p1ianceIRn.forc ent A— 134 Guidance ! nua1 1984
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Appendix Sett1 nt with Conditions
- 12 -
initiation of negotiations should be established by which all
documents required for an SWC must be signed by EPA and the Respon-
dent.
Preparation and Issuance of Documents
The Program Office should prepare the documents necessary for
an SWC, with review for legil sufficiency by Regional Counsel.
Drafts of these documents, including tentative performance
requirements and schedules, should be prepared for discussion
purposes for the first negotiating session. (Although the complaint
should be prepared, it should not be subject to negotiation.) These
drafts serve to focus the discussion and will provide an early
Indication of the Respondents willingness to agree to reasonable
proposals. EPA Counsel should be consulted regarding any disputes
over findings and admissions.
As set forth In the Delegations Manual and th Consolidated
Rules of Practice, the Regional Program Division Director will
Issue the complaint. The Regional Counsel will sign and execute
the consent agreement with concurrence from the Division Director.
and the Regional Administrator or Regional Judicial Officer will
Issue the consent order.
In cases settled at Headquarters, the complaint will be
signed by the Assistant Administrator for the Office of Pesticides
and Toxic Substances or the delegate, the Director of the Com-
pliance Monitoring Staff, and the consent order by the Administrator
or the Headquarters Judicial Officer. The consent agreement will be
signed by the Assistant Administrator for Enforcement and Compliance
Monitoring or delegate with concurrence from the Assistant
Administrator for Pesticides and Toxic Substances or the Director
of the Compliance Monitoring Staff.
The remittance agreement may be negotiated by the Program
Office with consultation from the Regional Counsels Office.
However, only the Administrator or delegates (Regional Administrator
or Assistant Administrator for the Office of Pesticides and Toxic
Substances, who may redelegate to the Division Director level) can
sign the remittance order.
Monitoring
It Is the responsibility of the Program Office to monitor
compliance with the CPS. The Regions shouid establish a specific
team to monitor compliance with a CPS. This team will maintain
a CPS Monitoring Worksheet. The worksheet should contain four
columns.
is *1 torCi ent A-135 Guidance 1 nua1 1984
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Appendix Sett1 eut with ontttiona
— 13
Column #1 lists the task to be completed or the standard
to be achieved.
° Column *2 lists the due dates for the Items in column #1.
0 Column *3 lists the dates that the items in column #1 were
completed.
Column •4 contains a brief evaluation of the quality and
timeliness of the completion of the items In column *1.
If there Is need for additional space, an attached sheet
may be referenced.
If any compliance steps require EPA review or approval, the
requirements In column *1 should indicate this, and column •4 should
Indicate the results of the evaluation or approval/disapproval by
the Agency. See Appendix D for a sam ’la CPS Monitoring Worksheet.
l5iterniination of Violation _______________________________
The determination that an enforcement response is appropriate
for a Respondent’s faf lure to adhere to the SWC is the responsf ility
of the Program Office. The EPA may determine that the Respondent is
not in compliance with the CPS if any interim milistone Is missed.
The Agency will not necessarily make a determination of violation
based on a missed milestone, if the ultimate goal of the CPS Is not
compromised. Criteria for determining that a violation which merits
an enforcement response has occurred during the CPS are:
° A milestone is missed by a significant number of days and
the Respondent has reported no technical difficulties nor
justified an amendment to the agreement (see Amendments
section);
0 Timely ultimate compliance is greatly compromised by
the missed milestone; and
o Respondent’s actions fails to demonstrate a good faith
effort to comply with the CPS.
If the violation is severe enough or violations are repeated,
then tne Agency may issue a nonremittance order.
Co.p1iance/&Lforc eflt A-i 36 - Cuidince i nual 1
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&ppenaix Sett1. ’t with CaDditiossa
- 14 —
Responses to Noncompliance with the SWC
Wenalty Wayment
If the Respondent fails to adhere to the conditions of the SWC,
the Agency will Issus a nonremtttancs order notifying the Respondent
that bicause the Respondent did not meet the conditions for remittance,
the uncollected penalty is due and payable within 60 days. The non-
remittance order will specify the ways in which the conditions were
not test. If the Respondent refuses to pay, the Agency may refer
the action to the Department of Justice which may bring a recovery
action under Section l6(a)(4) to collect the penalty that was
assessed.
ReinspecUon and Additional Enforcement Action
Inspections conducted by the Region or HQ’s during the course
of the SUC and/or reports submitted by the Respondent may indicate
violations of the statutory/regulatory provisions which are the
subject of the SWC. Indeed, this is likely to be the case,
given the continuing or recurring nature of the violations that
a SWC Is Intended to remedy. As long as the Respondent complies
with the terms of the SUC, however, the Respondent is shielded
from additional enforcement action Involving the subject matter
of the Agreement. Once, however, the Region determines that the
SUC has been violated and so notifies the Respondent, EPA should
reinspect the facility to documset additionil violations. However,
EPA may not attempt to establish violations during the term of the
SWC and prior to a notice to the Respondent. The Respondent remains
liable, of course, for violations of regulatory and statutory
provisions not covered by the SWC.
When considering additional enforcement actions in response
to violations discovered upon reinspection. the Region may give
consideration to pursuing injunctive action under Section 17.
Clearly. In cases of serious violations where administrative
enforcement action cannot be expected to achieve compliance, an
injunction may be a desirable enforcement response.
T & Co.pI1ance/EnforC eflt Guidance ! nua1 1984
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Appendix
S.ttl...nt with CoodiUoua
APPENDIX A:
APPLICATION OP SWC CRITERIA TO PCB RULE
This Appendix illustrates the application of the criteria
set forth In the SWC guidance document to some typical violations
at the PCB rule (40 CFR Part 161; all references herein are to the
recodification of the rule at 47 FR 19527, May 5, 1982). The
illustrations are not meant to be an exhaustive catalog of all
situations in which a SWC should be considered. Each will high-
light the consideration of one or more criteria.
I. Marking - 4761.40
An SWC should not be considered for Marking violations, since
two of the criteria are not mst. Tnese violations are easily
correctable.
II. Recordkeeping of Use ana Disposal — 5761.45
An SWC should not be considered for Recordkeeplng violations,
since these violations are easily correctable.
III. Storage for Disposal - 5 761.60 & 761.65
Genera Ily
A storage violation could satisfy several criteria. However,
given the relative ease with which a violative storage facility
can be upgraded to meet the requirements of §76l.65(b)(1), the
fourth criterion will not be satisfied in the usual case. Likewise,
violations of the conditions for temporary storage of PCBs set
forth in 76l.65(c) can be easily corrected and should not continue
for more than thirty days if adequate corrective action Is taken.
O s osal Deadline Violations
?ursuant to §761.65, certain PCB Items taken out of use before
January 1, 983 may only be stored until the deadlines set forth in
trio Rule. The strong Agency policy of encouraging advance planning
for proper i1sposal leans that even in Instances where a facility
alerts EP trnat all authorized disposal sites are overcrowded, an
SWC is not appropriate.
iri he case of the Electrical Equipment Rule (47 FR 37342),
an lure to. remove electrical equipment from zones of exposure in
‘ ood and feed est3bhShmeflts by the deadlines set forth In this
amendment is not a violation qualifying for an SWC. There is
ample f exibility ,n tne Rule amendment to allow advance planning
to sove storage problems.
TSCA Coap1iance/&iforc eflt
A—i 38
Guidance P nu&i 19 4
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Appendix Sstt1 t with Cooditions
—2—
I V. Manufacturing - 76L2D
Intenti onal
Intentional manufacture of PCBs without obtaining an exemp-
tion, even where an exemption might hav, been granted, will never
satisfy the second criterion.
Incidental (greater than 50 ppm )
Incidental generation of PCBs as a byproduct of the manufac-
turing process may qualify for an SWC. The first four criteria
may be satisfied, and the fifth criterion could be satisfied If
the vIolator (1) voluntarIly reports the facts to EPA as soon as
It could reasonably be expected to discover them, and (2) will
agree to a remedial plan Including testing and monitoring beyond
the regulatory requirements, I.e., actual testing rather than
theoretical analysis. The last criterion will be satisfied
where EPA needs the cooperation of the company to Investigate the
problem and determine solutions and where th• shut down of the
facility Is imøinent. The goal of such an SUC would be to encourage
the company to both reduce the concentration of PCBs to less than
50 ppm and develop a closed and controlled system.
Incidental (less than 50 ppm) (Closed and Controlled Rule;
47 F.R. 46980 )
The factors determining whether to use an SWC here are the same as
set forth above in the case of concentrations greater than 50 ppm.
The goal of the S C, however, Is to develop a closed and controlled
system to contain the PCBs, rather than to reduce their concentration.
Import/Export
Import or export of PCBs after May 1, 1980, even 1? done
without knowledge that the material contained PCBs, will not
qualify for an SWC because at least two criteria are not satisfied.
Waste oil
A violation of tne prohibition of the use of waste oil con-
taining any detectable PCBs as a sealant, coating, or dust control
agent might In some circumstances qualify for an SWC. Although
the third criterion would not be met since the use could be stopped
at once, if the fourth criterion were met due to widespread con-
tamination, and the second criterion were met because the violator
nad no reason to know that the oil contained PCBs, an SWC should e
considered.
T & ( 1 1ance1 Zorc nt A—139 Guidance I nua.1 1984
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Appendix SstUe ent vith Conditions
—3—
V. Use - §761.30
Generally
The PCS rule calls for the phase out of use of PCBs in a non—
enclosed manner in several categories, such as natural gas pipeline
compressors and large capacitors in non—restricted access electrical
substations. If a facility tells EPA of problems at the earliest
date at which It could have reasonably anticipated problems with
meeting a deadline, EPA may devise a program to bring the facility
into compliance as expeditiously as possible after the deadlines
and Incorporate that program Into an SWC.
New Mithods
A use authorization permits the use of PCBs in Heat Transfer
Systems and Hydraulic Systems until July 1. 1984, subject to cer-
tain testing, draining, and retrofillirig requirements. If the
Respondent can demonstrate that an alternative to retrofilling
will permanently reduce the PC8 concentration in the hydraulic
or heat transfer system, an SWt.. could be devised to allow the
use of such new method. The Respondent should agree to supply EPA
with testing data in addition to the data required by §761.30(d)(5)
& (e)(6). The sixth and seventh criteria will be satisfied where
the alternatIve method will result in the conservation of heat
transfer or hydr u11c fluid.
VI. Disposal - §761.60
PCB Articles
Unauthorized disposal of certain PC8 articles, such as Large
High or Low Voltage PCB capacitors or PCB hydraulic machines, does
not satisfy the second criteria since It is well known In the
inaustry that all such articles may contain PCBs. Therefore an SWC
should not e used even if all other criteria are satisfied. On
the other hand, disposal of small transformers might not constitute
a knowing violation of the rule If tne person did not have reason
to know t:ie articles contained PCBs.
Landfii 1 s and Lagoons
While PCBs and PCB items landfilled prior to February 17, 1978,
10 nOt have to be removed for disposal, where the Respondent has
disturbed a landf I 11, this constitutes ongoing disposal. If (1)
the clean of the landfill constitutes a major undertaking
requiring naiy teps over time and/or (2) long—term monitoring to
irotect groundwater is required, use of an SWC may be In order.
Given t ie seriousness of a disposal violation with threatened
groundwater contamination, the full penalty in such a case should
not ie rem’tted.
TSCA Co p1 lance! Enforce.ent - A- 140 Guidance ) nua1 1984
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Appendix Sett1u.. uit vith Conditions
-4-
I c I ne rat i on
Where PCBs must be incinerated (i.e., fluids with PCB concen-
trations greater than 500 ppm). landfilling evidences a knowing
violation and thus an SWC is not appropriate.
Spills — 76l.60(d )
Many spills do not normally qualify for an SWC because they
are not continuing violations and do not require a major clean—up
operation. If, however, the spill Is of such proportion as to
require clean up of such magnitude, an SWC may be used. Such a
major spill calls for only the partial remission of a penalty.
Minor spills and leaks are examples of the kind of routine
violations for which an SWC may be negotiated which calls, not for
t ie clean-up of the spill, which should already be accomplished.
but for Other performance beyond that required by statute or
regulation. For example, where Respondent has committed a spill
f pipeline condensate from its gas distribution system, and EPA
nseds that company to perform testing of levels of PCB In the
ambient air of homes connected to the system. EPA may remit the
penalty for the spill on condition of performing the testing. If
EPA could perform the testing Itself with minor expenditure of
resources, an SWC would not be warranted.
TSC& Oisp1ianceF’ atorc nt A-14 Guidance 1 nus1 1984
-------
Appendix Sett1 nt with Conditions
APPENDIX 8: SAMPLE DOCUMENTS
Consent Order Agreement and Final Order
Remittance Agreement
Compliance Program and Schedule
Remittance Order
Monremittance Order
Persons and institutions are fictitious.
TSCA Cop1ianceIETtfOrC eflt A-142 Guidance ) nua1 1984
-------
App.ndiz Ssttl—4nt with Condltioua
UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY
In re: ) Docket No. TSCA -
LOUISIANA WESTERN TRANSMISSION
CORPORATION ) CONSENT AGREEMENT
719 5. Carroilton Avenue ) AND
New Orleans. Louisiana 71301 ) FINAL ORDER
Re spondent
Preliminary Statement
1. This odministritive proceeding for the assessment of a civil
penalty was initiated pursuant to Section 16(a) of the Toxic
Substances Control act, 15 U.S.C. §2601 et q. (TSCA). The
action was instituted by a complaint and o T s of opportunity
for hearing, filed upon Louisiana Western Transmission Corpora-
tion (respondent), on July 23, 1982. Th, complaint charges that
respondent used polychlorinat.d biphenyls (PCBs) In violation
of 40 C.F.R. §761.20(a), thereby violating Section 15(l)(C) of
TSCA, 15 U.S.C. §2614(fl(C).
2. For purposes of this proceeding, respondent (1) admIts the
jurisdictional allegations of the complaint; (2) neither admits
nor denies the findings of facts contained In this agreement;
and (3) neIther coaced•s no contests the conclusions of law
contained in this agreement.
3. Respondent explicitly waives the right to request a hearing
on any issue contained In this agreement.
4. Respondent consents to the issuance of the final order herein-
after recited.
Findings of Fact
I. Respondent Is a domestic corporation Incorporated under the laws
of the State of Delaware.
2. Between February 12, 1981. and June 12, 1981, respondent was
conducting Its business of natural gas transmission at Armagh,
Bechtelsvllle , Bernville, Delmont, Entriken, Grantvllle. and Lilly.
Pennsylvania; Barton, alabama; Danville, kentucky; Gladeville.
Tennessee; Hanover, New Jersey; KosciuSko. Mississippi; and White
Castle. Louisiana, and other locations.
forc a ne s st A14 3 Guidance nua1 1984
-------
4ppendlx Setrt4 .mnt vith Coud1tion
—2—
3. DurIng that period, respondent was Inspected by representatives
of the U.S. Environmental Protection Agency (EPA) (Complainant),
pursuant to Section 11 of TSCA (15 U.S.C. §2610).
4. On June 12. 1981, respondent, in response to an informational
request from EPA, sent a letter to A. E. Conroy II, Director of
the Compliance Monitoring Staff, of EPA’s Office of Pesticides
and Toxic Substances.
5. InformatIon from the EPA inspections and Repondent’s letter
evidence that on sIxteen (16) occasions, PCB levels in Respon-
dent’s compressors exceeded the SO ppm limit after May 1, 1980.
respondent’s June 12. 1981, letter mdi cates that only one exceed—
ance of the SQ ppm limit remained when a subsequent sampling
(“9th Analysis 1 ) was conducted by respondent between February 3
and March 9, 1981.
6. Respondent has made good faith efforts to comply with the
prohlbitiøn against se of °CBs In natural gas pipeline compres-
sors. Even prior to enactment of TSCA, respondent, in 1972, had
commenced a program to phase out CBs in its compressors. This
program was accelerated In early 1976. Responoent conducted
lecontaminatlom procedures which Included draining PCB liquids
and refilling with non—PCB liquid. Respondent participated in
the EPA/natural gas Industry sampling program to determine the
extent and magnitude of its contamination problem.
Although the Information respondent submitted to EPA -— and
upon which EPA relied In establishing its deadline -- Indicated
the requisite PCB removal from compressors could be achieved by
May 1, 1980, subsequent f1 d1ngs indicated that additional drain-
Ing and refilling not contemplated by the regulation was required.
These findings were comparable to those relied upon by EPA in
lnitiaflyestablishinga July 1,1984, deadline foreliminating
PCBs from heat transfer and hydraulic systems. See 40 C.F.R.
§761.31 d) and Ce); May 31, 1979, Preamble, 44 Fed. Reg. 31,534;
and Support Document, p. 100. Although EPA believed the total
cost for PCB removal for all pipeline compressors would be appro-
ximate)y $200,000 Louisiana Western alone has expended to date
over $3,000,000 In clean—up costs.
7. espondent has at all relevant times acted in good faith and
ooperated with EPA in attempts to gauge the extent of pipeline
compressor contamination, and in implementing remedial measures.
8. espondenc has voluntarily instituted remedial measures Including
testing, draining, and other decontamination measures to remove
CBs from its gas pipeline compressors.
TSC CA p1iance/ fOtCanent A-144 Guidance P nua1 1954
-------
Appendix Sett1. .iiit with Conditione
—3—
Conclusions of Law
By reason of the facts set forth In the “Findings of Fact,”
it is concluded that repondent has violated Section l5(l)(C)
of TSCA, 15 U.S.C. §2614(1)(C), by falling to comply with a
rule Issued under Section 6 of ISCA, 15 U.S.C. §2605: 40 C.F.R.
Part 761, which prohibits the use of PCBs In an other than
totally enclosed manner.
Respondent hereby consents to the Issuance of the following
order, and complainant hereby recommends that the Headquarters
Judicial Officer Issu. the following ord*r:
Order
Pursuant to the authority of Section 16(a) of TSCA, 15 U.S.C.
§2615(a). and upon consideration of: the “Findings of Fact”
and “Conclusions of Law” contained in the consent agreement;
the factors expressed In Section 16(a)(Z)(B) of ISCA; PCB
Penalty Policy” £45 Fed. Reg. 59,770 (1980)) It Is hereby
ORDERED that:
Respondent Is assessed a civil penalty in the amount of Sl58,800,
payable to the Treasurer. United States of America. Such payment
shall be made by forwarding to the Hearing Clerk (A-lOl), Environ-
mental Protection Agency, Washington, D.C. 20460, a cashier’s or
certified check in the amount of the penalty assessed In this
order. Payment shill be made within sixty (60) days of receipt of
this consent agreement and final ord.r. However, if agreed to by
the parties, payment of the civil penalty may be deferred until
sixty (60) days after the receipt of an order of remittance or order
of nonremittance.
(Signature
of
respondent)
(Signature
of
complainant)
Date: ________________At:
TSC& O 1ianc.(&sforc’ ent A—145 Guidance ? nñaI 1984
-------
Appendix Ssttl..nt iiith Coa itioua
-4-
It Is so ordered. This order shall become effective immediately.
Slonature of Headquarters JudIcia’ Officer)
ijud(cial Officert
Date: ____________________ At: _____________
t or Regional Administrator
TSCA Oosip1iance1 flfOrCe.eflt A-i 46 Guidance ) nua1 1984
-------
Appendix S.tt1 flt with Conditions
—5-
SAMPLE REMITTANCE AGREEMENT
Introduction
On ( date of consent agreement and final order) • Louisiana
Western Transmission Corporation was assessed a penalty of S158,800
by administrative consent agreement and final order for violations
of tile Toxic Substances Control Act (ISCA). Pursuant to 40 C.F.R.
22.31(b), Respondent and EPA agree to defer payment of tile
assessed penalty’ until issuance of a remittance or nonremittance
order. The Environmental Protection Agency agrees to remit all’
of the penalty If the actions described in the attached Compliance
Program and Schedule are completed by the date specified in the
schedule.
Louisiana Western Transmission Corporation
New Orleans, Louisiana
Respondent
Dated: _______________________ At: _______________________________
Administrator, EPA, or delegatee
* If only part of the pena’ty is to be deferred, the agreement
should indicate the amount of tile penalty to be deferred. This
will be equal to tile amount which may be deleted if the compliance
program and schedule are adhered to by the Respondent.
1anceF torc at A-147 Guidance *nual 1984
-------
Appendix Sett1 nt with Conditions
-6-
COMPLIANCE PROGRAM AND SCHEOULE
Final Compliance
It is the goal of this Compliance Schedule to bring all natural
gas pipeline compressors operated by Louisiana Western Into final
compliance within eighteen (18) months of the effective date of
this Agreement. A compressor will be deemed to be In compliance
when the PCB level In the compressor is less than SO ppm. This
determination shall be based on analytical tests of the compressor
lubricating oil sampled after the compressor has been In operation
a minimum of sIx (6) months after the last decontamination of the
compressor.
Respondent will achieve final compliance with this compliance
Program and Schedule by the agreed date. When EPA has determined
that compliance Is satisfactory, the Agency will write a letter
to Louisiana Western remitting the unpaid portion of the penalty.
If compliance is not satisfactory, EPA will notify the Respondent
that the penalty Is due and payable within sIxty days.
Interim Milestones
1. Initial Test1n : In order to determine which compressors
must be decontaminated, Respondent shall test each natural gas
pipeline compressor operated by Respondent which ever contained
PCBs as indicated by the June 12, 1981 letter. The Initial testing
shall be conducted by Respondent within thirty (30) days of the
effective date of this Agreement. For purposes of this initial
testing, tests conducted on these compressors within six (6)
months prior to the effective date of this Agreement shall meet the
TSCA Conp1iancefEnfotC eflt A..148 Guidance ) nua1 1984
-------
Appendix Sett1 t with Conditions
—1—
requirements of this Part. Any compressor(s) which have been
decontaminated within the six (6) months prior to the effective
date of this Agreement will automatically be included In this
program until it Is shown that these compressor(s) meet the
requirement for final compliance in Part 1.
2. SamplIng and Analysis : Sampling shall be conducted by
Respondent using EPA-approved sampling procedures. tnformation
on sampling developed by EPA and provided to Louisiana Western
as part of the EPA/natural gas industry cooperative sampling
progra. shall serve as guidance for this sampling.
To allow for comparison of analytical results, Respondent
shafl prepar . a Sampling Plan which specifies sample volume, method
of collection, and sample handling procedures. The Sampling Plan
shall set forth (a) the location of each compressor covered by
this agreement and (b) the specific sampling point(s) on each
compressor to be sampled during each sampling required under this
agreement. All samples collected under this agreement shall be
collected from the same sampling point(s) chosen by Respondent
in its Sampling Plan. Louisiana Western shall prepare this Sampling
Plan within thirty (30) days of the effective date of this Agreement
and supply a copy of this Sampling Plan to EPA within sixty (60) days
of the effective date of this Agreement.
Samples shall be analyzed Dy Louisiana Western using the EPA
ietPtodology set forth In the EPA document entitled Analysis of
PCBs in Transformer Fluid and Waste Oil” which EPA supplied to
* Each sample shall be collected using a separate sampling device,
such as a glass tube, pipette, or metal dipper, to avoid cross—
contamination of samples. Sample containers shell consist of clean
glass bottles with teflon lined lids, metal containers or equivalent.
TSCA CpUanceI fo c nt A- lA 9 Guidance P nuai 19S4
-------
Alpendix Sett1 wit with Conditiona
-8-
Louisiana Western during the EPA/natural gas industry cooperative
sampling program. On—going quality control including analysis
of blank sample containers, dupHcates, and spiked samples shall
be conducted as outlined In the laboratory quality assurance
guidance provided to Respondent by EPA during the EPA/natural
gas industry cooperative sampling program, and in the method of
analysis specified above.
EPA shall Supply Respondent with reasonable technical
assistance on sampling and analytical techniques when requested by
Respondent for the purpose of complying with this Agreement.
3. Decontamination : Within one hundred and twenty (120) days
of the effective date of this Agreement, Respondent shall decon-
taminate each compressor found to contain PCB concentrations of 50
ppm or greater, as determined by testing conducted in accordance
with Part 2. Respondent shall decontaminate each compressor
round to contain 50 ppm or greater PCBs by thoroughly draining the
C8 contaminated oil from the compressor and refilling the compressor
with non—PCB lubricatIng oil.
After the initial decontamination, each compressor still found
to contain 50 ppm or greater PCSs, as determined In accordance
with Part 1, shall be decontaminated within one hundred and twenty
120) days of the date of Respondent’s receipt of the laboratory
report Indicating such PCB levels in the subject compressor. All
PC3s removed during decontamination operations shall be handled,
stored, and disposed of In accordance with the PCB Rule.
TSCA Co.pliancefEnforce.ent A-150 Guidance ) nua1 1984
-------
Appendix Setti *nt with Conditiona
4. Asssssm.nt pf Decontamination : Respondent shall
sample and test oil from each compressor decontaminated In accor-
dance with Part 4 above after the unit has been In operation for
a minimum of sIxty (60) days after decontamination.
5. DeterminatIon of Co liance : If after a minimum of Sixty
(60) days of operation PCS livels remain below 50 ppm, each
compressor shill be tested again after six (6) months of operation.
If after six (6) months of operation since the last decontamination,
PCB levels remain below SO ppm, units shall be considered to be in
compliance as stated in Part 1.
6. AddItional Decontamination : If results of testing after
decontamination and sIxty (60) days or six (6) months of operation
show PCB lsvels of 50 ppm or greater, the compressor(s) shall be
decontaminated again In accordance with Part 4. Parts 4 through 7
shall be rep•ated until each compressor Is deemed to be In final
compliance.
Timetable
Louisiana Western agrees to comply with this Agreement
within the time frames summarized below. Times in the following
schedule are times from the effective date of this Agreement
and all days referred to in this Agreement are calendar days.
I. Complete Sampling Plan: Thirty (30) days
2. InItial T.st$ng: Thirty (30) days or on
the basis of tests conducted
within the six (6 months
prior to the effective date
of this Agreement
T- C& A-].51 Guid sce 1 nua1 1984
-------
Appendix Sett1 t with Conditions
- 10 -
3. Decontaminate Compressors: One hundred and twenty (120)
days
4. Assess Decontamination: After a minimum of sixty (60)
days of operation, and after
sIx (6) months of operation
when sixty (&O) day result is
less than 50 ppm
5. AdditIonal Decontamination: Implemented within one
hundred and twenty (120)
days of test result showing
PCB concentrations of 50 ppm
or greater
6. Reports:
o InItial Report Sixty (60) days
o Status reports Every one hundred and twenty
(120) days after previous
report.
o FInal compliance report Thirty (30) days after
final compliance is achieved
for all units.
7. Final Compliance Target Date: Eighteen (18) months
Monitoring
Louisiana Western shall prepare an initial report including the
Sampling Plan developed under Part 3, inItial compressor PCB levels
as determined through testing conducted in accordance with Part 2,
and a tentative compressor decontamination schedule. The initial
report shall be submitted to EPA within sixty (60) days of the date
of this Agreement.
Louisiana Western shall also provide EPA with periodic status
reports on the progress of this decontamination program as set
forth below. Each status report shall contain: (a) a list of
testing results; (b) the date each compressor subject to this
program was csecontanilflated; (c) the amount of PCB liquid resulting
from decontamination Procedures which was stored and/or disposed of;
TSC& p1iance [ forc ent A-i 52 - Cuidaflce 1 nua1 1984
-------
A ppendix Ssttl*nt with condttions
— 11 —
Cd) the location of the storage and/or disposal facility or facilities;
Ce) the amount of non-PCB liquids added to each compressor, and (f)
other pertinent information which will allow the Agency to evaluate
the progress of decontamination activities.
These status reports shall be sent to EPA every one hundred
anu twenty (120) days until final compliance is achieved. The
final report should indicat, that all compressors subject to this
agreement contain PCB concentrations of less than 50 ppm after
being In operation for a minimum of sIx (6) months subsequent to
the last decontamination. Reports shall b. sent to:
A. E. Conroy U, Director
Compliance Monitoring Staff
Office of Pesticides and T x1c Substances
U. S. EPA EN—342
401 M Street, S.W.
Washington, D.C. 20460
Inspectors from EPA may visit Louisiana Western facilities
at any time to exercise the Agency’s rights under section 11 of
ISCA and to inspect facilities and records to determine compliance
with this consent agreement.
Notification of Technical or Operational Difficulties :
tf technical or operational difficulties will make It impos-
stble for Louisiana Western to meet any of the deadlines In the
Compliance Schedule, Loulsana Western will Immediately notify EPA.
Technical Assi stance
EPA shall provide reasonable technical assistance to Louisiana
Western on questions concerning SuCh matters as sampling and analytical
procedures, and acceptable disposal options, for the purpose of
complying with this Agreement.
SCA spl 1 anceFWorc ent A-i 53 Guidance P nua1 1984
-------
Appendix Sett1e nt with Condition8
— 12
Amendments
Upon mutual consent of EPA and Louisiana Western, this Agreement
may be amended at any time to modify or add technical and operational
requirements (Such as, but not limited to, deadline modifications
necessitated by technical or operational difficulties) for the purpose
of achieving compliance by Louisiana Western with the PCB rule. Any
changes and/Or amendments to this Agreement shall be Incorporated into
this Agreement when the amendment(s) have been signed by authorized
representatives of EPA and Respondent.
If after complying with toe scnedule set forth on pp. 5 and
(or any subsequently agreed to schedules) of this Agreement,
Louisiana Western finds that gas pipeline compressors still
contain concentrations of 50 ppm or greater PCBs on the final
compliance target date, EPA and Louisiana Western will evaluate
options and select one for resolving this problem. That approach,
including an agreed upon revised Compliance Schedule, will be
4 ncorporated into this Agreement which shall remain in effect
until final compliance is achieved.
Enforcement
WPii le this agreement is in effect. EPA shall not initiate
additional enforcement action against Louisiana Western for use of
:nose gas pipeline compressors which are the subject of this Agree-
ment ano which may contain 50 ppm or greater PCBs. In the event that
Louisiana Western fails to meet the requirements of this agreement.
EPA may issue a Notice of Reinstatement of Penalty nullifying this
Agreement and reinstating the penalty proposed in the Complaint and
Assessed by the Final Order.
TSCA Co.p1iance/Euforc ent A-i 54 G dance Manual 1984
-------
Appendix Sett1m miit with Condittona
13 —
This agreement does not insulate Louisiana Western from com-
pliance monitoring and enforcement actions for TSCA violations not
addressed by this Agreement nor fro. enforcement actions under other
laws administered by EPA, nor under laws administered by state or
local envlron..ntal authorities.
This agreement does not limit or affect the rights of the
Louisiana Wsstern or the United States as against any third parties.
Disputs Resolution
Should disputes arise between Louisiana Western and EPA
concerning compliance with the agreement, the parties may resolve
the dispute by arbitration. EPA and the Respondent may submit
disputes of technical Issues to Dr. Alpha Roaso of the Tulane
University Electric Engineering D.part..nt for arbitration.
Quality Assurance
The laboratory performing analysis of the samples will
participate in the Southeastern Regional PC8 Quality Assurance
Program administered by the Southeastern Chemists Society.
Confidentiality of Documents
The Louisiana Western may claim that any reports submitted
to EPA are confidential busi,ess Information. The Louisiana
Western waives this right.
? sc& A—i 5 i - Guidance Pbnual 1984
-------
Appendix Sett]. nt with Conditions
— 14 -
Louisiana Western Corporation
719 S. Carroilton Avenue
New Orleans, Louisiana 71301
RE: Remittance Order
Dear Mr.
This remittance order is Issued pursuant to section 15(a)(2)(C)
of the Toxic Substances Control (ISCA), which permits the Adminis-
trator to “compromise, modify, or remit, with or without conditions,
any civil penalty.N
On July 6, 1983, Louisiana Western was assessed by final
order a penalty of $158,800. On July 6, 1983, LouisIana Western
and EPA entered into a remittance a r*ement under which EPA
agreed to remit $158,800 of the penalty on condition that
Louisiana Western performs trt. i tivities described in the
agreement.
On May 2, 1984, EPA determined that Louisiana Western met
all the conditions for remittance. By completion of these
conditions. LWC has fully satisfied its obligations pursuant
to the Consent Agreement and Final Order dated July 6, 1983. The
Agency therefore remits $158,800 the penalty.
William D. Ruckelshaus*
Admi ni strator
nr delegate
TSCA Co p1i ceI fOrC eflt A-i 56 Guid ce nua1 1984
-------
Appendix Sett1 ”t with CoMttiona
Louisiana Western
719 S. Carroliton Avenue
Mew Orleans, Louisiana 71301
RE: Nonre.ittance Order
Dear Mr.
This nonremittance order is Issued pursuant to section
16(.)(2)(C) of the Toxic Substances Control Act (TSCA) which
permits the Administrator to ‘compromise, modify or remit,
with or without conditions, any civil penalty.’
On July 6, 1982. LouisIana Western was assessed by consent
order a penalty of $158,800. On July 6, 1983, Louisiana Western
and EPA entered into a remittance agreement under which EPA agreed
to remit $158,800 of the penalty on condition that Loulsian Western
performed the activities referenced in the agreement.
On May 2, 1983, EPA determined that Louisiana Western has not
met all the conditions for remittance. Specifically, Louisiana
Western hai fallen six weeks behind Its interim deadlines in the
Compliance Program and Schedule and has not notified the Agency
of any technical or operational difficulties.
The Agency, therefore, will not remit any portion of the penalty.
The deferred amount of the penalty, $158,800 is due in sixty days.
Payment may be made by certified check payable to the United States
of America to the Hearing Clerk (A—lOl), Environmental Protection
Agency, Washington. D.C. 20460.
William D. Ruckelshaus, Administrator
Environmental Protection Agency
TSC& ( pUance(Emtorc ”t A—i 57 Guidance 1 nua1 1984
-------
Appendix Sett1 ut vith Conditione
APPENDIX C
Penalty Remittance Worksheet
Supplement to Penalty Calculation
__________________ Assessed penalty Liustl fi cation)
— Amount due 1mmed 1 1
_________________ Amount deferred
________________ Cost of compliance
________________ Cost of additional conditions
________________ Total Cost of Performance under CPS
________________ Amount remitted at the end of the deferral period
_________________ Total amount paid to the Agency
TSCA Co*p1iancefEnforce. ent A—i 58 Guidance 1 nua1 1984
-------
Appendix
SettF- ”t with Coisditiona
Final Compliance Target
Date
APPENDIX D
CPS Nonitoring Sheet
Performance Reaulrement
Date
Due
Date
Comoleted
Submit Sampling Plan
to the Agency for
9/3/82
9/3/82
Plan was satisfactory;
It listed ten facfll-
ties in four states
and a realistic plan
for sampling.
Initial Testing
9/3/82
9/9/82
Testing reports were
sIx days late but
otherwise satisfactory.
The sl days late will
have no major Impact
on_the_CPS.
Decontaminate Compressors
12/3/83
12/17/83
Respondent reported
that an unseasonable
ice storm had isolated
facility In Kentucky
causing the delay. Per-
formance was satisfac-
tory. Other deadlines
will not slip as a
result_of_this_delay.
Assess Decontamination
2/3/83
additional
dates may be
b* scheduled
Interim Reports Schedule
10/3/82
2/3/83
6/3/83
10/3/83
Work progressing.
6/30/83
A—i 59 -
Gidanci flu&1 1 9 S4
-------
Appendix Sett1 nt with Conditions
TSCA Corapliance/Eifforceiient A-160 Guidance ! nua1 1984
-------
Appendix
5 Additional Sources of Corrpliance/
Enforcement Information
The toliowing is a listing of all TSCA compliance/enforcement—related
pu1i ..ies and guidaflces that are currently in effect.
Copies ot these documents may be obtained from Headquarters PTSCMS and
flECM.
TITLE OF DOCUMENT —- - DATE OF DOCUMENT
General Guidance
Consolidated Rules of Practice Governing the Admlnistra— 4/9/80
tive Assessment of Civil Penalties and the Revocation
or Suspension of Permits (45 Fed. Reg. 24,360)
Guidelines for Assessment of Civil Penalties Under 9/10/80
Section If) of the Toxic Substances Control Act; PCB
I e’iaity i oiicy (45 Fed. keg. 59,770)
Technical Guidance
General
Neutral Administrative Inspection Schemes for TSCA 11/7/79
Enlurcement
Use of TSCA Section 11(c) Subpoenas 12/4/79
TSCA Inspection Manual (Supplement: Volume Four: 1980 Edition
Section 5 Inspection Manual) - (September
1981)
TSCA Co liance/&iforce.eat A-16 I Qildance Manual 1984
-------
Appendix Mdition*j. Sources of Cosp1ia cs/Enforcsa.nt Lnfora.atioii
Asbestos
Compliance Strategy for the Friable Asbestos-Containing 6/24/82
Materials in Schools: Identification and Notification
Regulat ton
Model A8bestos in Schools; Cooperative Compliance 9/21/82
Prog ram
Compliance Assistance Guidelines for the Asbestos—In— 12/15/82
Schools Rule
Enforcement Response Policy tot the Friable Asbestos— 7/6/83
Containing Materials in Schools: identification and
Notification Regulation
Dioxin
Dioxin (,nL nnhI1aLed ‘ aste omp1iance Strategy January 1982
Dioxin Contaminated Waste Enforcement Responce Policy 7/6/83
Chiorofluorocarbons
Enforcement Facts and Strategy: Chiorofluorocarbons November 1979
Polychiorirtated iphenyls
Ent• : racts and Strategy; Polychlorinated February 1980
F ipheniEs t B! i
PCB En1orc a. it PDlicy Subsequent to Appellate 10/11/80
Court Opiii-’n einanding Portions of the PCB Regulation”
“New Requi e neiits for PCB Transformers Pursuant to 3/9/81
ppe1Late Court Order”
Enforce nent Facts and Strategy PCB Interim Measures August 1981
Program
Pre—manutacture Notices
“Civil Penalty Cases Involving Use of PCBs in Hydraulic 9/14/81
Systems”
TSCA Compliance/Enforcement A—162 Guidance Manual 1984
-------
Aj ndix t oua1 Sources of Co 1 nCe/Euforce ent Information
Enrorcement Facts and Strategy: Premanufacture August 1980
Notification (PTIN) (Includes strategy, neutral
administrative inspection scheme, and penalty policy.
Document will be revised in response to final PMN
rtgulation.)
Compliance Strategy for the TSCA S5(h)(4) Premanufacture 11/15/83
Notice Exemption for Chemicals Used In or for Instant
Photographic or Peel—Apart Film Articles
Reporting Policies
Inventory Enforcement Strategy 4/25/79
lnventory Penalty Policy 5/23/80
Compliance Strategy for Preliminary Assessment Inforina— 7/22/82
tion Reporting Rule (Level A)
Asbestos Reporting Rule Compliance Strategy 8/22/82
Compliance Strategy for TSCA Section 8(d) 11/21/83
State—Related Guidance
Guidance f or Pilot TSCA Cooperative Enforcement 12/31/80
Agreements
Supplemental Guidance Procedures for State Inspectors 6/19/81
Acting Under the Authority of TSCA Section 11
TSCA Compliance Program Policies
6—PCB—1: Responsibility for Compliance with PCB Rule 3/4/82
6—PCB—2; Distillation, Solvent Extraction, Filtration, 8/16/83
and Other Physical Separation Methods for PCSs
6—PCB--3: Residual PCBs in Processed Liquids and Solids 8/16183
6—PCB—6: Allocation of Enforcement Liability for 8/16/83
Violation of the One—Year Disposal Deadline for PCB
Articles or PCB Containers
b—PCB—7: Reference Date for Violations of the One—Year 8/16/83
Storage for Disposal Deadline for PCB Waste Resulting
from Physical Separation
6—CFC—1: Product Labeling for Both Essential and Non— 8/30 /82
Ess ntia1 CFC Aerosol Propellent Uses
TSC& 1ice/Vafot A16 Q*idanc Manual 1986
-------
4ppend ix Additional Sources of Coupliance/Enforce.pnt Inforaation
Compendium
General Enforcement Policy Compendium 3/3/83
Titles Contained Within Compendium :
“Visitor’s Releases and Hold Harmless Agreements as a 11/8/72
Condition to Entry to EPA Employees on Industrial
Fa c i lit I e 5”
“Professional Obligations of Government Attorneys” 4/19/76
“ morandum of Understanding Between the Department of 6/15/77
Justice and th Environmental Protection Agency”
‘Ex Parte ’ Contacts in EPA Rulemaking” 8/4177
“Conduct of Inspections After th B clow’s Decision” 4/11/79
“Contacts with Deteudants and Potential Defendants in 10/7/81
Enforcement Litigation”
‘Ex Parte ’ Rules Covering Communication which are the 12/10/81
Subject of Formal Adjudicatory Hearings”
“Quantico Guidelines for Participation Litigation” 4/8/82
“Agency Guidelines for Participation In Grand Jury 4/30/82
Investigations”
“Reorganization of the Office of Regional Counsel 5/7/82
(includes Administrator’s Memorandum of September 15,
1981)”
“Coordination of Policy Development and Review” 6/23/52
“General Operating Procedures for EPA’s Civil 7/6/82
Enforcement Pro ram’
“Case Referrals for Civil Litigation” 9/7/82
“Criminal Enforcement Priorities for the Environmental 10/12/82
Protection Agency”
“General Operating Procedures for the CrimInal 10/27/82
Enforcement Program”
“Regional Counsel Reporting Relationship” 8/3/83
“Guidance for Drafting Judicial Consent Decrees” 10/19/83
TSCA Copliance/Enforcement A- 164 QzIdance Manual 1984
-------
Appendix itiooa1 So irces of C IianceIKnforc nt Infor t Ion
lmplementation of Direct Referrals for Civil Cases 11/28/83
Consent Decree Tracking Guidance” 12/16/83
Guidance on Evidence Audit of Case Files” 12/30/83
Additional Sources of TSCA Compliance/Enforcement Information
EPA Delegations of Authority Manual
NELC Policies and Procedures Manual (Multi—Media)
Multi—Media Compliance Audit Inspection Procedures
ISCA Confidential Business Information Security Manual
TSC& Clian eJ mforce.eniT AT 5 Guidance Manual iQ
-------
Appendix Mdition.1 Sources of Cosplisnce/ forc nt Infor.ation
TSCA Conapliance/Enforceaeflt A— 166 Guidance Planual 1984
-------
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1. Environmental Law Handbook,
7th EiflUon
A best-setter in the environmental field.
this remarkably useful Handbook
provides practical and current
information on the major environmental
areas with a chapter each on air pollution,
water pollution, land use, pesticides, toxic
substances, noise, hazardous wastes
(RCRA). OSHA. Superfund. and NEPA.
plus a single chapter on some of the
fundamentals basic to environmental law:
environmental torts, constitutional law,
evidence, defenses, who can sue. civil and
criminal liability.
S» pp^ Hardcover
2. Environmental Statutes, 1984 Edition
All major environmental laws are
incorporated into a single, convenient
book. The complete text of each statute as
currently amended is included with a
detailed Table of Contents for your quick
referral. Contents: Clean Air Act: Federal
Water Pollution Control Act: National
Environmental Policy Act; Noise Control
Act FIFRA, Marine Sanctuaries Act:
Occupational Safety and Health Act:
Resource Conservation and Recovery
Act; Safe Drinking Water Act; Toxic
Substances Control Act; Superfund; and
the Used Oil Recycling Act of 1980
MO pp.. Hardcover
3. 1984 Hazardous Material Spills Con-
ference Proceedings
In these proceedings, all sixty-eight experts
that attended the 1984 Conference explain and
analyze approaches to prevention and cleanup
of hazardous material spills, new technologies
for detecting and monitoring spills and leaks,
and prevention and cleanup training. You will
learn: how to minimize and respond to the
dangers caused by hazardous material spills;
what to do about dioxins, chemical fires, gas
leaks, and contaminated soil and groundwater.
as well as. emergency procedures and safe
evacuation distances
458 pp., Soflcover
4. Ctoan Air Act Handbook
New guide tor cost-effective compliance
with the Clean Air Act. this comprehensive
book provides background on
environmental legislation; an analysis of
the technology of air pollution control: an
overview of the Clean Air Act
Amendments: details on PSD; discussions
of permit requirements and other
preconstruction considerations: plus a
wealth of other details and practical
suggestions to save you time and money.
230pp.
5. Multi-Media Compliance Inspection
Manual: U.S. Environmental Protection
Agency
Pofiution sources may vary in media: air, water.
hazardous waste, and toxic substances So
EPA's Office of Enforcement created a manual
to guide their inspectors in conducting a multi-
media comptance audit inspection of facilities
that result in effluents, emissions, wastes or
materials regulated under several laws such as
the Oean Water Act. dean Air Act. RCRA and
TSCA. Check your own environmental
compliance, avoid wasted time, disruption of
your business, and fines for violation.
195 pp.. Softcover
6. Environmental Audits, 3rd Edition
Identify problem areas and save needless
compliance expenses with this special
manual developed by experienced
environmental professionals. You will get
a step-by-step guide to conducting an
environmental audit of your facility —
including a description of the elements of
a successful program, plus a review of
some typical audit programs and a sample
audit manual with checklists and
questionnaires for the most cost-effective
analysis possible.
240pp.
7. EPAs RCRA Inspection Manual
Developed by EPA to support its inspectors
in conducting the complex field inspections
fundamental to hazardous waste enforce-
ment Now you can better understand what
compliance is expected of you and how you
can most effectively and efficiently comply
wiDi the tew—be/ore the inspector arrives.
Contains information-packed sections
coming the key topics that will help you
eliminate deficiencies and satisfy an
inspection, thereby avoiding civil and
criminal penalties.
300pp.
8. Hazardous Wastes Handbook,
4th Edition
Cut through the confusing red tape
surrounding your industrial wastes. Get
clear, concise answers which take you
step-by-step through the maze of EPA
hazardous wastes regulations — the
largest environmental program ever
undertaken. The Handbook carefully
anaylzes the impact of RCRA on your
business and provides practical
suggestions — in non-legalese language
— on how you x»n cost-effectively and
efficiently comply. This Handbook
contains a comprehensive analysis of the
laws and regulations plus a copy of the
statutes and regulations.
656 pp., 3-ring binder
9. Acid Rain: Planning for the Eighties
This is a practical book which documents
the acid rain problem together with what is
being done to cope with the problem. The
notebook features papers on current
plans, technology options tor utilities and
industry, the legislative and regulatory
considerations, plus copies of key
legislative proposals. Prepared by leading
authorities from the Washington legal
community, EPfll, the National Academy
of Science, the U.S. Congress, Canadian
Government, U.S industry, and the
financial community.
324 pp.
Government Institutes, inc
966 Hungerford Drive. #24
Rockville. MD (Washington, DC) 20850
(301)251-9250
Information and continuing education for the energy & environmental fields
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